m11u11 Of WMTllllT
VOLUMI NO® I I

Justice Institute of British Columbia

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Columbia, V&R 4J5

ISSUES OF INTEREST
VOLUME NO. 25
Written by John M. Post
Deceaber 1986

TABLE OF CONTENTS

Page
PRIVATE PROSECUTION BY PARENTS OP TRAFFIC VICTIMS CROWN STAYING PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Re Baker and The Queen, 26 C.C.C (3d) 123.
Supreme Court of British Columbia
IS THE CROWN OBLIGED, IN THE ABSENCE OF SPECIFIC LAW, TO
PROVIDE IDENTITY AND WHEREABOUTS OF DEFENCE WITNESSES?
ENTRAPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

l

3

Regina v. Gudbranson

STATEMENT - ADMISSIBILITY AND USE
CROWN USING, IN CROSS-EXAMINATION, A STATEMENT IT DID
NOT PRESENT IN EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Queen and Brooks, B. c. Court of Appeal,
Vancouver CA000321, June 1986.

8

THE MEANING OF "ILLICIT" SEXUAL INTERCOURSE
Deutsch and The Queen - Supreme Court of Canada, July 1986.

10

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INVASION OF PRIVACY - APPBCT ON NON-DISCLOSURE TO
AUTHORIZING JUDGE THAT INFORMATION GLEANED PROM
INTERCEPTIONS WOULD BE SHARED WITH REVENUERS .......................
Chambers and The Queen, Supreme Court of Canada, July 1986.
THE PRIVACY ACT AND THE CHARTER - ADEQUACY OP THE
AUTHORIZATION - PROPRIETY OP OVERLAPPING
AUTHORIZATION - PUBLIC TELEPHONES ..................................
Regina v. Tho111pson et. al., B. c. Court of Appeal #004343,
June 1986.

13

14

- ii -

CONSTITUTIONAL VALIDITY OF DIFFERENTIATION IN TREATMENT OF
TRAFFIC VIOLATORS AND TRAFFIC OFFENDERS IN BRITISH COLUMBIA
Attorney General of B. C. and His Honour K. J. Husband and

18

Bruce Page, Supreme Court of B. C., No. 851778, Vancouver.

THE CHARTER RIGHT TO BE TRIED WITHIN A REASONABLE TIJIE PRE-CHARGE DELAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

Carter and The Queen, Supreme Court of Canada, June 1986.

IS AN OBJECT CARRIED TO BB USED FOR PROTECTION A WEAPON?
v. Wilson, Vancouver County Court No. CC860003

22

Regina

Vancouver Registry. July 1986.

EXECUTING SEARCH WARRANT - BODILY SEARCH OF PERSON ON
THE PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

25

Regina v. Hutch, 26 C.C.C. (3d) 477

Saskatchewan Court of Appeal

ACCUSED MARRYING CROWN WITNESS BEFORE TRIAL BUT AFTER THE
ALLEGED OFFENCE TOOK PLACE - COMPELLABILITY - COMPETENCY
OF WITNESS (SPOUSE) . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regina v. NcGinty, 27 C.C.C. (3d) 36 Yukon Territory

27

Court of Appeal (B.C. Court of Appeal)

THE DOCTRINE OP RECENT POSSESSION ..................................
Regina v. Kowlyk, 27 C.C.C (3d) 61, Manitoba Court of Appeal

28

SEXUAL ASSAULT - IDENTIFICATION - POLICE PROCEDURES .. . .............

30

Mezzo and T.'ie Queen, Supreme Court of Canada, June 1986.

LEGAL TIDBITS
Police Disciplinary Proceedings and the Charter .........•.....

32

Presumption of "Care of Control" and the Presumption
of Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32

Taking Statement from Adult re an Offence Committed
When he was a "Young Person" .............................

33

Pol i ce Officer Acting as Prosecutor ......................... . .

34

Discharge and Double Jeopardy ............... . .................

34

Private Prosecution by Parents of Traffic Victims
Crown Staying Proceedings
Re Baker and The Queen, 26

c.c.c. (3d) 123.

Supreme Court of British Columbia.
Mr. Baker could not see anything as·--· he faced the setting sun. Yet he continued
to drive along and struck a six year old girl and her younger brother who
were playing on the roadway, very near the curb.
The girl died and the boy
recovered from his injuries.
The Crown alleged the offence of careless driving
against Mr. Brown under the B.C. Motor Vehicle Act and a petition signed by
905 citizens did not alter the Crown's position that there was inadequate evidence
to levy a charge of dangerous or criminal negligent driving.
The children's father then swore an information alleging both above-mentioned
criminal driving offences and the Justice of the Peace, after conducting an ex
parte hearing, issued process.
The Crown promptly instructed the clerk of the
court to enter a stay of the proceedings against Mr. Baker in regards to the
criminal charges.
The parents then turned to the Supreme Court of B.C. with
a petition seeking a re11edy to this impasse.
The parents argued that s. 508
C.C. (the Crown's authority to stay proceedings) does not include private
prosecutions.
It would simply be unconstitutional to bar a citizen from access
to the courts to prosecute another citizen.
The Supreme Court Justice drew the attention of the parties to the case decided
by the B.C. Chief Justice in 1957* on this very issue.
The Chief Justice said
that a citizen had an unfettered right to do as the father (informant) did in
this case, and went on to hold that when the .Justice of the Peace then issues
process (warrant or suuons) the informant or his or her counsel has a right
to carry forward the prosecution.
The Supreme Court Justice in this case found that the laws since 1957 had not
changed.
However, he decided that this Baker case was distinct from the one
in 1957.
Apparently in the latter case the Crown had not initiated any charges
while in this Baker case it did.
The father was simply dissatisfied with the
selection.
The private prosecution against Mr. Baker did not fill a vacuum, it
alleged offences in addition to the one the Attorney General as the Queen's
agent, had considered appropriate.
The father in fact co11peted with the
prosecutor.
Regardless who the informant is, it must not be forgotten that a
criminal process is a dispute between the Queen and the defendant.
Her agent
should not be interfered with.
When he does act, his rights to prosecute are
paraaount to those of the private citizen.
The Supreae Court Justice came to
this conclusion from some historical cases on this point.

*

R. v. Schwerdt, 119

c.c.c. 81 (1957)

- 2 -

Quoting from those cases the Court reviewed how at one time, the criminal
trials were, like civil cases, a means to settle disputes between individuals.
Eventually the Sovereign became the prosecutor as crime was seen as a breach
of the Sovereign's peace.
Private prosecutions permitted by law may be a
parallel role to that of the state, but is not to be a substitute.
But how has s. 15(1) of the Charter of Rights and Freedoms affected all of
this.
In simple language, the father's lawyer argued that the prosecutor being
paramount in this matter rendered his client unequal "before and under the
law".
The Court rejected this submission simply by saying that there was no
discrimination between persons or entities involved.
Something has to be
paramount and the State historically is in issues like these.
Had the Crown not laid any charge, it would not have been empowered to stay
the proceedings.
However, the Crown had acted and the father's private process
had been superseded.
Therefore the Crown was empowered to stay the
proceedings.
Application dismissed.
Comment:
The B. C. Supreme Court Justice did IJ,Ot refer to a case decided by
the Supreme Court of Canada in October of 1983 which was perhaps not on all
fours with this Baker case, but in which the court gave a strong indication how
it saw the law in respect to the issues involved here.
In that case a citizen
swore informations before a justice of the peace alleging nine offences.
The
Justice of the Peace conducted a hearing to determine if process should issue.
The prosecutor (the Crown) appeared at the hearing and ordered a stay to be
entered prior to the decision if the person accused should be compelled to
appear in Court to answer to the charges.
The Supreme Court of canada in
essence said that the Crown jumped the gun but recognized that: ·
"The Attorney General's power to stay starts as of the
moment a summons or warrant is issued".
One could argue that the narrow question of law before the Supreme Court of
Canada was whether the Crown could stay proceedings during the ex parte
hearing before the Justice of the Peace.
The answer was "No", but the highest
Court seemed to have said, it has after process does issue. The latter portion
could in law be considered gratuitous (obiter dicta) and not be part of the
binding precedent.

* * • * *

*

Damson v. The Queen, Volume 14, page 14 of this publication.
not seen this case reported.

