WllUll Of WN1'11111' VOLUME NO® II Justice Institute of British Columbia POLICE ACADEMY 4180 Wallt 4th Avenue, Vancouver, British Calumbla, VIA 4J5 ISSUES OF INIBREST VOLUME NO. 35 Written by John M. Post October 1989 TABLE OF CONIBNTS Page ARBITRARY ARREST - EXCLUSION OF EVIDENCE........................................... 1 The Queen v. DUGUAY, MURPHY AND SEVIGNY Supreme Court of Canada - January 1989 EXTRADIDON IAWS AND TIIE CITIZEN'S RIGHT TO REl\.fAIN IN CANADA................................................................................. 3 U.S. v. C01RONI and U.S. v. ZEIN Supreme Court of Canada - 20035 & 20036 HEARSAY EVIDENCE IN FIREARM PROHIBffiON ............................................ 5 The Queen v. ZEOLKOWSKI - Supreme Court of Canada - May 1989 IS 1HE STAIBMENT OF A "FENCE" TIIAT GOODS ARE 'HOT SUFFICIENT TO PROVE TIIEY WERE IN FACT STOLEN? ................................ 6 S1R UE v. The Queen - The Supreme Court of Canada 20317 -June 1989. CAN THERE BE A CONVICTION FOR USING A FIREARM WHILE COMMITTING AN INDICTABLE BY ITSELF? .......................................... 9 Regina v. PRINGLE - Supreme Court of Canada June 1989 WHATS THE DIFFERENCE BETWEEN CRIMINAL NEGLIGENT DRIVING AND DANGEROUS DRIVING? CRIMINAL INIBNT ...................... 11 WAIIB v. The Queen - Supreme Court of Canada June 8, 1989. ROBBERY - WEAK IDENTIFICATION EVIDENCE SUFFICIENTLY BOLSTERED BY FINDING PROCEEDS HIDDEN BY ACCUSED .................... 13 Regina v. HARPER - B.C. Court of Appeal C.A 009585 - Vancouver, B.C. - February 1989 ii CONSra.UCl1VE MU'RDER ......................................................................................... 14 Regina v. STATHAM - B.C. Court of Appeal C.A. V00526 - Victoria, B.C. - March 1989. SCHOOL TEACHER INVITING PUPll.S TO FBI.LATE OR MASTURBATE lllM. DOES TIIlS AMOUNT TO SEXUAL ASSAULT? ......................................... 16 Regina v. CADDEN - B.C. Court of AJ>peal C.A. 006595 - Vancouver, B.C. -April 1989. MUST ONE BE TOID 1HAT HE IS NOT REQUIRED TO PERFORM SOBRIETY TEST? ............................................................................................................. 18 Regina v. HEAL- B. C. Court of Appeal V00754 - Victoria, B.C. - April 1989 BLOOD SAMPLE CERTIFICATE EVIDENCE......................................................... 20 Regina v. AUJLA- B. C. Court of Appeal C.A. 009614 -April 1989 INCLUDED OFFENCES TO SEXUAL ASSAULT USING A WEAPON RECENT COMPLAINT - REASONABLE BELIEF - OF CONSENT TO SEXUAL ACfS ............................................................................... 21 R. v. SHORT - B. C. Court of Appeal C.A. 009073 - Vancouver, B.C. - May 1989 1'lIB "DETENTION" Oii.EMMA................................................................................... 23 Regina v. ELSHA W- B. C. Court of Appeal V167-84 - Victoria, B.C. - June 1989. SIMILAR FACT EVIDENCE- SEXUAL ASSAULT................................................. 25 Regina v. Brooks - B. C. Court of Appeal C.A. 006549 - May, 1989 SEARCHiNG PREMISES wTIH CONSENT OF OCCUPANT.............................. 27 Regina v. ANDERSON - B. C. Court of Appeal C.A. 009781 - Vancouver, B.C. - April, 1989 PRIVILEGED COMMUNICATION - PASTOR PENITENT CHARIBR OF RIGlfl'S AND FREEDOMS............................................................... 28 R. v. FOSTY - Manitoba Court of Appeal 46 c.c.c. (3d) 449 iii PHYSICIAN GIVING DRUGS TO PATIENT FOR SEXUAL FAVORS ENTRAPMENT - CONSTITUTIONALITY OF PRIVACY ACT IS THE GIVING OF 1WO DIFFERENT KINDS OF NARCOTICS 1WO ACTS OF 1R.AFFICKING? .................................................................................. 30 R. v. VOUTSIS - Saskatchewan Court of Appeal 47 C.C.C. (3d) 451 - February 1989 THE PRIVATE SECTOR AND THE CHARTER CAN A PRIVATE INVESTIGATOR INFRINGE THE RIGHTS OF A SUSPECT? ..................................................................................... 32 Regina v. SHAFIE - Ontario Court of Appeal 47 c.c.c. (3d) 27 WHAT HARM CAN ONE CONSENT TO IN A FIGHT? MANSI.AUGHTER ........................................................................................................... 35 Regina v. JOBIDON - Ontario Court of Appeal 45 c.c.c. (3d) 176 IS SEEING, BELIEVING? ADMISSIBILITY OF CERTIFICATE OF ANALYSIS .................................................................................................................... 38 Regina v. PLAMONDON - County Court of Kootenay C.C. 130683 - Cranbrook, B.C. -January, 1989 MISSPELLING NAME OF ACCUSED ON CERTIFICATE OF ANALYSIS -ADMISSIBILITY - EVIDENTIARY VALUE .......................................................... 39 Regina v. VAN EGMOND- County Court of Vancouver · C.C. 881302-April, 1989 ACCEPTING REFUSAL AT THE SCENE- WAS OFFICER GIVING LEGAL ADVICE WHEN HE RESPONDED THAT HIS DEMAND WAS LEGAL? ....... 41 Regina v. EMMIE KING HONG LEUNG - County Court of Vancouver C.C. 881772-April 1989 CREATING A DISTURBANCE OPPOSING INTERPRETATIO NS OF THE LAW - B.C. PRECEDENT .............. 42 RAKIC and the Queen - County Court of Vancouver C.C. 881859 - June 1989 DOES OMISSION OF ADDUCING EVIDENCE OF PREREQUISITE KNOWLEDGE MAKE THE DETENTION CAUSED BY THE DEMAND ONE OF AN ARBITRARY NATURE? ........................................................................ 44 Regina v. TOWNSEND - County Court of Vancouver iv REFUSAL- RIGHf TO COUNSEL - OBLIGATIONS ON POLICE TO ENSURE TIIAT RIGHf TO COUNSEL IS NOT INFRINGED ...................... 48 R. v. EVANS - County Court of Vancouver C.C. 880465 - April 1989 CONSTITUTIONAL VALIDITY OF TRAFFIC REFEREES OFFICER-WITNESS-PROSECUTOR ROLEAPP.ARENT BIA.S .............................................................................................................. 50 RANDALL & The Queen - County Court of Vancouver C.C. 881138 - May, 1989 CAN A DRIVER DELEGATE HIS OBLIGATIONS UNDER TIIE "IIlT AND RUN" IAWS TO ANOTIIER PERSON? ...................... 51 Regina v. MORYS-BDGB- County Court of Vancouver C.C. 890100 - August 1989. WHO, FOR TIIE PURPOSE OF TIIE PROWLING IAWS, IS TIIE PERSON ON WHOSE PROPERTY 1HE TRESPASS OCCURS? .......... 52 Regina v. CROWE - County Court of Vancouver C.C. 890326-July 1989. TRAFFICKING OR A "RIP OFF?"................................................................................. 53 Regina v KEILTY - County Court of Vancouver June 1989 WHEN IS A TRAFFIC CONTROL DEVICE TO BE OBEYED ............................. 55 Regina v. BRA YBROOK- County Court of Yale C.C. 34465 - Kamloops, B.C. - June 1989 CARE AND CONTROL OF A "STUCK" MOTOR VEHICLE ................................ 56 R. v. WEISZBBCK - County Court of Yale C.C. 32589 - Kamloops, B.C. - March 1989 VAlJDITY OF DRIVER'S LICENCE SUSPENSION WHERE SUSPECT IS REFUSED AN ANALYSIS OF HIS BREATII ................................... 58 Regina v. JEWBR - County Court of Westminster 19543 - Chilliwack, B.C. - June 1989 v LEGAL TIDBITS COPYING VIDEO TAPES - FRAUD.............................................................................59 The County Court of New Westminster - X018847. January, 1989. SEATBELTS ARE UNCONSTITUTIONAL (IN ALBERTA) .................................. 59 R. v. MAIER -Alberta Court of Queen's Bench - 47 C.C.C. (3d) 214. ONUS OF PERSON ACCUSED OF A RESTRICfED WEAPONS OFFENCE THAT HE WAS THE HOLDER OF A REGISTRATION CERTIFICATE..........60 Schwartz v. The Queen - 45 C.C.C. (3d) 97. WHAT COURT HAS JURISDICTION OVER AN ADULT PERSONCHARGEDWITHFAIUNGTOCOMPLYWITHA YOUIH COURT................................................................................................................. 