POLICE ACADEMY

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

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

DRIVER AWARE OF JEOPARDY
IN DEATH OF PASSENGER: NO
NEED TO RE-CHARTER
R. v. Boomer, 2001 BCCA 220
Police attended the scene of a
single vehicle accident where the
accused driver left the roadway and
crashed his vehicle. Unfortunately,
the passenger sustained injuries
that later turned out to be fatal. The attending
constable arrived at the accident scene and spoke to
the accused. As a result of his observations, the
constable concluded that the accused was impaired and
the passenger was seriously injured. The officer
provided the accused with the customary “Charter
warning” and the accused indicated he did not wish to
contact counsel. Although the evidence suggested that
the accused was aware his passenger was seriously
injured, at no time did the officer inform the accused
that his passenger was deceased. The accused argued
that his s.10 rights were violated because the police
failed to inform him of the potential greater jeopardy
he faced resulting from his wife’s death and therefore
the breathalyser readings should be excluded as
evidence. In dismissing the appeal, the British Columbia
Court of Appeal held, at paras. 16,17:
[O]n numerous occasions [the accused] expressed
concern about the condition of the passenger and
directed queries to the police about this. He apparently
had been attempting to render assistance when the police
arrived at the scene. It was therefore clear from the
evidence that it must have been apparent to the [the
accused] that the passenger… was seriously injured and it
seems to me that it would be stretching language to say
that he was not aware that he faced jeopardy on a
serious matter, namely, being involved in an accident
where someone had been seriously injured and possibly
was going to die.
It does not seem to me that there was in any real sense
any change in jeopardy in this matter … and, accordingly,
it does not seem to me that there was any breach of the

Volume 1 Issue 11
November 2001

rights afforded to the accused under s. 10 of the
Charter.

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

WHAT IS A POLICE OFFICER?
Author Unknown

A police officer is a composite of what all people are,
a mingling of saint and sinner, dust and deity.
They underscore instances of dishonesty and brutality.
A police officer is unusual, exceptional, not common
place and often commands news attention.
The fact remains that less than one-half of one percent
misfit that uniform and that’s a better average than
you find among clergymen.
What is a police officer made of? They are at once the
most wanted and the most unwanted – “sir” or “madam”
to their face, “pig” behind their back.
They must be such a diplomat that they can settle
differences between two individuals so that each will
think they’ve won.
If they’re neat, they’re conceited; if not, they’re a bum.
If they’re pleasant, they’re a flirt, if not, they’re a
grouch.
In an instant, they must make decisions which might
require months for a lawyer.
If they hurry, they’re careless; if they deliberate,
they’re lazy.
They must be first to an accident, infallible with their
diagnosis; start breathing, stop bleeding and tie
splints.
A police officer must know every gun, shoot on the run
and hit where it will do the least damage.
They must be able to whip two men twice their size and
half their age, without being brutal.
If you hit them, they’re a coward; if they hit you,
they’re a bully.
A police officer must know everything and not tell- must
know where sin is and not partake- deduce a crime
scene with very little evidence.
If they catch the criminal, they’re lucky; if they don’t
they’re a dunce.
If they are promoted they’ve got pull, if not they’re a
dummy.

A police officer must chase bum leads to a dead endstake out 10 nights to tag one witness who saw it
happen but refuses to remember.
They fill files to bring some hoodlum to justice, then
watch them escape via legal maneuvering.
A police officer must be a minister, a diplomat, a tough
person and gentle.
Think of these things the next time you want to call
them pig or fuzz.
Makes you want to think doesn’t it folks?