Have

- 3 -

Is the Crown Obliged, in the Absence of Specific Law, to Provide
Identity and Whereabouts of Defence Witnesses?
Entrapment

Regina v. Gudbranson
A biker and his passenger made a meet with two men in a car.
The biker
approached the car by hi11self and asked "How much for the coke"?
"Thirtytwo" was the answer.
The biker passed $3,200 onto the men in the car and he
received a quantity of coke in return and was assured there would be no problem
to "score" more later on.
As a result of this transaction the accused was
charged with trafficking in cocaine.
The players on the stage of the above scene were Police Constable G. (the
biker), Mr. w, an agent provocateur, and one of the occupants of the car, the
accused.
The transaction was part of a larger police operation to identify,
target and apprehend drug traffickers.
Mr. W was engaged by police for $50 per day for his expenses and $10,000 at
the completion of the operation.
He was briefed on what Police considered
"acceptable and unacceptable" conduct and sent out into the community to
ferret out those who sold and distributed drugs.
He did this with lllinimal if
any supervision.
W was not simply to be an informer, but was to introduce
est. G to the targets.
He was not to be a witness to or have any other part
in the resulting transactions.
Neither was Cst. G to play any part in or be a
W was told that this would
witness to W's part of the contact with suspects.
give him "extensive protection from his identity becoming known".
The Court
concluded that ... " the scheme was deliberately structured to the end that he (W)
would not be required by the Crown after his services had been rendered".

It claimed there was "importuning" on the
The defence aimed for entrapment.
part of W.
The scheme set up by police deprived the accused from crossexamining W who could have used any nefarious 11eans to force a sale.
Furthermore, the Court found about W:
"
. when not busying himself with the work of Her
Majesty, he was conducting his infamous trade by selling
drugs to others, and more particularly to young children
and adolescents... which was built into the scheme by the
lack of any appropriate surveillance or reporting system.
... It was a case of hiring the fox to catch the chickens".
The accused claimed that unless the Crown called W, he was deprived of making
a full defence.
The Judge who presided over the trial, had in 1984 stayed
proceedings when it was shown that in similar circumstances police had told
their agent provocateur (not informer) to absent herself so she could not be

- 4 -

subpoenaed by the defence to show entrapment*. In this case there was evidence
that W had not been told to make himself scarce.
He had taken that upon
himself shortly after he received his $10,000.
The officer in charge of the
drug section was called to discover if the whereabouts of W were likely to be
discovereu .if some efforts were made to that end.
The Court concluded the
defence was being "stonewalled" and the veteran policeman who testified in
regard to this issue "seemed to be** portraying calculated indifference or was
otherwise deliberately being specious".
The Court, to resolve the impasse as to who was responsible to locate w.
promised to stay the proceedings until police had been given an opportunity to
find w. Crown counsel then advised the Court that possibly W would be available
in a few days and indeed he was.
W. was questioned by defence counsel (as his witness) and contradicted the
police evidence about him having left for parts unknown.
At the time of the
preliminary hearing when defence counsel's persistence to have W produced as
a witness commenced, he (W) was actively working for the police.
He had
been contacted a few days before his testi.Jllony and to the best of his knowledge
police knew his whereabouts and had no problem contacting him.
The trial
judge found that the police testimony on the availability of W had been deceptive
and was designed to have defence counsel consider his efforts futile. In respect
to the prosecutor's role in all this, the Judge remarked that he had expected
from an experienced counsel that he would have instructed police to make w
available when the defence wanted hill as a witness. The aatter of compellability
could have been argued later. In any event the trial judge remarked:

"His (Crown Counsel's) failure to do so, apart from raising
suspicions as to his honesty with Mr. ..• (defence counsel)
and myself, leads me to the regrettable conclusion that
his conduct was far less than one has a right to expect
from a leading member of the Department of Justice".
In any event, the defence reasoned that the whole case had become an abuse
of the process of the Court which could be remedied by a judicial stay of the
proceedings. ***
To decide this the Court had to determine to what extent the
Crown is obliged in the absence of specific law, to provide the defence with
the details on defence witnesses.
And, in addition, was W. compellable; was
the Crown permitted to divulge the identity and whereabouts of a police

*

Regina v. Ross {1984) (3d) 177.

**

Some of this dispute had been argued at the preliminary hearing.

***

See page 29, Volume 22 of this publication Mack and R.

~· Jewitt.

Entrapment.

R.

v.

- 5 -

undercover agent? *
The Court referred to the now well established law.
A police informer is
protected.
His or her name is not to be released to anyone but the police
handler.
However, as soon as such a person becomes active other than simply
passing on intelligence from the environment in which he works, lives, or is
exposed to in some way, then the protection captured by the common law may
well be lost. Reiterated the Court:
"Any scheme or plan that envisages the use of informers
as opposed to agents provocateur can anticipate that the
informer will not be required by the court to be identified,
but the moment it is known that person has participated
in the circumstances that have brought about the offence
to the extent that he can reasonably be concluded to be a
necessary and incidental witness for the defence, such
protection ceases to exist."
Hence W was held to be an unprotected agent and a compellable witness.
The question remaining was whether the Crown was obliged to accommodate
the defence in producing W.
In a 1951 decision the Supreme Court of Canada**
seeraed to have said "No" to this question.
However, upon closer scrutiny and
particularly the way the Courts have interpreted that decision, it seems that
no one can interfere with the way the Crown wishes to conduct the presentation
of its case but it is not free of obligation "to 1take certain that all material
facts pertaining to the event, which are known to the Crown, are made available
if the Crown does not chose to call the witnesses itself".
Due to a lack of supervision W had in his alleged handling of prospective
suppliers, triggered the issue of entrapment.
The Court felt that better
supervision could have prevented this.
Therefore W. was a •aterial witness
for the defence.
The Crown's obvious refusal to produce W was "tantamount
to obstruction of justice" and the accused was deprived of making a full answer
and defence".
In such case a judicial stay of proceedings is something the
accused is entitled to.

w. was produced and no "stay" was justified unless entrapment was established.
Hence the next question was whether W's actions had entrapped the accused.

*

See Volume 15, page 3 police informers.

Supreme Court of Canada on protection of

Also Volume 12, page 40 Biscillon v. Kibble et. al. and R. v. Davies
respectively.

**

Le•ay v. The King 102 C.C.C. 1

- 6 -

The Court heard from quite a number of witnesses about the accused's propensity
or lack thereof, to traffic in drugs or narcotics.
As a consequence the Court
found as a fact:
"... that when he (the accused) became acquainted with W
he was not, nor was he likely to be a person who trafficked
in drugs".
The accused did place evidence before the Court on how W had persisted that
he supplied the narcotics.
He had come on nwaerous occasions uninvited to the
accused's home and had been relentless.
Phone calls in the middle of the
night were common and W did not deny having been persistent.
On one point in his case, the accused was caught with his proverbial pants in
the lowest possible position.
He related an incident to the Court which was
supposed to have been an example of the importuning he was subjected to.
The Crown did actually prove that to be a lie. However, one such an inaccuracy
does not mean that all evidence from that source cannot be believed reasoned
the Court.
The accused testified that, due to pressure put on him, and persistence by the
"unsupervised" W he had finally agreed to co-operate and got the cocaine w
wanted.
He denied that he, upon delivery, had indicated that he could get
more cocaine. As a matter of fact, the accused testified that he had specifically
said that he would not supply more, despite the fact that he did profit from
the transaction.
The Court concluded that the preponderance of evidence favoured a view that
the accused was importuned on many occasions.
Also that W had promised
that there would be no more pressure if the accused would co-operate in the
proposed sale.
W had, during his "employment" with the police, been caught stealing, and
dealing in stolen property.
The charges had been "mysteriously" stayed found
the Court.
The Court was also satisfied that W was profitably dealing in
drugs while so employed.
On at least two occasions cocaine was sold by him
to children under the age of 15 years, was the defence's evidence.
W denied the allegation.
However the Court considered his credibility "very
It seems reasonable to infer from the 46 page Reasons for Judgement
limited".
that the trial judge was not impressed with either the police strategy or W and
had grave doubts about the latter's testimony.
Police expressed doubt about the carte blanche the unsupervised W had in
respect to criminal activities.
Their intelligence network would have alerted
them if W's behaviour was as the defence claimed.
The Court considered that
theory inadequate to rebut the defence position.
Furthermore, the preparation
of W by telling him what is acceptable conduct, is in this case "... tantamount
to the F.B.I. reading John Dillinger the ten commandments".
The Court expressed
suspicion that the lecture W received was no more than to "... receive sympathetic

- 7 -

approbation, when it was known full well that the scheme opened the door for
the commission of the very crimes that they (police) were duty bound to prevent".
Concluded the Court: "They (the lectures) were ... window dressing".
Entrapment, as an aspect of the abuse of the process of the Court (resulting
in a judicial stay of proceedings) 11ay only be applied in "the clearest of cases"
said our Supreme Court of Canada.
It is with the following words that the
trial judge summed up this law and applied it:
"It is my view that to join the 'clearest of cases' the
degree of importuning must be extreme and the offence
subjectively at least, if not objectively, the last resort to
rid oneself of an impossible situation, impossible to the
extent that in the eyes of any reasonable well informed
person to allow it the court would be associating itself
with and approbating such conduct and thus bringing the
administration of justice into disrepute. In this connection
the seriousness of the offence aust be weighed with all
the other factors.
For instance it would be difficult to
perceive how a case of entrapment could ever be aade
out in a case such as aurder.
As the seriousness of the
offence under consideration in any given situation diminishes,
the possibility of success of the defence might be said to
be more favourably entertained."
The Court recognized the deplorable consequences of drug trafficking, and
conceded that only in the rarest of situations could importuning alone substantiate
entrapment.
In drug trafficking importuning would have to include compulsion
before entrapment can be found.
Importuning alone would in a case of this
kind only be considered for the purpose of sentencing and not to determine
verdict.
The court implied strongly that police had concocted a scheme that would
make the• look "snow white".
However, despite the persuasive arguments of
the Crown to the contrary, the Court held that the police could not disassociate
themselves from the conduct of their agent.
The conduct was oppressive,
importuning and compelling, and thus any prosecution of that conduct would
amount to an abuse of the process of the Court.
Judicial stay of proceedings entered on the
record.

