ISSUES

OF
INTEREST

II

VOLUME NO. 17

_POLICE ACADEMY
Written by John M. Post

Oct. 1984

4180 West 4th Avenue
Vancouver, B.C.

V6B4J5

ISSUES OF INTEREST
VOLUME NO. 17
Written by John M. Post
October 1984

TABLE OF CONTENTS

BEING A PARTY TO TRAFFICKING MARIHUANA ••••••••••••••••••••••••
Regina v. Belacourt The County Court of Cariboo,
Dawson Creek, April 1984

1

DRIVER' S LICENCE SUSPENSION NOTICE • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Mcintosh County Court of Vancouver,
Vancouver CC840382 March 1984.

4

IS UNJUSTIFIED CONTINUATION OF CUSTODY AN
INFRINGEMENT OF a. 9 OF 'l'BE CHARTER? ••••••••••••••, • • • • • • • • • • • •
Regina v. Bevan-Pritchard County Court of
Vancouver Island, Victoria Registry 30459 - April 1984.
SUSPECT CLAIMS HE WILL NOT SAY ANYTHING UNTIL BE BAS
SPOKEN TO A LAWYER, YET BE MAKES A VOLUNTARY
INCOLPATOR.Y COMMENT. ADMISSIBILITY CHARTER OF RIGHTS & FREEDOMS••••••••••••••••••••••••••••••••••
Regina v. Manninen 8 C.C.C. (3d) 193
Ontario Court of Appeal, November 1983.
CONSPIRACY AND BEING A PARTY
TO THE SUBSTANTIVE OFFENCE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Re Meikle and The Queen 9 C.C.C. (2d) 91
Ontario High Court of Justice
PRIVACY AC'r • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Reference re an Application for An Authorization,
Alberta Court of Appeal. 10 c.c.c. (3d) 1.

5

7

9

11

- ii -

RELATIONSHIP BETWEEN THE MECHANICAL CONDITION
OF THE MOTOR VEHICLE INVOLVED IN 1'HE OFFENCE
OF DANGEROUS DRIVING • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Claxton, County Court of Vancouver Island
Victoria No. 32089-T March 1984.

16

CHARTER OF RIGHTS AND FREEDOMS
SHOULD PROCEDURAL ERRORS RESULT IN CONSTITDTIOHAL
R.EMEDIES .AT TRIAL? • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

17

The Queen and Erickson, B. C. Court of Appeal,
June 14, 1984. Vancouver Registry CA001770
POLICE ENTERING HOME TO ASSIST VICTIM AND INVESTIGATE
A STABBING - OBSTRUCTING A PEACE OFFICER LAWFUL PERFOKMARCE OF DUTY••••••••••••••••••••••••••••••••••••
Regina v. Custer [1984J 4 W.W.R. 144
Saskatchewan Court of Appeal April 1984.

20

B. C. PROVISIONS FOR THE TAKING OF BLOOD
SAMPLES FROM SUSPECTED IMPAIRED DRIVERS •••••••••••••••••••••••
The Queen and Hurst, Supreme Court of B. C.,
Victoria Registry 84/1285, July 1984

23

CHARTER OF RIGHTS AND FREEDOMS
THE WRIT OF ASSISTANCE AND REASONABLE SEAR.CH • • • • • • • • • • • • • • • • • •
The Queen v. Hamill, B. C. Court of Appeal,
CA 001117 Vancouver Registry, September 1984.

26

RIGHT TO PRIVACY TO CONSULT COUNSEL•••••••••••••••••••••••••••
Regina v. Peters, County Court of Westminster,
New Westminster Registry No. X-012155, June 1984
FAILURE TO INCLUDE ALL PLACES AND NAMES INTENDED TO BE
SUBJECT TO INTERCEPTION IN APPLICATION FOR AUTHORIZATION
Regina v. Meidel, Meidel, Alvarado, Moser and Mcisaac,
County Court of Vancouver Island, Victoria Registry No. 27589,
January 1984.

......

31

32

- iii -

ARMED ROBBERY - FORCED RESTITUTION•••••••••••••••••••••••••••
Regina v. Ellis, County of Westminster,
New Westminster Registry No. X011424, March 1984
ADMISSIBILITY OF VOLUNTARY STATEMENT AND
SECTION 10 CHARTER OF RIGHTS AND FREEDOMS
Regina v. Abraham, County Court of Prince Rupert,
Smithers, B. C. No. 4276XZ February 1984.

33

....................

35

FR.OM D~GE BAG • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

37

UNREASONABLE SEAR.CH - TAKING URINE SAMPLES
Regina v. L.A.R., 9 C.C.C. (3d) 144.
Manitoba Court of Appeal.

DOES THE PRESUMPTION 1'HAT A PERSON WHO BREAKS AND ·
ENTERS INTENDS TO COMMIT AN INDICTABLE OFFENCE ALSO
APPLY TO THOSE WHO ATTEMPT TO BREAK AND ENTER? •••••••••••••••
R. v. Garlow, 10 c.c.c. (2d) 575
Ontario Court of Appeal and Supreme Court of Canada,
May 1982 and May 1984 respectively.

38

-

1 -

BEING A PARTY TO TRAFFICKING MARIHUANA

Regina v. Belacourt
1984

The County Court of Cariboo, Dawson Creek, April

Two undercover R.C.M.Police Officers attended at a beer parlour where
the accused was sitting with a party the officers knew. The officers
spoke to this party and in the conversation complained about the price
of marihuana. The accused intervened and implied that if they dealt
with "a middle man" they would have to pay steep prices.
Without
asking the accused for assistance, the accused suggested to the
officers "next time come and see me". Expressing curiousity for what
price the accused could deliver, the one officer was told that for
$1,800 he could get a pound of Red Hair marihuana.
The officer
responded that, subject to the approval of a partner in a nearby town,
he was interested in doing business with the accused.
At subsequent meetings between the one officer and the accused, the
latter made it quite clear that he was a person who, in some way,
could make large quantities of drugs available to the officer.
The officer acted as a "wary and cagey" purchaser and indicated that
he would consider the price and the offer. At the third meeting the
officer said he now had the O.K. from his partner and he was in a
position to buy.
The accused asked: "How does a pound sound"? The
officer agreed, rejected delivery for that day and replied: "No,
tomorrow".
The following day the two officers met with the accused
who informed them that the price was now $2,300 for one pound. When
the officers objected to the boost the accused said "All I'm making is
$100".
He also told the officers that they would have to pay in
advance.
The officers indicated that the conditions and price were
unacceptable and in addition, the officers showed reluctance to deal
through an intermediary. The accused replied: "I'll speak to my man".
At the subsequent meeting the officers were met by the principal
trafficker Lebeuf, who said, "Terry is looking for you". Less than a
minute later the accused (Terry) arrived and joined the officers. One
of the officers told Lebeuf that $2,300 was an unreasonable price and
that he was willing to pay $2,000. Lebeuf countered to sell a lesser
amount for $1, 650 and , added the accused, "It s all quartered and
ready to go".
"Let's go for it" said the one officer to his
colleague.

2 -

Next the place of the transaction had to be determined. The accused
suggested "Why don't we just do it at Dennis' place" (Dennis is
Lebeuf).
In the end it was decided to meet on a certain road in the
country. The meeting and agreed to transaction took place between the
officers and Lebeuf. The accused was not present.
The accused was charged with the offence of trafficking. The Crown,
of course, relied on section 21 C.C. which states that anyone who aids
or abets anyone to commit an offence is a party to that offence and is
hence as punishable as the principal offender.
The accused did not contradict the evidence of the officers.
He
testified he had liked the one officer who had bought him several
glasses of beer. He had wanted to do the officer a good turn and had
promised him to keep his ears open and if he heard of a good deal he
would pass it on.
He said not to have expected to receive a
commission or to make any profit from any deal he would arrange for
the officer. He denied to have said that there was only $100 in the
transaction for him.
The defence the accused advanced is not unique. To be a party to the
offence of trafficking in these circumstances, one has to aid and abet
the trafficker. The accused claimed he simply aided the purchaser and
not the vendor.
The Court rejected the defence and held that, although one could find
that the accused had assisted the buyer, he had equally aided the
trafficker. The following facts led up to this conclusion:
1.

When the accused at the first meeting said that he could provide
one pound of Red Hair marihuana, "this remark by itself
constitutes an offer to sell the drug ••• " to the officer;

2.

During the entire discussion that led to the transaction, the
accused made it clear he was speaking on behalf of another person
and consequently he was aiding that person;

3.

When Lebeuf, the principal trafficker, met the officer for the
first time, he (Lebeuf) said: "Terry is looking for you" (Terry
is the accused).
This, coupled with the fact that the accused
showed up shortly after (while there was no need for him to be
there as he by now knew that his "friend" could very well look
after himself) leads to the inferrence that he was not there
exclusively to look after the officer's interest but was there
principally in aid of the seller, Lebeuf;

4.