60 R. B. M. and the Queen - 46 C.C.C. (3d) 315. POSSESSION OF A DEVICE FOR OBTAINING TELECOMMUNICATIONS WIDIOUT PAYMENT OF I.A.WFUL CHARGES..................................................... 61 R. v. FULOP- 46 C.C.C. (3d) 427. AGENT PROVOCATION AND ADMISSIBillTY OF..............................................61 R. v. LOGAN - 46 C.C.C. (3d) 354. AI.LEGED POLICE BRUTALITY USED AS A DEFENCE FOR REFUSAL. ....62 R. v. Davidson - 46 C.C.C. (3d) 403. CONSTITUTIONAUTY OF PRESUMPTION 1HAT A PERSON WHO ENTERS A BUILDING wrmoUT IAWFUL EXCUSE DOES so TO COMMIT AN INDICTABI..E OFFENCE.......................................................................63 R. v. NAGY - 45 C.C.C. (3d) 350. DEFAULT SENTENCES SPECIAL CONSIDERATION FOR AGE GROUP IS UNCONSTITUTIONAL..65 Regina v. HEBB - 47 C.C.C. (3d). Nova Scotia Supreme Court, February 1989. TIIE WHOLE TRUIH AND NOTIIING BUT 1llE TRUTH................................. 65 Regina v. D. (RR) - 4 C.C.C. (3d) 97. vi RO.ADSIDE SOBRIBTI IBST........................................................................................ 66 R. v. JACOBSEN X018758 - R. v. Malloney X018897 and R. v. WlHTB X018662 - (New Westminster Registry) June 1989. MUST "REFUSING" PAR'I'Y BE TOID? ..................................................................... 66 Regina v. JONES - County Court of Vancouver - C.C. 880044 - June, 1989. lilT AND RUN - IN'fENT TO ESCAPE UABII1TY................................................ 67 R. v. GOSSEUN - 45 C.C.C. (3d) 568. ARBITRARY ARREST- EXCLUSION OF EVIDENCE The Queen v. DUGUAY, MURPHY AND SEVIGNY* Supreme Court of Canada - January 1989 The L's saw three youths drinking beer in the neiJdibourhood when they went out. When they returned home their house had been broken into and stereo equipment had been stolen. The,Y managed to discover the identity of the threesome. On a hunch and mere suspicion, police asked the three to sit in the back of their cruiser and implied that a lot of time could be saved if they told where the stereo equipment was. The youths were cooyerative; they confessed and showed them where the equipment was. Fingerpnnts were found on the equi{>ment as well as the place of entry, which matched those of the accused. The trial Judge acquitted the accused of break, enter and theft. He found that the initial arrest amounted to arbitrary detention and excluded all evidence (including the statements) under s. 24(2) of the Charter. The Ontario Court of Appeal found no fault with the trial judge's reasoning and verdict and did not allow an appeal by the Crown. The Crown then appealed to the Supreme Court of Canada. The Crown conceded that placing the accused in the police car without having reasonable and probable grounds that they had committed an offence had amounted to arbitrary detention. However, the Crown argued that the evidence should not have been excluded as according to the principles relevant to the exclusionary rule established in the Collins case•• by the Supreme Court of Canada, (1987), clearly state that a voluntary statement (other than one obtained follo~ of denial right to counsel), real evidence like the stereo equipment and the fingerpnnts do not affect the fairness of a trial and should not be excluded but in the rarest of cases. When the accused were tried and when the Crown's Appeal was heard by the Ontario Court of Appeal the judges did not have the benefit ofCollins decision which was handed down two years later. One of the seven justices of the Supreme Court of Canada dissented and strongly advocated that the principles established in Collins should be applied. He would have allowed the Crown's appeal and have ordered a new trial on the basis that despite the arbitrary detent10n the evidence should have been admitted. However, the other six justices concurred that the Crown's appeal should be dismissed. In a very brief (two paragraphs) reasons for judgment, the Court felt it should not interfere and substitute their opinion for that arrived at by the Court of Appeal. Crown's Appeal dismissed Acquittals upheld. • •• See Volume 21, page 16 for decision by Ontario Court of Appeal in this case. R. v. COLJmS - Volume 27, page 1 of this publication. 2 Comment: The Supreme Court of Canada's majority judgment acknowledge that they had the jurisdiction to interfere with the Ontario Courts. The Court felt it wasn't their proper function to do so in relation to the mill issue before them, whether or not the evidence should have been suppressed on account of the arbitrary detention. It is as though the Court wanted to let bygones be bygones. The Ontario Courts nad not created, announced, or proclaimed any principles of law or a rule of law with which they disagreed. In the absence of apparent errors as to applicable principles or a finding that is unreasonable, the Court felt it to be wrong to substitute its opinion for that of the Court of Appeal. The trial judge had been very critical of the police in this case. He had said that the violation of the accused's right had been blatant and that the community would be shocked if evidence was admitted considering the authorities behavior in discovering evidence. He said that short of torture, he did not believe there was anything that would shock the community more. The Ontario Court of Appeal agreed that the infringement of the accused rights had been"blatant; they removed some of the stin~ of the trial jud$e's comment. They said the harsh words were not Justified. The dissenting judgment by one of the justices of the Supreme Court of Canacfa agreed with that statement and felt that a new trial should be ordered on the basis that the evidence the trial judge suppressed was admissible. It is difficult to precisely reflect what the majority of our highest court ruled. It said there is no jurisdictional problem but we will not interfere as no principle were enunciated or applied with which we disagree. In common man's language, the Court either said, "It was O.K. at the time the accused were tried and the verdict was in their favor, so no grave miscarriage of justice will result," or it meant, 'We feel that the Ontario Court were right in law and we have a strict exclusionary rule--forget what we said in Collins." Members of the judiciary favoring a strict exclusionary rule may find comfort by giving this ruling the latter interpretation. However, it seems that the former view was mtended. 