*• * * *

- 8 -

Statement - Admissibility and Use
Crown Using, in Cross-Examination, a Statement it did not Present in Evidence
The Queen and Brooks, B. C. Court of Appeal, Vancouver CA000321, June 1986.

This case (or a portion of it) is for lack of a better analogy, dealing with
trial entrapment on the part of the prosecutor. He was in possession of damaging
relevant evidence against the accused, devastating in respect to the accused's
credibility.
This evidence was withheld during the presentation of the Crown's
case.
The accused took the stand and in cross-examination that evidence was
sprung on him.
The accused submitted that he was lured into the box with
the prosecutor laying waiting to corner him.
He argued that if an accused
person takes the stand, then for the purpose of attacking his credibility he
may be asked questions about a criminal record, characteristics or propensities
he 11ay have displayed, activities on his part that may well affect his honesty,
etc..
However if the crown has relevant evidence that may assist in pressing
its case, it is obliged to introduce it through evidence-in-chief but not by
means of cross examination.
In other words, if the evidence has direct and
probative value, the Crown must adduce that evidence as part of its case, or,
as the saying goes, forever hold its peace.
In this Brooks case, the accused had been questioned by police in regards to a
rape in 1978.
He was subsequently convicted and was sentenced to serve •ore
than three years in gaol.
The officers also interviewed him about the murder
of a young gir1.
It see•s that the questioning took place over a period of
five days, for a total of eleven hours.
On two occasions during this five day
period he was interviewed by a polygraphist for a total of nine hours. Prefacing
his remarks by saying that the officers had insisted that he was guilty of the
•urder, the accused bad said to the polygraph operator that he kept having
"sketchy parts" of the murder in his mind and: "Well there's things, you know,
in the back of my mind that - that tell me there's definitely some involvement
in the - in the matter. ... In about the murder".
The
In 1982, the accused was charged and tried for the murder of the girl.
Crown did not adduce any of the 1978 statements by the accused.
The accused
took the stand in his defence and denied to have bad any part in the murder.
When the prosecutor cross examined the accused he asked the Court to conduct
a voir dire to determine the voluntariness of the accused's statement to the
polygraph operator.
He submitted that he had not adduced the statement as
he anticipated difficulties in regard to admissibility. Portions of it related to
the rape.
Others were relevant to the polygraph test only.
The evidence
showed that all 1978 interviews had been taped.
However all tapes had been
lost and after 5 years the officers could not recall the content of the interviews.
The polygraph operators' tapes were available.
The operator had inquired from
the accused how he was being treated. The accused had expressed no complaints
except that the officers had insisted that he had committed the aurder.
He
said their insistence, despite his denials, went well beyond suggestions as to
his guilt.

- 9 -

The trial judge had held that the statements to the polygraph operator were
voluntary.
The crown conceded the statement was relevant and indicated guilt.
Despite the fact that he had not used the evidence in presenting the Crown's
case the prosecutor argued to be entitled to use the statement in crossexamination as it went to the issue of credibility.
The judge granted the Crown's application and the jury got to hear the accused's
veil confession. He was convicted and appealed.
The B. c. Court of Appeal was divided on the propriety of the use of the
statement in cross-examination.
The dissenting reasons for judgement said
that the stateaents taken by the investigators and the environment in which
they were taken were inseparable.
They were so linked that the voluntariness
of the statement to the polygraphist could not be determined without the
details of the investigators' interviews.
The dissenting judgement also said the
Crown had split its case.
The statement to the polygraphist had significant
value and was, if accepted, proof of guilt.
The Crown should have presented
the statement prior to closing its case if it wanted to use the statement and
not put it in under the guise of assisting the jury to establish the accused's
credibility. The dissenting Justice would have ordered a new trial.
The majority judgement saw it differently.
They agreed that the Crown should
not have used the statement in presenting its case. Many parts were irrelevant
and would not have been admissible.
The impression the accused gave the jury
with his testimony was diabolically the reverse of what be told the polygraphist.
Therefore the Crown became entitled to use it for cross-examination purposes.
The Justices also agreed that the accused's admission to the polygraphist that
he had been treated fairly by the investigators, had not received the third
degree, corroborated the investigators' recollection of their interviews.
That
gave sufficient justification to conclude that the statement to the polygraphist
was not contaminated by anything the investigators did and was hence voluntarily
given.
Accused appeal dismissed.
Conviction upheld.

* * • * *

- 10 -

The Meaning of "Illicit" Sexual Intercourse
Deutsch and The Queen - Supreme Court of Canada, July 1986

The accused advertised for a "secretary/sales assistant" for his business, which
predominantly marketed franchises.
A police woman applied and wore a body
pack when she went for her interview.
It was made very clear to her that
the assistance she was to provide "when necessary to conclude contracts" was
to have sexual intercourse with prospective clients.
She was promised generous
remuneration for this in salary, commissions and bonuses.
It would not be
1.Jllpossible to earn $100,000 per year the applicant was told. Police interviewed
other applicants and found that they had been given the exact same conditions
of the position.
The accused's business was a legitimate company and was not
in any way connected with prostitution as that profession is normally understood
and operated.
The accused was acquitted of: (1) attempting to procure female persons to
become common prostitutes: and (2) attempting to procure female persons to
have illicit intercourse with another person (s. 195 C.C.).
The Ontario Court
of Appeal had agreed with the accused's acquittal of attempting to procure
these ladies to become common prostitutes but had ordered that he be tried
again for attempting to procure the applicants to have "illicit" intercourse with
another person.
The accused appealed the order for a new trial to the Supreme
Court of Canada.
The defence had two major submissions to support its contention that the
acquittal was the proper verdict.
Firstly the intercourse that was part of the
job was not "illicit" as there was nothing unlawful about it.
Secondly, the
accused was simply •aking preparations to gratify his clientele.
His activities
had not gone far enough to consider them an attempt.
After all he bad not
made an offer of employment to any one of the applicants.
Three of them had
terminated the interview when they discovered the requirements of the position.
The police woman (who indicated she would accept the job if it was offered to
her) had been told by the accused to go home and think about it.
In regards to the semantics of this issue the Supreme Court of Canada held
that the words "unlawful" and "illicit" are synonymous.
Yet something "unlawful"
is usually a criminal act for which one can be penalized under the law.
The
word "illicit" is collllonly used for acts or things not necessarily prohibited by
law, yet considered to be immoral.
Therefore, for the purpose of section 195
c.c., illicit intercourse refers to intercourse not authorized or sanctioned by
lawful •arriage. Quoted the Court:
"The wrong at which that subsection is aimed is the act
of a person in procuring or attempting to procure or
soliciting any girl or woman to have carnal connection
with another person who has no right to engage with her
in that act...
Thus in the present case while the act of