SUICIDE: RISK ASSESSMENT &
CRISIS MANAGEMENT
Part 4 of 6

Mr. Richard Dolman
The following notes are from an Internet website
under development at the Justice Institute of BC to
assist police to handle a psychiatric crisis and to
promote wider understanding of mental illness. The
project was initiated by the BC Association of Chiefs
of Police Mental Health Committee, and is supported by
a multi-agency group. Funding is from the Ministry of
Health Services and the Justice Institute. Comments
and suggestions to the author are welcome at:
almond@direct.ca
ASSESSING SUICIDE RISK. There are some warning
signs, but it is not possible to predict accurately who will
or will not attempt to die by suicide. Risk factors
include: depression or other mental disorder, psychotic
voices urging suicide, a previous suicide attempt, lack of
concerned support, frequent use of drugs or alcohol,
severe stress, or recent trauma.
Early warning: severe depression. Many people who
contemplate or attempt suicide have suffered longlasting symptoms of severe depression including sadness,
crying, slowdown in actions, lost interest, low motivation,
preoccupied feelings of being hopeless, inadequate or
guilty (these symptoms may be partly hidden or may be
masking another underlying mental disorder such as
schizophrenia or bipolar). Biological signs of depression
include changes in appetite and weight, disturbed
digestion, disturbed sleep pattern, easily tired, loss of
interest or pleasure in life activities. Having thoughts
about suicide and making plans are major warning signs.
Ask about it. If a suicide impulse appears to be in the
cards, but has not been attempted yet, discussing
suicide frankly may help. Don’t be afraid to ask, it will

Volume 1 Issue 11
November 2001

not make the subject more likely to proceed: “Have you

had any suicidal thoughts recently? Have your thoughts
included harming anyone else? Have you attempted
suicide before? Do you have definite plans for suicide?”
Detailed plans pose the highest risk and urgently need
medical attention. (Police can apprehend under s.28 for
apparent attempts or serious threats of suicide or
serious self-harm).
Medication and risk. A wide range of medications is
available to control symptoms of mental disorder. Often
they work very well. But in psychiatric disorders, extra
caution is needed when meds are restoring energy and
insight, because the subject may suddenly gain insight
into the extent of their problems, and suffer from the
loss of personal hopes and dreams. This can revive
suicidal impulses. Symptoms can rebound severely after
abruptly going off medication, or medication can fail: the
relentless return of symptoms may cause suicidal
depression. Any combination of these risk factors may
build up to a suicide attempt. Sudden stress or trauma
can provide the trigger.
Unexpected or hidden risk. Many people give hints and
warnings of deep despair in the weeks or months ahead
of a completed suicide. But some give no warning and do
not tell others about their thoughts, intentions or plans.
The decision to proceed may be hidden; it may be
motivated by a combination of rational and psychotic
impulses, or it may be purely psychotic: thus, suicide
cannot always be predicted or stopped, and survivors
should not blame themselves. But warning signs must be
taken seriously.
CRISIS MANAGEMENT. Police have authority to act
on suicide risk. Police can apprehend under s.28 for
apparent attempts or serious threats of suicide or
serious self-harm. Such behaviour is likely to endanger;
and likely to be caused by a mental disorder that
requires treatment - which can only be confirmed or
negated by a physician.
What to say and do: First, check safety concerns at
the scene, collect collateral information from
family/friends, get their cooperation. If diagnosis is
not known in advance, ask them about typical behaviour
symptoms and recent history. If some in attendance
are not taking the suicide threat seriously, assure
them it cannot be ignored. Ask agitated people to step
back and stand by in another area. Offer to arrange
later for appropriate counseling for them (trauma
stress or grief). Get a trusted relative or friend of

2

the subject to accompany you (if circumstances are
safe) and to calmly introduce you to the subject.
Immediate action or talk? If there is an immediate
dangerous threat or action underway, it may require
rapid physical response. Otherwise use a calm nonconfrontational approach in voice and body language.
Move slowly, normal eye contact. Allow space and time
for panic, fear, anger, grief or other emotions to cool.
If subject is highly agitated or threatening, say “we

need to have a friendly talk about your troubles and
your safety.” Sit down or casually turn a light chair
around and straddle it, facing subject. The suicidal
person needs to feel non-threatened as well as getting
offers of help.

Use first names and speak slowly: "Bob, I’m a police
officer. My name is Joe. Don't be afraid of us. We are
here to help you. Are you able to understand me?”
Wait for answer and explain: “This is a rescue effort.
We need to make sure you are safe.” Wait for answer.
“I understand if you are feeling a lot of pain and maybe
it’s difficult to talk. Can you tell me what’s troubling
you, so we can help?” Wait for answer. If subject is
unable to respond coherently to these questions,
medical attention may well be needed urgently.
Establish safety and control.
If subject is
responsive, “Bob, how can I help you? Do you want to

tell me about the thoughts you’re having right now?”