3 EXIRADIDON I.AWS AND THE QTIZRN'S RIGHT TO REMAIN IN CANADA U.S. v. COTRONI and U.S. v. ZEIN Supreme Court of Canada - 20035 & 20036 Frank Santo Cotroni and Samir El Zein are Canadian citizens who allegedly in Canada cons.Pired to possess and distribute heroin in the United States. Alf communications with their U.S. accomplices were done from Canada. They were arrested on warrants under the Extradition Act to be extradited and to be tried in the U.S. Under the provisions of the Criminal Code, the accused could be tried for the alleged conspiracy in Canada. The question "Vlhy extradite if they can be tried in their own country?" received not too much attention. The meaning of section 6 of the Charter became the main issue in Cotroni and Zein's attempts to have the extradition committals quashed. The applicable :portion of s. 6 Charter states that every citizen of Canada has the right to remain m Canada. On the surface, the section seems to protect us from expulsion, banishment or exile rather than from facing the consequences of crimes committed outside of Canada, by means of a process provided for in an Act of Parliament and a treaty between two nations. Should the Extradition Act infrin,ge on our rights to remain in Canada, the Courts must then determine if the limits of tliat right caused by the Act are "demonstrably justified in a free and democratic society" (s. 1 Charter). The Quebec Court of Appeal had quashed the committal orders. Consequently, these questions were then put to the Supreme Court of Canada in February 1989, and the Court responded m June. The Supreme Court of Canada held that expulsion and exile were the central thrust of as. 6 Charter as well as exclusion from membership in our "national community." However, despite extradition not being included in such forms of banishment, it "lies at.the outer edges of the core values being protected by ..." section 6 of the Charter. The Extradition laws consequently infringe the right to remain in Canada. This being so, would oblige the Court to decla.fe those parts of the Extradition laws that are inconsistent with the Charter to be without force or effect unless they are justified under s. 1 of the Charter. Said the Court: "The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. The objectives of extradition ~o beyond that of suppressing crime, simpliciter, and include bringmg fugitives to justice for the proper determination of their guilt or innocence in a proper hearing." Conseguently, the Supreme Court of Canada held that the objectives of the Extradition Act are "sufficiently important" to make the limits its provisions place on the Canadian citizen's right to remain in Canada, reasonable in our free and democratic society. 4 In respect to the fact that the Canadian Courts have jurisdiction to try the respondents for ve-ry acts that caused the U.S. authorities' interest to prosecute, the Court said: It is often better that a crime be prosecuted where its harmful impact is felt and where the witnesses ana the persons most interested in bringing the criminal to justice reside." 11 Committal for surrender was restored. ~= Two of the seven justices of the Supreme Court of Canada dissented. They felt that the provisions of the Extradition Act do violate the Charter unjustifiably where the Canadian citizen can be brought to justice in Canada for the ve-ry alleged wron~doing for which another nation wants to prosecute him. The dissenting juarliament's intent that the offences were to be separate from one another (also in armed robbery) and were clearly designed to deal with the menace of firearms. The Court obviously found nothing unconstitutional about the challenged enactment. .:: ** ••• R. v. KRUG- Volume 22, page 2 of this publication. R. v. KIENAPPLE(1975) S.C.R. 729. McQUIGAN v. The Queen - Volume 25, page 5. 10 In this case, Mr. Pringle was charged with: 1. 2. 3. 4. Unlawful confinement; u~,c,:, firearm while committing an indictable offence (the unlawful co . g); Possession of a weapon dangerous to the public peace; Pointing a firearm. The charge of the unlawful confinement resulted in an acquittal which was not appealed. Mr. Pringle was at trial convicted of using a firearm while committing an iJidictable offence, despite having been acquitted of the unlawful confinement. The trial judge HAD reasoned that Pringle assaulted his victim and did so with the firearm. The Court of Appeal had iuled that this was inappropriate and did set aside the conviction. Mr. Pringle had also been found guilty of the Charges mentioned in three and four above, but no conviction was recorded due to the Kienapple principle. The issues before the Supreme Court of Canada were: 1. 2. Can a person be convicted of usinJ a firearm while committing an indictable offence without having been convicted of that indictable offence? When the Court of Appeal acquitted the accused of using a firearm while committing an indictable offence, should it have ordered convictions to be registered under charge-s 3 and/or 4 above? The Supreme Court of Canada held that a conviction for using a firearm in the commission of an indictable offence cannot stand alone. Unless there is a conviction for that indictable offence, the accused person is presumed innocent. In relation to Question 2, the wording of the section, and particularly its penalty clause, indicate clearly that the accused was guilty of the underlying offence. Consequently, the Supreme Court of Canada Dismissed the Crown's appeal and remitted the acquittals to trial court for convictions to be registered for possession of, and pointing, a firearm. ***** 11 WHATS TIIB DIFFERENCE BE1WEEN CRIMINALNEGUGENT DRIVING AND PANGERQUS DRIVING? CRIMINAL INTENT WAITE v. The Queen• - Supreme Court of Canada June 8, 1989. Waite, having consumed seven tins of beer at a fall fair, drove down a country road with a can ofbeer in hand. He passed a convoy of four tractors and trailers loaded with hay. About SO people were on the wagons as part of a hayride. Some of the young persons involved walked on the road next to the wagons as they were switching from one trailer to the next. A ways up the road Waite turned around and said to his passengers, "Let's play chicken;" and as he drove on the left hand side of the road at a very high rate of-speed bearing down on the convoy, he said, ''Let's see how close we can get.11 While headlights were required due to the state of light, Waite drove with only his fog lamps illuminated At the last moment, he swung to his own side of the road mo~ down five hayriders who were on the roadway as described above. Four were killed, one escaped with injuries only. Consequently, Waite was tried for four counts of Criminal Negligence causing death and one count causing bodily harm. The trial jud~e told the jury that they had to view Waite's dri~ objectively to determine if it showed a wanton and reckless disresard for the lives and safety of others. He also said that they did not need to find mtention on the part of Waite to cause death or bodily harm to find him guilty. In other words, crimmal negligence requires no intent in terms of the wrongful act or in relation to the consequences. The driving (in this case a flagrant departure from the normal standard of driving) was in the absence of some explanation, conduct that is properly characterized as criminal ne2lilence. Differently put, the intent required for criminal negligent driving coufd be found in the conCluct of the accused. The jury asked what the difference is between Criminal Negligence and the included offence of dangerous driving. The trial ju~ge had, in response, explained that for dangerous driving, the actus reus (the wrongfill act) manifests itself in the driving. We are to infer from the driving itself, he implied, the intention to drive dangerously. The trial judge further instructed that for criminaJ negligence Y'?