When the accused said: "It 's all quartered and ready to go", he
stressed the convenience of the packaging and did promote the
sale;

- 3 -

5.

When the location for the transaction was discussed, the accused
said: "Why don't we just do it at Dennis' place" and "Why don't
you follow us down to Denny's place". The "we" and, particularly
the "us", meant the accused and Lebeuf; and

6.

The accused had shown during the entire events that he favoured
the seller and looked after his interest.

The aggregate of all this is that the accused aided Lebeuf, the
principal trafficker.
Accused was found guilty.

*****

4

DRIVER'S LICENCE SUSPENSION NOTICE

Regina v. Mcintosh
March 1984.

County Court of Vancouver, Vancouver CC840382

Mr. Mcintosh appealed the suspension of his driver's licence.
On
January 17, 1984 he received an unsigned notice from the
Superintendent of Motor Vehicles that he was prohibited from driving
for a period of 6 months unless he could, in writing, show sufficient
cause why the prohibition should be for a shorter time.
A two page submission was sent to the Superintendent. This resulted
in an unsigned notice from the Deputy Superintendent, without any
reference to the appellant's submissions, that his driver's licence
was suspended for 6 months.
The County Court Judge held that the notice and the order was a
nullity.
He observed that the suspension of a privilege cannot be
accomplished by an unsigned notice from the authority who has the
power to suspend.
Such suspension can only be done for reasons
established by statute.
Particularly when invited submissions are
made to show cause why the power to suspend should not be exercised,
the Superintendent must give reason for his decision. Said the Court:
"The Superintendent or his deputy, is required to consider
individually each case proposed for a suspension of driver's
licence privileges. He must consider each case on its own
merits, including a consideration of the submission made, if
any, by the person subject of the proceedings.
In the
absence of the signature and in the absence of any reference
to the submission even being received, let alone considered,
I am of the view that the purported prohibition is
invalid ......
Appeal allowed.
Prohibition terminated.

*****

- 5 -

IS UNJUSTIFIED CONTINUATION OF CUSTODY AN
INFRINGEMENT OF s. 9 OF THE CHARTER?
Regina v. Bevan-Pritchard County Court of Vancouver Island
Registry 30459 - April 1984.

Victoria

The accused was involved in a motor vehicle accident. The investigating officer who considered her to be intoxicated, made a demand for
breath samples and arrested her for impaired driving.
The accused
refused to blow and was lodged in cells. She appealed her conviction
of impaired driving and failure to blow.
The grounds for appeal, based on the Charter of Rights and Freedoms,
are interesting. The accused was arrested at 9:55 p.m. The officer
booked her after she had refused to blow, and could not say when she
was released. However, he did not argue the accuracy of his department's records which show that she was not released until 9: 15 the
next morning.
No evidence was adduced on the justification of the
continuation of the accused's detention other than that she was too
intoxicated at 11:00 p.m. on the evening previous to her release.
We saw in Mason and Basse, Brown and Smith* an example on how the
police may be civilly liable if custody is continued despite the fact
that the public interest as defined in the Criminal Code, has been
satisfied.
This includes effecting an arrest which in terms of
requisite grounds and beliefs is lawful but where, due to a lack of
"public interest", the law states that the officer "shall" not
arrest.
In cases of custody the law is equally compelling and
dictates that an officer-in-charge "shall" release in the absence of
public interest issues.
In these criminal proceedings, the accused raised unjustified continuation of custody as a constitutional defence. She submitted that her
continued custody had inf ringed her right not to be arbitrarily
detained (section 10 Charter of Rights and Freedoms).
She drew the
Court's attention to section 24(1) of the Charter which authorizes the
Judiciary to remedy an infringement of rights or freedoms as guaranteed by that Charter. She suggested to the Court that an acquittal
was an appropriate remedy in the circumstances. This remedy had been
invoked by a County Court Judge in Nelson, B. C.** who found that the
onus was on the police officer in charge to comply with the provision
of section 452 c.c. and ••••
"If he is unable to meet this burden, it is mandatory that
the person be released.
The onus does not lie upon the
accused to meet the conditions of the release".

* See page 28 of Volume 16 of this publication.
** The queen v. Mcintosh, Nelson registry CC 33/83, February 1984.

- 6 -

As we saw in the civil proceedings, where a person seeks compensation
for unlawful arrest or detention, all the plaintiff has to show is
that he was arrested or detained and the onus is then on the defendant
to show that the arrest or detention was lawful.
However, where a
claim is made for a remedy under section 24 of the Charter related to
arbitrary detention, it seems (at least so far into the history of
this constitutional declaration) that the onus to show that on th,e
balance of probabilities the arrest or detention amounted to an
infringement of a right or freedom is on the accused in criminal cases
and the plaintiff in civil proceedings.
The County Court Judge in this case held that if the accused wished to
raise this constitutional defence there should have been an indication
of this to the trial judge or Crown Counsel so that witnesses on that
point could have been called.
In this case that was not done and the issue of arbitrary detention
was not even raised at trial.
All cases indicate that the onus to
show an infringement is on the accused. Furthermore, the County Court
Judge held:
"In the appeal before me, the only fact established by the
evidence is that the appellant spent approximately 11 hours
overnight in the gaol cell. Standing alone, that does not
establish a prima facie violation of Section 9 of the
Charter, nor, for that matter, under s. 452 c.c ••• "

** ***

- 7 -

SUSPECT CLAIMS HE WILL NOT SAY ANYTHING UNTIL HE HAS SPOKEN TO A
LAWYER, YET HE MAKES A VOLUNTARY INCULPATORY COMMENT.
ADMISSIBILITY - CHARTER OF RIGHTS & FREEDOMS
Regina v. Manninen 8 C.C.C. (3d) 193
Ontario Court of Appeal, November 1983.
The defendant had stood with arms across his chest in front of a
storekeeper, gun in one hand and a knife in the other. When he got
the money he demanded, he made his getaway in a gold Lincoln Continental which he still drove when apprehended a little later. The car had
been stolen.
The officers who arrested the defendent read him "the works"; notice
of arrest, right to counsel, caution in respect to right to remain
silent and secondary caution in the event another person in authority
had influenced him in respect to making a statement.
The defendant
commented in response that it sounded like an American T.V. show. He
also said: "Prove it, I ain't saying anything until I see my lawyer.
I want to see my lawyer". Despite this indication that he intended to
retain and instruct counsel, the officers asked the accused if the
sweater and knives that were found in the Continental belonged to him
and what they were used for. He answered, "What the fuck do you think
they are used for? Are you fucking stupid?" And when asked again he
said, "Of course it's mine.
You fuckers are really stupid.
Don't
bother me anymore.
I'm not saying anything until I see my lawyer.
Just fuck off. You fuckers have to prove it".
The trial Judge had held that the accused's eloquent speech had been a
voluntary one and was therefore admissible in evidence. This despite
the accused's testimony that he had said these things as he was afraid
of the officers.
He had also claimed that the statement should be
excluded as his request to firstly consult a lawyer had been ignored.
The accused was convicted of robbery and possession of the stolen
car. He appealed.
Defence counsel argued that where voluntariness used to be the sole
consideration whether or not to admit a statement like this, additional matters have now been considered in view of our Charter of Rights
and Freedoms. He submitted that from the time the accused said: "I
ain't saying anything until I have seen my lawyer", all activities
involving the accused in their investigation should have ceased. They
simply should not have asked him any further questions and given him
an opportunity to call his lawyer.
The Crown retorted that the questioning had been an "on scene" one and
had the accuser s request been made at the police station a phone

8

would have been made available
This, the evidence revealed, was the
intention of the officers. Furthermore the accused had not specifically asked to phone his lawyer, not even at the police station. He
did apparently, via his family, make his need for a lawyer known, when
about six hours after his arrest a lawyer phoned him, the accused was
immediately put on the line.
The Ontario Court of Appeal went the route of section 24 of the
Charter to determine the admissibility of the statement. It firstly
held that "the appellant's rights under s. lO(b) of the Charter were
seriously infringed by the conduct of the police officers". When the
accused indicated his wishes in regards to his rights, he was basically asked three questions. 1. What is your name; 2. What is your
address, and 3. "Where is the knife that you used when you ripped off
the ••• (victim)".
The first two were innocuous and not improper.
The third one was and the answer was "devastating to the defence".
The Court said that in view of the defendant's clear intentions to
seek legal counsel, police should have stopped questioning him and
have made a phone available to him. The accused had not waived his
rights to counsel before answering the questions by police. Admission
of the evidence would, in view of the infringement of the defendant's
right to retain and instruct counsel, bring the administration of
justice into disrepute, held the Court
Conviction set aside.
New trial ordered.
Comment:
On page 38 of Volume 12 of this publication is a synopsis
and comment on post Charter reasons for judgment by the B. C. Court of
Appeal in R. v. Spearman.
Spearman said before his interview and
several times during, that he wanted to speak to a lawyer. However,
he continued to answer questions and confessed to murdering a woman.
The B. C. Court held that the accused (as was Manninen) was experienced in dealing with police and was not as he claimed, intimidated to
give the statement. It was implied that he should have requested a
phone to speak to a lawyer and that the officers were not obliged to
provide him with a phone simply because he claimed he wanted to seek
counsel.
It seems that the highest Court in B. C. has a different view on this
issue than their counterpart in Ontario.

