IN SERVICE: 10-8
A PEER READ PUBLICATION

inscription on Canada’s Police and Peace Officers’ Memorial, Ottawa

“They Are Our Heroes. We Shall Not Forget Them.”

A newsletter devoted to operational police officers in Canada.

Canadian Police and
Peace Officers’ 41st
Annual Memorial Service
Le 30 septembre 2018
Colline du Parlement
Ottawa (Ontario)

September 30, 2018
Parliament Hill
Ottawa, Ontario

Le 41e service commémoratif
annuel des policiers et des
agents de la paix canadiens

See page 45 for
BC’s Memorial

Be Smart & Stay Safe

Volume 18 Issue 3

Volume 18 Issue 3 - May/June 2018

CAPE 2018

4

No Automatic Right To Speak To Lawyer Again

5

Vague Child Welfare Concern Did Not Justify Entry

7

SFSTs Can Be Used In Regulatory 24-Hour Driving
Prohibition

10

Unless otherwise noted all articles are authored by
Mike Novakowski, MA, LLM. 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 herein
are not necessarily the opinions of the Justice
Institute of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to this
newsletter.

s. 10(a) Has Both Temporal & Informational Elements

12

Upcoming Courses

PPSC & The Decision To Prosecute

18

Advanced Police Training

Facts - Figures - Footnotes

21

Illicit Drug Overdose Deaths In 2018

28

Legally Speaking: Fentanyl

32

Utterance Was Voluntary & Spontaneous: No s. 10(b) Charter
Breach

35

Inducement By Itself Does Not Render Statement
Involuntary

36

Facial Error Should Have Been Noticed: Warrant
Invalidated

46

Police Need Not Exhaust All Investigative Avenues
Before Making Arrest

51

Highlights In This Issue

Advanced training provides opportunities for skill
development and career enhancement for police
officers. Training is offered in the areas of
investigation, patrol operations and leadership for
in-service municipal and RCMP police officers.

JIBC Police Academy
See Course List here.

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.
PAGE 2

UNITED NATIONS
INTERNATIONAL
DAY AGAINST
DRUG ABUSE &
ILLICIT
TRAFFICKING

June 26, 2018

Volume 18 Issue 3 - May/June 2018Volume 18 Issue 3 - May/June 2018
Improving professional learning: twelve strategies
to enhance performance.
Alan B. Knox, foreword by Ronald M. Cervero.
Sterling: Stylus Publishing, LLC, 2016.
LC 1059 K66 2016

WHAT’S NEW FOR POLICE IN
THE LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of its
recent acquisitions which may be of interest to
police.

The bully-proof workplace: essential strategies,
tips, and scripts for dealing with the office
sociopath.
Peter J. Dean, MS, PhD, & Molly D. Shepard, MS,
MSM.
New York : McGraw-Hill, Education, 2017.
HF 5549.5 E43 D426 2017
Busted: an illustrated history of drug prohibition
in Canada.
Susan Boyd.
Winnipeg: Fernwood Publishing, 2017.
HV 5840 C2 B69 2017
Collisions in the digital paradigm: law and rulemaking in the internet age.
David Harvey.
Oxford; Portand: Hart Publishing, 2017.
K 4240 H36 2017
Ctrl + Z: the right to be forgotten.
Meg Leta Jones.
New York; London: New York University Press, 2016.
K 3264 C65 J66 2016
Cyber frauds, scams and their victims.
Mark Button & Cassandra Cross.
London; New York: Routledge, Taylor & Francis
Group, 2017.
HV 6773 B87 2017
The dynamics of criminological research.
Jennifer Schulenberg.
Don Mills: Oxford University Press, 2016.
HV 6024.5 S383 2016

In an unspoken voice: how the body releases
trauma and restores goodness
Peter A. Levine ; foreword by Gabor Maté.
Berkeley: North Atlantic Books, 2010.
RC 552 T7 L483 2010
The learner-centered curriculum: design and
implementation.
Roxanne Cullen, Michael Harris, Reinhold R. Hill;
Maryellen Weimer, Consulting Editor.
San Francisco: Jossey-Bass, 2012.
LB 2361.5 C85 2012
Local government in Canada.
C. Richard Tindal, Susan Nobes Tindal, Kennedy
Stewart & Patrick J. Smith.
Toronto: Nelson Education, 2017
JS 1709 T55 2016
Open source leadership: reinventing management
when there's no more business as usual.
Rajeev Peshawaria.
New York: McGraw-Hill Education, 2018.
HD 57.7 P469 2018

Out of our minds: the power of being creative.
Sir Ken Robinson, PhD.
West Sussex: Capstone, a Wiley brand, 2017.
BF 408 R635 2017
Streetdrugs: a drug identification guide.
Long Lake: Publishers Group West, 2018.
RM 316 S775 2018
Successful manager's handbook: develop
yourself, coach others.
Susan H. Gebelein [and others] and the consultants
of PDI Ninth House.
Minneapolis: PDI Ninth House; Roswell: PreVisor,
2010.
HD 58.9 S833 2010

PAGE 3

Volume 18 Issue 3 - May/June 2018

CAPE 2018
Canadian Association of Police Educators

PRACADEMICS:
Bridging the Gap Between Academia & Police Training

June 25-29, 2018
www.cape-educators.ca

Pacific Region Training Centre
Chilliwack, British Columbia

More info on p. 34

PAGE 4

Volume 18 Issue 3 - May/June 2018

NO AUTOMATIC RIGHT TO
SPEAK TO LAWYER AGAIN
R. v. Watson, 2018 BCCA 74
British Columbia (BC) police were
informed by United States (US)
investigators that pornographic
images had been uploaded to a
Microsoft storage service by a user
associated with a BC address. BC police then
sought and obtained a warrant to search the BC
address associated with the uploads. The accused
was home when the police arrived and executed
the warrant. BC police seized 49 exhibits including
a USB containing 663 suspected child pornography
images. Three weeks later the accused was arrested
at his home. By then, he had already retained a
lawyer.
After being informed of the charges, the
accused immediately told police he
wanted to speak to his lawyer.
Nevertheless, the police gave him the
standard
 Charter
 advice and warning.
He was transported to the police station
where he spoke to a lawyer. After he
spoke to a lawyer, the accused was
interviewed, for about four hours.
Before commencing the interview, the
officer confirmed that the accused had
spoken to his lawyer and understood
the advice he had been given. Part way
through the interview, the accused asked to speak
to his lawyer again but the request was denied
because he had already spoken to his lawyer. The
accused stated that his lawyer had told him not to
discuss anything with the police. The police officer
told him “that was fine” but the police officer
would continue talking.
During the interview, the accused asserted his right
to silence a number of times and said his lawyer
had told him not to discuss anything with the
police. He said he knew that anything he said
could be used against him. In the course of the
interview the accused made several admissions,
including:

• He was the owner and only user of the computer
the police had seized;
• On the morning of the search he had been
looking at pictures on a USB the police had
found inserted into his computer desktop tower;
• He knew the images he collected were illegal
but that he could not stop himself from looking
at them; and
• He agreed with the police officer that the only
reason to keep such a collection was for sexual
gratification.
The interview was audio and video taped,

British Columbia Provincial Court
The judge found, among other things,
that the accused’s statement was
admissible. First, the judge found the
statement was freely and voluntarily
given. There was no atmosphere of oppression
during the interview nor were any inducements
made. The accused was articulate, understood his
right to remain silent and had an operating mind at
the time he made his statement. Second, the judge
found there was no s. 10(b) Charter breach. Even
though the accused had expressed a wish to speak
with counsel again part way through the interview,
he had a right to do so only if there were changed
circumstances resulting from new procedures, a
change in the jeopardy he faced, or a reason to
believe that the first information that he had
received was deficient. Since none of these factors
arose, the judge concluded the police complied
with s. 10(b). The accused was convicted of
possessing child pornography.

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Volume 18 Issue 3 - May/June 2018

British Columbia Court of Appeal

Renewed Right to Counsel Revisited

The accused appealed his
conviction arguing, among
other things, that the trial judge
erred in admitting his
statement. Justice Saunders, speaking for the
unanimous Appeal Court, disagreed.
The accused’s statement was voluntary and did not
breach s. 7. The interview was not oppressive.
None of the officer’s statements were coercive,
threatening, or offered an inducement. Nor was the
accused confused about the subject matter of the
interview.

Detainees should be given an opportunity to
speak to a lawyer again where there is a change
in circumstances (R. v. Sinclair, 2010 SCC 35)
such as:
1. New “non-routine” procedures involving the
detainee which do not generally fall within the
expectation of the advising lawyer at the time
of the initial consultation (eg. participation in a
physical lineup or polygraph).

 Recording arrestee's voice during interview
for later voice comparison is not a new
“non-routine” procedure (R. v. Wu, 2010 ABCA

With respect to s. 10(b), the Court of Appeal found
there were no changes in circumstances as
described by the Supreme Court of Canada in R. v.
Sinclair, 2010 SCC 35, such that the police were
obligated to provide the accused with a reasonable
opportunity to consult counsel again. Justice
Saunders stated:



 Participating in a re-enactment is not a new
“non-routine” procedure. A re-enactment is
nothing more than a statement by conduct
(R. v. Ashmore, 2011 BCCA 18 leave to appeal to
SCC refused, [2011] SCCA No 280).

2. A change in the jeopardy facing the detainee
(the investigation takes a new and more serious
turn as events unfold)

[T]here were no
new procedures involving [the
accused]; no change to the jeopardy he was
facing; and no reason to believe that [the
accused] had not understood his initial legal
advice. In particular, the judge’s conclusion that
[the accused] understood his right to remain
silent throughout the interview negates his
submission of confusion; no additional charges
were layered into the interview that were not
first mentioned to him at its beginning; no
further investigative methods or other matters
were employed that would have engaged his
right to consult a lawyer again. [para. 15]


 The gradual or progressive revelation of
incriminating evidence does not, without
more, give rise to a renewed right to
counsel. (R. v. Ashmore, 2011 BCCA 18 leave to
appeal to SCC refused, [2011] SCCA No 280).

The trial judge did not err in admitting the
accused’s statement and his appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

337).


 The police practice of disclosing
information, be it true or false, to
encourage a detainee to talk does not,
without more, re-trigger s. 10(b) rights (R. v.
Ashmore, 2011 BCCA 18 leave to appeal to SCC
refused, [2011] SCCA No 280).

3. There is reason to question the detainee’s
understanding of their s. 10(b) right to counsel.

“[T]here were no new procedures involving [the accused]; no change to the jeopardy he
was facing; and no reason to believe that [he] had not understood his initial legal
advice ...; no additional charges were layered into the interview that were not first
mentioned to him at its beginning; no further investigative methods or other matters were
employed that would have engaged his right to consult a lawyer again.”
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Volume 18 Issue 3 - May/June 2018

VAGUE CHILD WELFARE
CONCERN DID NOT JUSTIFY
ENTRY
R. v. McMahon, 2018 SKCA 26,
Police received information from a
Mobile Crisis Unit (MCU) about an
anonymous tip the Unit received
concerning the well-being of the
accused’s children. The tipster stated
that the children were not being properly fed and
the home had poor living conditions. The MCU
requested the RCMP to “go and just take a look,
find out what things were like and report back to
them”. Two officers, a corporal and a constable,
attended the accused’s home. When they pulled
into the yard, the accused exited her house and
greeted the officers. The corporal told the accused
about the anonymous tip and the purpose for the
police visit. The accused asked for a few moments
to “clean up” her home before police entered. This
request was denied, the corporal explaining it
would be inconsistent with the purpose of a spot
check.
The accused then turned, opened the door, and
entered her residence. Both officers followed her
inside and, when they entered, detected the odour
of burnt marihuana. The officers walked up the
entrance stairs to an open living room and kitchen
area where they encountered two other adults and
three young children. Police noticed a mason jar
containing marihuana bud on top of a microwave
stand. The adults, including the accused, were
immediately arrested for possessing a controlled
substance and the children taken into care. In the
course of retrieving a pair of socks for one of the
children, police noticed a number of marihuana
plants in a separate room in the basement. The
residence was secured and a warrant obtained to
search the accused’s home and out-buildings. Upon
executing the warrant, police seized
191
 marihuana plants. The accused was charged
with unlawfully producing marihuana, possessing it
for the purpose of trafficking, and unlawful storage
of a firearm.

Saskatchewan Provincial Court
The officer testified the reason for
entering the accused’s house was to
check on the welfare of the children and
the conditions of the home. It also was
revealed that the occurrence report generated by
police dispatch had referenced possible “drug use”
in relation to the accused but this “drug use”
allegation had not found its way into the search
warrant’s information to obtain (ITO).
The judge went on to find that the police breached
the accused’s s. 8 Charter rights. In his view, the
police were present at the accused’s home
 merely
to
 inquire
 into the well-being of the children and
the anonymous tip to MCU did not constitute
reasonable grounds to enter the home. Although
the police were entitled to approach the house
under the implied licence doctrine and ask the
accused questions, the police exceeded its scope
when they entered the home.
This warrantless entry was presumptively
unreasonable, a presumption the Crown failed to
rebut. First, the judge found the accused had not
consented to the entry of her home. Second, the
police were not acting under their common law
duty to protect life and safety; the police did not
believe that the lives or safety of the children were
in danger. Rather, the corporal was only acting on a
va g u e a n d a n o ny m o u s t i p . Th e o f f i c e r ’s
observations made in the course of the police entry
were excised from the ITO and, without them, the
warrant should not have been issued. The
warrantless, non-consensual, non-urgent search of

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Volume 18 Issue 3 - May/June 2018

the accused’s residence was unreasonable. The
judge went on to exclude the evidence under s.
24(2) and dismissed all charges.

Saskatchewan Court of Appeal
The Crown appealed the trial
judge’s ruling arguing he erred
in his analysis of the police
officers’ authority to enter the
a c c u s e d ’s h o m e .
 I n t h e
Crown’s view, there were three legitimate basis’ for
police entry: (1) Manitoba’s Child and Family
Services Act (CFSA); (2) consent; and (3) the
common law police duty to preserve peace,
prevent crime and protect life and safety.

MANITOBA’s CFSA
The Crown submitted that the duty to investigate
imposed on police under the CFSA implicitly
authorized entry into a private dwelling, without
judicial authorization, in order to investigate
whether the children in the home were in need of
protection. In the Crown’s opinion, a warrantless
entry in a non-emergency situation is an implied
and necessary off-shoot of the “duty to investigate”
imposed by
s.
13. Or, in the alternative, the Crown
suggested s. 13.1 implicitly authorized police entry
when a parent does not expressly refuse entry.

The Court of Appeal considered several CFSA
sections.
• Under s. 13, an officer
is obligated to investigate
information they receive if, in the opinion of the
officer,
 reasonable grounds exists to believe that
a child is in need of protection.
• Section 13.1 authorizes entry into a private
dwelling with a warrant provided, among other
things, an officer has reasonable grounds to
believe that a child
may
be in need of protection
and a person refuses to give the peace officer
access to the child.
• Section 17 authorizes a warrantless intervention
on an exigent basis provided the officer has
reasonable and probable grounds to believe that
a child is both in need of protection
 and
 at risk
of serious harm.