- 11 -

carnal connection was not shown to be an act contrary to
the criminal law ... nevertheless it was not an act authorized
by law and in that sense was 'unlawful' within the aeaning
of that word .... "
In terms of the intent of the lawaakers, the Court found that the evil the
section is to prevent is not sexual intercourse, but, as in all subsections of s.
195 C.C., the exploitation of women.
It is prohibited for instance, to procure
a person to become a prostitute, yet prostitution itself is not a crime. In other
words the subsection is designed to prohibit the encourage11ent and promotion
of conduct which itself is not cr.h11nal.
If the word "illicit" in respect to
sexual intercourse referred to scenarios where that act was criminal then it
could only be applied to procuring a female person to become a victim to
sexual assaults (rape): to statutory rape; incest; to seduction under promise of
marriage; being a passenger on a ship and having to submit to the master or
owner: etc.
All these are specifically prohibited by law and procureaent for
these purposes is an offence by the very sections creating those offences.
Hence s. 195 would be superfluous should "illicit" mean sexual intercourse
prohibited by positive enactaaents.
Furthermore it would severely limit the
protection the section obviously is intended to provide.
Consequently the
accused's suggestion that "illicit" in the allegation against him, refers to sexual
intercourse specifically prohibited by law, was rejected by the Supreme Court
of Canada.
To determine if the accused had gone beyond preparation (a prerequisite to
"attempt") to procure these women as alleged, the Court reviewed the law.
Section 24 C.C. in essence states that he who does "anything" for the purpose
of carrying out the intention to commit an offence has attempted to commit the
offence even where in the circumstances it was impossible to do so. In other
words there has to be at least part of the wrongful act (actus reus) and the
intent to COll•it the offence (mens rea) before it can be found that there was
an attempt, which does not include mere acts of preparation.
Where preparation
ends and attempt begins is an obscure boundary that is impossible to define
and should be left to "common sense judgement" decided our highest court.
For the accused to have attempted to procure these women, he must have gone
beyond mere preparation "to cause, or to induce, or to have a persuasive effect
upon the conduct that is alleged" (the latter quotation is the definition of
procuring).
To procure a person to have illicit sexual intercourse with another
person requires the act of sexual intercourse to take place.
Did the accused
attempt to do so?
After all, he indicated it was only expected from the
secretary/sales assistant when it would become necessary to make a sale: some
remote eventuality with a person or persons yet unidentified.
Perhaps it would
never be necessary.
The Court found that the advertising. the straight forward
sexual requirement of the job along with the holding out of the large financial
reward "could constitute the actus reus of an attempt to procure".
The trial judge, however, had not made any finding on whether or not the
accused had the criminal intent to carry out the offence of procuring "a female
person to have illicit sex intercourse with another person". As a consequence

- 12 -

the Court unanimously dismissed the accused's appeal and ordered a new trial.
Comment:
Sexual favour has been used as a for.11 of currency all during the
history of mankind.
This has rendered women and children vulnerable to
exploitation.
Canon law was very influential on the law makers of the past
found the Supreme Court of Canada and did go as far back as the middle ages
to determine the aeaning of the word "illicit" in the context of s. 195 C.C ..
Though this was an incredibly interesting exercise in semantics, one cannot but
wonder if the 20 pages of the reasons for judgement on this issue alone, do
not contain phrases and statements which may change the pretty well established
meaning of words like, lawful, unlawful, by law, illicit, etc.
Though there aay
be justification to say that it only refers to the meaning and intent behind s.
195 C.C., some positive statements by the Court may make powerful arguments
in other situations in which the above •entioned words are key.
Considering
the frequency with which these words are used in our law, any minor adjustment
to their meaning could mean changes of considerable impact.
For instance the
Court seemed to have accepted that:
"'Lawful' means authorized by law.
The prefix 'un' aay
mean simply 'not', and 'unlawful' may be properly used to
aean 'not authorized by law'".
This, coupled with the Court holding that "illicit" and "unlawful" are synonymous,
as something not authorized or sanctioned by law, could make for an incestuous
aarriage of words that aay have inbreeds as offsprings.
Furthermore the
acceptance of the above quoted statement that unlawful aay aean "not authorized·
by law", may be an affront to the do trine that we are free to do what the
law does not prohibit.
If one follows the quotation to the letter, we do not
act lawfully unless the law specifically authorizes what we do.
From reading aany cases, I had the impression that the following was pretty well
established in terms of definitions at common law:
Doing something "by law",
11eans doing something in accordance to legislation, like following prescribed
procedures.
Acting "lawfully" (other than when performing a duty) aeans doing something
that is not prohibited by law.
It follows that doing something "unlawfully"
means doing it despite laws that taboo the act.
Needless to say that "by law"
includes "lawfully" but not the other way around.
A narrower version of
"unlawful" is "contrary to law".
The latter implies that there is specific and
positive law that says "no" to what is done or intended to be done.
"Illicit"
had a different, broader meaning and was distinct from "unlawful" in that it
had a common or "street" understanding that included things moral and socially
unacceptable.
What the Court held in regard to the 11eaning of "illicit" is not
inconsistent with that but it said in the same breath that it is synonymous
with "unlawful" and that 11ay cause some problems.

•••••

- 13 -

Invasion of Privacy
Affect on Non-Disclosure to Authorizing Judge That Information
Gleaned from Interceptions Would be Shared with Revenuers
Chambers and The Queen, Supreme Court of Canada, July 1986.

The accused and two others were acquitted of conspiracy to import a narcotic.
The Court of Appeal ordered a new trial and the alleged conspirators took
their plight to the Supreme Court of Canada.
The issue was a deal struck between tax investigators and police.
The former
do not have the judicial authorizations under the Privacy Act (s. 178.1 C.C.)
available to them.
It was agreed that police would make intercepted information
about one co-conspirator, available to tax investigators.
This deal was made
prior to the application for an authorization and police did not disclose this
infor11ation to the Justice who granted the authorization.
The trial judge had
disallowed police evidence on "the conspiracy to import" charge because the
failure to disclose all of the use of the information gleaned from interceptions,
had invalidated the authorization.
After all, had the Justice known about the
agreement he might well have refused to grant the authorization.
The Supreme Court of Canada found that the deal between police and the tax
investigators was irrelevant to the validity of the authorization for the purpose
of investigating the criminal conspiracy to import narcotics.
The application
had contained all information in connection with that criminal investigation.
When and if the Crown adduces evidence gained from this authorization in a
prosecution under the tax laws, then the Court will have to consider the propriety of the arrangement between police and the revenuers and the affect it will
have on the admissibility of that evidence.
Accused's Appeal Dismissed.
Order for a new trial was upheld.
Note:
Two of the seven justices dissented.
They considered that the validity
of the authorization was the issue in this case and that admissibility of the
criminal evidence was only an indirect consequence.
Should there be a "tax
trial" the admissibility of the tax evidence would be the main issue based on the
validity of the authorization.

* * * * *

- 14 -

The Privacy Act and The Charter
Adequacy of the Authorization - Propriety of Overlapping Authorization
- Public Telephones

Regina v. Tho•pson et. al., B. C. Court of Appeal #004343, June 1986.
In 1985 the B. C. Court of Appeal co9,sidered the appeal of the Crown in respect
to a party by the name of Le Clerc who was acquitted of a narcotics charge.
The trial judge had not admitted the evidence resulting from interceptions of
private communications.
He found the authorization too broad and too all
catching, giving police authority to tap anything and anyone.
Conversations
on public phones had been intercepted as the persons mentioned in the authorization had "resorted to or used" such public phones.
The B. C. Court of Appeal disagreed with the trial judge and ordered that Le
Clerc be tried again.
Parliament clearly foresaw that authorizations would
cause interceptions of innocent conversations.
To say that an authorization
that gives licence to intercept couunications (besides certain specific places),
also "elsewhere in the province", is not inconsistent with the provisions of the
Privacy Act, even if such places that are resorted to by the persons aentioned
in the authorization or persons they communicate with, are public phones.
A half year later, the Supreme Court of Canada had to judge** if an authorization with the catch clause:
"or any other place or locality, stationary or mobile where
the persons naaed in paragraph 3 could be found, but the
nature and location of which are at present illpossible to
specify"
was too wide and too broad, to be in compliance with the privacy legislation.
The Supreme Court of Canada had found that this wording authorized police to
intercept the communications of anyone, anywhere.
The necessary "catchallclause" removed all limitations as to persons or places and the Supreae Court
of Canada held that the authorization was consequently unlawful.
This Thompson case reached the 8. C. Court of Appeal some 11onths after that
Supreme Court of Canada decision.
The authorization's catchall clause did
read as follows in respect to places at which private comunications aay be
intercepted
"or elsewhere in the Province of British Columbia resorted
to by the said Perry Gordon Thoapson, ... " (and others).

*
**

R.

v. Le Clerc (1985) 20 c.c.c. (3d) 173.

R.

v. GraboJfski, (1985) 63 N.R. 32.

- 15 -

The trial judge had disallowed the evidence of the intercepted private communications on the basis of the Le Cler decision. The Crown appealed.
It found
The B. C. Court of Appeal disagreed with the defence submissions.
that the fatal flaws the Supreme Court of Canada found in the Grabowski
authorization (as well as in another apparently similar case*> were distinct
from what the trial judge in this Tholllpson case had held to be such flaws.
Said the 8. C. Court of Appeal about the above wording in the Thompson
authorization:
"
the authorizations we are concerned with are not so
broadly drawn.
The right to intercept is confined to
named persons only and, as to places, the addresses given
for them 'or elsewhere in the Province of British Columbia
resorted to by' those named persons.
So they are not
subject to the objection stated by Mr. Justice Chouinard
(Supreme Court of Canada in the Grabowski case) in his
sentence: 'According to paragraph 4(b) this includes anywhere
that a person aentioned in paragraph (3) may be found,
thus including persons whose identity is unknown'."
("Paragraph" refers to Grabowski authorization).
The 8. C. Court of Appeal concluded that the Supreme Court of Canada decision
did not impair their (B. C. Court of Appeal) Le Clerc ruling.
In other words,
in B. c. an authorization that identifies the targets and specific places or
places "elsewhere in the province" those targets may resort to is an adequate
description.
Defence counsel also argued that the interception of any private communication
is an infringement of our right to be secure against unreasonable search and
seizure (s. 8 of the Charter).
Ever since the Supreme Court of Canada said in
19a4** that this section in our constitution is not only there to protect us
from trespass by authorities but equally to protect us from unjustified intrusions
upon our privacy, the predictions that this Charter right would not affect the
authorized interceptions of private communications have become a bit of a
11yth.
The Ontario Court of Appeal*** has held that intercepting a private
communication is a search and seizure.
The B. C. Court of Appeal acknowledged
that due to the precedent set by the Supreme Court of Canada s. 8 of the
Charter applies to interceptions of private communications.