*** **

- 9 -

CONSPIRACY AND BEING A PARTY
TO THE SUBSTANTIVE OFFENCE
Re Meikle and The Queen 9 c.c.c. (2d) 91
Ontario High Court of Justice
Mr. Meikle, the owner of a van, approached his co-worker, Mr. Madill
and asked him to take his van, drive it to a certain location and
steal certain parts off it.
Meikle would report the van stolen and
when located, claim from the insurance company for the stolen parts.
After the claim was paid, Madill was to re-install the parts. Madill
was offered payment for this service.
The deal was made over a few days and when everything was agreed to,
Meikle turned the keys to the van over to Madill to make the fake
theft as effortless as possible. However, Madill turned the keys and
the scheme over to the police who met Mr. Meikle when he delivered the
van to the location where the theft was supposed to take place.
Meikle was charged with counselling Madill to commit the indictable
offence of fraud over $200. "You can't do that" retorted Mr. Meikle.
He reasoned that had things gone as was planned, he and he alone would
have been the principal offender if the charge was fraud.
In the
circumstances, he argued, Madill could not commit a fraud; consequently how could he counsel a person to commit an offence he cannot commit
as a principal.
Apparently the Judge who conducted the preliminary
hearing, was not to be persuaded, and Meikle petitioned this superior
Court to remove the order of committal to stand trial.
The Justice of the Superior Court reiterated that the offence of counselling is complete the moment "solicitation or incitement" occurs.
Although Meikle was the principal offender, Madill was "potentially
particeps criminis" (party to the offence). This by virtue of section
2l(l)(b) & (c) c.c.
Defence counsel also argued that section 21 c.c. cannot be relied upon
to establish the ingredients for an offence under section 422 c.c.
Counselling offences which is not committed). The Court pointed out
that section 422 C.C. applies even where a person is incited to
"commit offences" and not necessarily a specific or substantive
offence.
In other words, if one commits a crime; aids and abets a person in
committing a crime; or forms an intention in common with another
person to carry out and assist one another in the commission of an
unlawful act, he is a party to the crime whether or not he is the
principal offender.

- 10 -

If one counsels procures or incites another person to commit an
indictable offence, then if the offence is not committed the
counsellor has committed an indictable offence of counselling and is
liable to the same punishment as a person who attempts to commit that
offence. The Court held that section 422 C.C. does not preclude the
counselling of another person to be a party to a specific of fence as
long as the offence counselled are physically and legally possible.
Application dismissed.
Committal to stand trial
upheld.

*****

- 11

PRIVACY ACT

Reference re an Application for An Authorization, Alberta Court of
Appeal. 10 c.c.c. (3d) 1.
Our senior governments may refer hypothetical constitutional or legal
questions to the most superior court in their jurisdiction. This is
known as a "referen.c e". The practice is not too often applied as it
is seen as a short-cut in the judicial law making process. The Court
simply will not have the benefit of the judicial opinions of the
"Courts below".
When an issue comes to a Court of Appeal or the
Supreme Court of Canada, it is by the appeal process and it has been
thoroughly argued in the lower Courts and judicial opinions have been
expressed on the subject. By the "reference" method the issue comes
directly to the provincial Courts of Appeal if the provincial
government has referred it, or the Supreme Court of Canada if the
reference is by the Federal government.
These references are usually made when the legal or constitutional
question put, is too urgent and pressing to let it be answered by
means of the time consuming appeal process.
In any event, the Alberta cabinet upon the recommendation of the
Attorney General asked the Alberta Court of Appeal:
1.

Does a person acting under a judicial authorization to intercept
a private communication have, by necessary implication, the
authorization "to enter any place at which private communications
are proposed to be intercepted ••• for the purpose of installing,
monitoring, repairing or removing any electromagnetic, acoustic
mechanical or other device?"

2

Can a judge who grants the authorization expressly authorize a
person acting under the authorization, "to enter any place at
which private communications are proposed to be intercepted for
the purposes outlined in question 1 above"?

The majority decision said "No" to both questions.
It had been argued that i f a person receives authorization to do
something he automatically is empowered to do all things "ancillary
thereto".
Also, the purpose of the authorization is to invade the
privacy of an individual and the document is therefore a licence to
make this possible, even in the privacy of his home.

- 12 -

Three out of the five Justices who decided on these questions found it
"disquieting" that the State would argue that an authorization was
such a licence and they found strength for their views in a decision
by the Supreme Court of Canada in 1981.*
The Court had issued a
warrant pursuant to s. 105 (1) C.C. which authorized the seizure of
all firearms in the possession of Mr. Colet.
Police wanted, on the
strength of the warrant, to search Mr. Colet's home.
He, however,
felt police had no right to be on his property, leave alone search his
home and he took shots at the officers from the roof of his "rudimentary shelter".
This resulted in two counts of attempted murder of
which the accused was acquitted.
The Supreme Court of Canada held
that section 105(1) C.C. does not authorize the entering of private
property to execute the warrant. The majority of the Justices dealing
with these two questions under the Privacy Act held that the Supreme
Court of Canada came out in the Colet case "as standing for the proposition that a statute authorizing the invasion of property must do so
expressly". (Section 105 CC now includes a provision to search).
The Crown had also advanced the argument that when police have a
warrant for the arrest of a person they have the power to search
private property on reasonable grounds for believing the wanted person
is there. The three Alberta Court of Appeal Justices held that the
cases** indicating that proposition are distinct from what is proposed
here. The "respect for privacy" is shown in police having to announce
their presence and business.
What is proposed by the Crown here is
"surreptitious entry". In law the two are miles apart.
The court's "No" to the questions is pretty well summed up in the
following passage of the reasons for judgment when it dealt with the
intent of the lawmakers:
"If Parliament knew that police forces were engaging in and

wanted to engage in trespassory entry then one can say it's
silence was a refusal to give that authority as easily as
one can say it intended to give the authority.....
That
surveillance was hitherto done by trespass does not imply
parliamentary approval of the practice. Nothing put before
us leads me to conclude that Parliament must have understood
it was necessarily authorizing surreptitious entry".
The dissenting opinions were in favour of allowing the judiciary to
include the authorization for entry of private property in the authorization for the interception of private communication.
In other
words, the two dissenting justices said "No" also to question 1 and
"Yes to question 2.

* Coleg v. The queen (1981) 57 .c.c. (2d) 105. Also see page 18 of
Volume #1 of this publication.
** Semayne Case (1604) 5 Co Rep. 91.a. 77 E.R. 194. - Eceles v.
Bourque et. al. (1974) 19 c.c.c. (2) 129.

- 13 -

This all adds up that in Alberta the judiciary may not include authorization to enter private property to intercept private communications.
And it was the unanimous opinion that an authorization to
intercept does not by necessary implication authorize such entry.
Despite this decisive judgement by the Alberta Court of Appeal, it
seems that its Ontario counterpart feels differently about the issue
of surreptitious entry. The following case demonstrates that clearly~
The Queen and Papelia, Monaco, Koaches,
Court of Appeal, August 1984.