• The apprehension of a child by police is an
interim, highly-intrusive measure that is
disruptive to the parent/child relationship and
considered a remedy of last resort.
• There was nothing in the
 CFSA
 that expressly
authorizes an officer to enter a private dwelling
for the purpose of conducting an investigation.
Even if the Crown’s argument that the s.
13 duty on
officers to investigate a child protection concern
implicitly authorized entry, the officer would first
need to be of the opinion that there
were
 reasonable grounds
 to believe that a
child
was
in need of protection. Here, however, the
corporal did not subjectively believe the accused’s
children were in need of protection. “At no place
in her testimony did [the corporal] identify the
basis or foundation for her belief that [the
accused’s] children were in need of protection,
apart from reference to the anonymous tip (which
incidentally alluded to the presence of drugs),”
said Justice Schwann, authoring the Court of
Appeal’s opinion. “In her mind, the ‘check’ was
required to firstly determine
 if
 the children were
in need of protection. At no point did [she]
articulate any discernible fact(s) that she relied on
to support a basis to believe the children were in
need of protection, apart from the anonymous
tip.” Further, even if the corporal possessed a
subjective belief, it was not objectively reasonable.
“ Th e r e wa s s i m p l y n o e v i d e n c e o f a ny
confirmatory investigation having been done by
Mobile Crisis or, for that matter, [the corporal] to
substantiate the reliability of the information
provided by the anonymous source,” said Justice
Schwann.
The trial judge did not err in concluding that the
officer did not subjectively believe the accused’s
children were in need of protection or that any
subjective belief would not have been objectively
reasonable. Without reasonable grounds, s. 13 was
not engaged and therefore there was no
corresponding statutory duty imposed on police to
investigate. This undermined any “implied power of
entry” and there was no need for the Court of
Appeal to determine whether the duty to investigate
under
 s. 13
 impliedly authorized entry into a
private dwelling without warrant.

PAGE 8

Volume 18 Issue 3 - May/June 2018

CONSENT
The Crown contended that the accused’s actions
indicated that she waived her right to privacy and
consented to police entry. First, the Crown
suggested that since the accused did not actually
refuse police entry, the police had an implied right
to enter her home in pursuit of its child protection
mandate. Second, the Crown opined that the
criminal law informational components for consent
did not apply in child protection cases. In its view,
a less robust consent standard was warranted in
child protection investigations. But the Court of
appeal disagreed. “Criminal protections for an
accused person must [not] be watered down or
eschewed entirely simply because the impugned
police action arose in a broad, unsubstantiated
child protection context,” said Justice Schwann,
describing a valid consent as follows:
[F]or consent to be valid, at a minimum, two
requirements are necessary: the consent must
be voluntary and it must be informed. To be
informed, individuals must have the requisite
informational foundation to make their choice
meaningful. This has been interpreted to mean
that an individual must be made aware of his or
her right to refuse consent, otherwise the
consent is not voluntary. To be voluntary, the
person must have a choice. [para. 83]

In this case, the trial judge found no evidence of a
valid consent and the evidence amply supported
this conclusion. The police did not take any steps to
inform the accused of her right to refuse police
entry or of their ability to get a warrant under
 s.
13.1 of the
CFSA
if she refused.
Although the accused was informed about the
anonymous tip and the reason for police presence
(to conduct a spot check on her house and
children), the police made no effort to explain their
authority under the
 CFSA, or to identify the
accused’s right to refuse police entry without a
warrant. Neither was she made aware of the
potential consequences of her choice. ”The onus
was on the Crown to demonstrate that [the
accused’s] consent was both voluntary and
informed,” said Justice Schwann. “Knowledge of

the options open to her and an appreciation of the
consequences are essential components for a valid
consent.” The Crown had failed to meet this onus.

COMMON LAW DUTY
The Crown maintained that the common law police
duty to preserve peace, prevent crime and protect
life and safety authorized a forced entry. A
warrantless entry can sometimes be authorized
under the police common law duty to protect life
and property provided the entry amounts to a
justifiable use of police powers. This analysis
requires a consideration of whether the entry was
necessary in the circumstances and there were no
less intrusive means available. After reviewing the
case law concerning the police common law
power to enter a residence to protect a person’s life
or safety, the Court of Appeal noted two important
points. “First, the police duty to protect life is only
engaged when it can be inferred that someone is
or may be in some distress,” said Justice Schwann.
“Second, the duty to protect life only justifies
warrantless entry where the police reasonably
believe the life or safety of someone in the home is
in danger and the exercise of the power is both
reasonable and necessary.”
In this case, the Court of Appeal agreed with the
trial judge that the forced entry was not justified.
There was no evidence the children were in
distress, nor did the corporal personally
 think the
children were in danger or that their lives or safety
were a pressing concern. Rather, the police were
on a fact-finding mission (investigating) for MCU to
determine whether there was any validity to the
anonymous tip. Since they did not have reasonable
grounds to believe the children were in distress,
entry into the home was not necessary.
Furthermore, there were other less intrusive
measures other than entry available to the police,
such as reporting back to the MCU or seeking a
warrant.
The trial judge’s decision to exclude the evidence
was upheld and the Crown’s appeal was dismissed.
Complete case available at www.canlii.org

PAGE 9

Volume 18 Issue 3 - May/June 2018

SFSTs CAN BE USED IN
REGULATORY 24-HOUR
DRIVING PROIBITION
Kumar v. British Columbia (Attorney General),
2018 BCCA 134
At about 11:30 pm a police officer
stopped a truck after observing it
straddling the fog line and make a
wide left turn into the number two
lane rather than the number one
lane. When the vehicle was stopped, the officer
smelled freshly burnt marijuana on the driver and
in the cabin of the truck. The driver had a history of
dug possession and, when the occupants were
arrested, the officer found rolling papers and
marihuana. From his observations at roadside, the
officer suspected that the driver’s ability to operate
a motor vehicle was impaired by drugs. Another
officer trained in Standard Field Sobriety Tests
(SFSTs), otherwise known as physical coordination
tests, was called to the stop to administer these
tests. The driver failed all three tests.

BY THE BOOK:
s. 215(3) BC’s Motor Vehicle Act
s. 215(3) A peace officer may, at any time or
place on a highway or industrial road if the
peace officer has reasonable and probable
grounds to believe that a driver's ability to
drive a motor vehicle is affected by a drug,
other than alcohol.

s. 254(2)(a) Criminal Code
s. 254(2) If a peace officer has reasonable grounds to
suspect that a person has alcohol or a drug in their body and
that the person has, within the preceding three hours,
operated a motor vehicle ... or had the care or control of a
motor vehicle..., whether it was in motion or not, the peace
officer may, by demand, require the person to comply with
paragraph (a), in the case of a drug, ...:
(a) to perform forthwith physical coordination tests
prescribed by regulation to enable the peace officer to

• Horizontal gaze nystagmus test: the driver
was unable to follow the visual stimulus with
his eyes.

determine whether a demand may be made under
subsection (3) or (3.1) and, if necessary, to accompany
the peace officer for that purpose.

• One leg stand test: the driver lost balance
after five seconds on the one leg stand test, and
he counted 30 seconds in a 15 second time
span.
• Walk and turn test: the driver
 lost balance
standing in the heel-toe position while the
walk and turn test was being explained and,
instead of walking nine steps forward, turning
around and walking nine steps back, he
walked forward nine steps, then walked
backwards.
Police also noted the driver was lethargic and slow
in the way he moved, talked and conducted
himself. As a result of the tests and observations
made, the driver was served a 24-hour driving
prohibition under s. 215(3) of BC’s Motor Vehicle
Act (MVA).

Evaluation of Impaired Operation (Drugs and
Alcohol) Regulations
s. 2 The physical coordination tests to be conducted under
paragraph 254(2)(a) of the Criminal Code are the following
standard field sobriety tests:
(a) the horizontal gaze nystagmus test;
(b) the walk-and-turn test; and
(c) the one-leg stand test.

British Columbia Supreme Court
The driver sought judicial review of the
24-hour prohibition imposed on him. He
wanted an order quashing the
prohibition and thereby expunging it
from his record. He argued that the officer did not
have the requisite grounds to impose the
prohibition (ie. there were grounds to believe that

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Volume 18 Issue 3 - May/June 2018

his ability to drive was affected by drugs).
 First, in
the driver’s view, the officer was not entitled to rely
on the results of the SFST to form his grounds that
his ability to drive was affected by a drug. He
suggested SFSTs results administered under s.
254(2) of the Criminal Code could only be used by
an officer for the purposes of forming grounds for
making a demand under s.
254(3), not for forming
grounds under the MVA for a prohibition.
 Second,
even if the officer could use the SFST results, the
driver argued that the officer did not have sufficient
grounds to form his opinion.
The judge considered the purpose of s. 215 of the
MVA. “The purpose of the section is to deter
individuals from driving when their ability to drive
a motor vehicle is impaired by drugs,” said the
judge. “The focus is on the protection of society
and the reduction of harm, rather than the
individual rights of drivers.”
The judge concluded that the SFSTs were
admissible as evidence for the purposes of the MVA
prohibition that the driver's ability to operate a
motor vehicle was impaired by a drug. In her view,
just as the results of an Approved Screening Device
(ASD) test authorized under the Criminal Code can
be used to form the requisite grounds to issue a
regulatory driving prohibition under the MVA, so
too can the results of SFSTs.
The contention that the officer did not have
sufficient grounds, even with the SFST results, was
also rejected. The officer serving the prohibition
had sufficient indicia of impairment to form
reasonable and probable grounds to issue it. “It is
common sense to conclude that when a person
exhibits the symptoms observed by the officer, and
performs the tests in the way the [driver] did, that
he is not alert, able to respond quickly or follow
directions, all of which would affect a driver's
ability to safely operate a motor vehicle,” said the
judge. The officer’s decision to issue the 24-hour
prohibition was reasonable. The driver’s petition
was dismissed.

British Columbia Court of Appeal
Th e d r iv e r a p p e a l e d t h e
dismissal of his judicial review
petition. He again argued that
the officer was not entitled to
consider the results of the SFST when forming his
reasonable and probable grounds to issue the MVA
prohibition on the basis his ability to drive was
affected by a drug, other than alcohol. He
maintained that the SFST results could only be used
for determining whether a demand may be made
under the Criminal Code (ss.
 254(3) or 254(3.1)),
not for purposes of the MVA. He contended that the
officer could only use powers expressly conferred
by the MVA and the MVA made no mention of
using SFSTs.

SFST Admissibility
Justice Saunders, authoring the Appeal Court’s
decision, rejected the accused’s submission. The
information lawfully gained from SFSTs could be
used by the officer in exercising the statutory power
given to police under the MVA. There was nothing
in the MVA
 that restricted the use of the SFSTs to
only a Criminal Code investigation:
As to the effect of the
Criminal Code
provision,
I observe that standard field sobriety tests are
simply a regulated, and perhaps improved,

“[T]he standard field sobriety tests have a specific use in criminal proceedings but there

is no prohibition on their use in the regulatory proceedings under the Motor Vehicle Act.”

PAGE 11

Volume 18 Issue 3 - May/June 2018

s. 10(a) HAS BOTH
TEMPORAL & INFORMATIONAL
ELEMENTS

source of observations long used by police
officers in the exercise of their statutory and
common law duties as police constables. While
s. 254(2)(a), establishes the threshold for a
demand for blood tests (subsection 3) and for
an evaluation (subsection 3.1), I do not
understand it to have limited the use by police
of such tests for other purposes.
 That is,
 s.
254
 may be the gateway to application of
 ss.
254(3)
 and
 (3.1)
 but nothing in
 s.
 254
 makes
that use of the tests exclusive to those purposes.
… [T]he standard field sobriety tests have a
specific use in criminal proceedings but there is
no prohibition on their use in the regulatory
proceedings under the
 Motor Vehicle
Act.
[reference omitted, para. 14]

R. v. Roberts, 2018 ONCA 411

Just as the police are entitled to utilize the results of
an ASD for the purpose of imposing a 24-hour
prohibition, they can use SFSTs in forming their
opinion for the purposes of s. 215 of the MVA.
The driver’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Editor’s Note: Additional facts taken from Kumar
v. British Columbia (Attorney General), 2017 BCSC
803. The British Columbia Court of Appeal also
heard the appeal of Dhillon v. British Columbia
(Minister of Justice), 2018 BCCA 135 at the same
time as
 Kumar. In Dhillon, the British Columbia
Supreme Court also dismissed a petition for judicial
review of a 24-hour driving prohibition imposed for
driving a motor vehicle while affected by a drug. It
was also argued that the SFST results could not be
used to establish reasonable and probable grounds
to issue the prohibition. The Dhillon appeal was
also dismissed for the same reasons in Kumar.

UNITED NATIONS
INTERNATIONAL YOUTH
DAY
August 12, 2018

After drinking heavily at a restaurant,
the accused decided to drive home.
She was a psychologist who also
instructed at the police college.
During her travels, she reached an
intersection and pulled into the turning lane and
waited at a green light for the oncoming traffic to
pass. After several cars went by, she turned left into
the path of an oncoming car that she did not see.
Three young women in the other car were injured,
two of them seriously. One of the young women
injured in the collision called 9-1-1 after the
collision.
On arrival, the attending police officer saw two
damaged vehicles. After speaking to a paramedic
already on scene, the officer believed the accused
was the driver of one of the vehicles and that she
could be impaired. The officer approached the
accused and spoke to her as she stood on a grassy
boulevard with two other women. The accused said
she was not injured, but was unable to explain how
the collision occurred. She had difficulty forming
complete sentences during a conversation about
the events. Noting a slight odour of an alcoholic
beverage on the accused’s breath, the officer asked
her to walk back with him to his police car. The
accused complied and the officer observed she
appeared unsteady on her feet and she brushed into
him twice during the walk on the dry, flat paved
surface.
The officer asked the accused to get in the back
seat of the police car. She was reluctant. He told
her he had to investigate the motor vehicle
collision and was concerned with her safety as cars
were driving by his police car. She got into the back
seat of the police vehicle. The officer now noted a
distinct odour of an alcoholic beverage on the
accused’s breath. She went on to tell the officer she
had just come from a restaurant where she drank
two large beers. During the conversation her
speech was slow, deliberate, and slightly slurred.

PAGE 12

Volume 18 Issue 3 - May/June 2018

BY THE BOOK:
s. 199(1) Ontario’s Highway Traffic Act
s. 199(1) Every person in charge of a motor
vehicle or street car who is directly or
indirectly involved in an accident shall, if the
accident results in personal injuries or damage
to property apparently exceeding the amount
prescribed by regulation, report the accident forthwith to
the nearest police officer and furnish him or her with the
information concerning the accident as may be required by
the officer under subsection (3).

The officer arrested the accused for “impaired
operation of a motor vehicle.” She was read her
rights to counsel, cautioned and given a breath
demand. The accused was taken to the police
station where she was told that she had been
arrested for impaired operation of a motor vehicle
and the police were concerned about the injuries
of the other people involved. She said she
understood that if anyone was hurt she could be
held criminally responsible for those injuries. After
she spoke to duty counsel she was turned over to a
qualified breath technician. He noted her eyes
were bloodshot, her breath smelled of a strong
odour of alcohol, her balance was slow and
careful, and she appeared to have soiled and wet
her pants. The accused ultimately provided breath
samples of 211 mg% and 201 mg%. She was
initially charged with impaired driving
 and driving
over 80 mg%. A few days later those charges were
upgraded to two counts of impaired driving causing
bodily harm and two counts of causing bodily harm
while driving over 80mg%.

Ontario Superior Court of Justice
The accused testified that she felt she had
no choice but to comply with the
officer’s request for information. She
argued, among other things, that she was
not properly advised of the reasons for her
detention under s. 10(a) of the Charter.

Furthermore, the statements she made to the police
could not be used because she believed she was
statutorily compelled to provide them, a s. 7
Charter breach she claimed. She also submitted
that without the statements she made, the police
did not have reasonable grounds to arrest her,
which breached her s. 9 Charter right not to be
arbitrarily detained and her s. 8 Charter right to be
free from unreasonable search or seizure. Finally,
she contended that she should have been advised
of her s. 10(b) rights before the officer conducted
the informal sobriety test when he walked her back
to his police car. In her view, the officer’s
observations during this walk were inadmissible as
evidence of her impairment because she was
conscripted to do it.
The judge rejected all of the accused’s Charter
arguments. He did not believe the accused felt
statutorily compelled to speak to the officers. He
found the reason the accused chose to speak to
police was to curry favour with them by impressing
them with her status as a police college
instructor.
 The judge found the officer had the
necessary grounds for arrest, including the
statements the accused made and the officer’s
observations which were not conscripted evidence.
In the judge’s view, the officer asked the accused to
accompany him to his police vehicle because of
safety concerns, not for investigative purposes. A
jury convicted the accused on two counts of
impaired operation of a motor vehicle causing
bodily harm and two counts of causing bodily harm
while driving over 80 mg%. The last two charges
were conditionally stayed.