~ apply the same objective test as you do for dangerous driving in terms of the <1riving itself, but for the purpose of determining the required intent you apply a subjective test. The latter is to establish the mind of the accused at the time, to determine if there was "a deliberate and willful assumption of the risk involved in driying in the manner in which he was driving." In summary, the trial judge said the jury: • See Volume 22, page 21 of this publication for the decision by the Ontario Court of Appeal in this case. 12 "... you have in one, the dangerous driving, there is simply an objective standard, as compared to what the prudent driver would do. In criminal negligence, you have that, plus the subjective element of assumption and deliberate assumption of risk." The jury returned verdicts of dangerous driving on all counts. The Crown appealed this reduced verdict. The Ontario Court of Appeal allowed the Crown's apPeal and ordered a new trial. The Justices had disagreed with the trial judge that cnminaJ negligence required a subjective test to determine a state of mind~ to assume the risk involved in driving that showed a wanton and reckless disregard for others. Such a test places too high an onus on the Crown the Court held and considered that the mens rea required for criminal-negligent driving may be "objectively determined" (inferred from the driving) from the accused's actions. Waite appealed the order for a new trial to the Supreme Court of Canada, but to no avail. Our highest court agreed with the reasons and conclusions by the Ontario Court of Appeal. Criminal Negligence-may be determined objectively. "Criminal negligence is shown where the Crown proves conduct on the part of the accused which shows a marked and substantial departure from the standard of behaviour expected of a reasonably prudent person in the circumstances ..." said three of the six justices taking part in the judgment. The other three justices concurred in the order that the accused should be tried again but disagreed that criminal negligence can be determined by an objective test only. Although, they thought that tlie trial judge's views on the Crown having to prove deliberation and wilfulness was excessive, they held that there is a subjective element to criminaJ negligence. Said the Justice who wrote for this half of the Court: "! am of the view that the mental element in criminal negligence is the minima] intent of awareness of the prohibited risk or wilifiii blindness to risk." Crown's Appeal allowed Order for new trial upheld Note: Considering the court was split evenly on this issue, the latter view, be~ more favourable to an accused person, will probably be considered the bindin~ precedent. This also was reflected in the reasons for judgment m R. v. TUITON delivered simultaneously with those in the Waite case. 13 ROBBERY - WEAK IDENTIFICATION EVIDENCE SUFFICIENlLY BOLSTERED BY FINDING PROCEEDS HIDDEN BY ACCUSED Regina v. HARPER - B.C. Court of Appeal - Vancouver CA 009585 - February 1989. The attendant of a service station was robbed by a masked man and one other who was not disguised. The latter was a Native Indian wearing a red T-shirt and a blue pair of pants. The masked man did apparently most of the action and the attendant had onfy a chance to _glance twice at the Indian. Thirty minutes after the robbery, the attendant was taken mto a pub and asked to look around to see if he saw the man who robbed him. The pub can hold about 100 :persons and, at the time, there were only 15 patrons. The accused was the only Native Indian among the customers and the only person wearing a red shirt and blue pants. The attendant had said the accused looked familiar and identified him as the person who robbed him. Before being searched and booked, the accused was allowed to use a washroom accessible only to police personnel and staff, as it was one belonging to one particular cell. After using the washroom, the accused was searclied and $83.00 was found on his person. When another prisoner was checked into the cell with the toilet the accused had used, $249.00 was found hidden in the sink. This was some four hours after the accused was in the washroom, and no one else had used it in between. A sum of nearly $300.00 was taken from the attendant including a one-hundred dollar bill. Among the bills found hidden was such a bill. This evidence had lead to the accused's conviction of robbery. He appealed this conviction. The trial judge had held that the identification evidence by itself was insufficient to support a conviction. However, he found that the accused had hidden the money in the washroom. His not being honest about this had caused a "consciousness of guilt" to be deduced. The trial judge concluded that the aggregate of the evidence was consistent with guilt and mconsistent with any other rational conclusion. The B.C. Court of Appeal unanimously dismissed the appeal and held that it was appropriate for the judge to draw the inference that onlf the accused had reason and the opportunity to hide an amount of money consistent m every way with the proceeds of the robbery, in the washroom. That together with the identification evidence, was sufficient for a conviction. Appeal dismissed Conviction upheld. ••••• ~: The B.C. Court of Apr.eat held that it was not "necessary'' for the trial judge to "characterize' the evidence as being consciousness of guilt 14 CONSTRUCTIVE MURDER Regina v. STA1HAM - B.C. Court of Appeal CA V00526 - Victoria, B.C. - March 19gg_ The accused hosted others "to a long drinkin2 bout" at his home. This resulted in an altercation that caused Mr. Mcinnes to flee from the house. The accused and a Mr. B. caught up to Mcinnes and did beat him severely about the head after which they forced him to return to the house. The twosome then put Mcinnes in a car, shot him in the back, and drove him to a river where they dumped their victim in the water. The accused was convicted of second degree murder, after a trial with some technical hurdles. It was blatantly obvious that the accused and B. caused the death of Mcinnes, but what statutory provision rendered the accused criminally liable. The beating resulted in injuries that were life threatening if not medically treated; Mcinnes was kidnapped and this resulted in his death; the shot in the back was more life threatening than the beating; and, as Mcinnes died by drowning, it proved that he was alive when thrown in the river. Thejury was instructed on the definition of murder, including, of course, ca~~~ bodily harm and being indifferent whether it results in death or not; intentio y causing death of a human being; and causing death committing kidnapping while armed. The medical evidence showed that the injuries from the beauns were sufficiently severe to cause death and that the shot in the back while bemg kidnapped Mcinnes was even more capable of bein~ the cause of death. In the end, Mcinnes drowned due to be thrown in the water while he was in a comatose state. Having been instructed on all of the law surrounding these facts, the jury returned a verdict of guilty. However, it is, of course, not known which statutory provision (s. 229 or 230 C.C.) the jury relied on. H they relied on s. 230 C.C. (causing death while kidnapping) then they based their verdict on law that was subsequently declared to be without force or effect by the Supreme Court of Canada. In R. v. Vaillancourt (1987)*, the accused person was a party to a robbery during which his accomplish shot and killed a victim of the robbery. It could not be proven that Vaillencourt specifically intended to cause the death of anyone, and it was only the construction of law that caused him to be criminally liable. Yet, Parliament defines murder to be an offence requiring specific intent to take someone's life. Consequently, the Supreme Court of Canada found that in circumstances as in Vaillancourt where there was no intent at all (other then to commit armed robbery) and where the accused had even taken precautions so no one would get hurt, the construction of law rather than intent or crime, could cause a person to be convicted of the most serious crime on our books. Consequently, "constructive murder" is inconsistent with the presumftion of innocence as it excuses the Crown from proving the most essential element o murder . . . "specific intent to take life" and is therefore without force or effect held the Supreme Court of Canada. 