Cavasin and Fishes Ontario

Police received authorization to intercept the private communications
of the persons mentioned above.
Besides the usual telephone taps,
police placed listening devices in the cars owned by Papalia and
Monaco.
Investigation had given them reason for believing that
conversations related to the crimes under investigation took place in
those cars. Needless to say that no permission to plant the devices
was sought from the owners of the cars. Police also entered surreptitiously the offices and the boardroom of Papalia and Monaco's
business and placed listening devices.
The officers did so on the
strength of the authorization which included:
"... and for that
purpose to enter such places as may be necessary in order to install,
monitor and remove any • • • devices ••• "
They were also ordered to
carry out these surreptitious entrees by their commanding officer.
The trial judge had disallowed any evidence obtained from interceptions of communications in the cars. However, he had held that those
resulting from bugging the offices and boardroom were admissible. The
trial resulted in an acquittal and the Crown appealed.
The surreptitious entrees and their propriety became the highlight of the
reasons for judgement by the Ontario Court of Appeal.
The reason why the trial judge has disallowed the intercepted communications in the cars, was that police, prior to applying for the
authorization, had knowledge of the suspected conversations in the
cars. Despite the fact that they by statute (s. 178.12(l)(e) CC) were
compelled to include in their application, "a general description of
the nature and location of the place, if known ••• " they had not
included the cars.
Neither would the judge allow the derivative evidence from the "in-car
communications".
The Ontario Court of Appeal held that the trial judge was wrong.
He
had looked behind the authorization while it was valid in its face.
Examining the grounds or validity of the authorization amounted to a
collateral attack on a Supreme Court authorization.
If the defence

- 14 -

wanted to challenge the superior court's decision to grant the authorization or its content, the proceedings must be for that purpose in
the Court that granted it. All the trial judge has to concern himself
with is that the interceptions were lawfully made and proper notices
were given; that named and unnamed persons fall within the authorization, etc. However he is not to go behind it. The interceptions in
the cars were lawful and the intercepted communications and its
derivative evidence were held to be admissible.
The defence then urged the Court of Appeal to rule inadmissible the
communications intercepted in the off ices and boardroom. Locks were
picked to plant the necessary devices and surreptitious entrees were
made. This was not pursuant to the authorization and, therefore, it
ought to be inadmissible, said defence counsel.
To answer this
question the Court of Appeal referred to decisions* prior to the
Charter being effective.
These decisions basically say that an authorization to intercept a
private communication is not a licence to break the law and that
authorities who assault, cause harm or trespass are on their own. In
such circumstances, the authorization does not give them any protection. However, if the authorities resort to these methods to intercept the private communications referred to in the authorization, that
does not make the interception itself unlawful.
One could say that
the unlawful means did not affect the lawful ends, after all, the
interception itself is pursuant to the judicial licence to intercept.
It is important to note, however, that also authorizations that
included permission to enter places to install and remove devices,
were frowned upon by the Courts of Appeal.
There was an apparent
consensus that there is nothing in law that enables a judge to
authorize illegal acts to accommodate the interception. Nevertheless,
as pointed out above, if police officers committed such acts, it made
the interceptions not unlawful or the evidence obtained thereby
inadmissible; and where an authorization includes a licence to trespass, it adds nothing to the document and does not invalidate the
licence to intercept private communications. Furthermore, the trespass is not a part of the interception and, therefore, the unlawfulness of the former does not contaminate the latter.
Dissenting judicial views, are best
minority judgement in the Lyons case:

summarized by quoting from a

"A police officer does not act in accordance with an authorization when he carries out the instructions of the authorizing judge in an unlawful manner, namely, by unlawfully
trespassing to install and maintain the monitoring devices".
* R. v. Lo Serge (1975) 26 CCC (2d) 388; R. v. Welsh and Tonnuzzi
(No. 6) (1977) 32 c.c.c. (2) 363; R. v. Lyons, et. al. 69 c.c.c.
(2d) 318 (B. C. Court of Appeal) 1980.

- 15 -

The defence urged the Ontario Court of Appeal to follow this dissenting view, particularly in view of the current Charter provisions.
The opinion of their Alberta counterparts, expressed in the 1983
Reference, was of course also drawn to the attention of the Ontario
Justices.
However, this was to no avail and they were more impressed with the
observations of the Chief Justice of the Alberta Court of Appeal (a
dissenting judgement).
His views are similar to those expressed by
the U. S. Supreme Court*. The Alberta Chief Justice observed:
• • • the serious invasion is not the entry upon a person's
property, but the entry into his mind by intercepting
communications intended to be private communications. Once
that invasion was authorized, the means were merely incidental"
He is of the opinion that Parliament knew the distinction between
"wiretapping" and "bugging" and that an authorization includes both.
Parliament understood that surreptitious entry is simply an integral
part of electronic eavesdropping.
Although the reasons for judgement are lengthy and somewhat confusing
in some places, it is obvious that the Ontario Court of Appeal agreed
with the dissenting views of the Alberta Chief Justice. It held that
necessary entries are the exercise of powers ancillary to the authorization.
All evidence admitted.
Note:
The Alberta reference case has been appealed to the Supreme
Court of Canada and we should be certain of this law in the not too
distant future.

* * * * *

* Delia v. The United States of America 441 u.
(1979)

s. 238

99 S C.E

1682

- 16 -

RELATIONSHIP BETWEEN THE MECHANICAL CONDITION OF THE
MOTOR VEHICLE INVOLVED IN THE OFFENCE OF DANGEROUS DRIVING
Regina v. Claxton,
32089-T March 1984.

County Court of Vancouver Island Victoria No.

The accused began a right hand turn when something that happened in
the area of the left front wheel caused him to lose control of the
car. In addition, his brakes failed and an accident resulted. He was
charged with dangerous driving.
The mechanical condition of the car was abysmal.
The brakes were
metal on metal with the drum near breaking point; the steering mechanism was badly worn; tires were without or little tread; and the stud
holes in the wheels were so badly worn that a wheel could be removed
without loosening the nuts. As a matter of fact, the accused had just
put the spare wheel on one of the front hubs as the original wheel had
dropped off.
In addition to all of this the accused had been
drinking.
The Court found that the mechanical failure was the "approximate"
cause of the accident.
If that is so, argued the counsel for the
defence, the accused should be acquitted.
The Court repeated the wellknown ingredients of the of fence of dangerous driving:
1.

driving without due care a prudent person would exercise in the
circumstances, (with regard, of course, to the factors mentioned
in s. 221 (4) c.c.); and

2.

failure to exercise such care and thereby, in fact, endanger the
lives and safety of others whether or not harm resulted.

The question was how the horrendous condition of the car did fit into
all of this. The Court found on the evidence that the accused knew or
ought to have known the condition of the vehicle. He owned the car
and was an experienced driver who understood the mechanical anatomy of
the car. The English Court of Criminal Appeal was quoted in regards
to the defence of mechanical failure.
It had held that this defence
simply has no application
". • • where the defect is known to the driver or should have
been discovered by him had he exercised reasonable prudence. To drive a motor car in such circumstances is manifestly dangerous".
Accused convicted.

* * * * *

- 17 -

CHARTER OF RIGHTS AND FREEDOMS
SHOULD PROCEDURAL ERRORS RESULT IN CONSTITUTIONAL REMEDIES AT TRIAL?

The Queen and Erickson, B.
Vancouver Registry CA001770

C.

Court

of

Appeal,

June

14,

1984

Police, armed with a search warrant under the Narcotic Control Act,
searched the appellant's home.
No narcotics were found, but a
quantity of blank driver's licence forms of various provinces were
contained in the accused's safe.
He was consequently arrested and
charged under s. 324 c.c. (possession of government marks) which
carries a maximum penalty of 14 years imprisonment.
The arresting officer was aware that the accused was on parole and
immediately upon arrest contacted the parole officer.
A warrant
suspending the parole and ordering that Erickson be delivered to a
federal penitentiary was issued a couple of hours later. In view of
this revocation and the warrant, Erickson was not brought before a
Justice until 3 days later. Police had assumed that there was no need
to comply with 454 C.C. (appearance without unreasonable delay) as
Erickson's detention was on account of the warrant and not the charge
of possessing government marks.
The Provincial Court granted bail
and, subsequently, the parole authorities cancelled their warrant.
Mr. Erickson was then released.
All this took place in February of
1982 prior to the Charter of Rights and Freedoms becoming effective. The trial took place after the Charter became effective.
Six days into the trial Mr. Erickson's defence counsel submitted that
the evidence of the government marks was inadmissible as the search
warrant was confined to narcotics.
He claimed that the search was
unreasonable and had infringed Erickson's right to be secure against
such a practice.
It was also stressed that the conduct of the
officers, particularly in respect to the "arbitrary" detention of
Erickson, amounted to another infringement of his rights
The Provincial Court trial judge "poured through" an abundance of
decisions on these matters and zeroed in on the custody issue.
He
found that there had been no malice or negligence on the part of
police but nevertheless Erickson's detention had been in violation of
s. 454 c.c. in that he was not brought before a Justice of the Peace
without delay.
Instead of determining if the admissibility of
evidence was affected by the unlawful detention (s. 24(2) of the
Charter), he turned to s. 24(1) of the Charter and quashed the indictment as a remedy to Erickson being denied his right not to be arbitrarily detained.