Ontario Court of Appeal
The accused appealed her
convictions maintaining, in
part, that her statements to
police were statutorily
compelled, and that her rights under s. 10(a) had
been breached. In her opinion, the responding
officer failed to promptly notify her of the reason
for her detention and failed to notify her of the
actual extent of her jeopardy. As well, she
submitted that the officer did not have reasonable
grounds to arrest her without her inadmissible

PAGE 13

Volume 18 Issue 3 - May/June 2018

“Breaches of s. 10(a) can be ‘temporal’ or
‘informational’. A temporal breach occurs
if an arrested or detained person is not
promptly informed of the reasons for

their detention. An ‘informational’ breach
arises if the reasons for their detention
are not adequately communicated.”

for the trial judge’s conclusion that [the accused’s]
engagement with the police was motivated not by
a sense of legal obligation, but by a desire to
influence their course of conduct by impressing
them with her role as a police instructor. … The
trial judge had ample reason for rejecting [the
accused’s] statutory compulsion claim on the
balance of probabilities.”

Reasonable Grounds?

statements. Finally, she claimed the trial judge
erred in rejecting her assertion that the observations
the officer made of her condition as she walked to
the police car was conscripted evidence and could
not be used as proof of her impairment in proving
the offence.

Since the Court of Appeal ruled the accused’s
statements were admissible, those statements,
coupled with the other evidence in the case,
provided reasonable grounds for the officer’ s belief
that the accused’s ability to operate a motor vehicle
was impaired by alcohol.

Statements Statutorily Compelled?

s. 10(a) – Reason for Detention

Under s. 199(1) of Ontario’s Highway Traffic Act a
person in charge of a motor vehicle involved in an
accident must report the accident and furnish
information concerning the accident. Such
compelled statements are not admissible in
criminal proceedings for any purpose, including to
incriminate an accused in relation to the contents
of that statement or during a Charter voir dire to
establish whether an officer had reasonable
grounds to make an arrest. These statutorily
compelled statements will be excluded from
evidence. However, the accused had the burden of
establishing, on a balance of probabilities, that she
gave the report on the basis of an honest and
reasonably held belief that she was required by law
to report the accident to the person to whom the
report was given.

Under s. 10(a) of the Charter a person arrested or
detained must be informed promptly of the reasons
therefor. “Breaches of s. 10(a) can be ‘temporal’ or
‘informational’,” said Justice Paciocco. “A temporal
breach occurs if an arrested or detained person is
not promptly informed of the reasons for their
detention. An ‘informational’ breach arises if the
reasons for their detention are not adequately
communicated.”

The Court of Appeal concluded that the trial judge
did not err in rejecting the accused’s claim that she
spoke to police out of a sense of statutory
compulsion. “Where statutory compulsion is
claimed, the issue is not simply whether the driver
who has spoken knows of the legal duty to report
an accident,” said Justice Paciocco for the Appeal
Court. “The issue is whether the reason the driver
spoke when they did was because they felt
compelled by a legal obligation to do so. In this
case, there was an ample evidentiary foundation

A Temporal Breach?
The accused submitted that the
officer failed to advise her of
the reason for her detention
before she was asked to
accompany him to the police
car. Because this issue was not
raised at trial, the Appeal Court
decided it was not a valid
ground for appeal. Nevertheless, the Appeal Court
found the temporal violation argument would not
have been accepted in any event:

PAGE 14

[The accused’s] temporal breach argument was
based primarily on the assumption that [she]
was detained when [the officer] asked her to
accompany him to the police vehicle. The
evidence does not support this assumption.

Volume 18 Issue 3 - May/June 2018

[The accused] was not physically restrained and
she was under no legal obligation to comply
with [the officer’s] request. Although a
reasonable person in [the accused’s] position
might well conclude that she had been
deprived of her liberty when asked by a police
officer to “walk with me back to my cruiser”,
[she] clearly did not subjectively believe that
she was being detained. She testified:

“Section 10(a) does not require that

detainees be told of the technical charges
they may ultimately face. A person will be
properly advised of the reason for their
detention if they are given information
that is sufficiently clear and simple to

enable them to understand the reason for

I understood he had an accident to
investigate. I walked with him to the cruiser.
I presumed that he’d be doing the same
things to everybody else, the witnesses.

their detention and the extent of their
jeopardy.”

told she was being detained for impaired driving
causing bodily harm from the outset. But this
argument also was rejected, the Court of Appeal
found the officer properly advised the accused of
the reason for her detention and gave her adequate
information relating to the extent of her jeopardy
before she spoke to counsel:

[The accused] was therefore not
psychologically detained. On the evidence
before the trial judge, this is one of those
interactions between the police and members
of the public, “even for investigative purposes”,
that does not constitute a detention within the
meaning of the
 Charter. [reference omitted,
para. 66-67]

Moreover, even if the accused was detained when
she was asked to walk with the officer to his police
car, the evidence would be admissible. “In my
view it would damage the repute of the
administration of justice to exclude the evidence
under s. 24(2) of the
Charter
based on a notional,
rather than actual,
 Charter
 breach,” said Justice
Paciocco. “[The officer] cannot be expected to
have advised [the accused] of the reason for her
detention when she was not actually legally
detained, and this notional breach would have no
impact on her
Charter
protected interests.”

It is important to understand that s. 10(a)
applies if a person is either arrested or
detained. One who is being arrested is, of
course, being detained. A person can, however,
be detained without being arrested. The statuses
overlap, but are not identical. If someone is
being arrested, it is imperative that they are told
of the reasons for their arrest. … [para. 73]

And further:

An Informational Breach?
The accused claimed
that the officer failed
to adequately inform
her of the reason for
her arrest because he
only told her she was
being arrested for the
basic offence of
impaired driving as opposed to actual reason (ie.
the aggravated offence of impaired driving causing
bodily harm).
In her opinion, she should have been

PAGE 15

Quite simply, if the police wants to use a
person detained for one offence as a source of
self-incriminating information relating to a
different offence – including an aggravated
form of the offence for which they have been
detained – the police must tell the detainee this
before proceeding. Indeed, they must tell the
arrested detainee what they are being
investigated for before they have been given
their right to counsel. If the police interest in
another offence arises after a detainee has been
given an opportunity to consult counsel, the
police must give the detainee another
opportunity to consult counsel.

[…]
Section 10(a) does not require that detainees be
told of the technical charges they may
ultimately face. A person will be properly

Volume 18 Issue 3 - May/June 2018

advised of the reason for their detention if they
are given information that is sufficiently clear
and simple to enable them to understand the
reason for their detention and the extent of their
jeopardy. [references omitted, para. 76, 78]

In this case, the officer complied with the s. 10(a)
requirements. He had informed the accused of her
potential jeopardy of the more serious offence
before she spoke to a lawyer. Therefore, she had
adequate information about her legal jeopardy to
meaningfully exercise her right to counsel and
before police took any steps to use her as a source
of evidence:
Specifically, [the officer] told [the accused] that
she was being arrested for impaired operation
of a motor vehicle. He was right to have done
so, even if he suspected she may have
committed the more aggravated offence of
impaired driving causing bodily harm. On the
evidence presented during the
 voir dire, [the
officer] did not have grounds to arrest [the
accused] for the aggravated offence. He knew
there had been a personal injury accident, but
he had no objective basis for concluding that
s h e c a u s e d t h e a c c i d e n t . I t wa s n o t
immediately evident from the position or
damage to the vehicles which driver, if any, had
been at fault. An accident report had not yet
been conducted. And [the accused] was unable
to explain what happened. When he arrested
her, [the officer] could have justifiably been
criticized if he had told [the accused] she was
being arrested for impaired driving causing
bodily harm. The only grounds he had at the
time related to the basic offence of impaired
driving.
[para. 74]

And further:
Specifically, [the officer] told [the accused]
shortly after they arrived at the station: “Okay.
You’ve been arrested as a result of that,
impaired operation of a motor vehicle. That’s
been really our biggest concern right now is
making sure that those people are gonna be
Okay.” When she asked if she would be
released in time to make her teaching
engagement at the police college the next day,
[the officer] stated: “Kim, I can’t make any

other assurance, okay. We have to worry about
the injuries at the hospital, okay.” When [the
officer] attempted to make sure she understood
what was happening, [the accused] said: “No,
no. I understand that if anyone is hurt that, that
crime….” In context, [the accused’s] comment
was a clear acknowledgment that she knew she
could be held responsible criminally if injuries
were caused. [para. 79]

Observations: Conscripted Evidence?
Th e a c c u s e d ’s
assertion that the
officer’s direction
for her to walk to
the police car in
furtherance of his
investigation was
a conscripted
sobriety test was
dismissed. The
observations made during this event could
therefore be used as proof of guilt at trial. “Lawfully
obtained evidence conscripted from a detainee
through roadside sobriety testing is admissible to
establish grounds for an arrest or detention, but
such evidence is not admissible as proof of actual
alcohol consumption or impairment,” said the
Appeal Court. “According to the law of Ontario,
evidence is conscripted in the relevant sense only
if the act directed by the officer is, itself, a
sobriety test.”
In this case, the accused was not “conscripted” to
provide evidence when the officer asked her to
walk to the car. “In Ontario, a motorist is
conscripted within the meaning of the rule only if
the directed act itself
 is
 a sobriety test,” said

Justice Paciocco. “If an officer directs a motorist to
get out of their vehicle
 as
 a sobriety test, the
observations cannot be admitted at trial to prove
impairment. If an officer directs a motorist to get
out of the car not as a sobriety test, but to
facilitate further investigation, including gathering
other information about sobriety through
questioning once the driver is outside of the car,
observations made of the motorist while exiting
the car are admissible at trial to prove

PAGE 16

Volume 18 Issue 3 - May/June 2018

impairment.” Here, the accused had not
established that the officer asked her to accompany
him for the purpose of observing her sobriety as she
walked. “Even though the evidence does support
the conclusion that [the officer] intended to
conduct further investigation once they had
walked to the police car, this falls short of what is
required in Ontario. There was simply no evidence
at the
 Charter voir dire
 that [the officer] had

CAUTION

CAUTION CAUTION

directed [the accused] to walk so that he could test
her sobriety while walking. [The accused] has not
shown, therefore, that she was compelled to
participate in roadside testing as she walked to the
police vehicle.”
The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

CAUTION CAUTION CAUTION

ONTARIO v. B.C.
The Ontario Court of Appeal noted a difference in its law about “conscription” and BC’s in relation to
the admissibility of observations at trial to prove impairment.
“In British Columbia, a motorist is conscripted within the meaning of
this rule if they are directed to act for the purpose of assessing their
alcohol consumption, even if the directed act itself is not a sobriety
test … [The British Columbia Court of Appeal] explained that if an
officer directs a motorist to act for the purpose of investigating an
alcohol offence, the motorist will have been conscripted, and
observations made will not be available to prove guilt.”
On the other hand, “in Ontario, a motorist is conscripted within the
meaning of the rule only if the directed act itself is a sobriety test. …
[The Ontario Court of Appeal] held that if an officer directs a motorist
to get out of their vehicle as a sobriety test, the observations cannot be
admitted at trial to prove impairment. If an officer directs a motorist to
get out of the car not as a sobriety test, but to facilitate further
investigation, including gathering other information about sobriety
through questioning once the driver is outside of the car, observations
made of the motorist while exiting the car are admissible at trial to
prove impairment.”

What this Means
If an officer in Ontario asks a driver to step out of their vehicle for the purpose of investigating alcohol
consumption and thereby observes the driver stumble when doing so, the observation is admissible as
proof of impairment at trial unless it is established that the driver was directed to exit their car so that
their manner of exiting the car could be used as a sobriety test (see R. v. Brode, 2012 ONCA 140). If an
officer in BC asks a driver to step out of their vehicle for the purpose of investigating alcohol
consumption, observations made of the driver getting out cannot be admitted at trial as proof of
impairment (see R. v. Visser, 2013 BCCA 393).

PAGE 17

Volume 18 Issue 3 - May/June 2018

US ATTORNEY GENERAL
ENCOURAGES DEATH PENALTY
FOR DRUG TRAFFICKERS
In a March 2018 memo to all United States
Attorneys, Attorney General Jeff Sessions provided
guidance concerning the use of capital punishment
in drug-related prosecutions. The memo reads as
follows:
The opioid epidemic has inflicted an
unprecedented toll of addiction, suffering,
and death on communities throughout our
nation. Drug overdoses, including overdoses
caused by the lethal substance fentanyl and
its analogues, killed more than 64,000
Americans in 2016 and now rank as the
leading cause of death for Americans under
50. In the face of all of this death, we cannot
continue with business as usual.
Drug traffickers, transnational criminal
organizations, and violent street gangs all
contribute substantially to this scourge. To
combat this deadly epidemic, federal
prosecutors must consider every lawful tool
at their disposal. This includes designating an
opioid coordinator in every district, fully
utilizing the data analysis of the Opioid Fraud
and Abuse Detection Unit, as well as using
criminal and civil remedies available under
federal law to hold opioid manufacturers and
distributors accountable for unlawful
practices.
In addition, this should also include the
pursuit of capital punishment in appropriate
cases. Congress has passed several statutes
that provide the Department with the ability
to seek capital punishment for certain drugrelated crimes. Among these are statutes that
punish certain racketeering activities (18
U.S.C. § 1959); the use of a firearm resulting
in death during a drug trafficking crime (18
U.S.C. § 924(j)); murder in furtherance of a
continuing criminal enterprise (21 U.S.C. §
848(e)); and dealing in extremely large
quantities of drugs (18 U.S.C. § 3591(b)(1)).

I strongly encourage federal prosecutors to
use these statutes, when appropriate, to aid
in our continuing fight against drug trafficking
and the destruction it causes in our nation."

PPSC & THE DECISION TO
PROSECUTE
In the last issue of “In
Service: 10-8” (Volume
18 Issue 2) the BC
Prosecution Service’s
updated charge
assessment guidelines
were examined. In this
issue, the “Decision to Prosecute Test” of the
Public Prosecution Service of Canada (PPSC) will
be reviewed. The PPSC initiates and conducts
federal prosecutions on behalf of the federal
Crown.

Decision to Prosecute Test
When deciding whether to initiate and conduct a
prosecution on behalf of the federal Crown, PPSC
counsel must consider two standards:

EVIDENTIAL STANDARD
Is there is a reasonable prospect of conviction
based on evidence that is likely to be available at
trial?

PUBLIC INTEREST STANDARD
Would a prosecution best serve the public
interest?

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Volume 18 Issue 3 - May/June 2018

Evidential Standard
The evidentiary test is whether there is a
reasonable prospect of conviction:
A reasonable prospect of conviction requires
that there be more than a bare prima facie case,
or in other words, it requires more than
evidence that is capable of making out each of
the necessary elements of the alleged offence
against an accused. However, the test does not
require a probability of conviction, that is, it
does not require a conclusion that a conviction
is more likely than not.

that the evidential standard has been met, then the
Crown must determine whether a prosecution
would best serve the public interest.
In assessing public interest, the PPSC Deskbook
requires Crown Counsel to consider and weigh a
number of factors relevant to any particular case.

The nature of the alleged offence.