If suicidal impulses are obvious: “We need to get you

some help and medical attention. We need to work
together to make sure you are safe, OK? Nothing
dangerous should be near you right now (such as pills,
weapons or potential weapons, car keys). Anything like
that, we need to secure them so you won’t be harmed.”
Make sure only small amount of medications can be
accessed. Don’t leave the suicidal person alone until
hospital takes custody.
To establish rapport and trust, be non-judgmental.
Show empathy for how subject feels. Engage the
subject and work together. Keep your remarks short
and simple. Listen attentively. Give honest responses.
Show that you understand subject’s views and concerns
(even if you don’t agree with them).

Positive steps & problem-solving. “What are your
thoughts about staying alive? What would make it
easier for you to cope with your problems?” Wait for
answers. “Problems can be solved. We will get help for
you. What is the one problem that is overwhelming you
right now?” Get an immediate commitment from

Volume 1 Issue 11
November 2001

trusted family members/friends to work on
neutralizing that problem. Have them agree to make
arrangements for referral to the support system mental health centre caseworker, outreach, advocacy
group.
Set limits. If necessary be firm and set limits on
acceptable behavior. Remain calm: “Some things are
negotiable and some are not.” Or “You need to tell me
the truth. That’s the only way I can help you.” Or:

"Put it down and come with us to another room so you
will be safe."

Sudden attempt and use of force. The unexpected can
always happen: an interruption of carefully built rapport,
a topic that touches a raw nerve, and the subject
instantly makes a suicide attempt. It may be risky but
the only choice is rapid physical response to interrupt
the act. Usually such a crisis fades quickly and the
subject probably won’t try again at the time.
Medication. Ask the suicidal person about medication
(possible overdose or stopped taking meds). Ask one
simple question at a time: What? When taken last? How
many taken in last 24 hours? Where is it? Bring it to
hospital. If medical treatment has failed, different
medication and other supports may work better.
To Hospital. “Now we need to get help for you, some
medical attention and support. It’s for your personal
health and safety. They need repairs. OK, let’s go. You
can come along quietly, someone can come with you. The
ambulance will bring you to hospital to be seen by a
doctor.”

ROBBERY DOES NOT REQUIRE
VIOLENCE, REASONABLE
APPREHENSION SUFFICIENT

R. v. Lecky, (2001) Docket:C36257 (Ont.C.A.)
The Ontario Court of Appeal
recently dismissed a conviction
appeal after examining the elements
to prove a robbery as defined in
s.343(a) of the Criminal Code.
s.343(a) Criminal Code
Every one commits robbery who (a) steals, and for the
purpose of extorting whatever is stolen or to prevent or
overcome resistance to the stealing, uses violence or
threats of violence to a person or property;

3

The Court found that threats of violence may be
established on the totality of the evidence where the
accused’s actions “could result in a reasonable
apprehension of physical injury and did in fact cause the
victim to apprehend physical harm”. Once the accused’s
conduct is proven to amount to threats of violence,
there is “no additional requirement of some level of
violence in order to establish robbery as defined in
s.343(a)”.

OFFICER CLEARED IN
SHOOTING OF VICIOUS DOG
Schmirler v. Police Complaint Commissioner,
2001 BCCA 573

The British Columbia Court of Appeal
held the decision of an adjudicator
appointed under the Police Act was
unreasonable when he found a police
officer
guilty
of
an
alleged
disciplinary default for shooting a dangerous pit bull
that was attacking another police officer during the
execution of a search warrant on a home occupied by
several people, including many children. Emergency
Response Team members were executing a drug and
weapons search warrant on the home of a person “known
to police”. During the tactical entry to the home,
officers ascended the stairway to the living room. While
in the living room, a pit bull dog attacked the upper left
arm of a police officer. A second officer, who observed
the vicious attack, fired two rounds at the dog to
incapacitate it. The adjudicator at the Public Hearing
into the matter found the officer guilty of discharging
his firearm without reasonable grounds and when unsafe
to do so, a disciplinary default contrary to s.4(1)(g) of
the Police Act Code of Professional Conduct Regulation.
The Court first examined the terms “reasonable grounds
for believing” as it appeared in the Regulation and held
the phrase to mean the same as “believes on reasonable
grounds”1. In recognizing this standard and the reality
that police officers must make decisions in a moments
notice without little time for reflection, the question is
not whether the officer was wrong in shooting the dog,
but whether the decision was reasonable taking all the
circumstances into account. Because the adjudicator did
not ask himself the correct question, he erred in law.
The court refused to send the matter back to the
1

See Volume 1 Issue 3

Volume 1 Issue 11
November 2001

adjudicator to decide whether the officer was guilty
using the correct test.
Complete case available at www.courts.gov.bc.ca.