- 18 -

The Crown appealed the Provincial Court Judge 's decision to the B. C.
Court of Appeal and argued that the Charter provisions were not retrospective in respect to the infringement, if any, of Erickson's right
in these circumstances. However, the Court of Appeal declined to deal
with these issues.
In other words, it did not determine i f the
detention was appropriate or the search reasonable. The Court simply
addressed itself to the question if the quashing of the indictment as
a remedy under s. 24(1) of the Charter, was "appropriate and just" and
if there was any grounds in law for making the order to quash the
indictment.
The Court of Appeal held that the Provincial Court Judge had erred in
law and had used a cannon to shoot a rabbit. What carried a lot of
weight as a fundamental issue to the Court's conclusion was the fact
that no malice or negligence was found on the part of the police
officers.
Said the Court of Appeal in regards to the justification of invoking a
remedy under s. 24(1) of the Charter:
"He granted the most sweeping and drastic remedy in the
arsenal of remedies without any factual basis that could
possibly permit the conclusion that it would be either just
or appropriate to do so." • • • • • "The need to impress upon
all parties the requirement that the law be obeyed is not
enough to justify granting a remedy which is not otherwise
just and appropriate. I say that with full recognition of
the fundamental nature of the right created by s. 454 and
the importance of it being complied with by those who are
obligated to do so; but a breach does not in itself justify
turning the system on its head" • • • • • "It simply does not
follow that every breach must lead to some remedy being
granted at trial.
The purpose of the trial is, as it was
before the Charter, to decide whether the accused is
guilty. Breaches of Charter rights do not become a proper
subject of enquiry at trial simply because they occurred in
relation to the charge being tried".
These comments generally reflect the Appeal Court's opinion on the
subject. The Court was also subtly critical of the trial judge as he
had invited defence counsel to apply for the remedy under 24(1) of the
Charter (such application is requisite to implementing a remedy).
Indictment reinstated.
Provincial Court was ordered to try Mr
Erickson
Note:
In relation to the custody of Mr. Erickson in regards to the
charge of possessing the government marks, the Crown conceded that the

- 19 -

parole warrant did not preclude compliance with s. 454 C.C. Although
the B. C. Court of Appeal did not rule on this issue, they strongly
hinted to agree with the Crown's concession on that issue.

*****

- 20 -

POLICE ENTERING HOME TO ASSIST VICTIM AND INVESTIGATE A STABBING OBSTRUCTING A PEACE OFFICER - LAWFUL PERFORMANCE OF DUTY
Regina v. Custer [1984] 4 W.W.R. 144
Saskatchewan Court of Appeal April 1984.
Police received a report that someone had been stabbed and attended at
the location. They found no one there, and attended at a nearby house
and spoke to the accused, the occupier. He conceded that his wife had
been stabbed but assured that she was perfectly all right.
The
officers asked for entry into the home to investigate the stabbing and
assist the victim.
They did not in any way indicate any suspicion
that the husband (the accused) who blocked their way, was responsible
for the stabbing.
When the officers forced their way into the home a struggle ensued.
One consoling factor to the officers must have been the proof that the
victim of the stabbing was all right. She emerged from the house and
"threw herself on the back of one of the officers".
The accused was tried for obstructing the police officers "in the
investigation of a complaint of a person being stabbed". From all of
the evidence, the trial judge concluded that:
"... the peace officers did not want to gain entry to make
an arrest. If they believed that the accused had committed
or was committing an offence related to his wife they would
have arrested him on the steps.
lf they believed that he
was not a party to the stabbing then they would conclude
from his lack of concern about his wife that the stabbing
was not continuing as he stood there talking. What they did
want to do was determine the extent of the wife's injuries,
give aid, if necessary, and find out who was responsible".
He classified the issue surrounding the case as a classic conflict
between two rights; that of the state to investigate crime and protect
human life and the right to protect the privacy of the home. In any
event, the Court held that the circumstances had not triggered the
common law which authorized the officers to enter the home to prevent
death or serious injury.
The prerequisite reasonable and probable
grounds simply did not exist.
The Crown unsuccessfully appealed the verdict of "not guilty" and
finally ended up arguing the case in Saskatchewan's highest court, the
Court of Appeal.
This Court gave lengthy reasons for judgement and

21 -

explored the three most significant cases on this point* decided by
the Supreme Court of Canada and found that all were distinct from this
case.
None of the established common law provisions that authorize police to
enter private property without warrant did apply. Another point which
hindered the Court to include the police common law duty "to preserve
life and prevent serious injury" was the wording of the charge. The
Crown claimed that the officers were obstructed exclusively in their
duty in the "investigation of a complaint of a person being stabbed".
In other words, the Crown particularized the duty upon which it relied
to show obstruction on the part of the accused.
This, the Court of
Appeal claimed, prevented them from considering the duty of preserving
life and preventing injury
Crown's appeal dismissed.
Acquittal upheld.
Comment:
Anyone can understand the unenviable dilemma the officers
found themselves in. Assuming that the husband or someone else was in
the process of murdering the woman or had already done so, the police
officers knew that a stabbing had taken place.
The victim "is all
right" said a person who was hostile towards them.
Should they in
these circumstances have left when told to "fuck off"? Again, assuming that in a case like this, a death resulted and it was shown that
had the officers acted at the time they were at the door, they could
have saved the woman's life, I do not believe that their leaving, as
the law seems to say they must, would receive public acceptance.
One of the officers in his testimony said he thought, at the time,
that the stabbing might be continuing. However, this was rejected as
speculation and conjecture and something without evidential support.
Hindsight in these events is wonderful, but until the lady emerged and
vigorously attacked those who thought to look after her welfare and
interest, the predicament of the officers was precarious.
One comfort is the indication that had the information included
"preservation of life and prevention of injury" as a duty in respect
to which the officers were obstructed, the Crown's appeal would have
been allowed. This we can infer from the following and final comments
in the reasons for judgement:
"While the evidence might have supported a conviction (I do
not make a finding in this respect) had the charge been one
* Colet v. R 57 C.C.C. (2d) 105 (1981) - [1981] 2 W.W.R. 472.
Eccles v. Bourque [1975] 1 W.W.R. 609 - 19 C.C.C. (2d) 129
R. v. Stenning [1970] 3 C.C.C. 145

- 22 -

alleging obstruction of the constable s duty to preserve
life and prevent serious injury, that was not the charge
before the Court".

* * * * *

- 23 -

B. C. PROVISIONS FOR THE TAKING OF BLOOD
SAMPLES FROM SUSPECTED IMPAIRED DRIVERS
The Queen and Hurst,
84/1285, July 1984

Supreme

Court

of

B.

C.,

Victoria Registry

It was predictable that the recent B. c. statutory provisions authorizing police, doctors and registered nurses, and analysts to respectively demand, take and analyze samples of blood of a driver whose
blood-alcohol content is believed to be in excess of 80 mlg. per 100
millilitres of blood, would be tested for jurisdictional validity at
the first opportunity.
Mr. Hurst refused to allow a sample of blood to be taken from him
despite the fact a police officer had made a proper and authorized
demand of him under the B. C. Legislation. He entered a plea of not
guilty and at his trial the Provincial Court Judge held that the
provincial Motor Vehicle Act legislation regarding blood tests is
ultra vires the provincial government in that it contradicts s. 237(2)
of the Criminal Code. This Criminal Code section states that for the
purposes of this section no one is required to . give samples of any
bodily substance for the purpose of analysis. If asked to do so, a
refusal or the fact that no sample was taken may not be subject of
comment by anyone in the proceedings. The Crown appealed.
The Provincial Court, in essence, had held that i f the provincial
legislation contradicts federal law then the provincial enactment is
ultra vires the provincial government. The Supreme Justice held that
this at best was a misconception (and a prevalent one).*

* The B.N.A. Act of 1867 and the Canada Act of 1982, divide the powers
to legislate between the federal and provincial governments. Each
That is a
government is supreme within it's legislative purview.
fundamental ingredient of a federation. Basically, when a government legislates in an area that is not within its legislative competence, then that legislation is ultra vires that government.
In
some cases there is an overlapping jurisdiction and both senior
governments have jurisdiction to legislate. When this happens the
paramountcy doctrine is applied and the federal legislation supersedes that of the province.
Such legislation, though intra vires
that provincial government, may be inoperable i f it contradicts
federal provisions. When legislation is excessive from a constitutional viewpoint in that it, for instance is discriminatory the
Courts may declare it invalid despite the fact that in terms of the
division of legislative powers, the law was intra vires the senior
government that enacted it. Then, of course, there is the principle
of residual power.
In the federation of Canada (unlike in some
other f!!dffations) what.ever has Rot been assigned in the constitution beta s the Feaeral governme ~

- 24

If the B. C.