*

R.

**

Hunter v. SouthlUI Inc., Volume 18, page 12 of this publication.

***

R. v. Finlay and Grelette, (1986) 23 CCC (3d) 48.

v. Ritch, (1985) 16 C.C.C. (3d) 191.

- 16 -

In this Thompson authorization police were given complete discretion to "anywhere" intercept the suspect1s private communication.
Defence counsel argued
that if a search warrant would allow such latitude to search any place the
suspect resorted to, it would be inconsistent with the limitations the Supreme
Court of Canada did set (Hunter v. Southam Inc.).
The B. C. Court of Appeal
agreed with defence counsel but said in the same breath that though the principles to be applied to authorizations are similar to those to be applied to a search
warrant, there is still quite a distinction between the two documents. Said the
Court (quoting from the Ontario Court of Appeal judgement):
"
A search warrant authorizes the search of specified
premises for specific things already in existence.
The
person executing a search warrant will normally know
whether a particular item found on the searched premises
comes within the scope of the warrant.
A search warrant
authorizes a single entry of the premises to be searched,
and if the items sought are not found, an application for
a second search warrant must be made in order to aake a
further entry.
In contrast, an authorization to intercept
private communications authorizes the interception of
conversations which have not yet taken place. The interception may occur at any time during the period specified in
the authorization.
It will often be the case that the
listener will not be able to determine whether the intercepted conversation constitutes the evidence sought until
after he has heard it in its entirety in the context of
other conversations similarly overheard".
The B. C. Court of Appeal concluded that by listening everywhere the suspects
have their private communications, is the only way the objectives of the authorization can be met.
Afterall, those places are totally unpredictable at the time
the authorization is granted. Therefore giving police the discretion to intercept
any place the suspects resort to is not usurping the function of the Courts.
The authorization in question was granted by an impartial member of the judiciary; it is specific in terms of places and persons as was feasible at the time it

was granted; and the system devised for this method of investigation would be
rendered totally ineffective if, considering the nature of persons who are subject
to criminal investigations, prompt and appropriate reaction to their moves and
activities were not made possible through the authorization.
Such restriction
would be unreasonable. As a back drop to these conclusions the Court considered
the prerequisites to an authorization.
Section 178.13.(l)(a) and (b) C.C. are
quite specific and provide sufficient safeguards to satisfy the standards of
reasonableness as determined by the Supreme Court of Canada.
In this case three authorizations were issued which overlapped a few days on
each occasion, in that a new authorization was granted while the previous one
had not yet expired.
The trial judge had held that the "new" authorizations
had been invalid and that the law (s. 178.13(3) C.C.) only provides for extensions
of existing authorizations.

- 17 -

The B. c. Court of Appeal disagreed with the trial judge and considered that
to be too rigid an application of the law which is not specific on this point.
Furthermore the Court found that the prerequisites to an extension of an
authorization are less onerous than those for a new authorization.
Therefore
the suspects are better protected by the route the Crown had chosen to take.
In respect to interceptions of conversations on a pay telephone the defence
had submitted that this could only be done if the number of that public telephone
is included in the authoE'ization. In the alternative the authorizing judge should
The
have included in the authorization "pay telephones" the suspects resort to.
Court held that the authorization was valid on its face and that the places
where interceptions may be made were described as "any place" the suspects
"resort to". Although specificity is preferred, the phrases used in the authorization
were sufficient to include public phones if indeed the suspects resorted
to them.
When suspects attend premises where public telephones are located, that by
itself aay well be inadequate to tap those phones. There ought to be evidence
that they indeed did resort to these phones.
In this case the 8. C. Court of
Appeal reasoned that they did not have to decide if police co1111itted "anticipatory
action" (which the Court classified as an offence) but whether or not the
targets had indeed resorted to those phones.
When there is proof they did,
the Court aust accept the resulting evidence.
The Court warned however that
it is an offence to rando•ly invade the privacy of the unsuspecting public and
that if it is anticipated that public phones will be used, it would be wise to
include this in the authorization.
Crown's appeal allowed unaniaously.
New trial ordered.

• * * * *

- 18 -

Constitutional Validity of Differentiation in Treatment of
Traffic Violators and Traffic Offenders in British Columbia
Attorney General of B. C. and His Honour K J. Husband and Bruce Page, Supreme

Court of B.C., No 851778, Vancouver.
Mr. Page, an Albertan, allegedly changed lanes so11ewhere in British Columbia
without giving an appropriate signal. As he held an Alberta driver's licence he
was proceeded against by means of a Traffic Ticket Information instead of a
Traffic Violation Report had he been a British Colwnbian. This is discrimination
in .. violation of s. 15 of the Charter that is not demonstrably justified in a free
and democratic society (s. l Charter) held the Provincial Court Judge and he
declared s. 121 of the B. C. Motor Vehicle Act without force or effect.
This
ruling received a aixed reception by other Provincial Court Judges as so11e
agreed while others ca11e to a different conclusion.
One Judge even held that
because of the discrimination, also s. 122 of the Motor Vehicle Act (which
provides for the Traffic Violation Report) was without force or effect.
The Crown petitioned the SupreJRe Court of the Province for an order for the
Judge in this Page case to proceed with the trial.
When the law differentiates between equals one 11ay consider that to be an
infringement of the Charter.
However, one of the Charter's objectives is to
create equality and sometimes when dealing with unequals one aay have to
differentiate to meet the object of equality.
Hence, differentiation between
groups is not necessarily discrimination; in fact failing to differentiate can
amount to discrimination.
This made the key question in this case whether
there was a need to discriminate.
To answer this question the Provincial
Court Judge had examined the practices in other provinces and had suggested a
number of alternatives to the B. C. provisions in respect to traffic tickets.
The Supreme Court Justice coamented that such processes are outside the
judiciary•s jurisdiction and that provisions in other provinces were irrelevant to
the sole issue which was whether differentiation between those who have a
B.C. driver's licence and those who do not, offends section 15 of the Cha~er.
In Canada, we are all equal before and under the law, and no one shall be
discriminated against, says the Charter, and "in particular" such discrillination
shall not be based on "race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability".
Mr. Page, the Alberta resident, was not
discriminated against for any of the reasons listed above.
However, the phrase
"in particular" indicates that the Charter section is broader than just prohibiting
discrimination in the catagories s. 15 lists. The section disallows discrimination
to ensure equality.
Therefore any discrimination resulting in inequality outside
of the listed catagories above are included in the Charter's objectives.
The Supreme Court reasoned that if the law in question provided a different
treatment for those who could not produce any driver's licence, there would
clearly be no discrillinatlon as meant by the Charter.
However, aany persons
who are properly licenced to drive on B. C. highways, dispite the fact the
licence was issued in some other jurisdiction are now being discriainated against

- 19 -

because of where they happen to reside.
included under s. 15 of the Charter?
was "Yes".

Is this discrimination capable of being
The answer to this threshold question

The next question to be answered was whether the different treatment of Mr.
Page "as a user of our provincial highways" from that of other users, was
"unfair or unreasonable, having regard for the purposes of the legislation (s.
121 M.V.A.) and its effect on the individual".
Mr. Page's lawyer pointed out that his client was, because of being a nonresident, proceeded against by summary conviction (instead of the innocuous
demerit system) and would in addition (as a result of reciprocal agreements
between provinces) be given two delllerits in Alberta.
This means that the
B. c. provisions cause him to be penalized twice. The Court was quick to point
out that the additional penalty was on account of Alberta practices or law and
should be challenged in that province and not in 8.C.
The Court found that dealing differently with unlicenced persons from licenced,
persons is totally reasonable.
Also that the demerit - traffic violation system
is a sensible and justified alternative to plugging the court system with minor
traffic offences, despite the fact that it is regrettable that non-residents are
caught in the net of this legislation.
However, the worthy purposes of the
legislation do outweigh the adverse impact on persons like Mr. Page.
Therefore
the 8. c. Motor Vehicle Act provisions in question were held to be reasonable
and fair.
Provincial Court Judge ordered to
proceed with the trial of Mr. Page.
Comment:
In view of some quantum changes in judicial considerations of matters
relevant to Charter provisions by the Supreme Court of Canada, one should not
be too shocked if that Court will disrupt the maintenance of the status quo
approach to s. 15 of the Charter.
In this case, for instance, the Court considers it unfortunate that in this province, 8. c. licensed persons are receiving a milder procedural treatment than
their fellow Canadian citizens who are non-residents.
The finding that this is
reasonable and fair enhances administrative convenience.
If this Court truly found it unfortunate for persons like Mr. Page to receive a
harsher treatment, one wonders how that is reasonable and fair.
One wonders
also if it would have been possible under the provisions of s. 52 of the Charter
for the Court to have declared the alleged offending enactments in the 8. C.
Motor Vehicle Act to be without force or effect where they are inconsistent
with the Charter provisions.
That would cause the section to apply to persons
who are unlicensed only. That seems a reasonable remedy.