15 Since the jury in this Statham case was instructed on the armed kidnapJ?ing being constructive murder if death ensues, it is possible that they relied on this unconstitutional law to find Statham Guilty. Despite the fact that the jury could justifiably have relied on section 229 C.C. . .. The appeal was allowed and a new trial was ordered. 39 C.C.C. (3d) 118 - See also Volume 30, page 1 of this publication. 16 SCHOOL TEACHER INVITING PUPILs TO FEUATE OR MASTURBATE lilM. DOES 'IHIS AMOUNT TO SEXUAL ASSAULT? Regina v. CADDEN - B.C. Court of Appeal C.A. 006595 - Vancouver, B.C. -April 1989. The accused was a teacher at an elemental}' school. He had placed his desk to the side of the classroom. Upon a nod from him, a male nine or ten-year old male pupil would crawl under the accused's desk and there receive instructions to either fellate or masturbate him. Consequently, the accused was convicted of several counts of sexual assault. He appealed unsuccessfully to the County Court and then took his plight to the B.C. Court of Appeal. He did not dispute tlie facts but argued that what occurred does not amount to assault, as it is defined in the criminaJ code and at common law. The B.C. Court of Appeal did firstly explore the frin~es of assault and reminded itself of some subtle distinctions. Assault is divided mto battery and acts or gestures that are threatening unwanted physical interference with the person of another. It also quoted: ''To lay one's finger on another without lawful justification is as much a forcible injury in the eye of the law, and therefore a trespass, as to beat him with a stick." For example, an unwanted kiss amounts to sufficient battery to constitute an assault. Threatenmg behavior is also capable of amounting to assault. However, on the surface, the cases seemed on the side of the appellant Cadden. In one case, the accused was urinating in the open when four young girls (ages six to nine) walked by. He invited them to touch his penis and one of them did. He was acquitted of indecent assault as there was simplL : assault. In another case, an accused bad invited a young boy to masturbate 1· As the accused had not touched or made threatening gestures to the boy, he had committed no assault. A father was home along with his 11 year old daughter. He had put his arm around her shoulder and led her into a bedroom where he asked her to masturbate him. His touching and invitation had not been of a threatening nature; and, on a subsequent occasion, when the girl did not wish to accompany her father into the bedroom, but nonetheless did not resist or object to comply with his request, it was found that what occurred did not amount to assault. Then there was a scene in a train compartment from which there was no access to the adjacent compartment other than via a nmning board outside the train car. 17 A woman was the lone occupant of such a compartment when the accused joined her. As they were on their way, the accused exposed his privates, walked up to the woman and invited her "to have connection with him." The same Courts that had found no assault in the other cases held that the circumstances in the train scene justified finding assault. The cramped quarters in which it happened, the assertive approach, and the indecent suggestion, which was beyond an mvitation, caused the Court to find that there was assault. The B. C. Court of Appeal held that the circumstances in this case were in law not distinct from the train compartment scene. The teacher, the appellant, had his victims in cramped '{uarters and did not invite them to sexually ~atify him but instructed them. This "constituted a threat to invade the b~ mtegrity of the victims." In addition, the accused's present ability to apply force caused his actions with his pupils to amount to assault. Appeal dismissed. Convictions upheld. Comment: Although one must be grateful that a teacher did not walk away acquitted, considering his abhorring behaviour with the students entrusted to him, one cannot help to have some difficulties with the technical aspects of this case. In terms of influence and present ability to enforce su~estions made to another person, it seems that the father home alone with his eleven-year-old daughter had exceedingly more such ability than the teacher with a classroom full of students at the scene. The comparison of the cramped quarters between the space under the desk and the train compartment is also somewhat puzzlins. The only thing the two had in common was limited space. In the tram, the perpetrator invades the space of the victim who 1S, by circumstances, confined without any opportunity to esca,Pe. To crawl under a desk upon a nod seemed in terms of the immediacy of the implied threat the Court found to be present, rather to be one connected with the powerful influence a teacher can have on his pupils then the one that is an essential element in assault. Present ability means that he indicated and had the opportunity to immediately carry out the implied threats. In that regard, ihe victims, if they wished not to ~atify their teacher, crawled under the desk because of the intimidating influence or eventual consequences should they not comply. Strictly from a legal point of view, in regards to assault, their jaunts under the teacher's desk were analogous to conscription with adverse consequences in case of non-compliance, but no immediate physical consequences. 18 MUST ONE BE TOLD TIIAT HE IS NOT REQUIRED TO PERFORM SOBRIETY 1EST? VOLUNTARINESS - DISTINCTIONS BE1WEEN GMNG STATEMENT LINE-UPS AND SOBRIETY TESTS. Regina v. HEAL - B. C. Court of Appeal V00754 - Victoria, B.C. -April 1989 The accused struck two pedestrians who were on the shoulder of the road He was requested to perform a sobriety test after he had been made aware of his right to counsel and his right to remain silent. A demand was made when he failed the sobriety test, and the accused was consequently acquitted of "over 80 mg' and impaired driving. The trial judge had excluded the evidence of the test and evervthim? that occurred after the test He found that, in relation to the test, the accu5ed should have been told that he did not need to perform the test. He saw no distinction between statements and a sobriety test in terms of voluntariness. He held that a sobriety test without a warning like the one given for statements constitutes a Charter violation*. 