"blood sample" legislation is repugnant to that of the
Federal government, it may be inoperable but it is nonetheless intra
vires the B. C. government, said the Supreme Court. It held that the
provincial governments in Canada have jurisdiction to legislate such
law as is in question here*. This left the Justice to decide if the
provincial provisions did contradict s. 237 (2) C.C. and therefore
would be inoperable.
There are many examples where both the federal and provincial governments have within their legislative purview enacted law affecting the
same sphere of behaviour, regulating the same activities. A knee-jerk
reaction to this is to believe that federal law always supersedes that
of the provinces. That can be the case where, by applying the paramountry doctrine, it is found that these two valid sets of law are
inconsistent with one another; where the one contradicts or defies the
other' then the federal law has it and the provincial legislation,
though intra vires the provincial government is inoperable.
However, if the two sets of valid law, one federal and one provincial,
for instance, simply give authorities an option to proceed under
either, then both are operable.
When we still had only intoxicated and impaired driving offences
provided for in the Criminal Code, there was no provision for demanding a breath sample. The best police could hope for were volunteered
samples.
In 1958 Saskatchewan did something about this and provided
in its Vehicles Act that where suspected impaired drivers did not give
a sample of breath, their driver's licences would be suspended and
eventually revoked.
That legislation flew in the face of the then
Criminal Code stipulation that no one would be required to provide any
bodily substance including breath.
The Saskatchewan government
referred this legislation to their Court of Appeal for an opinion.
The reference reached the Supreme Court of Canada.
An eight-man
decision of this Court held that the Saskatchewan legislation did not
specifically compel a citizen to give a sample of breath despite the
fact that he could not refuse with impunity.
Furthermore the Court
found that the Saskatchewan law was not in conflict with the Criminal
Code provision that no one, for the purpose of this section, could be
compelled to give a sample of breath. Therefore, the Saskatchewan law
was operable.

*

Reference re validity of 2. 92(4) of the Vehicle Act 1957.
(Saskatchewan) (1958) S.C.R. 608.
* The Provincial Secretar
Province of Prince Edward Island v.
Egan et. al. 19 1

- 25 -

The

matter of parallel legislation is a bit more complex than
here and there are more tests to these turf issues.
For
instance, where provincial provisions are obvious, attempts for
authorities to gain evidence supporting Federal offences, or where
they create procedures affecting Federal criminal process, the issue
becomes a little more dicy.
The Saskatchewan legislation was very
close to doing the former.
expl~ined

The B. C. "blood sample" law operates quite separate and distinct from
the drinking-driving law in the Criminal Code. The B. c. provisions
are; for lack of a better term, self contained. No part of it is an
evidential conduit to the Criminal Code offence. The latter statute
provides for a conviction of "over 80 mlg." by means of compulsory
breath tests and certificate evidence.
The B. C. provisions are
similar and lead to the conviction of a provincial offence of "over 80
mlg" by means of a compulsory blood test and certificate evidence.
Whenever a police officer demands a blood test he does so exclusively
for provincial purposes and is then excluded from proceeding under the
Criminal Code. These provisions, said the Supreme Court Justice, are
not in conflict with section 237(2) C.C.
The Parliament of Canada
decided that they would not require anyone to give a blood sample for
the purposes of gaining evidence for their drinking-driving law. The
Province of B. c., having equal jurisdiction to create drinkingdriving laws, decided to include a compulsory submission to a blood
test to gain evidence for their own drinking-driving laws. This means
that there is a difference but no conflict.
B. C. blood sample law were held to be
operable.

*****

- 26 -

CHARTER OF RIGHTS AND FREEDOMS
THE WRIT OF ASSISTANCE AND REASONABLE SEARCH
The Queen v. Hamill, B. C. Court of Appeal, CA 001117 Vancouver Registry,
September 1984.
Various Provincial and County Courts have addressed the constitutional
validity of the much debated Writs of Assistance. Since the Charter, the
Court of Appeal seemed to have been inundated with appeals involving the
Writs and it, therefore, decided to amalgamate these cases and included
three other appeals* into their reasons for judgment in the Hamill case.
On page 1 of Volume 14 of this publication, a synopsis of the Vancouver
County Court's reasons for judgment in R. v. Cuff outline the issues
involved in the question on the constitutional validity of Writs of Assistance. I think it fair to say that the B. C. Court of Appeal has now overturned the decision in Cuff and here are the reasons why.
The lower Courts had various approaches and answers to the complicated
question surrounding this issue. Some held that the writ was unconstitutional but still admitted the evidence resulting from a search where a writ
was used as such admission would not bring the administration of justice
into disrepute.
Others, like the Judge in the Cuff case, rejected all
direct and indirect evidence that resulted from the use of a Writ of
Assistance. That judge seemed even anxious to get at the writ and left his
personal feelings not covered on the matter. This decision by the B. C.
Court of Appeal will bring some consistency in the interim period.
The
issue will inevitably reach the Supreme Court of Canada and if it disagrees
with the B. C. Court of Appeal's decision we will simply have to adjust
again.
The B. c. Court of Appeal firstly concluded that there is only one section
of the Charter that applies to the question before them, and that is
section 8 which assures us of a right to be secure against unreasonable
search and seizure (some judges had brought section 7 of the Charter into
the picture as well). The main objective of the Court was to determine if
section lO(l)(a) of the Narcotic Control Act, which authorizes a Writ of
Assistance to be used for the search of a dwelling house, was inconsistent
with section 8 of the Charter; in other words does section 10 N.C.A.
validly confer the power to enter and search under the authority of a Writ
of Assistance. Some Courts have referred to a search under the authority
of a Writ of Assistance as a warrantless search and for all practical
purposes it is, said the Court of Appeal. Opponents of the Writ of assistance claim that any search of a home other than those specifically

*

R. v. Sieben CA 000878, R. v. Descamps CA 000983
R. v. Pasztor CA 001154

- 27 -

authorized by an independent member of the judiciary are unreasonable and
excessive (save those to preserve life and in fresh pursuit of an offender). Determination of the necessity of a search and the judgment whether
or not there are the prerequisite reasonable and probable grounds, cannot
be left with the law enforcement officers, they say.
Others can see the
need for the Writ but favor that it must be shown that its use is necessary, in that the obtaining of a warrant was impractical in the circumstances.
In the U. S. they have struggled for decades with the question whether a
warrantless search can be reasonable.
Their debates have resulted in an
overwhelming volume of cases which has caused incredible complexities.
Basically a judicially granted warrant is the best protection against
unreasonable search.
Some claim that if a search is warrantless, it is
nonetheless capable of being reasonable; others argue that any warrantless
search is unreasonable • • • and on go the discussions.
The U. S. laws and
those of other commonwealth nations were reviewed recently by the Ontario
Court of Appeal in Regina v. Rao (May 1984, unreported).
The case is
interesting on these various viewpoints but is distinct from this case as
the place search in "Rao" was not a dwelling house.
As interesting as all the preliminaries may be the B. C. Court of Appeal
had to come to grips with reality and answer the narrow question before
them:
"Are the powers granted in s. lO(l)(a) N.C.A. excessive"? Defence
counsel argued that it could not be anything else but excessive.
The
B. C. Court of Appeal disagreed! It said that what has to be considered is
the particular circumstances encountered and the seriousness of the evil
against which the law is directed. The Court said to be cognizant of the
accusation that the search provisions under N.C.A. are excessive and abused
by police, however, it concluded that "it may be useful to take note of
what has been said about them by those who have had reason to consider them
most carefully".
Quoting from the 1971
following:

Le Dain Commission Report, the Court observed the

"A writ of assistance is a general warrant ••• " "In acting under
a writ of assistance a police officer must reasonably believe
that the dwelling house contains a prohibited drug ..... "Officers
who hold these writs are obliged by R.C.M. Police regulations to
report on the use they make of them (writs), and they are subject
to disciplinary measures for any apparent abuse ••• ". "The chief
distinction between a search warrant and the writ is the convenience of the latter".
The report sums up the difficulties in
firstly obtaining a warrant under many conditions so prevalent in
the illicit drug trade and concludes that "though the writ and
many other necessary practices in drug-law enforcement tend to
bring police and law some disrepute, taken the writs away would
seriously handicap such enforcement ••• "
It would appear therefore, that they (writs) must be regarded as special cost inherent
in the criminal law prohibition of the distribution and use of
drugs" said the report.

- 28 -

The 1969 Quimet report (Canadian Committee on Corrections) came to similar
conclusions. It found that the use of writs was carefully monitored and
that the broad and apparent excessive powers they confer, had not been
abused. Furthermore, the committee observed that the writ is used in two
areas of vital national interest, illicit drug trades and revenue. This
coupled with the practical necessity of search at specific and unpredictable times in investigations caused the committee to leave the grantiµg and
use of writs of assistance undisturbed.
The B. C. Court of Appeal considered these reports "statements from responsible sources" that support continuation of the unabused warrantless
searches, but was hesitant to hold that these committee findings were valid
and appropriate in 1984.
It was suggested to the Court that the test of "reasonableness" in respect
to the use of a writ, is whether it would, in the circumstances, be
practical to obtain a warrant.
If the answer is "yes" and the writ was
used, the search would consequently be unreasonable. The Court of Appeal
rejected this idea and predicted that such a rule would cause trials to
become minute examinations on that question with all the useless hindsight
as a benefit, while the investigator "must, at the crucial times, assess
those matters on the basis of his experience and training and often on the
basis of hunch or instinct". The exercise to determine such practicability
would add nothing to our right to be secure against unreasonable search and
would take much away from our right to be secure against crime.
Another option the Court had was to follow the American rule which, in
essence, dictates that warrantless searches are (with few exceptions) per
se unreasonable and unconstitutional. This idea was also rejected as the
Charter would specifically have stated that, if that had been the intent.
At this stage of their reasons, the Court of Appeal found that section 10
N.C.A. is not inconsistent with the Charter provisions and writs of assistance are, therefore, constitutionally valid. It referred to their ruling
in R. v. Collins* in which a clear interpretation of section 24(2) of the
Charter was given on how evidence resulting from an unreasonable search is
only inadmissible in evidence if admission would bring the administration
of justice into disrepute. This makes it clear that our Court of Appeal
steers clear from U. S. strict rules on the reasonableness of search or
exclusion of evidence. In any event, in regards to the former, the Court
disagrees with its Ontario counterpart and in respect to the latter it
said:
"It is neither just nor appropriate to exclude evidence simply
because the wrong done to the accused person is so trivial that
no civil remedy would be of practical benefit to him.
To
approach the matter in that way is to treat the exclusion of
evidence as something of no great importance, as a remedy to be
granted lightly.
On the contrary, I would suggest, it is a

* See page 1 Volume 12 of this publication.