* * * * *

- 20 -

The Charter Right to be Tried Within a Reasonable Ti•e - Pre-Charge Delays

*

Carter and The Queen , Supreme Court of Canada, June 1986.

The next day she
A woman was allegedly sexually violated in April of 1980.
made a report of the incident to police and an investigation was started.
The
complainant •oved without leaving a forwarding address and she could not be
located until 2% years later. The investigation then continued and was completed
in around the middle of December of 1982.
In the very early part of January of 1983, the accused was made aware of the
complaints against him and a couple of weeks later the informations were
In April of that year he appeared before a Provincial Court Judge on
sworn.
charges of rape, buggery and gross indecency.
He promptly claimed that his
rights to be tried within a reasonable time had been infringed.
The Judge
agreed and stayed the proceedings.
As it is generally considered that the
clock which measures "the reasonable time" does not begin to tick until the
charges are sworn, the case ended up before the Supreme Court of Canada. The
Provincial Court Judge had included the pre-charge period of time in his consideration.
This as he felt that it was unfair to the accused to be expected to
recall incidents of some 3% years ago.
The delay had deprived hill of time to
conduct a meaningful investigation to prepare a full defence.

The Supreme Court of Canada held that to determine if a person is tried within
a reasonable time, the time period to be considered will "generally" be that
between the time the charge is laid and the person is brought to trial.
The
word "generally" was used as the Court was of the opinion that exceptional
circumstances may bring pre-charge time into play.
If a charge is withdrawn
and another substituted arising from the same facts the tillle from the laying
of the first charge must be considered.
In this case the time period between
the date of the alleged offence in 1980 and the swearing of the information in
January of 1983 should not have been taken into consideration and the precharge delays were not to be given any weight in assessing the reasonableness
of time. Said the Supreme Court of Canada:
"This is because prior to the charge, the liberty of the
individual will not be subject to restraint nor will he or
she stand accused before the community of committing a
crime.
Thus, those aspects of the liberty and security of
the person, which are protected by s. ll(b) will not be
placed in jeopardy prior to the institution of judicial
proceedings against the individual.
Hence pre-charge
delay is irrelevant to those interests when they are protected
by s. ll(b) (Charter)."

*

See Volume 16, page 27 of this publication for B.C. Court of Appeal
decision in this case.

- 21 -

Had the police been devious or malicious in delaying the matter to deprive the
accused of a full defence, the Court could have stayed the proceedings as such
manipulation would have deprived the accused of a fair hearing (ll(d) Charter).
Police were blameless in the circumstances.
Furthermore, the Supreme Court of Canada observed that a Provincial Court
Judge conducting a preliminary hearing has no jurisdiction to stay proceedings
for Charter infringements.
(Note that if such level of court conducts a trial
the Judge has jurisdiction to stay proceedings).
Accused's appeal dismissed.
Ordered to stand trial.

• * * * *

- 22 -

Is an Object Carried to be Used for Protection a Weapon?

Reg in a v. Ii ilson, Vancouver County Court No. CC860003 Vancouver Registry,
July 1986.
Some have the impression that where someone carries something not designed
as a weapon, for the purpose of using it as a weapon should the occasion arise
for self defence, the object is a weapon due to that intent (see s. 2 C.C.) and
that ,possessing such object in those circumstances is dangerous to the public
peace . Similarly if the object is carried concealed, a conviction of carrying a
concealed weapon is appropriate.
In this case the accused carried concealed at 3:00 a.m. on "skid row", a pair of
7" long scissors under his shirt. He denied to police that he carried anything,
but the scissors were discovered when his shirt was pulled back.
He then
explained that he carried the scissors in the event he had to protect himself.
When questioned about this further the accused made a comment to the effect
that if he had wanted to use the scissors on the police officer "he (the officer)
would have been done".
He was charged with carrying a concealed weapon.
The Crown depended on precedents where persons under similar circumstances
had carried objects, not designed as weapons, for the purpose of self defence.
However, the accused was acquitted and the Crown appealed.
Needless to say that to convict the accused, the Court would have to find that,
due to the accused's intent the concealed scissors had, in law, been converted
to a weapon.
Firstly the Court found that the accused's statement about the officer "being
done" had he wanted to use the scissors, was of no evidentiary consequence in
respect to intent.
He simply said that if he had wanted to use them they
could have been effective.
Secondly, the County Court Judge reasoned that
where a person deliberately and needlessly goes into an aggressive situation
and is possibly looking for trouble and then does carry an object he intends to
use as a weapon should the occasion arise (even if for self defence only) that
object is a weapon despite the fact it was not designed as a weapon.
Such
intent is sufficient to meet the definition under s. 2 c.c.
Said the County Court:
"The test which seems to arise out of the cases is whether
at the instant of discovery the possession is for a purpose
of real apprehended use, or a mere speculation of a possibility of use."
A trial judge had concluded in an undistinguishable case involving a knife:

*

See Volume 10, page 14 of this publication.

B.C.C.A.

Sulland v.

The Queen,

- 23 -

"To find the accused had a present intention for future
use of the knife as a weapon would be simply conjecture
based on nothing more than he did not want the officer
to see the knife."
The same applied to this case found the County Court Judge.
Crown's Appeal dismissed.
Acquittal upheld.
For greater clarification here follows a synopsis of the decision by the B. c.
Court of Appeal in November of 1982 in Sulland v. The Queen, 8. C. Court of
Appeal, CA820276.
The accused was seen walking alone in an area "in which trouble could be
anticipated".
The accused was seen to carry something under his jacket and
police stopped him. As it turned out the item was a part can of beer. However,
the accused also wore a large jack-knife (3.5" blade) in a sheath and when
questioned about this he said he carried it "for protection to use if I get
jumped on or someone comes on to •e".
When tried for possession of a weapon dangerous to the public peace, the trial
judge concluded that although the accused showed he also used the knife for
useful purposes, it was improper in our present society for persons to arm
themselves to walk the streets.
The accused appealed his conviction claiming that the trial judge erred when
he equated self protection with a purpose dangerous to the public peace.
In Ontario a man carried a concealed knife with an 18" blade into a bar. In a
confrontation which he had anticipated, he injured several persons.
The Ontario
Court of Appeal said that "not withstanding" the accused's explanation of self
defence, a person who possesses a weapon for such a purpose can also be
found to possess it for a purpose endangering the public peace.
The circumstances, including the nature of the weapon, the situation in which the accused
has it in his possession, his explanation, and the use to which he actually puts
it, will determine whether the object carried was for a purpose dangerous to
the public peace.
The questions in this Sulland case were whether the knife was a weapon and if
carried for purposes and in circllllstances as described, was it dangerous to the
public peace.
Firstly, the Court held that the knife was not designed to be a weapon, therefore
only the accused's intent could make it such (s. 2 C.C.).
The Court concluded
that s. 85 C.C (possession of a weapon dangerous to the public peace) does not
prohibit a person from arming himself for self protection.
The 8. C. Court of
Appeal reasoned that as long as a person's conduct does not provoke an attack,
carrying so•ething in a lawful manner for the purpose of self-defence, with

- 24 -

the intent to use it responsibly, is not an offence.
The Court however, recognized that it may well be unwise to prepare to defend oneself and the presence
of a weapon is likely to result in greater injury. Said the court:
"In the secure surroundings of a court house we might
think it better that people be beaten or raped than that
they, or their assailant, be injured with a weapon.
But
those who must walk unsafe· streets and who are not
robust might feel quite differently.
They might not be
prepared to accept a beating.
Some might choose to
defend themselves.
A woman might have a hat pin and no
hat.
Is she, without more, guilty of this crime?
Surely
not."
The accused walked alone in an area where trouble may be expected.
The
knife was closed, in a case and unconcealed.
Besides that, the knife was also
a tool in his trade, which he said he would not hesitate to use 1f attacked.
That does not constitute the offence of carrying a weapon dangerous to the
public peace and made this case distinct from the Ontario case.
Appeal allowed.
Conviction set aside and acquittal entered.