LANDLORD NOT ACTING AS
STATE AGENT WHEN
ENTERING TENANT’S
RESIDENCE
R. v. Wilkinson, 2001 BCCA 589

The accused appealed his conviction
of production and possession of
marihuana under the Controlled
Drugs and Substances Act. Police
officers executed a search warrant
on the residence of the accused and discovered several
hundred marihuana plants and seedlings after police
received information from the accused’s landlord. The
landlord had entered (with a key) the accused’s garage
without proper notice under the Residential Tenancy Act
and later advised police of his entry, observations, and
also provided a written statement. The police
subsequently used this information to support the
issuance of the search warrant. Ironically, police were
investigating the landlord for a drive without insurance
incident and he was scheduled to attend the police
office for an interview the day after he entered the
accused’s garage. It was at this scheduled interview that
the landlord informed police of what he had done and
the police did not issue the landlord a ticket for the
outstanding no insurance investigation. The accused
contended that his s.8 right to be secure against
unreasonable search and seizure was violated. It is well
settled that the Charter protects the citizen from the
state and not private actors within the private sphere
(citizen against citizen). In this case the Court had to
determine whether the landlord became a “state actor”
as a result of his interactions with the police concerning
the outstanding no insurance communications. The
investigating police officer denied directing or
encouraging the landlord and the landlord himself
testified he was frustrated with the police lack of
action on the information he had previously provided to
police about his suspicions concerning the grow and took
it upon himself to enter the accused’s residence.
Concerning the non-issuance of a no insurance ticket on
the landlord, the Court found the evidence was that
neither the landlord nor the police officer had a

4

“subjective prior expectation” that the entry of the
residence by the landlord would benefit him with
respect to the ticket. The Court found the landlord was
not acting as an agent of the state and therefore there
was no Charter infringement and no reason to exclude
the evidence:
Here, [the landlord] had his own independent interest as a
landlord in pursuing his enquiry and the trial judge found
that it was not at the initiative of the police, explicitly or
implicitly. In my view, that [difference] is critical.
Accordingly…there was no State involvement in the entry
and no foundation for a breach of s.8 that could lead to
exclusion of the evidence.

or further injury which may result from injuries already
sustained during a completed offence. The police must
be able to articulate the reasonable grounds upon which
they acted. Authorization in these circumstances does
not provide authority to force entry into private
premises for the purpose of simply pursuing an
investigation.

Emergency Calls (9-1-1)
The Supreme Court of Canada has also acknowledged a
police officer’s duty in checking the health and safety of
persons who call 911. In R. v. Godoy (1999) 131 C.C.C.
(3d) 129 (C.C.C.), the court stated:
The importance of the police duty to protect life warrants
and justifies a forced entry into a dwelling in order to
ascertain the health and safety of a 911 caller.

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

ENTERING PRIVATE PREMISES
TO PROTECT LIFE & PROPERTY

The Court justified police entry as follows:
[E]mergency response systems are established by
municipalities to provide effective and immediate
assistance to citizens in need. The 911 system is
promoted as a system available to handle all manner of
crises, including situations which have no criminal
involvement whatsoever. When the police are dispatched
to aid a 911 caller, they are carrying out their duty to
protect life and prevent serious injury. This is especially
true where the call is disconnected and the nature of the
emergency unknown. When a caller uses a 911 system, he
or she has requested direct and immediate intervention
and has the right to expect emergency services will
arrive and locate the caller. The public interest in
maintaining this system may result in a limited intrusion
in one's privacy interests while at home. This
interference is authorized at common law as it falls
within the scope of the police duty to protect life and
safety and does not involve an unjustifiable use of the
powers associated with this duty.

Sgt. Mike Novakowski

The police are tasked with the common
law duty of protecting life and
property. As such, the common law has
recognized
that
under
proper
circumstances the police will be
justified in entering private property
for the purpose of effecting these
protective goals.