In determining whether this test is satisfied,
Crown Counsel must consider the following
factors:

When assessing the evidence, Crown Counsel is to
consider:
• The availability, competence and credibility of
witnesses and their likely impression on the
trier of fact (ie. judge or jury);
• The admissibility of evidence implicating the
accused;
• Any defences that are plainly open to or have
been indicated by the accused;
• The existence of a Charter violation that would
undoubtedly lead to the exclusion of evidence
essential to sustain a conviction; and
• Any other factors which could affect the
prospect of a conviction.
The evidential standard must be applied throughout
the proceedings, from the time the investigative
report is first received until the exhaustion of all
appeals.

Public Interest Standard
Crown counsel will only consider the public
interest when satisfied that the evidentiary standard
to support a charge has been met since it would
never be in the public interest to prosecute if there
was no reasonable prospect of conviction.
However, just because there is sufficient evidence
to support a charge does not necessarily mean a
prosecution is required. If the Crown is satisfied

• Its seriousness or triviality. The more serious the
alleged offence, the more likely the public
interest will require that a prosecution be
pursued. However, where the alleged offence is
not so serious as to plainly require a prosecution,
Crown counsel must consider their duty to
uphold the laws enacted by Parliament and any
important public interest served by conducting a
prosecution, for example ensuring compliance
with a regulatory regime through prosecution;
• Significant mitigating or aggravating
circumstances related to the underlying conduct,
for example those set out in the Criminal Code or
other Acts of Parliament;
• The prevalence and impact of the alleged
offence in the community and the need for
general and specific deterrence;
• The likely sentence in the event of a conviction;
• The delay between the commission of the
alleged offence and the time of the charging
decision. Considerations relevant to the impact
of any delay include the responsibility of the
accused for the delay, the discoverability of the
alleged offence by the police or investigative
agency, and the complexity and length of the
investigation; and/or
• The law that is alleged to have been breached is
obsolete or obscure.

The nature of the harm caused by or the
consequences of the alleged offence.
• The nature of the harm includes loss or injury
caused by the alleged offence and relevant
consequences to the victim, the community, the
environment, natural resources, safety, public
health, public welfare or societal, economic,
cultural or other public interests;

PAGE 19

Volume 18 Issue 3 - May/June 2018
• Whether the alleged offence engenders
considerable concern in the community;
• The entitlement of any person to criminal
compensation, reparation or forfeiture if a
prosecution occurs; and/or
• The availability of civil remedies is not a factor
that militates against a prosecution.

The circumstances, consequences to and
attitude of victims.
• The attitude of the victim of the alleged offence
to a prosecution. This may include the attitude of
the victim’s family members;
• The impact of the alleged offence on the victim
and their family including any loss, injury or
harm suffered;
• The youth, age, intelligence, vulnerability,
disability, dependence, physical health, mental
health, and other personal circumstances of the
victim;
• Whether the victim was serving the public or
was a public official; and/or
• Whether a prosecution is likely to have an
adverse effect on the victim's physical or mental
health.

The level of culpability and circumstances of
the accused.
• The accused’s degree of responsibility, level of
involvement and whether they were in a position
of authority or trust;
• The harm the accused caused, especially to
vulnerable victims or other persons;
• The accused’s motivation, and in particular any
bias, prejudice or hate based on race, national or
ethnic origin, language, religion, gender, age,
mental or physical disability, sexual orientation,
or any other similar factor;
• The accused’s agreed upon co-operation with the
investigation or prosecution of others, or the
extent to which they have already done so;
• The accused’s age, intelligence, physical or
mental health or infirmity; and/or
• The accused’s background, including their
antecedents and the likelihood of future illegal
conduct.

The need to protect sources of information.
Whether prosecuting would require or cause the
disclosure of information that should not be
disclosed in the public interest, for example would
be injurious to:
• Confidential informants;
• Ongoing investigations;
• International relations;
• National defence; or
• National security.

Irrelevant criteria.
A decision whether to prosecute must not be
influenced by any of the following:
• The race, national or ethnic origin, colour,
religion, sex, sexual orientation, political
associations, activities or beliefs of the accused
or any other person involved in the investigation;
• Crown counsel’s personal feelings about the
accused or the victim;
• Possible political advantage or disadvantage to
the government or any political group or party;
or
• The possible effect of the decision on the
personal or professional circumstances of those
responsible for the prosecution decision.
Source: Public Prosecution Service of Canada Deskbook, Part II :
Principles Governing Crown Counsel’s Conduct, 2.3 Decision to
Prosecute, March 1, 2014.

PPSC Prosecutions by Offence Type





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(&











Source: Public Prosecution Service of Canada Annual Report
2016-2017, accessed May 8, 2018.

PAGE 20

Volume 18 Issue 3 - May/June 2018

FACTS - FIGURES - FOOTNOTES

72,964

The number of Reports to
Crown Counsel (RCCs)
received by the BC
Prosecution Service from investigative agencies in
fiscal 2016/17. In these RCCs, there were a total of
76,368 accused persons . This was the third year in
a row for which there was growth in the number of
RCCs received and was the highest number of RCCs
received since fiscal 2010/11.

73,000

72,575

72,964

RCCs

... as a
percentage
of overall
accused named in an RCC submitted to the BC
Prosecution Service has declined over the last three
years.

Young Persons
5.8%

6%

5.5%

4.7%

4%
% of RCCs with Young Person

2%
0%

71,000

2014/15

2015/16

2016/17

Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April 15,
2018.

69,000

... were the investigative agency
most likely to submit an RCC to
the BC Prosecution Service. In
fiscal 2016/17, police agencies submitted 57,294
RCCs. This was followed by BC Corrections (13,728)
and other investigative
 
agencies such as wildlife
conservation, animal welfare,

or financial or insurance
agencies (1,942).

68,524

Police

67,000

65,000
2014/15

2015/16

2016/17

Source: BC Prosecution Service, “Annual
Report - 2016/17”, accessed April 15, 2018.

Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April 15,
2018.

PAGE 21

Police

Corrections


Other

Volume 18 Issue 3 - May/June 2018
The percentage of
accused persons
that were young
persons (ages 12-17). In fiscal
2016/17, the BC Prosecution
Service approved to court
63,733 accused persons. This
consisted of 60,906 adults
and 2,827 young persons.



4%

Adults

Unreasonable Delay


Young Persons

Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April
15, 2018.

... was the BC Prosecution Services
charge approval rate for RCCs
submitted by investigative agencies.
Data extracted from the 73,050 people named in
RCCs for which their was a final charge assessment
decision made in fiscal 2016/17 resulted in an
87% charge approval rate. 12% resulted in no
charges and 1% were referred to alternative
measures.

87%

Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April
15, 2018.

The percentage of prosecutions
resulting in a conviction by way of
a guilty plea or guilty verdict at
trial. Of the 66,622 prosecutions concluded in
2016/17, 60% had a guilty finding, 1% were not
guilty, 4% entered into a recognizance to keep the
peace, 34% had their charges stayed, and 1% were
concluded otherwise, such as a finding of unfit to
stand trial or not criminally responsible due to a
mental disorder.

60%

... was the most common reason why a prosecution
was concluded with a Judicial Stay of Proceedings.
In fiscal 2016/17 there was a total of 20
prosecutions judicially stayed for a variety of legal
reasons. Of those, 9 were stayed because of delay,
down from 15 in fiscal 2015/16. Stays of
proceedings directed by the BC Prosecution
Service, on the other hand, totaled 22,528. About
half of these Crown stays resulted in other
consequences for the accused including referrals to
alternative measures, a peace bond or a plea on
another file.
Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April
15, 2018.

Within 1 Day

The time it
takes for
BC Crown
Counsel to undertake a charge assessment in most
cases. From the date a RCC is received until Crown
Counsel makes a charge decision, 51% of cases
take a day. 59% of decisions are made within 3
days, 72% within 7 days, 83% within 15 days and
91% within 30 days.

&
''''"#(
)&( $#

 

 

 



1%



 






Guilty
Not Guilty
Peace Bond
Stayed
Other

 ( #
 
*
 ( #

*'
 ( #
 
*'

34%

 ( #
 
*'
 ( #
 
*'

Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April
15, 2018.



The median number of
days it takes for a file to
conclude from the time an
information is sworn or filed to the date that all
charges on the file have a final disposition.

85 days

4%
1%
Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April
15, 2018.

Source: BC Prosecution Service, “Annual Report - 2016/17”, accessed April
15, 2018.

PAGE 22

Volume 18 Issue 3 - May/June 2018

Frequent Pot Users
... are more likely to have lower
confidence in the police than
those that don’t use it. People
who said they used cannabis on
a daily basis, 37.6% of women
and 34.1% of men, had low
confidence in the police,
compared to 5.7% of women
and 8.5% of men who did not use cannabis in the
last month.

more pronounced (non user at 21.3% vs. daily
user at 46%). For men, there was no statistical
difference in confidence levels in the justice system
between those that used cannabis (25.5%) or not
(35.8%).
Those who use cannabis more frequently are more
likely to report that they have been victims of a
violent crime. Only about 3.5% of people who did
not use cannabis in the past month reported being
violently victimized in the past year while 22% of
daily users reported being violently victimized.

38.6% of people using cannabis daily had a lower
level of confidence in the criminal court system
compared to 23.4% of those who did not use it in
the last month. For women, the difference was

Source: Insights on Canadian Society, Association between the frequency of
cannabis use and selected social indicators, May 3, 2018.

Proportion of people aged 15+
reporting they
h
had

8.5%
Did not use in past month.

5.7%

low confidence in police

7%

and frequency of cannabis use.
15.1%

Used once a week or less.

12.3%
14.1%

Men
Women
Total

20.1%
Used 2 to 6 times per week.

21.1%
20.4%

34.1%
Used every day.

37.6%
35.1%

0%

10%

20%

30%

CONFIDENCE IN POLICE
PAGE 23

40%

Volume 18 Issue 3 - May/June 2018
The value of
drugs and
property
seized as a
result of Metro Vancouver’s 2017 Crime Stoppers
program. The program received 5,597 tips in 2017
which also resulted in 169 arrests.

$9,300,000
Source: “2017 Results” [accessed May 5, 2018].

The number of arrests
resulting from the
Ontario Crime Stoppers
program as at April 4, 2018. Other statistics over
this same period of time included:

124,008

• 132 891 cases cleared:

• $8,124,351 in rewards paid.
• $16,672,779 related to arson loss value.

• $304,587,768 in property recovered.

• $1,845,829,936 in seized drugs.
• $2,150,417,704 in total dollars recovered.


The BCCDC
reported that
people who
overdosed
between
January 1,
2015 and November 30, 2016 tended to have more
prescriptions for psychotropic substances
(medications that have effects on the brain such as
antidepressants and antipsychotics) than a
randomly selected group of BC residents (control
group). The study also found that people overdosing
during this period were more likely to have had a
prescription of opioids for pain and to have used
prescription opioids on a long-term basis at some
point over the past five years.

Psychotropic
Substances

Source: “Analyzing prescription drug histories among people who
overdose” , February 21, 2018.

Highly Engaged

Source: “Ontario Crime Stoppers” [accessed May 5, 2018].

According to the
BC Centre for
Disease Control
(BCCDC), one
overdose death was estimated to be prevented for
every 10 Take Home Naloxone (THN) kits that were
used. And one overdose death was believed to be
prevented for every 65 THN kits distributed.

Naloxone

The BCDCC also
estimated that a
total of 226
overdose deaths
were prevented
in the first 10
months of 2016.
This amounts to
26% of all possible overdose-deaths in BC being
prevented by the THN program during this period.
The BCDCC estimated that the THN kit program
prevented 300 illicit drug overdose deaths between
January 2012 and October 2016. This included an
estimated 155 fentanyl-related overdose deaths
prevented.
Source: “Estimated impact of the provincial take-home naloxone program on
preventing illegal drug-related deaths in B.C., 2012-2106” , April 18, 2018.

The BCCDC reported that a high proportion of
people who overdosed from illegal drugs were
highly engaged with the health care system in the
year prior to their overdose. This engagement
included emergency department visits, hospital
admissions and/or appointments with community
physicians. The study also showed that a large
group of those overdosing left the emergency
department without being seen by a doctor or left
without medical advice. Only one in six people
who overdosed did not visit the emergency
department, hospital or community physician in the
year before overdose.
Source: “Analyzing patterns of health care utilization among people who
overdose from illegal drugs in British Columbia” , March 7, 2018.

“Drug checking ... has
suggested that street heroin in
the Downtown East Side does
not actually contain any
heroin at all, but rather
caffeine, fillers, and fentanyl
or fentanyl analogues.”
Source: “Responding to B.C.’s Illegal Drug Overdose Epidemic, Progress
Update February/March 2018” , BC Ministry of Mental Health an Addictions
p. 9-10.

PAGE 24

Volume
V
olume 16 Issue 5 - September/October
September/October 2016
2016

PAGE
P
PA
AGE
GE
E 28
28

RECOGNISING & RESPONDING

  


  

 
 
   

 
 
 



• No response to stimuli

• Check for danger

• Shallow, laboured or no breathing

• Call an ambulance and stay on the line

• Cannot be woken up

• Put the person in recovery position

• Snoring or gurgling

• If you have access to narcan/naloxone,
assemble the mini-jet or ampoule and
inject into thigh or upper arm (if you
have a nasal spray, spray into one side
of the nasal canal)

• Blue/grey lips or finger tips
• Floppy arms or legs

• Provide CPR
• If there has been no response within
3-5 minutes, and if you have it
available, administer another dose
of narcan/naloxone

31 AUGUST
—
I N T E R N AT I O N A L
OV E R D O S E
AWA R E N E S S DAY

FAC T S H E E T



WHAT ARE OPIOIDS?
Opioids is an umbrella term for natural or synthetic drugs that
are derived from – or related to – the opium poppy.
Opioids attach to receptors in the central nervous system, reducing
pain signals to the brain. Commonly used opioids include oxycodone,
morphine, codeine, heroin, fentanyl, methadone and opium.

31 AUGUST
—
I N T E R N AT I O N A L
OV E R D O S E
AWA R E N E S S DAY

The Recovery Position
Support face Place the
arm nearest to you at right
angles to the body. Place
their other hand against
their cheek.

SIGNS OF OVERDOSE
Opioids dull the senses, induce relaxation and euphoria. They
depress (slow down) breathing and the heart rate.

Lift Leg Get hold of the
far leg just above the knee
and pull it up, keeping the
foot flat on the ground.

In high doses, opioids depress the body’s natural urge to breathe.
When someone is having an overdose they can stop breathing and
may die. Even if a person does not die from overdose, they can
sustain brain damage.

Roll overr Keep their hand
pressed against their cheek
and pull on the upper leg to
roll them towards you and
onto their side.

Signs of overdose can include:
• No response to stimuli
• Shallow/stopped breathing
• Can’t be woken up
• Unusual snoring/gurgling sounds
• Blue/grey lips or finger tips
• Floppy arms and legs
If you cannot get a response from someone, do not assume they
are asleep. Unusual or deep snoring is a common sign of overdose.
Do not let people at risk ‘sleep it off’.
OVERDOSE RESPONSE
Sometimes it can take hours for someone to die from an opioid
overdose. Action taken as soon as possible could save a life. If you
think someone has overdosed, knowing how to respond is crucial:
Check for vital signs:
A Alert: Not responding to voice?
B Breathing: Noisy? Shallow? Slow? Stopped? Strange snoring?
C Colour: For fair-skinned people, blue or pale lips or fingertips?
For darker skinned people, grayish or ashen lips and skin colour.
If you see any of these signs, you should immediately move
to activate the response plan for opioid overdose.
Before you act, check for dangers such as needles.
Call an ambulance, tell the operator your location, and stay
on the line.