* * * * *

- 25 -

Executing Search Warrant
Bodily Search of Person on the Premises

Regina v. Nu tch, 26 C.C.C. (3d) 477
Saskatchewan Court of Appeal.
Police had a search warrant for a home occupied by persons suspected to have
in their possession stolen property, including jewelry, liquor and coins.
These
suspects were named in the warrant.
The accused, though an occupant of the
home was not named in the warrant and admittedly not a suspect.
The accused
was home when the warrant was executed and was, along with the named
suspects, searched bodily.
A quantity of marihuana was found on the accused's
person and he was consequently convicted.
The accused appealed arguing that the search of his person was an infringement
of his Charter right to be secure against unreasonable search and seizure. The
officers, though conducting a legal search of the premises. bad no grounds to
bodily search him. Consequently the evidence obtained by means of the infringement was inadmissible in evidence, submitted the defence.
The trial judge had held that if the search warrant had been for larger items
one cannot possibly carry on one's person, the search of the accused would
have been unreasonable.
However, jewelry and coins can easily so be carried
and the trial judge reasoned (in accordance with the common law) that police
are permitted to be in control of the search scene and when the goods searched
for are such in size and nature that they can be carried on the person. Bodily
searching of all persons on the premises is unlawful.
The Saskatchewan Court
of Appeal, quoting from a law text. declared that the trial judge was simply
wrong and that a search warrant only permits the search of the "building,
receptacle or place" for which the warrant was issued.
The search of persons
was only allowed if s. 103 C.C. applied and an offensive weapon may be involved.
The search of a person is "sacred" said the Court and is only allowed if specif! cally provided for in law like in s. 10 of the Narcotics Control Act.
Without any consideration if the admission of the evidence would bring the
administration of justice into disrepute the Court held that the search was
unlawful, unreasonable and the evidence inadaissible.
Accused's appeal allowed.
Acquittal entered.
Comment:
It seems not remote that this decision would not survive an appeal
to the Supreme Court of Canada despite its Charter surprises of late.
There are pre-Charter cases where in similar circumstances superior courts
have held police empowered to search persons found on the premises and to
control these persons so the execution of the warrant is effective. The search
for jewelry would become a farce if persons could not be •ade to at least
empty their pockets or are free to move about and come and go as they pleased.

- 26 -

Jewelry could be moved or be right under the noses of the executing officers
without them being able to do something about it.
The Saskatchewan Court of
Appeal found support for their ruling in the "plain view doctrine". Only contraband not mentioned in the warrant that is in plain view may be taken. However,
if one searches for jewels and opens a drawer and finds other contraband, it
came in plain view because it was reasonable to look in the drawer.
The Court in this case held that the contraband came in plain view on account
of an unauthorized search of the accused's person.
It seems that inasmuch as
surreptitious placing of a bug inside a home or other private place is ancillary
to carrying out an authorization to intercept a private communication (to render
it effective), searching persons on premises for which a search warrant is issued
is equally ancillary.
This of course depends on the items the police searches
for.
The trial judge's view that, had the warrant been for a grand piano or
like item the personal searches would have been unreasonable, seems to better
reflect the precedents on this point than those of the Saskatchewan Court of
Appeal.

* * * * *

- 27 -

Accused Marrying Crown Witness Before Trial But After the Alleged
Offence Took Place - Compellability - Competency of Witness (Spouse)
Regina v. McGin ty, 27 C.C.C. (3d) 36
Yukon Territory Court of Appeal (B.C. Court of Appeal)

The accused became involved in a drunken brawl with her common law husband.
She struck him twice with a meat cleaver, wounding him quite severely.
She
was charged with assault causing bodily harm, but aarried her victim a couple
of weeks prior to the trial date.
Everyone agreed that if the husband (victim)
testified he was a competent witness, but was he compellable?
The trial judge
said he was, he testified and was convicted.
She appealed claiming that hubby
was not compellable.
The Court of Appeal held that the law is clear in regards to the compellability
of a victim spouse to testify against the accused spouse if his or her liberty
or health had been threatened (see s. 4(4) of the Canada Evidence Act).
In
respect to compellability, the Court held that it comes automatically with competency.
The only persons not compellable (but who may well be competent) are
those immune to the court process like Royalty and foreign diplomats.
The appeal was dismissed.
Conviction upheld.

* * * * *

- 28 -

The Doctine of Recent Possession
Regina v. Kowlyk, 27

c.c.c. (3d) 61, Manitoba Court of Appeal

There are many predictions that the common law doctrine of recent possession
would not survive a test under the Charter of Rights and Freedoms.
This
convenient and helpful presumption of knowledge or guilt is not used too frequently but in certain circumstances it clinches a case.
The doctrine simply
provides that where someone is found in possession of property recently obtained
by means of an indictable offence, then, in the absence of an explanation that
is capable of belief, it aay be prest111ed that the possessor had knowledge of
how the goods were obtained. It 11ay, in the alternative, be presumed in those
circumstances that he did commit the indictable offence.
The doctrine of
course, flies in the face of the constitutional right to remain silent. A further
aggravation is the rule that the explanation capable to rebut the presumption
of knowledge or guilt can only be given simultaneously to being found in possession of the goods or in the witness stand. Particularly the latter condition seems
to render the doctrine vulnerable to judicial abrogation of that right.
The accused and his brother broke into three homes of persons who were
deceased.
The funerals were advertised and the break-ins took place during
the funeral services. Nearly two months later the accused was caught in possession of all the property taken from those homes.
The brother did plead guilty
to all three house breaks but testified at the accused's trial that he had committed the crimes all by himself and that his brother had not been involved in
any way. He was disbelieved.
The time factor was such that the possession was recent in respect to the
commission of the offences.
Therefore the application of the doctrine was
warranted. But what is to be presumed, that the accused was the mere possessor
of the stolen property and had knowledge of its origin, or that he committed
the break-ins?
The facts seemed consistent with both.
The law is that an
accused can be convicted of either offence (not both). In this case the presumption was that the accused committed the break-ins and was convicted accordingly.
He appealed.
The doctrine of recent possession had been properly applied and that the convictions of breaking, entering and theft were proper.
Accused's appeal dismissed.
Conviction upheld.
Comment:
The doctrine of recent possession was not tested against the Charter
to determine if the abridgement of the right to remain silent when detained or
during your trial is a limitation of that right that is "demonstrably justified in
a free and democratic society" (see s. 1 Charter). Therefore, the case may not
be confirmation that the doctrine
is alive and well.
•.

- 29 -

The Manitoba Court of Appeal seems to continue to subscribe to the age old
doctrine that
"
there comes a time that a man is so surrounded by
inculpatory circumstances that he either speaks or stands
condemned".
After all, the doctrine of recent possession is at least a cousin to this legal
adage.

* * * * *

- 30 -

Sexual Assault - Identification - Police Procedures
Mezzo and The Queen, Supreme Court of Canada, June 1986.

The complainant was attacked on the street shortly after aidnight and dragged
out of public sight.
Behind a shed she was sexually assaulted.
The whole
encounter had taken 20 minutes.
Although it was dark the complainant had
been able to see the assailant 1s face clearly enough to give police a detailed
description.
Police arrested the accused Mezzo and a couple of weeks after
the assault the complainant saw the accused in a court room.
Due to her view
being somewhat obstructed the complainant had said she could not be sure that
the accused was the man who attacked her but he did look like the person
who had attacked her.
Two days later. again in the court roo11, she got an
unobstructed view of the accused and she then made a positive identification.
The defence had attacked the methods by which the accused was identified.
The complainant had described the accused to police on three occasions and
there had been minor variations.
And, of course, it was strongly suggested
that when the complainant saw the accused for the second time, she identified
the man she saw two days before in the court rooa and not her attacker.
Consequently the jury was directed by the trial judge to return a verdict of
not guilty.
The Court of Appeal disagreed and ordered that the accused be
tried again. The accused took this decision to the Supreme Court of Canada.
Police had arrested the accused two weeks after the complaint of sexual assault
was lodged.
No identification parade was ·conducted but the complainant was
told that an arrest had been made.
She was asked to view the prisoners as
they were called in to the court room for their respective appearance.
The
accused was the fifth prisoner.
When he was ushered into the court room, the
complainant reacted by shaking visibly and moving from · side to side.
Yet the
description she gave of her assailant and the resulting co11posit drawing did
not match the accused all that well. She had said that her attacker had "some
Indian mix" but the accused had no Indian background.
There was also evidence
that the complainant had not been happy with the composit drawing.
She
could not correct it but said, "there is solllething missing".
Another issue that
complicated matters is that there was no evidence if the in-courtroom identification was aade before or after the charge of sexual assault was read out?
It
was also conceded that none of the prisoners who preceded the accused in the
courtroom had any resemblance to the description of the complainant's attacker
or to the composit drawing.
When the positive identification was made on the second courtroom identification
scene the accused was again the fifth prisoner and his name was called out as
it was the first time.
Defence counsel had argued (though he did not use
these words) that when they called the accused 1s name they might as well
have said to the complainant "here he comes".
After all she knew the name
from the first appearance.
The Supreme Court of Canada firstly addressed the law in relation to a trial
judge•s role when sitting with a jury.
He can only deal with the law, the
facts are the responsibility of the jury alone. If a trial judge with his experi-