Protection of Life
The police will be permitted to make a forced entry into
private premises, including a dwelling house, if the
following preconditions are met2:
•

the officer has reasonable grounds to believe an
emergent situation exists involving
− preservation of life, or
− prevention of serious injury

•

proper announcement is made prior to entry
− notice of presence
− notice of purpose,
− notice of authority

This principle not only applies to circumstances involving
the prevention of an offence likely to cause death or
injury, but equally applies to a situation to prevent death
2

R. v. Custer (1984) 12 C.C.C. (3d) 372 (Sask.C.A.) at p.387-388.

Volume 1 Issue 11
November 2001

However, if the overriding concern about the protection
of life providing the foundation for police entry has
been reasonably satisfied, then the reason for the
warrantless entry no longer exists3. The police authority
to investigate the 911 call, locate the caller, and
determine their reason for making the call, including
providing assistance if required, ends once this
objective has been met. The entry authority does not
extend to further permit the police to search the
premises or otherwise intrude on the resident’s privacy
or property beyond the concern for protecting life.

3

R. v. Knee 2001 ABPC 23 at para.31.

5

In R. v. Neubert 2001 BCCA 88, police responded to
investigate a 911 emergency call reporting concerns
about a break and enter and the possible involvement of
a gun. After entering and searching the house to satisfy
himself that there was no one else present, the officer
located a marihuana grow operation. This information
provided the basis for an application of a search warrant
that was obtained by the officer. In reviewing police
entry, the Appeal Court held, at para.10:

the apartment and subsequently arrested the accused
for assaulting his wife. During the arrest the accused
struck one of the officers and was charged with
assaulting a police officer. In justifying police entry,
Smith J. held at para.21:
Here, there was a disconnected 911 call in which the
caller said she had been struck by an intruder. Calls back
to the number produced a male respondent who said he
did not know what was wrong with his wife and a female
who said she did not want the police. Arrival at the door
did not produce reassurance. The police would have been
failing in their duty to protect life if they had not
insisted on coming into the apartment. …, it was
necessary for the police to enter the apartment because
there was no other reasonable alternative to ensure the
caller received assistance.

There is no dispute that the police officers went into the
residence of the accused lawfully. They were responding to
a report that had to be investigated and the house had to
be searched and secured in the interests of public safety.
These facts together with the discovery of the marihuana
plants justified the issuance of the search warrant.

In R. v. Nicholls (1999) 139 C.C.C. (3d) 253 (Ont.C.A.),
police responded to an emergency 911 call involving a
psychiatric patient who was a threat to himself and
others. The call had been made by the accused’s cousin
from outside the accused’s apartment. Attempts were
made to contact the patient including telephone contact
and knocking on the door. The fact that the 911 call
originated from outside the apartment was held to be a
distinction without a difference. Police, in the company
of an ambulance attendant, forced entry into the
apartment. The Ontario Court of Appeal found the
police common law duty to protect life and prevent
injury was engaged and in light of the stated nature of
the emergency, the police would have been remiss in
their duty not to investigate to the point of forcing
entry:
The police and ambulance crew were responding to a
serious 911 call and had a duty to investigate the situation
to ensure the appellant was not a danger to himself or
others. In order to locate the appellant and do so, forced
entry was necessary.

In R. v. Hardt 1999 Docket: CC970747 BCSC, a 911 call
was made from the accused’s apartment. The 911
operator informed police that the caller had been a
crying female, with a heavy accent, and who complained
that someone came into her apartment and beat her.
The police were told the caller refused to answer
questions and had hung up the phone. The police were
told that when the operator called the number back a
male picked up the phone who refused to answer
questions and said he did not know what was wrong with
his wife. The operator spoke again to the female, who
was uncooperative and refused to provide a name.
Police attended and the accused’s wife answered the
door, showing signs of obvious injury. Police entered