If you HAVE narcan/naloxone:
1. Assemble the naloxone ready for use and
inject the full amount into the outer thigh
or upper arm (or use nasal spray).
2. Record the time of administration.
Provide this information to paramedics
when they arrive.
3. If the person is not breathing, apply rescue
breathing (2 breathes every 5 seconds).
4. If there has been no response after 3-5
minutes, give another dose of naloxone.
Remember to record the time of
administration.
Note: Naloxone will only temporarily
reverse an overdose.
If you DO NOT HAVE narcan/naloxone:
• If the person is breathing, leave in recovery
position and monitor breathing.
• If person is not breathing apply rescue
breathing and continue until:
– The person starts to breathe on their own
– Ambulance arrives
– Someone else can take over for you.

Try to get a response from the person by calling their name and/or
giving a sternal rub (rub your knuckles firmly across their sternum).

WHAT NOT TO DO IN THE EVENT
OF A SUSPECTED OVERDOSE

If you can’t get a response, put them in the recovery position
allowing their airways to remain open.

• Do NOT leave the person alone.
• Do NOT give the person anything to eat
or drink, or try to induce vomiting.

For more information visit
www.overdoseday.com

Volume 18 Issue 3 - May/June 2018

ILLICT DRUG OVERDOSE
DEATHS IN 2018

There were a total of 511 illicit drug overdose
deaths from January through April 2018. This is 42
deaths less than last year’s total at this time.

The Office of BC’s Chief Coroner has released
statistics for illicit drug overdose deaths in the
province from January 1, 2008 to April 30, 2018.
In March there were 160 suspected drug overdose
deaths. This represents a 24% increase over the
number of deaths occurring in March 2017 and a
58% increase over February 2018. The March 2018
statistics amount to about five (5) people dying
every day of the month.

560
550
540

520

156

510

142
128
114

+24%

Jan-Apr 2017

March 2018

In April there were 124 suspected drug overdose
deaths. This represents an 18% decrease over the
number of deaths occurring in April 2017 and a
24% decrease over March 2018. The April 2018
statistics amount to about four (4) people dying
every day of the month.

155

151

-18%

133

People aged 30-39 were the hardest hit so far in
2018 with 136 illicit drug overdose deaths
followed by 40-49 year-olds at 111 deaths. People
aged 19-29 years-old had 110 deaths while those
aged 50-59 had 108 deaths. Vancouver had the
most deaths at 135 followed by Surrey (80),
Victoria (39), Kamloops (17), Prince George (17)
and Kelowna (15).
Males continue to die at almost a 5:1 ratio
compared to females. From January to April 2018,
409 males have died while there were 102 female
deaths.

Deaths by gender

122

124

111

Males
Females

100
April 2017

Jan-Apr 2018

The 1,449 overdose deaths last year amounted to
more than a 335% over 2013. Moreover, the report
attributes fentanyl laced drugs as accounting for the
increase in deaths.

100

144

-8%

511

500

130
March 2017

553

530

170

160

illicit Drug Overdose Deaths

April 2018
PAGE 28

20%

80%

Volume 18 Issue 3 - May/June 2018

Monthly Average

150
120.8

127.8

112.5

#%&

82.7

75
43.6

37.5 22.4
0

DEATHS SINCE PUBLIC HEALTH
EMERGENCY
In April 2016, BC’s provincial health officer
declared a public health emergency in response to
the rise in drug overdoses and deaths. The number
of overdose deaths in the 25 months preceding the
declaration (Mar 2014-Mar 2016) totaled 1,050.
The number of deaths in the 25 months following
the declaration (April 2016-April 2018) totaled
2,732. This is an increase of 160%.

3,000

27.8 30.7

2012 2013 2014 2015 2016 2017 2018

The 2018 data indicates that most illicit drug
overdose deaths (90%) occurred inside while 9%
occurred outside. For six (6) deaths, the location

2,732

2,500

+160%
2,000
Deaths
since
Public
Health
Emergency

Deaths by location: Jan-Feb 2018
Private Residence
Other Residence
Other Inside
Outside
Unknown
was unknown.

25
123

1,500

46 6

311

1,000

“Private residence” includes
residences, driveways, garages, trailer homes.
“Other residence” includes hotels, motels, rooming
houses, shelters, etc.
“Other inside” includes facilities, occupational sites,
public buildings and businesses.
“Outside” includes vehicles, streets, sidewalks, parks,
wooded areas, campgrounds and parking lots.

500

1,050
Mar 2014-Apr 2016 Mar 2016-Apr 2018

Source: -Illicit Drug Overdose Deaths in BC - January 1, 2008 to
April 30, 2018. Ministry of Justice, Office of the Chief Coroner.
June 7, 2018.

TYPES OF DRUGS
The top four detected drugs relevant to illicit drug overdose deaths from 2016 and 2017 were fentanyl,
which was detected in 73.5% of deaths, cocaine (49.1%), methamphetamine/amphetamine (31.8%), and
heroin (25.6%).

PAGE 29

Volume 18 Issue 3 - May/June 2018

365

Vancouver

135
176

Surrey

80
91

Victoria

39
75

Kelowna

15

2018 (Jan-Apr)

44

Burnaby

11
39

Kamloops

17
36

Langley

14
33

Maple Ridge


 


 

!
  
 








 !



11
24

New Westminster
Prince George

2017

11
22
17

0

80

160
PAGE 30

240

320

400

Volume 18 Issue 3 - May/June 2018

‫ژ‬Illicit Drug Overdose Deaths in BC, Jan-Apr 2018

drug overdose‫ژ‬
124‫ژ‬Illicit
‫ژ‬deaths in April‫ژ‬2018‫ژ‬

18%‫ژ‬decrease‫ژ‬

Coroners Service

23 %‫ژ‬decrease

compared to March 2018

compared to April 2017

‫ ~ژ‬4
illicit drug overdose
deaths per DAY
in‫ژ‬April‫ژ‬2018

Number of deaths

200

151

160

0

p

Illicit drug overdose‫ ژ‬deaths‫ژ‬by‫ژ‬
age group and sex, ‫ژ‬2018

91%

Male

80%

feb

Number of illicit drug overdose‫ژ‬deaths
‫ژ‬by city, 2018‫ژ‬
150
Number of deaths

70%

19 to 59
years old

Mar 2018 Apr 2018

Apr 2017 Apr 2018
Jan

19 to 49
years old

124

124

100

100

135

Vancouver, Surrey
and‫ژ‬Victoria‫ژ‬
have‫ژژ‬the highest‫ژ‬number
of illicit drug overdose
deaths in 2018

80

50

39
0
2018
Vancouver

Surrey

Victoria

Illicit drug overdose‫ ژ‬deaths‫ژ‬by place of injury, BC,‫ ژ‬2018

61%

at private
residences

29%

9%

at other inside
locations‫(ژ‬e.g.,
other housing,
hotel/motel, public
buildings)

at outdoor
locations
(e.g., parks,
vehicles,
streets)

PAGE 23

Volume 18 Issue 3 - May/June 2018

LEGALLY SPEAKING: FENTANYL
“The classic meaning of ‘perdition’ is a state of eternal punishment and
damnation into which a sinful and unpenitent person passes, after
death. The modern usage is more secular in nature, and suggests
perdition is a place of utter disaster, ruin, or destruction. Where the
illicit use of fentanyl is concerned, perdition is precisely the correct
term for the ultimate destination of purveyors and users of this
substance.”
R. v. Fyfe, 2017 SKQB 5

“Once an insidious killer of opioid users,
the drug
fentanyl
has emerged to
become a notorious
Grim
Reaper
stalking the streets of
Canada’s cities and towns. Anyone
reading or watching the news
understands that
fentanyl
use has
become a serious public health crisis ...”
R. v. Toth, 2017 BCSC 501

“Those who traffic in opiates,
cocaine, and synthetic drugs such
as methamphetamines have long
been described by the courts as
‘Merchants of Misery’.
 I think it is
now apt to describe those who
traffic in
fentanyl
as ‘Merchants of
Death’.”

R. v. Joon, 2017 BCPC 301

“[F]entanyl
is a
scourge. It poses intolerable risks of accidental overdosing because
it is so much more powerful than morphine. Illegally manufactured
fentanyl
can
be particularly and unpredictably potent, even tiny amounts of
fentanyl
mixed
into other drugs such as cocaine or heroin may be fatal.”
R. v. Smith,
2017 BCCA 112

“In the context of the illicit drug scene in Canada at this time and the ever-present
possibility that a powder or pill being sold may contain some amount of
fentanyl,
it seems to me that sellers, buyers and users of most kinds of illicit drugs are
placing themselves in a situation not that dissimilar from their pointing a gun and
firing it without knowing if it’s loaded, not unlike the dangerous game of chance
called Russian
roulette.
 The consequences of involvement in the illegal drug
trade are now potentially fatal. “
R. v. Joumaa, 2018 ONSC 317

PAGE 32

Volume 18 Issue 3 - May/June 2018

“Trafficking
in
fentanyl
is almost the equivalent of putting multiple
bullets in the chambers of a revolver and playing Russian
roulette. It
is the most efficient killer of drug users on the market today. Its
danger to users is greater than cocaine and heroin.”
R. v. Frazer, 2017 ABPC 116

“The use of the incredibly
dangerous drug
fentanyl
to
increase the potency of heroin has
elevated this impact to the point
where heroin users are effectively
playing Russian roulette when they
use heroin and traffickers, even if
they do not put the bullet in the
chamber, are handing users the
gun.”

“Anyone who is
involved in
trafficking
fentanyl
must
now understand that they
are dealing with a drug
that is no different than
playing Russian
Roulette.”

R. v Abraham, 2017 BCSC 2463

PAGE 33


R. v. Ormonde, 2018 ONSC 1295

Volume 18 Issue 3 - May/June 2018

Canadian Association of Police Educators
The Canadian Association of Police Educators (CAPE) promotes excellence in law enforcement
training and education through the guidance of innovative research, program development,
knowledge transfer, network facilitation, and collaborative training initiatives. The objectives of
CAPE include:

Presentation topics at the 2018 CAPE Conference include:
✓
✓
✓
✓
✓
✓
✓

Police Research in Canada
Professionalization of Policing
Applying rResearch on Targeted Violence to the Practice of Threat Management in
Communities: A US Perspective
Problem Based Learning for Policing
Practical Applications of Police Use of Force Research
Evidence Based Policing
Simulators and Bridging the Gap Between Research and Police Training

This conference also provides an opportunity to network and exchange ideas.
PAGE 34

cape-educators.ca

• Providing advice and input regarding national and regional law enforcement training and
education trends/needs.
• Advocating and promoting the commitment to training.
• Advising on training specific policy.
• Liaising between operational training academies and academic institutions.
• Guiding and undertaking law enforcement training and education research.
• Coordinating knowledge transfer initiatives.

Volume 18 Issue 3 - May/June 2018

UTTERANCE WAS VOLUNTARY &
SPONTANEOUS:
NO s. 10(b) CHARTER BREACH
R. v. Brazeau, 2018 ABCA 170
At about 12:30 am, a masked man
armed with a knife entered a Mac’s
convenience store and demanded
money. He left with a few $5 and $10
bills and toonies. He was seen getting
into a grey truck. Police responded and saw a grey
truck driving quite fast. After a lengthy chase, police
were unable to catch the truck and lost sight of it
but soon discovered it in a ditch. The accused was
found lying injured next to
the truck, near the passenger
d o o r. H e m a t c h e d t h e
description of the robber. He
was belligerent, smelled of
alcohol and had slurred
speech. He was arrested and
advised of his right to counsel
and cautioned. He indicated
he wanted to speak to a
lawyer at the “cop shop”.
An ambulance was called and he was transported
to the hospital at 2:14 am. A search of the truck
revealed $5 and $10 bills and toonies, as well as
two knives, but no mask. A blood demand was
made at the hospital at 4:29 am at which time the
accused was again asked if he wanted to contact a
lawyer. He again declined, stating that he would
contact counsel later. When the medical staff
decided that they would not discharge the accused
from the hospital that night, the police decided to
release him on a promise to appear. In the process
of releasing the accused, he voluntarily apologized
for his driving and for endangering the police
officers’ lives. He also commented that he would
fight the robbery charge because “it’s just not like
me”. The accused was never taken back to the
police station and was never questioned by the
officers. He was charged with several offences
including robbery, dangerous driving, flight from
police and impaired driving.

Alberta Provincial Court
A police officer testified that the accused
could have been left in the trauma room
to use the phone after about 4:19 am.
But before that time, the accused could
not be left alone to make a phone call because he
was immobilized on a spine board, although the
officer did say he might have been able to do so on
“speaker phone”.
 The judge found the two
statements the accused made were spontaneous
utterances to the police. They were unsolicited and
volunteered, not sought. The police did not
question the accused or attempt to elicit any
evidence from him. The judge concluded neither
utterance was the product of a
 Charter
 breach.
Those statements, apologizing for endangering the
officers’ lives (which amounted to an admission he
was driving the truck) and that he would fight the
robbery charge because “it’s just not like me”, were
admitted.
As for s. 10(b), the judge ruled that the first time
police were able to give the accused private
telephone access was 4:19 am at the hospital, but
the accused declined. Moreover, he was not
otherwise questioned. The accused was convicted
of robbery, failing to stop for police, dangerous
driving, and impaired driving.


Alberta Court of Appeal
The accused argued, in part,
that the trial judge erred by
applying the wrong test in his
s. 10(b) analysis. In his view,
the police had a duty to hold off when the
utterances were made and failed to provide him
with the opportunity to contact counsel.

s. 10(b) Charter
The Court of Appeal upheld the trial judge’s s. 10(b)
ruling. The accused had been given the opportunity
to contact counsel and declined to do so. And the
police did nothing to elicit the statements. “There
was no attempt to elicit evidence at any time,” said
the Appeal Court. “Given this finding, the only
conclusion was there was no s 10(b) violation of
the requirement to hold off.”


PAGE 35

Volume 18 Issue 3 - May/June 2018

“[T]he police have a positive obligation to facilitate contact with counsel and any delay in
doing so must be justified. Merely being in a hospital does not negate that. … [T]here
may be logistical impediments. However, the police have a duty to take reasonable steps
to determine whether there is a place where the necessary privacy is available while still
allowing police to control the detained person.”
[accused] was being actively treated and
getting x-rays was unreasonable in the
circumstances, and the trial judge reasonably
concluded as such. In any event, no evidence
was elicited during that time. Before the police
sought the blood sample, the [accused] was
again asked if he wished to contact counsel
and declined. None of the impugned evidence
was elicited at that time. It was only when the
[accused] was being released that he made the
admitted utterances.
[para. 23]

As for the contention that the police failed to
provide the accused with a reasonable opportunity
to contact counsel, it too was rejected. The accused
declined the opportunity to contact counsel both at
the scene and when asked again at the hospital.
“No evidence was elicited at the hospital,” said the
Court of Appeal. “The utterances, which were
essentially apologies to the police, were made
when the [accused] was released on a promise to
appear.”
The Court of Appeal noted:

Further, the police held off from eliciting evidence
from the accused. They did not question him. It
wasn’t until police were releasing him on a promise
to appear that he voluntarily apologized for
endangering their lives. The voluntary unsolicited
spontaneous utterances made by the accused were
admissible.