'Without such a warning, a person is forced to incriminate himself' he had opined. The B. C. Court of Appeal held that should the trial judge be correct in the test being an infringement of a Charter ri2ht if there is no warning that the test need not to be done then the trial judge should also have considered if not issuing the warning is a reasonable limit as prescn"bed by law in a free and democratic soaety. In January of 1989, just a few months before considering this afpeal by the Crown, the B. C. Court of Appeal held that not making a person aware o his right to counsel prior to a roadSide sobriety test was such a reasonable limit*•. The Court had held that a roadside sobriety test is something prescribed by law despite the fact that there is no explicit law that provides for such a test. The Court had reasoned the absence of a roadside breath test in B.C. justified the sobriety test to be a substitute and an operational requirement to escalate suspicion into the reasonable and probable grounds (if any) to demand samples of breath. The criminal code provides for the demand ands. 214 of the B. C. Motor Vehicle Act provides for roadside driver's licence suspensions. Without a sobriety test police officers would be deprived of power necessary to enforce those laws (Interpretation Act). Consectuentlf, the test IS provided for by law and in view of the devastation caused by drinking drivers, the sobriety test without a "right to counsel" warning is a reasonable limit to the Charter right of the suspect. The Court reiterated its opinion, that a person is detained when he performs a sobriety test and warned (in Bonin) that the delay in making a person aware of his right to eounsel may only be brief and until the test is completed. However, in this case, the accused was immediately told of his Charter right to counsel before he did take the sobriety test. One could reason that the warning gave him access to counsel who, in tum, could advise the accused that he needed not to take the test. The Court did not go that route. It said that if not telling the accused, be need not take the test is an infringement of his Charter right, then tbe trial judge ought to have considered as they did in the Bonin case, if omitting such a warning was justified under section 1 of the Charter as a reasonable limit. • •• See article in Volume 32, page 22 of this publication. R. v. BONIN, Volume 34, page 1 of this publication. 19 The trirn'udge had not found any distinction between giving the warning in relation to the ri t to remain silent and the right not to perform a sobriety test. The B. C. Court o Appeal obviously did and said that it could not agree with the trial judge. Quoted the Court*: "I am clearly of the opinion that the rule requiring the prosecution to prove that a statement of an accused was voluntary before it can be introduced into evidence, does not apply to evidence of sobriety tests of an accused by policemen." Said the Court: '1t is enough for this case to say that there are significant differences between a confesSion, "I was drunk" and the observation of others that when the person attempted the tests he was, in fact, drunk." "In my view, there are greater similarities between sobriety tests and lineups than between sobriety tests and statements." The Supreme Court of Canada held specifically, in January of this year, that if the right to counsel is complied with by police, they (police) are under no duty to inform suspects that they need not participate in a line-up.** The right to counsel is the pearly gate to such information. One can infer that currently the law is that a person who is tested for sobriety is detained; the sobriety test IS prescribed by law; not telling a person of his right to counsel until the test is completed is demonstrably justified m a free and democratic society (s. 1. Charter) and therefore a reasonable limit to the right to counsel; and the sobriety tests (as are the line-ups) are in terms of voluntariness distinct from statements made by suspects. Crown's appeal allowed. New trial ordered. Note: * The kernel distinction of the issues involved in the taking of a statement or administering a sobriety test is that, in the latter, a police officer observes the result of the test and can vouch for the truth of his testimony. Where he relates in evidence what the accused told him, he can only vouch for what was said but not for the truth of the content of the statement. Consequently, where the Crown adduces such a statement in evidence to prove the truth of its content, the evidence is hearsay. Despite this, the statement~ still be admissible provided it was voluntarily given. Hence, the requisite absence of hope of advW:!8'Je or inducement. It is reasoned that statements given where such · uences are present are unreliable in terms of being truthful. It is therefore obvious that voluntariness in relation to statements can hardly be compared with a person not having to perform a sobriety test. R. v. MARTIN, 131 C.C.C. 32. Alberta Court of Appeal. See LECLAIR and ROSS - Volume 34, page 27, of this publication. 20 BLOOD SAMPLE CERTIFICATE EVIDENCE Regina v. AUJLA- B. C. Court of Appeal C.A 009614 - April 1989 The accused was involved in a head-on collision when he drove on the wrong side of the road. He sustained injuries, and while in hospital, a demand for a blood sample was made of him. In compliance with s. 241 (1) C.C., a medical practitioner took two samples of blood The accused was entitled to one of these samples upon application to have it analyzed for his. own purposes (s. 241 (l)(d)(i) C.C.). However, the section refers to the person who is so entitled as the "accused.'' 11 The Crown preferred a charge of "over 80 mg (among others) against the accused nearly four months after the accident occurred. During those four months, Mr Aujla was not an accused" and not entitled to one of the samples of blood taken from him. When he became an accused, he was no longer entitled, as three months had elapsed since the sample was taken. 11 The Crown attempted to prove the blood-alcohol level of the accused by means of the certificate provided for in s. 241. The trial judge admitted the certiticate in evidence, but held that the presumJ>tion that the blood-alcohol level at the time of driving and that, at the time of taking the blood samples was the same, was not available to the Crown. The availability of one of the blood samples to the accused is a prerequisite to that statutory presumption of equalization. Consequently, the accused was acquitted. 11 11 The Crown appealed the acquittal to the County Court and subsequently to the B. C. Court of Appeal. Both courts a~eed with the trial judge and said that if the. Crown wants to prosecute the accused, it should have done so by proving its case by means of vive voce evidence instead of having taken the certificate route. Crown's Appeal dismissed. Acquittal upheld. 