Volume 1 Issue 11
November 2001

Protection of Property
The police not only have a right to enter, but a duty to
enter in order to preserve property and public peace4.
In R. v. Dreysko (1990) 110 A.R. 317 (Alta.C.A.), police
responded to a complaint of a suspected illegal entry to
a home. Upon attendance at the home it was obvious to
the police that it had been broken into. In finding the
entry lawful, the Court found the officers faced "the
risks of further damage from earlier vandalism like fire,
the risk of injured victims being in the house, and the
risk that criminals might yet be in the house. Other
exigent circumstances could justify, indeed compel, a
search such as a scream for help or the smell of
something burning5. In R. v. Hern [1994] A.J. No.83
(Alta.C.A.), the court reinforced the protection of
property as justification to enter a private premise. In
the absence of the homeowner, police entered a dwelling
following a report of a break and entry in progress.
Inside the house police found a marihuana growing
operation. The Court held:
[I]t is only good sense that the investigation will not be
clearly over if there are reasonable grounds to believe
that any of the offenders may still be in the dwelling, if
there is any risk of continuing property damage by
vandalism, fire, water or power, or that there may be
evidence inside the dwelling that could deteriorate while
the absent homeowner's permission to continue or a
warrant of search is obtained. (emphasis added)

In R. v. Nguyen and Dang 2000 BCSC 1547, police
responded to a 911 call from a neighbour that intruders
were inside the premises next door and the owners were

4
5

R. v. Dreysko (1990) 110 A.R. 317 (Alta.C.A.)
R. v. Smith 1998 ABCA 418 at para23

6

away. On arrival police saw a man appear at a window who
refused to open the front door. Police entered after
repeatedly knocking and announcing their presence and
discovered the accused in a bedroom and a marihuana
grow operation in the basement. In describing the police
having a “duty” to investigate, Catliff J. stated at
para.23:
In response to the 911 call the police arrived and
proceeded to investigate. They had a duty to do so. The
police witnesses, … , said they did not know what might be
occurring inside the house and felt obliged to break in to
investigate and to do so without delay. They discounted
the absence of evidence of forced entry as a reason for
staying outside. [The officer] said that the intruder may
have shut the window behind him after surreptitiously
entering the premises. What is crucial in my mind is that
the apparent intruder would not respond to the police by
coming to the door or speaking to them. His actions were
plainly suspicious and confirmation that a break and enter
was in progress. In my view, there were "emergent"
circumstances in this case which justified a forced entry.
The police were acting in good faith. There is nothing in
the evidence to suggest they knew a grow operation was
being conducted in the home until they got inside. I find
the accused have not satisfied me that their Charter
rights were infringed by this action of the police.

OPENING DOOR OF OCCUPIED
VEHICLE ON A HUNCH
UNREASONABLE

R. v. Bissonette (2001) Court File No. 448-99
(Ont.S.C.J.)
A police officer was on routine patrol
near a drinking establishment when
he drove into the parking lot. The
officer had, on 5 or 6 previous
occasions found occupants of parked vehicles behind the
hotel smoking drugs. The officer exited his patrol
vehicle, approached the accused’s vehicle on foot, and
opened the passenger door to the vehicle. The officer
noted car keys on the seat beside the accused. Upon
speaking to the accused, the officer noted the accused’s
speech was slurred. As a result, the officer attended to
the driver’s side of the vehicle, opened the door, and
found a beer bottle between the door and the driver’s
seat. The officer ordered the accused from the vehicle
and noted signs of impairment that led to the arrest of
the accused and the breath demand. Charbonneau J. of
the Ontario Supreme Court of Justice framed the
question concerning the reasonableness of police action

Volume 1 Issue 11
November 2001

as whether “an occupant of a motor vehicle parked in
this hotel parking lot during normal business hours [has]
a legitimate privacy interest in seeing that police
officers would not walk up to his vehicle and open the
door in order to speak to the occupant and see if some
illegal activity such as smoking pot was going on in the
car”. In finding the search by the officer unreasonable,
the Court held:
Although [the officer] was entitled to drive into the
parking area, he was not authorized by law to open the
passenger door in order to investigate the activities of the
driver on a mere hunch that the driver could be consuming
drugs. Crown counsel concedes that [the officer] could not
simply walk to any parked vehicle in which there was an
occupant and open the door for the purpose of
investigating some possible crime. There is no evidence of
how many vehicles were actually parked in the parking area
that night. The search was conducted without warrant and
can, prima facie, be considered to be unreasonable. That
presumption has not been rebutted by the Crown.
(emphasis added)

In finding the actions of the officer a serious and non
trivial breach of the accused’s s.8 rights and
underscoring that the officer was acting only on a
hunch, the Court excluded the evidence and in setting
aside the accused’s conviction, entered a verdict of
acquittal.