[T]he police have a positive obligation to
facilitate contact with counsel and any delay in
doing so must be justified. Merely being in a
hospital does not negate that. … [T]here may
be logistical impediments. However, the police
have a duty to take reasonable steps to
determine whether there is a place where the
necessary privacy is available while still
allowing police to control the detained person.
[references omitted, para. 21]

The accused’s appeal was dismissed.
Complete case available at www.canlii.org

In this case, the delay in providing the accused
with an opportunity to contact counsel was
reasonable in the circumstances. He was asked at
the accident scene is he wished to contact counsel.
He indicated he would wait until at the police
station. 
He was then transported by ambulance to
the hospital where he was again advised he could
contact a lawyer after being read the blood demand
but he again declined. Up until this time, the
officer said the accused could not have been left
alone to make a phone call because he was
immobilized on a spine board. In finding the delay
reasonable, the Appeal Court stated:
Having regard to the state the [accused] was in,
plus his earlier disinclination to contact
counsel at the earliest possible moment, it is
difficult to conclude that the delay of
approximately one and half hours while the

INDUCEMENT BY ITSELF DOES
NOT RENDER STATEMENT
INVOLUNTARY
R. v. Dixon, 2018 BCCA 181
The accused was arrested by police
following a sexual assault in which the
victim was administered GHB. The
circumstances of the offence were
violent and involved choking. The accused forced
himself upon the victim despite her repeated
attempts to stop him. Some hours later, the victim
made a police report.
After his arrest on the sexual assault charge, the
police told him he might be released in a few
hours. The police also said that the matter might be
resolved here and now if the accused made a

PAGE 36

Volume 18 Issue 3 - May/June 2018

statement. The accused did provide a statement and
he was subsequently released from custody on an
undertaking. The accused, along with another man
involved in the incident, was charged with sexual
assault and administering a noxious substance
(GHB) with intent to cause bodily harm.

British Columbia Provincial Court
The Crown sought to use the accused’s
statement at trial to cross-examine him
for the purpose of establishing
inconsistencies between what he told
the police and his testimony at trial. The accused
argued that the statement he made to police was
not voluntary because he was induced into
providing it. But the judge disagreed and found the
accused’s statement was freely and voluntarily
made. He went on to reject the accused’s evidence
that the sex was consensual and convicted him on
the sexual assault charge. His co-accused was
found guilty of sexual assault and administering the
GHB.

British Columbia Court of Appeal
The accused challenged his
conviction maintaining, among
other things, that the Crown
failed to prove his statement to
police was voluntary beyond a
reasonable doubt. He again contended that he was
offered two inducements to make the statement:
• The police said he might be released in a few
hours; and
• The police said the matter might be resolved
here and now if he made a statement.

LEGALLY SPEAKING:
Statement Voluntariness:

“[C]ourts must remember that the
police may often offer some kind of
inducement to the suspect to obtain
a confession. Few suspects will
spontaneously confess to a crime. In the vast
majority of cases, the police will have to somehow
convince the suspect that it is in his or her best
interests to confess. This becomes improper only
when the inducements, whether standing alone or in
combination with other factors, are strong enough to
raise a reasonable doubt about whether the will of
the subject has been overborne. … The most
important consideration in all cases is to look for
a quid pro quo offer by interrogators, regardless of
whether it comes in the form of a threat or a
promise.” – Supreme Court of Canada Justice
Iacobucci in R. v. Oickle, 2000 SCC 38.
to determine whether there is a reasonable doubt
as to whether the will of the person has been
overborne so that the statement cannot be
regarded as having been voluntarily given.” In this
case, the Court of Appeal found no quid pro quo
was offered:

The Court of Appeal, however, rejected the
accused’s claims. “The offering of an inducement
does not, by itself, make a statement involuntary,”
said Justice Tysoe, speaking for the Appeal Court.
“It is necessary to look at all of the circumstances

In the present case, the [accused] was not
offered a
quid pro quo
in exchange for making
the statement. While the [accused] was told
that he might be released later that afternoon, it
was not offered as a
quid pro quo. The remark
was made independently of whether the
[accused] did or did not give a statement.

“The offering of an inducement does not, by itself, make a statement involuntary. It is
necessary to look at all of the circumstances to determine whether there is a reasonable
doubt as to whether the will of the person has been overborne so that the statement
cannot be regarded as having been voluntarily given.”
PAGE 37

Volume 18 Issue 3 - May/June 2018

“Quid pro quo” is a Latin phrase literally
meaning “something for something.”
Similarly, the police did not offer the
 quid pro
quo
that the [accused] might not be charged if
he gave a statement. The police officer was
simply explaining to the [accused] that he was
trying to find the truth and commented that, if
the matter got resolved then it would end there,
and that if a charge was laid it would end up in
court. The comments of the officer could not
reasonably be interpreted as a suggestion that
the [accused] may not be charged if he
provided a statement, especially in view of the
fact that he had already agreed to answer
questions from the police. [para. 24-25]

The accused failed to demonstrate that the trial
judge erred in concluding the Crown had
established the voluntariness of the statement. The
accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

WELL SAID JUDGE
“IT’S NOT A JOB, FOLKS.
IT’S A CALLING”
On April 10, 2018 the the Honourable Associate
Justice William W. Bedsworth of Fourth District
Court of Appeal delivered the keynote address
during the grand opening of Golden West College’s
Criminal Justice Training Center in Huntington
Beach, California. Here is an excerpt from his
speech:
“Law enforcement changes hourly, folks. It
is no easier to keep up with the changes in
law enforcement than it is to keep up with
changes in medicine or physics or biology
or ballistics or pharmacology. All of which,
by the way, are things the modern police
officer must know a lot about — must learn
and relearn constantly.”

...
“Every day, every time a cop picks up a
paper or watches the news, she learns about
something else she will have to know about
probably before her next shift. The amount
of education and reeducation our police
must assimilate every day is staggering. It
requires literally, and I emphasize, I mean
this literally, not figuratively, it requires
literally more daily re-education than a
doctor or lawyer ever needs to do his or her
job, and when a peace officer applies that
reeducation, he or she has to be a
psychologist, a pharmacologist, a teacher, a
counselor, a lawyer, an EMT, and a bad-ass
superhero, probably all during one shift.”
...
“Imagine doing what you do. I don’t know
what your job is. Whatever your job is,
imagine doing it with people throwing rocks
at you, people spitting on you, people trying
to kill you, and then think about what their
job description is.
Their job description, these people in
uniform, is putting your life on the line
every day for strangers, dealing with the
mentally ill, mediating domestic violence,
counseling child molestation victims,
consoling the bereaved, pulling people out
of burning vehicles, chasing psychopathic
15-year-olds down blind, dark alleys,
knowing they have a gang (and) gun, but
they don’t yet have a conscience.”
...
“It’s not a job, folks. It’s a calling, and if you
haven’t been called, you can’t understand
those who have been. So, I no longer try to
understand them. I just thank the Lord for
continuing to turn them out and I suggest
you do the same.”
Complete keynote available here.

“The amount of education and reeducation our police must assimilate every
day is staggering. ... [I]t requires literally more daily re-education than a
doctor or lawyer ever needs to do his or her job.”
PAGE 38

Volume 18 Issue 3 - May/June 2018

ADMINISTRATIVE ALCOHOL &
DRUG RELATED DRIVING
PROHIBITIONS
B C ’s I m m e d i a t e
Roadside Prohibition
(IRP) program was
introduced in 2010.
Under this program,
police may issue a
3,
7 , 3 0 o r 9 0 - d ay
prohibition at the
roadside to alcohol-affected drivers under B.C.’s
Motor Vehicle Act.
A police officer will issue an IRP when a driver has
care or control of a motor vehicle, and following a
demand to provide a breath sample on an
Approved Screening Device (ASD):
•

if the driver has a blood alcohol concentration
over 0.05 (50mg%) BAC (the “Warn” range)

•

if the driver has a blood alcohol concentration
over 0.08 (80mg%) BAC (the “Fail” range)

•

if the driver fails or refuses to comply with a
breath test without a reasonable excuse.

For the 3 or 7 day IRP, a police officer may decide
to impound the driver’s vehicle. For 30 or 90 day
IRP’s, vehicle impoundment is mandatory.

Administrative Driving Prohibitions
An Administrative Driving Prohibition (ADP) is a 90
day driving prohibition served on drivers who
provide a breath test into an approved instrument
such as an Intoxilyzer.
If a driver’s breath sample indicates a BAC above
0.08 (80mg%), or if the driver refuses to provide a
sample of breath, police may issue a 90-day
“Notice of Driving Prohibition” and may also
charge the driver under the Criminal Code. A driver
served with an ADP has a 21-day period before the
prohibition takes effect.

IMMEDIATE ROADSIDE PROHIBITIONS
WARN

WARN

WARN

FAIL
or REFUSE

ASD Result

Incident

BAC .05 - .08

BAC .05 - .08

BAC .05 - .08

1st incident

2nd incident

3rd incident

within 5 years

within 5 years

7 days

30 days

90 days

30 days

30 days

$400

$500

IRP Length

3 days

Vehicle Impound
Length

3 days

7 days

(officer discretion)

(officer discretion)

$200

$300

Administrative
penalty

PAGE 39

BAC over .08

Volume 18 Issue 3 - May/June 2018

BC
C’s AL
LCOH
HOL DRIVING
G PR
ROHIBITIONS
S
Immediiate Roads
side Prohiibitions
Warn

Adminis
strative Driv
ving Proh
hibitions
90 Days

90 Days

Total
IRP &
ADP

YEAR

3 day
IRP

7 day
IRP

30 day
IRP

FAIL

REFUSE

Total
IRP

FAIL

REFUSE

Total
ADP

2013

6,063

303

26

11,565

1,410

19,367

1,017

341

1,358

20,725

2014

5,701

368

26

11,238

1,470

18,803

1,048

352

1,400

20,203

2015

4,670

351

33

9,286

1,863

16,203

1,125

480

1,605

17,808

2016

4,585

333

33

8,853

1,830

15,634

1,124

463

1,587

17,221

2017

4,243

259

19

8,389

1,715

14,625

1,068

419

1,487

16,112

Source: Alcohol Driving Prohibitions

BC’s RE
EVIEWS
S FOR ALCO
OHOL DRIVIN
NG PR
ROHIBIT
TIONS
Imme
ediate Road
dside Prohibitions
Warn

Adm
ministrative Driving
D
Prohibitions
s

90 Days
s

90 Days

YEAR

Appeals

Successful

%
Successful

Appeals

Successful

%
Successful

Appeals

Successful

%
Successful

2013

198

47

24%

2,909

768

26%

232

69

30%

2014

211

71

34%

2,877

1,061

37%

247

76

31%

2015

159

55

35%

2,756

1,283

47%

340

155

46%

2016

168

29

17%

2,825

848

30%

325

138

42%

2017

162

29

18%

2,726

670

25%

360

137

38%

Source: Reviews For Alcohol Prohibitions

VEHICLE IMPOUNDMENTS

BC’s Vehicle Impoundment (VI) Program is a road safety initiative
permitting police to immediately impound vehicles operated by drivers
affected by alcohol. Drivers served with an IRP may see the vehicle they
were driving impounded for 3, 7 or 30 days, depending on the
prohibition length. VI’s may also be issued for prohibited, suspended
and unlicensed drivers; excessive speeders; stunt drivers and street
racers; and improperly seated motorcyclists.

PAGE 40

Volume 18 Issue 3 - May/June 2018

BC VEHIICLEE IMP
POU
UNDM
MENTTS
TYPE

2013

2014

2015

2016

2017

5 Year Total

BAC - WARN - 3 day VI

3,298

2,799

2,305

2,432

2,354

13,188

BAC - WARN - 7 day VI

246

258

236

217

188

1,145

BAC - WARN - 30 day VI

70

76

77

43

33

299

BAC - FAIL/Refuse - 30 day VI

12,586

12,244

10,767

10,304

9,727

55,628

Prohibited/Suspended - 7 day VI

2,529

2,490

2,428

2,211

2,196

11,854

Prohibited/Suspended - 30 day VI

768

748

732

664

591

3,503

Prohibited/Suspended - 60 day VI

260

246

206

199

186

1,097

Unlicensed - 7 day VI

2,020

1,876

1,765

1,526

1,441

8,628

Unlicensed - 30 day VI

217

199

156

151

136

859

Unlicensed - 60 day VI

30

47

34

32

31

174

Excessive Speed - 7 day VI

6,536

6,394

6,871

7,127

5,871

32,799

Excessive Speed - 30 day VI

257

296

285

302

239

1,379

Excessive Speed - 60 day VI

37

40

27

24

25

153

Race - 7 day VI

55

73

62

52

43

285

Race - 30 day VI

7

3

2

2

2

16

Stunt - 7 day VI

189

189

192

187

134

891

Stunt - 30 day VI

9

9

8

17

13

56

Stunt - 60 day VI

3

0

0

0

0

3

Sitting - 7 day VI

0

2

0

0

1

3

Multiple Reasons - 7 day VI

298

277

389

1,442

1,736

4,142

Multiple Reasons - 30 day VI

358

424

372

515

505

2,174

Multiple Reasons - 60 day VI

21

21

21

49

62

174

29,794

28,711

26,935

27,496

25,514

138,450

TOTAL

Source: Vehicle Impoundments

PAGE 41

Volume 18 Issue 3 - May/June 2018

BC’s WORKERS COMPENSATION
ACT NOW HAS PRESUMPTIVE
CAUSE PROVISION
A new mental disorder
presumption has been
added to BC’s Workers
Compensation Act that
provides compensation
for workers employed in
certain occupations who
have developed a disease or disorder, including
PTSD, associated to their work. It will apply
specifically to first responders: firefighters, police,
paramedics, sheriffs and correctional officers.

Under the new legislative amendment, the mental
condition is presumed to have arisen due to the
nature of the claimant’s work, unless the contrary is
proved. With a presumptive condition, there is no
longer a need to prove that a claimant’s disease or
disorder is work related.
Previously, workers in these occupations had to
provide medical and/or scientific evidence to
establish that the condition arose out of their
employment, in addition to a diagnosis by a
psychiatrist or psychologist.
In short, the legislative amendment establishes a
new mental disorder presumption when the
condition is a reaction to traumatic events at work.

NEW PRESUMPTIVE CAUSE PROVISION
BC’s Workers Compensation Act
Mental disorder
5.1 (1.1) If a worker who is or has been employed in an eligible occupation
(a) is exposed to one or more traumatic events arising out of and in the course of the worker's employment in that
eligible occupation, and
(b) has a mental disorder that is recognized, in the most recent American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders, at the time of the diagnosis of the mental disorder under subsection (1) (b) of this
section, as a mental or physical condition that may arise from exposure to a traumatic event,
the mental disorder must be presumed to be a reaction to the one or more traumatic events arising out of and in the
course of the worker's employment in that eligible occupation, unless the contrary is proved.
[...]
(4) In this section:
"correctional officer" means a correctional officer as defined by regulation of the Lieutenant Governor in Council;
"eligible occupation" means the occupation of correctional officer, emergency medical assistant, firefighter, police
officer, sheriff or, without limitation, any other occupation prescribed by regulation of the Lieutenant Governor in Council;
"emergency medical assistant" means an emergency medical assistant as defined in section 1 of the Emergency
Health Services Act;
"firefighter" means a member of a fire brigade who is
(a) described in paragraph (c) of the definition of "worker" or employed by the government of Canada, and
(b) assigned primarily to fire suppression duties whether or not those duties include the performance of ambulance or
rescue services;
"police officer" means an officer as defined in section 1 of the Police Act;
[...]
"sheriff" means a person lawfully holding the office of sheriff or lawfully performing the duties of sheriff by way of
delegation, substitution, temporary appointment or otherwise.

PAGE 42


 


Volume 18 Issue 3 - May/June 2018



  
 


Make sure you can see the road and other road users –
and others can see you! Keep your lights clean and in
good working condition. Make sure your headlights are
aimed properly.





 
 
 

SYMBOL
Master light switch

Daytime running
lights






Turn your headlights on when:

• ,W·VQRWEULJKWRXW HJGXVNGDZQQLJKWGULYLQJLQ
dark tunnel).

• ,W·VKDUGWRVHH HJUDLQ 

 





FUNCTION

8QGHUVWDQG\RXUYHKLFOH·VOLJKWRSWLRQV²DQGNQRZKRZDQG
when to use them.

ILLUSTRATION

INFORMATION

Manually selects the different lighting options of your vehicle.