- 31 -

ence, concludes that he would consider it dangerous to convict an accused
based on the evidence before the court, then he is not always entitled to
direct the jury to return a verdict of not guilty. Only if the evidence is such
that in law the jury is incapable of finding facts prerequisite to a verdict of
guilty.
As long as there is admissible evidence which could, if believed, result
in a conviction, notwithstanding any frailties, the jury must consider that
evidence and render a verdict.
The trial judge must point out the frailties,
emphasize the burden of proof the Crown must meet, but is not in these circumstances to withdraw the case from the jury.
The.. withdrawal cannot be based on the trial judge's opinion in regards to the
facts. It is the jury's opinion about facts that must decide the verdict. Basically
the judge's function is to test if the admissible evidence, in law, is capable of
proving a fact.
If it is capable of doing so then the matter must remain with
the jury. If a judge's opinion about admissible evidence is that it is unreliable
and he withdraws the case from the jury for that reason, then he has made
himself the 13th jury member with veto power.
This would usurp the jury's
function.
In this case the identification evidence may have flaws, but it was,
if accepted and believed by a jury, still capable of finding that the accused
and the complainant's assailant are one and the same person.
As the issue
was the sufficiency of evidence (point of fact) as opposed to whether there
was any evidence (point of law) the matter should have been decided by the jury.
In relation to the police procedure regarding the identification, the Court was
quite silent. This probably as the case will have to be tried again.

Accused's appeal dismissed.
Order for new trial upheld.

*• * * *

- 32 -

LEGAL TIDBITS

Police Disciplinary Proceedings and the Charter
The August 1986 newsletter by the Ontario Police Commission, contains an
interesting synopsis of a decision by the Ontario Court of Appeal regarding a
police disciplinary matter.
The following is a summation of the highlights of
that synopsis:
The Court concluded that it is now established across Canada that professional
disciplinary proceedings are not subject to the rights contained in section 11
of the Charter (Law Society - College of Physicians and Surgeons - Engineers
Societies etc.). Police disciplinary matters are akin to such professional proceedings and though they are analogous to employer-employee relationships they
are a ore rigid and formal.
The Ontario Police Act is probably silent on the burden of proof in police
disciplinary matters as the Court held that it is not the criminal standard
(beyond a reasonable doubt) but the one applicable in civil disputes (the balance
of probabilities).
Since s. 11 of the Charter does not apply, the argument that
the hearings were not public and the tribunal apparently not impartial is no
longer an issue.
The Ontario Court of Appeal held that double jeopardy has no application to
disciplinary hearings.
Disciplinary action will, in Ontario, no longer preclude
criminal charges being preferred arising from the same deli ct or circumstances.
Note:
B. C. Police Act provides for a criminal burden of proof and liaits
double jeopardy.
Comment:
At one time the courts held, for similar reasons, that rights to
counsel had no application in disciplinary matters.
All the Charter rights
apply, when for a minor offence, a small fine is the penalty while a disciplinary
process may lead to loss of a career and livelihood. It seems predictable that
eventually s. 11 of the Charter will be held to apply to disciplinary hearings
(see Volume 10, page 16 of this publication). (Trembley and Pugh and Fle11lng
et. al.)

* ** * *
Presumption of "Care or Control" and the Presumption of Innocence
The presumption of innocence has two major components: the right to remain
silent and the burden of proof being on the Crown to prove beyond a reasonable
doubt that which it alleges.
Any statutory provision permitting an essential
ingredient to an offence to be presumed as a fact in given circumstances,
takes away from the Crown's burden of proof and often forces the defendant
to rebut that presumption.
Consequently the presumption interferes with the

- 33 -

right to remain silent.
Since the Charter came into effect in 1982, many of
these presumptions did bite the dust.
The Courts have now given an indication
what the limits of such presumptions are.
Firstly the facts prerequisite to the
presumption must make what 11ay be presumed a probable consequence.
There
simply must be a rational connection between the two. Secondly, for a presumption to be constitutional it must withstand the test described in section 1 of
the Charter in that the presumption must be "demonstrably justified in a free
and democratic society".
Included in the justification test is the need for the
presumption to be part of a remedy to a sociological ill.
We do not have law
for the sake of law, but for the purpose of remedying something. If the inevitable infringement of the presumption of innocence a statutory or common law
preswaption creates, is unjustified and out of balance with what it is designed
to remedy, it (the presumption) will likely be declared to be "without force or
effect" *.
Although these decisions are not binding on any Court in B.C., two Ontario
decisions on presumptions are reported in volume 26 C.C.C. (3d).
A Provincial
Court Judge struck down the often used presumption included in s. 237 c.c.
that someone who occupies the seat ordinarily occupied b~ the driver, may be
presumed to have the care or control of a motor vehicle ** .
A County Court
Judge did likewise with s. 306(2) C.C., which provides that we may presUJ1e an
inten~*J:o commit an indictable offence when a person attempts to break into a
place

* *• • *
Taking Statement from Adult re an Offence
Committed When he was a "Young Person"
G.R.J. allegedly committed an offence when he was 16 years old.
When G.R.J.
was 18 years old he was questioned by police,
After the normal cautions
given to adult suspects (including right to counsel) G.R.J. confessed.
The youth
court trial judge would not allow the statement into evidence as the statement
was not taken in compliance with s. 56 of the Young Offenders Act.
The trial
resulted in an acquittal and the Crown appealed to the Manitoba Court of
Appeal.
This Court found that there was nothing in the Young Offenders Act
in general, or in s. 56 of the Act in particular that would justify extending
the protection the section provides to a person who is an adult when questioned.

*

See R. v. Oakes, Volume 23, page 16 of this publication.

**

R.

***

R. v. Smith, 26 C.C.C. (3d) 278.

v. Headley, 26 C.C.C.(3d) 271.

- 34 -

Said the Court in concluding that G.R.J. must stand trial anew:
"A distinction between the admissibility of the stateaent
of an adult charged with an offence committed while he
was a 'young person' and that of an adult charged with a
similar offence committed when he was an adult, is difficult,
if not impossible, to rationalize."
Regina v. GR J. 26 C.C.C. (Sd) 471

* * * * *
Police Officer Acting as Prosecutor
A Mr. Hart was tried for "over 80 11lg.".
The Crown proceeded by summary
conviction and a police officer appeared to represent the Attorney General.
The accused took offence and claimed that he was deprived of his right to a
fair and impartial trial.
The trial judge agreed and this matter reached the
Newfoundland Court of Appeal.
That Court found that if the Attorney General
appointed a police officer to represent him in a criminal trial, that does not
offend the Charter and does not affect the impartiality of the judiciary or
fairness of the trial.
However, the police officer who was there routinely to
prosecute all summary conviction offences, could not show he was appointed by
the Attorney General to represent him.
He had been appointed by a superior
officer only and did therefore not have the status to prosecute.
Re Regina v. Hart 266 C.C.C. (3d) 438

* * * * *
Discharge and Double Jeopardy
In August the accused received a conditional discharge for "over 80 mlg.".
In
November he was convicted of impaired driving and sentenced to gaol.
The
Crown applied that the discharge be revoked and the accused also be sentenced
for the "over 80 11lg.".
The accused agreed with the Crown's interpretation of
s. 662.1(4) C.C. that the Court upon a subsequent conviction may also convict
the accused of an offence for which he received a conditional discharge.
But
where the condition of the discharge is an imposition of anything then subsequent
sentencing amounts to double jeopardy argued the accused.
In his case the
accused had completed 40 hours of community work and he was to be sentenced
again if the Court complied with the Crown's request.
The trial judge agreed
with the accused and the Crown took its plight to the Alberta Court of Appeal.
This Court held that the case against the accused was simply not over when the
Crown applied for him to be convicted and sentenced.
Therefore there was no
Only when a person has been finally punished can he claim
double jeopardy.
double jeopardy for additional punishment.
The Crown may well appeal a
sentence and if that results in a heavier sentence than was dished out originally,

- 35 -

that does not amount to double jeopardy.
Crown's appeal was allowed and the
accused was convicted and fined for the "over 80 mlg." charge.
R. v. Elendiuk, 27 C.C.C. (3d) 94.

* * * * *