- 29 -

drastic and inherently dangerous tool which should be employed
with caution. The purpose of a trial is to get at the truth of
the matters in issue. The effect of granting an application to
exclude evidence is to suppress the truth ......
Reasonableness of search was prior to the Charter, never an issue and background information in possession of the investigators which guided··. their
conduct during a search needed not to be examined by the Courts. Since the
Charter, the information an officer has and the manner in which he conducts
a search must now dovetail to determine the reasonableness of a search.
This means that a new dimension has been added to our trials and Courts
will have to deal with the background information in evidence.
This no
doubt will often be to the detriment of the accused despite the fact that
such evidence of background knowledge adduced is not to prove the truth of
its content but to explain the officer's state of mind and justification
for his actions.
In this case the accused was seized and choked immediately after the
officers entered the dwelling under the authority of a writ of assistance.
The officer responsible testified this was in the circumstances a natural
instinct and a method taught to officers. Also, the officers had, from a
computer print-out, learned of the accused's propensity to violence. What
about the admissibility of such evidence?
The Court again referred to their decision in Collins (supra) that:
• • • it was for the Crown to lay the groundwork to show what
knowledge the police had".
In relation to the apparent unfairness to adduce such evidence it must be
remembered that the accused raised the issue of infringement of rights and
must prove that on the balance of probabilities to trigger the exclusionary
rule. He is, at it were, the author of his own misfortune in this respect
while the Crown does not have to show the lawfulness or the reasonableness
(there is a distinction between these two) of the search as a prerequisite
to the admissibility of what was seized. In other words:
"If the accused does not apply under s. 24 for exclusion of the
evidence, there is no issue to which either the legality or
reasonableness of the search can be relevant".

The sentences that best synopsizes the Court's conclusion on this issue;
is:
"If the search was carried out under the authority of s. 10
N.C.A., it will be a reasonable one under s. 8 (Charter) only if
the officer had the requisite reasonable belief in the presence
of the narcotic".

and

- 30 -

"Every unreasonable search is an infringement of the individual's
right under section 8 (Charter).
But not every unreasonable
search can satisfy the second test under s. 24(2) (Charter)".
In other words, if a search is unreasonable the evidence resulting therefrom is still admissible if such admission does not bring the administration of justice into disrepute.
In this case the search was lawful and
reasonable.
Crown's appeal allowed.
Acquittal set aside and
directed.

new

trial

Comment: The welcome views by the B. C. Court of Appeal are encouraging
and it is sincerely hoped that this reasonable interpretation will be
shared by the Supreme Court of Canada.
Many members of the Judiciary,
particularly those of the lower Courts, have interpreted the Charter
provision very much in favour of those accused of crimes.
Our superior
Court continuously issues warnings to those judges in the front trenches
not to be too generous and not to give too liberal an interpretation to our
new Charter and that, with some exceptions, there is nothing new under the
Canadian constitutional sun in terms of rights and freedoms.
Other
factions totally disagree and reason quite to the contrary.
Of the
greatest interest, for instance, is the debate over the meaning of section
1 of the Charter which says that this part of our new constitution is
subject only to such reasonable limits as prescribed by law as can be
demonstrably justified in a free and democratic society. Does this mean
that we should not create legal luxuries we cannot afford or that where it
fits in our ideals we must implement and allow the exercise of freedom and
rights at all costs.
A similar (in principle) looming issue is the
apparent distinction in the sensitive subsection (2) to section 24 of the
Charter (exclusionay rule) between the English and French words used. The
English wording dictates the exclusion of evidence where admission "would"
bring the administration of justice, while the French version uses the word
"could".
I' 11 leave you to ponder over the immense distinction between
these wordings particularly in view of the provision in the Interpretations
Act that stipulates that where there is a difference in the wording of law
in our two official languages, the version most favorable to an accused
must be applied.
What I am implying is that, despite judgements like
these, we are far from settled on the meaning of our new Charter.

*****

31

RIGHT TO PRIVACY TO CONSULT COUNSEL

Regina v. Peters, County Court of Westminster, New Westminster Registry
No. X-012155, June 1984
The accused was under demand to give samples of breath and while at the
police station he phoned his lawyer. Police were within earshot while he
spoke to his lawyer.
However, the accused did not request privacy and
appeared satisfied and comfortable as the circumstances were.
The trial
judge held that despite the accused had not asked for privacy it should
have been afforded him. Presumably under either of the subsections of s.
24 of the Charter (remedy or exclusion) the judge acquitted the accused of
impaired driving and refusing to blow. The Crown should have lead evidence
to support the conclusion that the accused was given privacy while he exercised his right to consult counsel said the Judge.
The acquittals were
appealed.
In 1977, prior to the Charter becoming effective, the Supreme Court of
Canadal held that a suspect need not be afforded privacy to consult counsel
unless he requests it.
The accused had claimed at trial that he had
refused to blow as he had been inhibited in speaking to his lawyer. He was
nevertheless convicted as he should have asked for a greater degree of
privacy. However, there was a dissenting judgement in which three justices
of the Supreme Court of Canada felt that privacy should be a natural part
of the right to consult and retain counsel.
The defence lawyer in this Peters case had argued that the dissenting
judgement by the Supreme Court of Canada should, in view of the Charter now
being effective, be followed. The trial judge apparently agreed.
The very same issue has been argued at least twice in B. c. County Courts2
in 1983, since the Charter. The cases are on all fours with this Peters
case. In one the Court held the suspect 's rights had not been infringed
and there was no excuse to refuse to blow.
In the other case the Court
held that the accused's rights would only have been infringed if he had
asked for privacy and was not given it.
The County Court Judge agreed with his brothers, allowed the Crown's appeal
and ordered a new trial.

*****

1
2

Jumaga v. The ~een (1977) 1 S.C.R. 486.
R. v. F'ellowfied (1983) 24 M. V.R. 97 and R. v

Rosenan (unreported)

- 32

FAILURE TO INCLUDE ALL PLACES AND NAMES INTENDED TO BE
SUBJECT TO INTERCEPTION IN APPLICATION FOR AUTHORIZATION
Regina v. Meidel, Meidel, Al var ado, Moser and Mc Isaac, County Court of
Vancouver Island, Victoria Registry No. 27589, January 1984.
The accused applied to have set aside an authorization setting out certain
narcotic offences in respect of which private communications could be
intercepted. They claimed that police had misled the Court in the application for the authorization by failing to disclose the names of persons
whose private communication they fully intended to intercept. The same was
claimed in respect to addresses at which police intended to intercept telecommunications.
The Court found as a fact that the authorization did not include names of
persons whose private communications the police intended to intercept.
These names as well as the addresses were known to the police at the time
of the application. This caused the Court to say that the police "did not
act with scrupulous regard for the obligations of the judge ..... Hence the
supporting material did not comply with what section 178.12 C.C. stipulates
must be contained in the application.
What aggravated the situation was
that the telephone intended to be tapped (but not included in the application) were public telephones and this would mean an invasion of the privacy
of persons unconnected with the offences.
" It is not for police authorities to fail to fully inform that
judge and indeed to conceal their true intention from the judge,
in breach of the requirements of the statute and to conduct the
interception of such public telephone lines in such manner as
those authorities deem appropriate".
The judge examined "the packet" and particularly the affidavit. He came to
the conclusion that the granting of the authorization in view of the
evidence before him and that contained in the affidavit, was contrary to
s. 178.12 C.C.
The judge said that police had not been frank, open and
fair and he found to have been misled when he granted the authorization
and, therefore, had been unable to fulfill his obligation under the Act.
Defence Application granted.
Authorization set aside

*****

- 33

ARMED ROBBERY - FORCED RESTITUTION
Regina v. Ellis, County of
X011424, March 1984

Westminster,

New Westminster Registry

No.