•
•

Makes vehicle more visible during the day.

Turn on when headlights are off.
Do not provide enough light on the
road ahead of your vehicle when it
is dark out.

Note: Marking lights are off.

Headlight
lower beam
(low beam, passing
beam, dipped beam)

Use:
Lights up the road just in front of
your vehicle.

•
•









In urban areas with lit streets.
When following or approaching
oncoming vehicles.

Use:

•

In rural areas.

Switch off when:

Headlight
upper beam
(high beam, driving
beam, main beam)

Lights up a longer distance, allowing you
to see far down a dark road.









•

Another car is coming towards
or is driving in front of you.

•

Driving in fog, rain or snow as
light from your upper beams
UHÁHFWVRIIIRJUDLQRUVQRZ7KLV
PDNHVLWHYHQPRUHGLIÀFXOWWRVHH
the road and obstacles in front of
the vehicle.

or

Automatic upper
beam

Automatically switches off upper beam
ZKHQWKHUHLVRQFRPLQJWUDIÀFRUZKHQ
there is a vehicle ahead.

Ensures that your lights do not cause
glare for other drivers.

or

Automatic
headlights

Automatically switches headlights and
marking lights on or off according to the
amount of light outside the vehicle.

Ensures that your headlights and
marking lights are on when you
need them.

Front fog lights

Provides better view of the road in fog, as
they have a wide beam pattern to light up
the road directly in front of your vehicle.

Use if driving in fog or snow.

Rear fog lights

Makes your vehicle more visible to drivers
behind you in fog, as they are brighter than
tail lights.

Use only if driving in fog, rain or snow
as it can be confused with stop lights
and distract other drivers.

Marking lights

Activates front position lights, rear position
lights (tail lights), side marker lights and
licence plate lights.

Make your vehicle more visible
to others.
Note: Headlights are off.

www.tc.gc.ca/SEEandbeSEEN

Volume 18 Issue 3 - May/June 2018

UPCOMING
EXTERNAL LEARNING
OPPORTUNITIES

July 18, 2018
Webcast

Click here.

January 15, 2019
In Person or Webcast

Click here.

February 8, 2019
In Person or Webcast

March 4, 2019

Click here.

Optional Workshop: Macrh 5, 2019

In Person or Webcast

Click here.

April 13, 2019
In Person or Webcast

Click here.
PAGE 44

Volume 18 Issue 3 - May/June 2018

April 26, 2019
In Person or Webcast

Click here.

Recently Added Osgoode Program On Demand

Recorded: April 19, 2018.

Click here

For More of Osgoode’s Best Selling On Demand and Upcoming Online Programs

Visit here.

2018 BC LAW ENFORCEMENT
MEMORIAL SERVICE
Sunday, September 30, 2018
BC Legislature, Victoria, BC

click here for
more info

Parade participants to form up at 12:00 pm in the 700 block of Wharf Street.
Parade will step off at 12:40 pm.

OFFICERS BEING HONOURED
Constable John
Davidson,
Abbotsford
Police
Department
End of Watch:
November 6,
2017

PAGE 45

Constable Ian
Jordan,
Victoria
Police
Department
End of Watch:
April 11,
2018

Volume 18 Issue 3 - May/June 2018

FACIAL ERROR SHOULD HAVE
BEEN NOTICED: WARRANT
INVALIDATED

for people to be able to enter into people’s
private residences with a warrant, and we
should all be sure that warrants are carefully
considered, issued only in the proper
circumstances, that they are accurate, that the
dates are accurate, and anyone handling a
warrant after execution should be sure that they
have authority to do what is in the warrant by
having careful regard to the dates that are
contained in the warrant.

R. v. Campbell, 2018
NSCA
42



Utilizing the tele-warrant procedures,
a police officer prepared an ITO for a
warrant to search a home. The officer
set out his reasonable grounds for
believing there was evidence related to several
indictable offences in the accused’s home and
included the time in which the warrant could be
executed. A justice of the peace authorized the
search warrant. On its face, the justice directed
“This warrant may be executed between the hours
of 6:00 p.m. on the 7th
day of May, 2016 and 9:00
p.m. on the 7th
day of January, 2016.” The warrant
was executed by police and the accused was
charged with unlawfully producing cannabis, two
counts of possessing a firearm while prohibited,
and unsafe storage of a firearm.

Nova Scotia Court of Appeal

Nova Scotia Provincial Court
The accused argued the warrant was
fundamentally flawed on its face because
of its date range and thus invalid. The
warrantless search therefore constituted a
breach of his s. 8 Charter right to be secure against
unreasonable search and seizure. The judge agreed,
finding the error on the face of the warrant was
more than a mere typographical error. In the judge’s
opinion, both the justice of the peace and the
police were negligent. She stated:
… [I]n the circumstances, both the officer who
executed, any of the officers who handled and
executed the warrant, failed to note that there
was a problem on the face of the warrant and
the JP failed to note that the time frame that she
was authorizing for execution of a warrant was,
in fact, an impossibility.

... It’s the opinion of this Court that it represents
negligence on the part of both the JP who
signed it and the police officer who wrote the
dates in, and the officer or officers who, in turn,
executed the warrant, because … it’s a serious
thing and, quite frankly, a great responsibility

Since the warrant was invalid, the search was
unreasonable and violated s. 8. As a remedy under
s. 24(2), the judge excluded the evidence. She
found the facial error could have been noted by the
issuing justice or the executing officers with a
minimum of care and attention. Moreover, the
police were aware that the premises was vacant
and, with no apparent risk for the destruction of
evidence, there was no need to act expeditiously
on the warrant. The accused was acquitted of all
charges.

The Crown challenged the trial
judge’s rulings, arguing that the
trial judge erred in both finding
the warrant invalid and in
excluding the evidence.

The Search Warrant
The Court of Appeal noted that “the time frame for
execution specified in the warrant is an
impossibility and a clear error.” Nevertheless, the
Crown submitted that the erroneous and factually
impossible time for the warrant’s execution did not
render it invalid. Rather than requiring the warrant
only need meet the reasonableness standard
(authorized by law, based on reasonable grounds
and conducted in a reasonable manner), the Crown
contended the trial judge required a standard of
facial perfection. Here, the Crown argued that the
error was a typographical mistake that did not
invalidate the warrant, nor render the search of the
home unreasonable. The Crown also asserted that
the trial judge erred by injecting the common-law
concept of negligence into the reasonableness

PAGE 46

Volume 18 Issue 3 - May/June 2018

analysis. The warrant, as the Crown maintained,
was presumptively valid and therefore the trial
judge erred in quashing it.

LINK BETWEEN ACCUSED &
SUITCASE MISSING, DESPITE
DRUG DOG HIT

The Court of Appeal concluded that the trial judge
did not require perfection from the police nor
improperly consider the presence of negligence.
First, the trial judge was aware that some errors on
the face of a warrant could be mere typographical
and trivial in nature and would not impact the
warrant’s presumptive validity while other errors
could be far from harmless and invalidate a
warrant. Second, negligence is not confined to tort
claims and can be used in determining the nature
of an error on the face of a warrant. Terms such as
“negligence” and “carelessness” are often used by
courts when assessing police conduct such as
whether the police have grounds for a warrant or
when undertaking a s. 24(2) analysis.

R. v. Molnar, 2018 MBCA

In this case, it was not an error for the trial judge to
conclude that the failure of the police to notice the
obvious error on the face of the warrant was
negligent. There is an expectation that an executing
officer should assure themselves that they are about
to act in accordance with the terms of a warrant.
Thus, they need to read it:
Here, the warrant was not “regular” on its face
– it contained an obvious error with respect to
the time frame for execution.
 It was well
within the purview of the trial judge to infer
either that the obvious error was not noted by
police, or conversely, they acted on it
notwithstanding the error.
 No evidence was
offered to explain why or how the police acted
in the face of an obvious error on the warrant.
[para. 36]

s. 24(2) Charter
As for the admissibility of the evidence under s.
24(2), the Court of Appeal found the trial judge
considered appropriate factors and did not err in
excluding it.
The Crown’s appeal was dismissed.
Complete case available at www.canlii.org




A police officer received a tip from a
reliable confidential informer that a
person named “Andrea Molnar” was
travelling by train from Agassiz, British
Columbia to Washago, Ontario (two known ports
in the drug trade). The informer said Molnar had
purchased a one-way ticket with cash and had a
locked grey suitcase smelling of marijuana.
 The
police, however, did not have time to act on that
tip.
 A month later, through his usual checks with
VIA Rail Canada, the officer learned that an
“Andrea Molnar” had purchased a one-way ticket
with cash for the same trip.
When the train stopped
in Winnipeg, the police sought out passenger
“Andrea
 Molnar” (the accused) and detained her
for a drug investigation.
 She was cautioned and
remained in a police vehicle while the investigation
proceeded.
Based on his experience, the
officer determined that he had a
reasonable suspicion for a
sniffer dog - trained to identify
six different types of drugs check out the baggage
compartment of the train.
 The dog smelled drugs in
a grey suitcase, but the only tag on it indicated the
destination of Washago. The suitcase had no
ownership information nor was it linked to an
owner.
 Once the dog indicated the presence of
drugs in the grey suitcase, the accused was arrested
for possessing drugs for the purpose of
trafficking.
 The accused was again cautioned and
the suitcase was pried open. In it, police found a
large garbage bag and coffee grounds (a substance
commonly used to mask the odour of marihuana)
as well as 20 half-pound vacuumed packed bags of
marihuana. The accused’s purse and a duffel bag
were also searched.
 These searches provided the
luggage ticket that matched the tag number on the
grey suitcase and a key to the suitcase. The accused
was charged with possessing marihuana for the
purpose of trafficking.

PAGE 47

Volume 18 Issue 3 - May/June 2018

Manitoba Court of Queen’s Bench
The accused challenged the admissibility
of the seized evidence arguing her rights
under the Charter were breached. The
judge found the accused’s detention,
arrest and searches incidental to it did not violate
the Charter. In the judge’s view, the experienced
police officers carefully conducted the investigation
“by the book.” The police easily had reasonable
suspicion to detain the accused and use a drug dog
to sniff the luggage. As well, the common law
power of search incidental to arrest permitted the
police to search the suitcase. The police had
reasonable grounds to arrest the accused for
possessing marihuana for the purpose of trafficking
once the dog made the hit. They searched the
suitcase for a valid objective and conducted the
search in a reasonable manner. Since there were no
Charter breaches, it was unnecessary to consider s.
24(2) and the accused was convicted

The Officer’s Purported Grounds
The evidence linking the accused to the
grey suitcase:
• A month before the arrest, an officer
received a tip from a reliable confidential
informant that a person named Andrea
Molnar was travelling from Agassiz to
Washago (two known ports in the drug
trade) on a one-way train ticket, paid for
by cash, with a locked grey suitcase
smelling of marijuana;
• The accused was named Andrea Molnar
and was travelling via train from Agassiz
to Washago;
• The suitcase was locked and grey, but did
not smell of marijuana; and
• The suitcase in question was tagged for
the destination of Washago.

Manitoba Court of Appeal
The accused conceded that
the police had the reasonable
suspicion necessary to detain
her and to deploy the sniffer
dog.
 However, she argued that the police did not
have the required reasonable grounds to arrest her
immediately after the sniffer dog’s positive hit on
the suitcase. In her view, there was not a sufficient
connection between herself and the suitcase that
provided reasonable grounds at the time of her
arrest. 


The Arrest
Justice Hamilton, speaking for the unanimous Court
of Appeal, agreed there were not objective
reasonable grounds to believe that the accused had
committed the offence. She held there was not a
sufficient connection between the accused and the
suitcase.



“The difference between reasonable suspicion and
reasonable grounds to believe has been described
as the “degree of certainty” … that is required,”
said Justice Hamilton. “Reasonable suspicion is a
lower standard.” It only requires proof that the

individual targeted is possibly engaged in criminal
activity. Reasonable grounds to arrest, on the other
hand, requires a stronger connection between an
accused and the offence being investigated. In this
case, the Appeal Court found the stronger
connection required for arrest was missing.
Although the dog hit on the suitcase elevated the
officer’s reasonable suspicion that the suitcase
contained marihuana to reasonable grounds (both
subjectively and objectively), the hit did not
provide any more information to connect the
accused to the suitcase. “While the objective facts
were strong (both subjectively and objectively) for
the reasonable suspicion that the accused was
travelling with the grey suitcase, it was not strong
enough to meet the higher threshold of reasonable
grounds to believe required to arrest the accused,”
said Justice Hamilton. The police did not know that
the suitcase belonged to the accused nor had they
seen the person in possession of the bag.
Although
the police had received a tip regarding the accused
travelling with a bag, they had no other information
tying the accused to the bag:

PAGE 48

Volume 18 Issue 3 - May/June 2018

“To conclude, the difference between reasonable suspicion to detain and reasonable and
probable grounds to arrest is a matter of degree. Reasonable suspicion is generally
framed in terms of possibility, while reasonable grounds for arrest is linked to
probability. Reasonable suspicion is a lower threshold than reasonable grounds to
believe.”

TRAVELLER NOT DETAINED
WHEN BORDER OFFICER XRAYED HIS LUGGAGE

To c o n c l u d e , t h e d i f f e r e n c e b e t w e e n
reasonable suspicion to detain and reasonable
and probable grounds to arrest is a matter of
degree. Reasonable suspicion is generally
framed in terms of possibility, while reasonable
grounds for arrest is linked to
probability.
 Reasonable suspicion is a lower
threshold than reasonable grounds to believe.

There was no evidence that the grey suitcase in
question was the only grey suitcase in the
baggage car bound for Washago. While the
evidence was strong to establish a reasonable
suspicion, particularly after [the dog’s] positive
hit on the grey suitcase, … the required strong
connection between the grey suitcase and the
accused for the RCMP to have objective
reasonable grounds to arrest her did not exist.

[para. 35]

R. v. Peters, 2018 ONCA 493



The trial judge erred in law that the police had
reasonable grounds to believe that the accused was
travelling with the grey suitcase.
 Therefore, the
police did not have reasonable grounds to arrest
her and, as a result, her arrest was unlawful as were
the searches incidental to it.

s. 24(2) Charter
Despite finding a s. 8 Charter breach, the Court of
Appeal admitted the evidence under s. 24(2). The
breach was at the low end of seriousness,
minimally impacted the accused’s privacy interests,
and the evidence was reliable and important to the
Crown’s case. The long-term repute of the
administration of justice would be impacted
negatively by excluding the evidence in the
circumstances.



The accused returned from Jamaica to
Toronto and arrived at the Pearson
International Airport. He was the
subject of a “lookout” on the Canadian
Border Services Agency (CBSA) computer and was
sent for a secondary customs inspection. At the
secondary inspection, the CBSA officer asked the
accused questions and elicited answers about the
contents of his luggage while it was searched. As a
result of his search, the border officer found several
sealed plastic bags containing a dried food product.
Upon x-ray inspection, each plastic bag revealed
round denser areas of organic material in the
middle of each bag. The CBSA officer asked the
accused several additional questions and obtained
his responses about the provenance of the bags and
how much he paid for them. When the border
officer slit open the bags, he found a round pucklike object wrapped in brown packing tape inside
each of the bags. He asked the accused what it was
and the accused answered he did not know. The
CBSA officer cut into one of the pucks and found
white powder. He conducted a narcotics field test,
which indicated the presence of cocaine. The
accused was arrested for importing almost three (3)
kilograms of cocaine,. He was also provided his
right to counsel and was cautioned.