21 INCLUDED OFFENCES TO SEXUAL ASSAULT USING A WEAPON RECENT COMPLAINT REASONABLE BEI .IEF OF CONSENT TO SEXUAL ACTS R. v. SHORT - B. C. Court of Appeal CA 009073-Vancouver, B.C. -May 1989 The complainant drove the accused home after a party each happened to attend. They were, in the sense of relationships, strangers to one another. He invited her up for a coke and once in his apartment he, according to the comElainant, produced a knife and forced her to consent to sexual intercourse. He testified that there was no knife involved and that the complainant had of her own volition consented to the love-making. The accused was convicted of "sexual assault using a weapon" and appealed. Despite his arguments to the contrary during his trial, the appellant claimed, in his appeal, that the trial judge should have instructed the jury that they could return verdicts for the included offences of sexual assault (without using a weapon) or assault. At trial, the defence had argued that, in the circumstances, these offences were not included. The issues of consent and the knife are so intertwined that one could not be separated from the other. If the knife was used to obtain the conceded consent, then without the knife, the intercourse was consensual, and no assault of any kind occurred. The B. C. Court of Appeal agreed with the trial judge and the defense position taken at trial that, under the circumstances, there are no included offences and that the only verdicts possible were guilty or not guilty of sexual assault using a weapon. There was another interesting issue raised in relation to the doctrine of "recent complaint." At one time, the Court's would seriously question the credibility of the victims of crime that would cause hysteria or severe indignation, if they had not raised a "hue and '!!1_" at the first reasonable opportunity. This defence ploy became a part of the Crown s armament, as statements by the Victim as to what happened were admissible as an exception to the hearsay rule, not to prove the truth of its content, but to establish the credibility of the complainant's testimony. One basic prerequisite to admissibility was that the statement was made without probing on the part of the confidant. In 1983, however, Parliament enacted: (thens. 246.5 C.C.) 'The rules relating to evidence of recent complaint in sexual assault cases are hereby abrogated." (Emphasis is mine.) In this case, the complainant had, immediately after her encounter with the accused, visited "confidants" during the five hours before reporting the incident to police. These persons testified at trial about the complainant's emotional and physical state. They had said she was very upset, cried and was disheveled. They had not related what she told them but only that she had related why she was in such a state and that she had told what had happened to her. In other words, the Crown used this evidence to show credibility on the part of the complainant without showing "prior consistent statements." This, the defence claimed, was using part of the abrogated common law principle known as "recent complaint." • R. v. GEORGE (1986) 23 C.C.C. (3d) 42- Volume 23, page 34 of this publication 22 In 1986, the B.C. Court of Appeal reviewed a similar, yet, in terms of evidence, a distinct case•. In that case, statements to confidants were admitted at trial despite the abrogation of recent complaint Held the B. C. Court of Appeal, in response to the defence submission that admitting the evidence of the complainant's emotional and physical state only (in this Short case) was applying an aspect of the abrogated recent complaint doctrine: "... There is no evidence of what she (the complainant) said to these people. Therefore, this does not constitute evidence of a recent complaint - the sort of evidence that used to be permitted onlr in sexual assault cases. This is the usual evidence admissible in all types of cases, that the victim went to the police or someone and told them what they said had happened." The evidence of the confidants was consequently admissible. The accused also argued that the jury should have been instructed on his reasonable belief in the consent of the complainant. Applying a precedent established by the Supreme Court of Canada in 1987*, the B. C. Corirt of Appeal reiterated that before there is an obligation to consider such belief on the part of an accused, there must be evidence upon which such a defence can be based There must be evidence that gives "an arr of reality" to such a proposition. There was nothing in the Crown's evidence that opened the door to such consideration and neither had the defence adduced anything that obligated the trial judge to instruct the jury to consider such belief on the part of accused. Accused's appeal dismissed. Conviction upheld. ~: The 1983 abrogation of recent complaint only does so, in cases of sexual assaults. Although this common law rule of evidence, also applied to other criminal allegations, it has predominantly been applied in sex cases. It is noteworthy that Parliament seems to want to close the door to this rule of evidence completely if one reads section 275 of the Criminal Code. The abrogation will apply also to incest, invitation to sexual touching, sexual exploitation, anal intercourse, bestiality, householder permitting sexual activity, corrupting children, indecent acts, and sexual assaults. By specifying where the abrogation applies instead of simply repealing the rule altogether, one infers that the rule is still alive and well for other offences where indignation or hysteria may result on the part of the victim. Examples of those are, for instance, kidnappmg, unlawful confinement and like offences where the rule has been applied. • R. v. ROBERTSON (1987) 33 C.C.C. (3d) 481 - Volume 27, page 27, page 14, of this publication. 23 TilE "DETENTION" DILEMMA Regina v. ELSHAW - B. C. Court of Appeal V167-84 - Victoria, B.C. - June 1989. Mr. Elshaw was seen with two yo~ boys in the bushes of a public park. He was overheard saying to these children, let's keep this our little secret." Police were alerted and arrived on the scene just after the children came out of the bushes. The accused was asked to identify himself and placed in the rear of the patrol wagon. When the accused asked why he had to sit in the car, he was told that he was under investigation for child molesting. The two offi.cersthen questioned the two children and discovered from them that Elshaw had attempted to sexually assault them. One officer then went to the accused and asked him what would have happened if they (the officers) had not arrived at the time they did. Elshaw, in response, made qwte an inculpatory statement about his propensity by saying: "I have these urges not so much with little boys, but more with little girls." He indicated that his victims were usually children of around five years of age and that he wanted to get help but did not know how to go about getting it. He was then promised that there would be an attempt to get him the treatment he needed. He was taken to the police station and was, after fifteen minutes of the their arrival there, arrested under the vagrancy section of the criminal code and was then for the first time told of his right to counsel. At his trial, his statement was admitted into evidence and he was convicted of two counts of attempted sexual assault. Since his trial, the Supreme Court of Canada defined the ~eaning of detention* and gave judicial guidance in relation to the exclusionary rule under s. 24(2) of the Charter**. There have also been a number of decisions that have clarified what it takes to consider right to counsel waived***. Although the trial court may have applied the pro.Per precedents as they then were, an appellant is entitled to have the pnnciples applied to his case as they are at the time of his appeal. In other words, the B. C. Court of Appeal had to decide on the exclusion of evidence