The accused was "ripped off" for $1,100 in a drug deal and he knew who had
With the assistance of "Crazy Brian" armed with a
done this to him.
shotgun, and another friend carrying a club, he went a-calling at the
address where the two rip-off artists were. When the two perpetrators of
the rip-off did not immediately show signs of making restitution, Crazy
Brian came on the scene and matters were settled inside the house. A total
of $250 was collected and as this was not enough in the accused's opinion
he demanded that a car owned by one of the debtors was signed over to him.
The scene with "Crazy Brian" brandishing his gun was described as a
"madhouse" and the occupants of the home in which this happened were literally terrorized.
In view of the fact that theft is an essential ingredient to robbery, the
accused claimed that he was entitled to be acquitted of armed robbery.
After all he did not commit a theft but simply collected monies he had an
honest belief to be entitled to.
In other words, he claimed to have
"colour of right". He drew the attention of the Court to an English case 1
where a man had used a knife on his employer to collect wages owed to him.
Whatever crime he committed in doing so, the English Court of Appeal held
it was not robbery due to the lack of theft.
In this case the accused had given his victims $1, 100 to buy drugs for
him. The transaction went off the tracks somewhere as the accused did not
get the drugs nor his money back.
The English Mr. Skivington had done
honest labour and thereby had a claim to wages from his victim, but the
accused's claim was founded on the commission of a crime.
Is there a
distinction? The Court in its deliberations on this point, asked if, for
instance, a gambling debt could be collected by a means the accused applied
and not commit robbery? After all, a gambling debt is not a lawful debt
and cannot be legally enforced.
There is another B. C. case on nearly all fours with this one2. In that
and other cases, the Courts have held that this kind of defence must withstand the test of the accused's belief to have a lawful claim to what he
took. That test is a subjective one, meaning that it is not important if
the accused had in law a claim but whether he genuinely believed he had a
lawful claim. The Court quoted the English Court of Appeal:
"... a claim of right exists whenever a man honestly believes
that he has a lawful claim, even though it may be completely
unfounded in law or in fact".
1
2

R. v. Skivington (1967) 51 Criminal Appeal Reports
R. v. Sherman, 47 C.C.C. 521 (B.C.C.A.)

- 34

The Court concluded that the accused, if he believed he had a lawful claim,
would have gone to the police or pursued the matter civilly. He proceeded
in his bizaare manner of collecting a debt, because he knew he did not have
a "lawful" claim. Without a genuine belief in such a claim, the accused s
defence could not succeed.

* * * * *

35

ADMISSIBILITY OF VOLUNTARY STATEMENT AND
SECTION 10 CHARTER OF RIGHTS AND FREEDOMS

Regina v. Abraham, County Court of Prince Rupert, Smithers, B. C.
4276XZ February 1984.

No.

The accused was on trial for a sexual assault on a 12 year old girl. The
girl had been given an alcoholic beverage to drink. While she was asleep
and in the presence of the girl's 11 year old sister and an adult, the
alleged assault took place.
Police investigated and interviewed the 11
year old witness. Before they interviewed the adult witness, word got to
the accused that police wanted to talk to him.
He went to the police
station and spoke to the investigators. Whatever he said became subject to
a voir dire to determine its admissibility in evidence.
The Court held
that the interview was civilized, free of any improprieties and that the
accused had voluntarily given a verbal and then a written statement.
Prior to making the verbal statement, the accused had not been informed of
his right to counsel.
This he claimed was an infringement of his right
under s. 10 of the Charter and therefore the statement should be inadmissible by virtue of s. 24(2) of the Charter. Police claimed, however, that
the accused was not detained when he was interviewed, although they
considered him a suspect. After he had made his verbal admission of guilt,
the officers told the accused of his rights to counsel which did not deter
him from giving the investigators a written statement as well.
The
officers had reasoned that prior to the verbal admission they had insufficient evidence to arrest or detain the accused.
After that admission,
things had changed and, al though they did not arrest the accused, they
considered him detained.
The Court held that when the accused made the verbal statement he was not
detained and there was no infringements of the accused's rights.
The
voluntary statement was therefore admissible.
The accused then challenged the admissibility of the written statement.
Although the investigators had told the accused (after the verbal statement) of his right to counsel they had not told him promptly for what
reason he was detained. Crown Counsel retorted that the accused had been
asked about the alleged sexual assault and had confessed to it prior to the
need to tell him why he was detained. In other words, he knew why.
The Court held that the duty to tell a person why he is detained is
unambiguous (lO(a) Charter). The accused had not been told and, therefore,
his rights had been infringed. However, admitting the statement in these

- 36 -

circumstances would not bring the administration of justice into disrepute.
Both statements ruled admissible.
The admissibility of statements and infringements of an accused's right
were also discussed in the B. C. Supreme Court in R. v. Stone (No. 00049
Quesnel Registry, May 10,/84).
In that case two officers were called to the accused's home where a dead
man and woman were found. When the officers tried to get the accused away
from the scene to ask him some questions, he tried to enter the house and
when stopped, he fought the officers. He was handcuffed and placed in the
police car where the officers spoke to the accused for nearly an hour
before special investigators arrived. When the accused was booked nearly
two hours after his first encounter with police, he was told for the first
time of his arrest, the reason for it, and his right to counsel. He phoned
a lawyer and was interviewed again a couple of hours later.
The statements were all ruled to be admissible in evidence. The one in the
police cruiser was found to be voluntary and the infringements of the
Charter in the circumstances, would not bring the administration of justice
into disrepute.
In regard to the statement made a few hours after the
accused had been informed of his rights and had consulted a lawyer the
defence argued that the requirements of s. 10 of the Charter go beyond just
informing a detained or arrested person of his rights. The lawyer for the
defence claimed that when a person has decided to retain and instruct
counsel, no person in authority may interview that person in the absence of
counsel.
The Supreme Court Justice rejected this theory.
Although a prisoner may
well be told by his lawyer not to say anything he may chose to ignore that
advice.
That "surely is his prerogative and responsibility", said the
Court.
All statements were admitted in
evidence.

*****

- 37 -

UNREASONABLE SEARCH - TAKING URINE SAMPLES FROM DRAINAGE BAG

Regina v. L.A.R., 9 C.C.C. (3d) 144.
Manitoba Court of Appeal.
The accused had an all night celebration on the event of his 18th birthday. While driving home he was involved in a serious motor vehicle accident and ended up in hospital.
Police found him smelling of liquor and
shouting profanities at the nurses.
As a blood sample was denied the
officers they asked a nurse to give them a urine sample out of the drainage
bag which was fed by a catheter used in treating the accused.
The nurse
complied and the accused was charged with impaired driving and was
acquitted. Crown appealed.
The admissibility of the accused's blood-alcohol content established by the
analysis of his urine was fought on the basis that the taking of the urine
was an unreasonable search contrary to s. 8. of the Charter. This as no
search warrant or consent from the accused was obtained.
The Court responded that in these circumstances there was nothing to hold
that what was lawful before the Charter has now become "unreasonable". The
Charter arms individuals with rights but does not disarm the community and
render it unprotected, particularly not in "the critical battlefield of
search and seizure".
The Court reminded that the crusades in the U. S.
under the banner of the fourth amendment to its constitution "have often
glorified a law less reasonable than the search it condemned". The Court
further observed that the trial judge had confused astute investigative
practices with oppression or abuse.
It concluded that there was nothing
unreasonable about the seizure.
Crown's appeal allowed.
New trial ordered.

*****

- 38 -

DOES THE PRESUMPTION THAT A PERSON WHO BREAKS AND ENTERS INTENDS TO COMMIT
AN INDICTABLE OFFENCE ALSO APPLY TO THOSE WHO ATTEMPT TO BREAK AND ENTER?
R. v. Garlow, 10 C.C.C. (2d) 575
Ontario Court of Appeal and Supreme Court of Canada, May 1982 and May 1984
respectively.
Section 306(2) C.C. includes a presumption that when a person breaks and
enters a place he does so to commit an indictable offence therein. Without
such intent there is no offence under s. 306(1) c.c.
The accused attempted to break into a place and, relying on s. 306(2) c.c.
the Crown intended to prove that the intent of the accused was to commit an
indictable offence once inside.
The trial judge used the presumption to
convict the accused, despite the fact that he could not find from the
evidence, what specifically the accused intended to do i f he had been
successful. In view of s. 306(2) C.C. that does not seem to matter.
The accused appealed and the Ontario Court of Appeal as well as the Supreme
Court of Canada agreed that the trial judge erred in law. Both Courts held
that the presumption of intent does not apply to attempted breaking and
entering. Therefore, the trial judge must be able from the evidence, to
find what specific indictable offence the accused intended to commit had
his attempt been successful.
Accused's Appeal allowed.
Conviction quashed.

*****