Ontario Superior Court of Justice

The accused’s appeal was dismissed and her
conviction upheld.
Complete case available at www.canlii.org

PAGE 49

The accused sought to have his
statements made to the CBSA officers
excluded as evidence. But the judge
dismissed the application. The judge

Volume 18 Issue 3 - May/June 2018
found the accused was not detained until the CBSA
officer cut into the plastic bags and found the
pucks. It was at that time that “a reasonable person
placed in the position of the border services
officer would conclude that there was such a
strong particularized suspicion connecting the
accused to a specific crime that the questioning
and customs examination had changed from one
of routine to a focused investigation of a specific
offence.” The judge also concluded that the
question and answer following detention could be
subject to exclusion, but the accused did not want
these excluded. The accused was convicted of
smuggling cocaine and sentenced to 6.5 years in
prion less credit for pre-trial custody.

Ontario Court of Appeal
The accused argued, in part,
that the trial judge erred in
determining when he was
detained. In his view, he was
detained upon the x-raying of his luggage and twas
immediately entitled to be advised of his right to
counsel at that time. He contended the trial judge
applied too high a standard in deciding when
detention occurred by conflating the required
“reasonable suspicion” test for detention in the
border context with reasonable and probable
grounds for arrest. The accused also argued the trial
judge overemphasized the CBSA officer’s subjective
belief that there was not a sufficiently strong
particularized suspicion that the accused was
smuggling illegal drugs when the officer x-rayed the
food bags. The accused argued the officer’s belief in
this regard was not objectively reasonable. Because
the CBSA officer continued to ask him
incriminating questions after he should have been
told about his right to a lawyer, the accused’s
answers should have been excluded from the
evidence at trial.

Detention
The Court of Appeal disagreed with the accused.
“The trial judge adverted to and applied the
correct analysis to determine detention in an
international border context, namely, whether the
border officer has ‘decided, because of some
sufficiently strong particularized suspicion, to go
beyond routine questioning of a person and to
engage in a more intrusive form of inquiry’,” said
the Appeal Court. “Where the officer has made
that decision, the individual may be detained, even
when subject to that routine questioning.”
In this case, the trial judge was unable to say
whether the CBSA officer had grounds to arrest the
accused at the time of x-ray or such particularized
suspicion in relation to a specific offence that the
accused was detained. The Court of Appeal found
the trial judge properly considered the factual
circumstances, including the objective
reasonableness of the CBSA officer’s subjective
belief. And the trial judge did not confuse the test
for detention in a customs context with the test for
arrest.
[T]he trial judge weighed all of the evidence to
determine that the border officer’s subjective
belief did not rise to a particularized suspicion
that the [accused] may be involved in the
illegal importation of drugs, and that this
subjective belief was objectively reasonable in
the circumstances of this case. In particular, the
trial judge accepted the border officer’s
testimony of his past experience that x-ray
anomalies seen in food products often yield
innocent results. The officer was not certain
whether the anomalies in the plastic bags were
due to the bulking of the food product, and the
entire constellation of factors he was dealing
with had not resulted in such a level of
particularized suspicion to take his questioning
out of the routine. These were conclusions
open to the trial judge to make on the record
before him. [para. 11]

The accused appeal was dismissed.

Complete case available at www.canlii.org

PAGE 50

Volume 18 Issue 3 - May/June 2018

POLICE NEED NOT EXHAUST
ALL INVESTIGATIVE AVENUES
BEFORE MAKING ARREST

three pellet guns, a cross-bow, a machete, a folding
knife and ammunition were found and seized.
When Tremblay and Mongrain returned home,
Tremblay was arrested for intimidation and mischief
and transported to the police station. He was then
released by police on an undertaking with
conditions.

Tremblay v. Ottawa (Police Services Board),
2018 ONCA 497
The plaintiffs, Tremblay and his
spouse Mongrain, were involved in a
dispute with their neighbours. The
neighbours alleged their homes were
being flooded because of a drainage
pipe Tremblay and Mongrain had installed. The
neighbours complained to the city, which started a
by-law proceeding over the pipe, and also brought
a civil suit against Tremblay and Mongrain. Some of
the neighbours claimed that Tremblay subsequently
engaged in intimidating behaviour toward them
and their families.

Police received reports that Tremblay had over 20
encounters with the neighbours, including
incidents where he stared at them, photographed
them in their backyard and pool, laughed and
cursed at them, gave them the finger, intimidated
them with his pitbull. It was also alleged that
Tremblay interfered with a neighbour’s attempts to
sell their property by parking an old van next to the
property line with a message spray painted on its
side in big fluorescent letters, “I AM NOT
RESPONSIBLE FOR YOUR BASEMENT FLOODS.”
The police also received information that gunshots
were heard on two occasions coming from the
Tremblay property.
Acting on the reports submitted by other officers,
the lead investigator conducted a firearms search
and found Tremblay had a firearms licence and
three (3) firearms registered to him at his residence.
Police then, having confirmed that Tremblay had a
licence and registration to possess three firearms,
obtained a public safety firearms warrant under s.
117.04 of the Criminal Code. With assistance from
their Tactical Unit, police executed the warrant.
They knocked on the door and telephoned the
home several times, but no one answered. After
waiting 15 minutes, they then breached the front
door, called out identifying themselves, and entered
the home to clear and search it. Three firearms,

At his criminal trial in the Ontario Court of Justice,
Tremblay was acquitted of intimidation and of
criminal harassment (a charge that was added by
the Crown), but was found guilty of mischief for the
message written on the side of the van. His
mischief conviction was upheld on appeal to the
Ontario Superior Court of Justice but overturned by
the Ontario Court of Appeal.


Ontario Superior Court of Justice
The plaintiffs brought a civil action
against the police seeking damages of
$500,000 from the Ottawa Police
Services Board (OSPB), the lead
investigator, and thirteen other named officers
claiming torts and Charter breaches. The judge
found the lead investigator and his employer, the
OPSB, liable for the following:
• Negligent investigation – there was no urgency
to the investigation and the police had other
options available instead of resorting to arrest
and executing a public safety warrant. The
judge awarded Tremblay $10,000;
• False arrest and unlawful detention – the lead
investigator did not have reasonable grounds to
arrest for intimidation and, although having
grounds to arrest for mischief, should not have
done so because the public interest could have
been satisfied without arrest under s. 495(2) of
the Criminal Code. The judge awarded
Tremblay $15,000;
• Wrongful seizure of weapons – the judge
awarded Tremblay $5,000;
• Breaching s. 8 Charter – the officer failed to
make full, fair, and frank disclosure in the ITO
for the warrant and the use of the dynamic
entry into the home was unreasonable. The
judge awarded Mongrain $10,000.

PAGE 51

Volume 18 Issue 3 - May/June 2018

The judge also awarded $10,923.58 in special
damages related legal fess and replacing the
damaged door and door frame.

standard of care for negligent investigation without
evidence as to the standard. Second, she imposed a
standard of care that was inconsistent with the law:

Ontario Court of Appeal
The lead investigator and the
OPSB appealed the trial
judge’s ruling. Justice Juriansz,
delivering the Court of
Appeals decision allowed the appeal and ordered
the lawsuit dismissed.

Negligent Investigation
The trial judge suggested that the investigating
officer had a number of options available to him
short of arrest and pursuing a public safety warrant
he should have pursued such personally
interviewing neighbours to find out what steps they
wanted taken, personally interviewing the plaintiff’s
to get their side of the story, and discussing ways to
de-escalate the tension between the families. She
found moving forward with the arrest and search
warrant breached the standard of care expected of
a reasonable police officer.
The Court of Appeal, however, concluded the trial
judge erred in two respects. First, she defined the

PAGE 52

… [T]he legal principles that apply to
consideration of the tort of negligent
investigation in the context of laying charges,
includ[e] the following:
• The appropriate standard of care for the tort
of negligent investigation is that of the
reasonable police officer in similar
circumstances.

• In the laying of charges, the reasonable
standard is informed by the presence of
reasonable and probable grounds to believe
the suspect has committed the offence.

• This standard does not require police to
establish a
prima facie
case for conviction.
• The police are not required to evaluate the
evidence to a legal standard or make legal
judgments. That is the task of prosecutors,
defence lawyers and judges.
• A police officer is not required to exhaust all
possible routes of investigation or inquiry,
interview all potential witnesses prior to
arrest, or to obtain the suspect’s version of
events or otherwise establish there is no
valid defence before being able to form
reasonable and probable grounds.
 [para.
60]

Volume 18 Issue 3 - May/June 2018

“The question in assessing whether an arrest was authorized and is therefore lawful is
not whether the officer could have done something other than arrest. Rather, the
question is: did the officer have grounds to arrest?”
“The question in assessing whether an arrest was
authorized and is therefore lawful is not whether
the officer could have done something other than
arrest,” said the Appeal Court. “Rather, the
question is: did the officer have grounds to
arrest?” Here, the trial judge found the
investigating officer was required to take additional
investigative steps before arrest. But that is not the
law. 


may be satisfied without arresting the person.” He
continued:
Section 495(2)
places a duty on a police officer
who has grounds for arrest under s. 495(1),
to
 not
 arrest where he or she
 believes
 on
reasonable grounds that the public interest may
be satisfied without arresting the person. The
phrase “believes on reasonable grounds” makes
clear that the test for applying the limitation
in
 s. 495(2)
 is both subjective and objective.
The police officer must believe that the public
interest can be satisfied without arrest, and that
subjective belief must be objectively
reasonable. Both components must be satisfied.
To be clear, it is not enough for a person
alleging a violation of
 s. 495(2)
 to establish
that, objectively, the public interest can be
satisfied without an arrest. The person must also
establish the police officer believed the public
interest could be satisfied without an arrest but
went ahead and made the arrest in any
event.
[para. 93]

False Arrest
The trial judge erred in holding the investigating
officer did not have reasonable grounds to arrest for
intimidation. “Had the trial judge focused on the
elements of the offence of intimidation, and on the
information that was available, she would have
concluded that there were reasonable grounds to
arrest Tremblay for intimidation,” said Justice
Juriansz.
As for the trial judge’s application of s. 495(2) of the
Criminal Code, the Court of Appeal also found the
trial judge erred. “Section 495(2)(d) of
the
Criminal Code
stipulates, in part, that a peace
officer, despite having grounds to arrest, shall not
arrest where he or she believes on reasonable
grounds that the public interest may be satisfied
without arresting the person,” said Justice Juriansz.
“I observe that
s. 495(2)
only comes into play once
s. 495(1) is satisfied and the peace officer already
has grounds to arrest.
 Section 495(2)
 does not
require the officer to conduct additional
investigation to determine if the public interest

Here, the plaintiffs had to prove that the police
believed on reasonable grounds that the public
interest, having regard to all of the circumstances,
could be satisfied without arresting Tremblay.
However, “on the record, it could not be found
that [lead investigator] believed on reasonable
grounds that the public interest could be satisfied
without arresting Tremblay.” The investigating
officer believed the public interest required
Tremblay be placed under certain conditions and it
was therefore necessary to arrest him to impose
these conditions. Finally, the trial judge erred in

“Section 495(2) places a duty on a police officer who has grounds for arrest under s.
495(1), to not arrest where he or she believes on reasonable grounds that the public
interest may be satisfied without arresting the person. The phrase ‘believes on
reasonable grounds’ makes clear that the test for applying the limitation in s. 495(2) is
both subjective and objective. The police officer must believe that the public interest can
be satisfied without arrest, and that subjective belief must be objectively reasonable.”
PAGE 53

Volume 18 Issue 3 - May/June 2018
failing to apply the deeming provision of s. 495(3),
which “deems an arrest to be lawful
notwithstanding
 s. 495(2)
 unless the person
asserting its application ‘alleges and establishes’,
in the proceedings at issue, that the police
violated
s. 495(2).”

The Firearms Warrant
The Court of Appeal found “the trial judge’s
analysis, as a whole, illustrates that, instead of
assessing whether the ITO, as amplified, contained
reliable evidence that might reasonably be
believed, she substituted her own view of the
evidence and the particular inferences that she
drew from that evidence.” Had the trial judge
properly performed her role in reviewing the
warrant, she would have determined that there
continued to be
 at least some evidence
 that might
reasonably be believed on the basis of which the
public safety firearms warrant could have been
issued.
As for her finding that the manner in which the
warrant was executed was unreasonable, the trial
judge also erred. First, the Tactical Unit’s entry was
not “dynamic”. Police knocked, phoned the home
and waited 15 minutes before breaching the door.
The police complied with the knock-and-announce
rule. “If the police receive no answer, they are
entitled to force entry into a home,” said Justice
Juriansz.
 By suggesting there were other options
available to the police that were far less invasive
and traumatic to Tremblay and Mongrain without
being put to the police for comment or
explanation, the trial judge was “Monday morning
quarterbacking.” As the Court of Appeal noted,
“the trial judge essentially substituted her own
after-the-fact view of how the police should have
acted, without affording them the opportunity to
comment on her alternatives.”
The OPSB and lead investigator’s appeal was
allowed and the trial judge’s order was replaced
with an order dismissing the Tremblay and
Mongrain action.
Complete case available at www.ontariocourts.on.ca

Monday Morning
Quarterback
• A person who criticizes the actions or
decisions of others after the fact, using
hindsight to assess situations and specify
alternative solutions. (dictionary.com)
• Someone who says how an event or
problem should have been dealt with by
others after it has already been dealt with.
(Cambridge Dictionary online)

• One who second-guesses; a person who
unfairly criticizes or questions the
decisions and actions of other people after
something has happened. (Merriam-Webster
online)

• A person who criticizes or suggests
alternative courses of action from a
position of hindsight after the event in
question; a person who, after the event,
offers advice or criticism concerning
decisions made by others; one who
second-guesses. (Collins English Dictionary online)

PAGE 54

Volume 16 Issue 5 - September/October 2016

PAGE 28

Volume 18 Issue 3 - May/June 2018

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Volume 18 Issue 3 - May/June 2018

From time to time judges try to explain the reasonable grounds
standard. Here is a recent effort by a BC Provincial Court judge.

LEGALLY SPEAKING:
Reasonable Grounds for Arrest
“In deciding what constitutes “reasonable grounds”, two conditions must
exist. Firstly, an arresting officer must subjectively have reasonable grounds
to believe the accused committed or was in the process of committing an
indictable offence. ...
The second condition requires that those grounds must be justifiable from an objective point
of view. This calls for some mental gymnastics in deciding this question. The question is not
whether I personally believe those grounds were reasonable, or do I think that an average
member of the public would think this was reasonable. It does not mean would a majority of
those polled by a professional pollster conclude that [the officer’s] grounds for arrest were
reasonable. The test is more nuanced than that. The Supreme Court of Canada ... has said that
I must decide if a reasonable person with the same experience, training, knowledge, and skills
as the officer making the observations would to conclude that there were indeed reasonable
grounds for the arrest. In other words, would a reasonable person with [the officer’]
experience look at all of the circumstances and say “it’s reasonable to conclude that the
Accused has committed or is committing an indictable offence”?
The word “reasonable” can mean different things to different people, and case law from court
whose decisions are binding on me have offered some helpful guidance on what that word
should mean to me. The “reasonable grounds” standard has been described as “a credibly
based probability,” or “reasonable probability.” It requires more than mere suspicion. But it is
something less than the civil standard of proof on a balance of probabilities or a prima facie
case. ...
Deciding the question of whether or not reasonable grounds for the belief exist involves a
consideration of the “totality of the circumstances”. If each individual factor taken by itself is
insufficient for form reasonable grounds for arrest, I must still consider whether all of these
factors taken together and decide on the reasonableness of the conclusion that the Accused
was arrestable.” – BC Provincial Court Judge K. Skilnick in R. v. Malhi, 2018 BCPC 143, paras. 6-9, references omitted
PAGE 57

Volume 14 Issue 6 - November/December 2014

Be the one
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register@jibc.ca

15-006

Volume 18 Issue 3 - May/June 2018

Upcoming Investigation & Enforcement Skills Courses
To register for any of the following courses, click on the course code below or contact the JIBC
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PAGE 59

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