ALBERTA’S TOP COURT RULES
CERTIFICATE OF ANALYSIS
REQUIRED
R. v. Grant, 2001 ABCA 252

The Alberta Court of Appeal recently
ruled that a lay person’s opinion as to
the legality of a controlled substance
would be insufficient in most cases to
prove that the substance in question is illegal. A proper
scientific analysis by an expert is required:
A proper scientific analysis of a suspected substance is
essential. Granted that a lay person can recognize various
things such as smell, sights, sounds and speeds, and that
such evidence may be admitted, the danger of permitting
lay identification of an allegedly illegal substance is
manifest and ought not to be encouraged. The chemical or
scientific analysis of an illegal substance may well provide,
and normally does provide, the court with reliable and
trustworthy evidence that the substance was actually
illegal according to its components. The certificate of
analysis conveys just that. In practice, the certificate

7

ends any debate about what was seized. Were we to uphold
the course followed here the certificate of analysis
practice will be at risk in future. The police will rely on
nothing but opinion evidence given by themselves. That is a
step that should only be permitted by Parliament by way of
the repeal of the analysis legislation. The use of the
certificate has long been entrenched in the Statute, and
for good reason, and can only be replaced by expert
testimony by a qualified analyst.

Complete case available at www.albertacourts.ab.ca.

risk analysis; balancing the risk to the public with the
enforcement objective. Attending a work related course
was not a “valid enforcement objective that would
justify exceeding the speed limit”. Secondly, an
exemption under s.4(2)(b) of the Regulation requires the
officer to be engaged in the lawful execution of their
duties. On this point, the Court found that the concept
requires looking beyond whether the officer was merely
“on duty”:
Whether a peace officer's action will be found to be part
of the lawful execution of his or her duty will depend on
the facts in each situation. [The officer in this case] may
have been "on duty" if the event occurred during the hours
of his enforcement but without a valid enforcement
objective I am not satisfied that [the officer] was
engaged in the "lawful execution" of his duty at the time
that he was observed by [the ticketing officer].

Note-able Quote
“Canadian society takes a dim view of the illicit
production, sale and use of controlled drugs and
substances and the numerous social problems relating
to criminal offences arising from these activities.
These problems and offences are well documented.
They include the breakdown of marriages and families,
job and career loss, impoverishment, prostitution and
all forms of crime relating to property, and violent
crime, from acts of theft and vandalism to robbery
and even homicide. The consequential burden that the
illicit drug industry imposes on the health care and
criminal justice systems is not to be lightly
regarded6.” AltaCA Justice Wittman

OFFICER CONVICTED OF
SPEEDING WHILE ENROUTE
TO COURSE

Finding that the Crown had proven the essential
elements of speeding, the officer was convicted.
Complete case available at www.provincialcourt.bc.ca.

Note-able Quote
“The police should be permitted to provide protection
for the public by administering the [road-side
screening test]. To hold otherwise unnecessarily
endangers the public. Even in their efforts to serve
and protect the public, the policeman’s lot is not a
happy one. It should not be made an impossible one7”.
OntCA Justice Cory

R. v. Wlodarczak, 2001 BCPC 81

FEEDBACK WANTED

An on duty police officer enroute to
attend a work related course in
Vancouver was stopped by a Merritt
Highway Patrol Officer and issued a
ticket for speeding. The ticketed
officer testified he had set his cruise control at 129 to
130 km/h and “it was his belief that there was a 20 km.
per hour grace or tolerance with respect to the speed
limit, and further that he was traveling on a downhill
slope”. In addition, the officer argued that he was in the
“discharge of his duty” at the time and that he was
operating an emergency vehicle and was therefore
entitled to exercise the privilege of exceeding the
speed limit in accordance with the Emergency Vehicle
Driving Regulation. In dismissing the officer’s defence,
the Court recognized the Regulation requires a multiple

For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police
Academy at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

7
6

R. v. Sauders (1988) 41 CCC (3d) 532 (OntCA) at p.541.

R. v. Gisby 2000 ABCA 261 at para.18.

Volume 1 Issue 11
November 2001

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