on the basis of the law as it was at the time Elshaw's appeal was considered by the Court Although, at the time of his trial in 1984, the law, as it then was, did not render Elshaw detained**** while he was awaiting his lot in the rear of a police car, by the time his case reached the B. C. Court of Appeal, the precedents clearly detenmne those circumstances to create detention. The Court of ~eal held that Elshaw was detained as soon as he was questioned and placed m the police car. The B.C. Court of Appeal was very much aware of the police officers' dilemma and approved of them housin~Jshaw in the wagon while they discovered what took in full view of the public and witnesses could have place. Leaving him stan prejudiced the identification evidence adverse to the appellant's interest. * ** *** •••• R. v. THBRENS [1985] 1 S.C.R. 613 - Volume 21, page 1, of this publication R. v. COUJNS [1987] 1S.C.R.265 - Volume 27, page 1, of this publication R. v. CIARKSON[1986] 1S.C.R.383- Volume 24, page 38, of this publication STRACHAN v. The Queen [1988] 25 C.R. 980 - Volume 34, page 32, of this publication. 24 Even when the interview took place of the appellant at the scene (which resulted in in an inculpatory statement) the officer did not have sufficient grounds to effect an arrest. The B.C. Court of Appeal agreed with the trial court judge that Elshaw's detention, considerinf. the crrcumstances, was "reasonable and brief." Furthermore, the officers had been 'understandably unaware "of their obligation to make Elshaw aware of his right to counsel; neither had they acted flagrantly or deliberately in violating the appellant's rights. Also, it would be unreasonable to expect pofice officers m circumstances as these to not detain the suspect until discovering from witnesses the nature of the complaint The dilemma of the officers was then and would be under the present law "Akin" to that of the police officers who, during a search, detained someone without ~ving him the opportunity to contact counsel until a potentially dangerous situation was cleared up.* Elshaw's counsel also argued that the statement obtained from the appellant while he was detained contained "self-incriminating evidence" and not "real evidence." (see R. v. Collins above) and it should, therefore, be automatically excluded (see para. 3 of page 22 of Volume 34 - R. v. Simmons). The B. C. Court of Appeal held that the Supreme Court of Canada has not held that self-incrimina~ statements obtained in a manner that infringes a Charter right are automatically madmissible in evidence. It found support for this conclusion from the Supreme Court of Canada not granting leave to appeal to a Mr. Jones**. A police officer had requested Jones to accompany him to the police station to answer some questions about a Break and Enter. En route, he "volunteered" that he had been involved in the crime. After being informed of his right to remain silent (he was not told of his right to counsel) he gave a written confession. Despite this self-incriminating statement obtained in a manner that infringed Jones' right to counsel, the statement had been admitted in evidence. Despite the evidence being self-incriminating, Jones had to prove on the balance of probabilities that admitting the statement would bring the administration of justice into disrepute. Although many issues seemed to favor Jones' argument for exclusion (there had been no urgency; admitting the statement would effect the fairness of the trial) the B. C. Court of Appeal liad held that the trial Judge's decision to admit the ''volunteered" statement had not been unreasonable. (The officer had sincerely and in good faith believed that the ~t to counsel warning only arose upon arrest) Concluded the B.C. Court of Appeal m Jones: "The appellant knew as soon as he entered the police vehicle why he was detained and he volunteered a statement which, with other evidence, was sufficient to convict him." As mentioned above, the Supreme Court of Canada declined to hear Jones' appeal. It had been reasonable and necessary to place Elshaw in the police wagon and the conduct of the officers had not been flagrant or deliberate. Furthermore, had the appellant been told of his rights, he would still have responded to the officer's questions as he did. Appeal dismissed. Convictions upheld * ** STRACHAN v. The Queen [1988] 25 C.R. 980 - Volume 34, page 32, of this publication R. v. JONES ( 1988) 24 B.C.LR. (2d) 180. 25 SIMII..AR FACT EVIDENCE SEXUAL ASSAULT Regina v. BROOKS - B. C. Court of Appeal C.A 006549 - May, 1989 At 2:00 AM. the accused, driving his car, stowed and asked a woman for directions. He then jumped out of the car and forced her mto the automobile. He took her to a gravel pit and on the way told her he was going to have sexual intercourse with her and threatened her in case of obstruction. She was there forced to perform various sexual services to the accused. Consequently, the accused was convicted of sexual assault. Although the accused did not testify, the defence conceded the sexual activities at the gravel pit but claimed that it had the consent of the complainant. The Crown in rebuttal to the consent issue bolstered the complainant's credibility by ca11ing three witnesses who less than a year prior to this alleged encounter were treated very similarly by the accused. Among others, the similarities were the feigned need for direction, the threats, and the destination--the gravel pit. At the last of these previous sexual jaunts, the accused had been caught in the act by {>Olice. He had been remorseful and had admitted to be having a problem for which he claimed to want help. Defence's ground for appeal was the admissibility of the evidence of the previous victims and that of the police officer who related the accused's admission of having a problem. Consent was the single issue in the trial. "Similar fact evidence," or admissions on those previous occasions is not admissible to bolster the Crown's position that there was no consent claimed the defence. The accused took the position that similar fact evidence can only be used for the purpose of identity which was not an issue. After all, he conceded that he had the sexual experience with the complainant as she claimed, except that he had her consent and cooperation. The similar-fact-evidence rule exists at common law and has been the topic in many learned articles and extensive reasons for judgment Its J?~ose is fairly narrow, and its applications rather limited. It also has given rise to cnticism that it oversteps the boundaries of the principles of justice and jeopardizes the right to be presumed innocent. When a person has committed a certain offence in the past, his modus operandi may have certain features that becomes his trade mark as it were. Criminal activities are no exception to all other human activities; each person has his or her own way of doing something or approaching a certain J>roblem. Often, the doer can be identified by his/her methods. When the method of committing a crime has characteristics that are similar to those of an accused's previous proven methods, then the Crown may adduce evidence of such similarities to assist in proving the identity of the author of the crime in issue. Juries must be warned clearly that they may not use the evidence to establish the accused's character but only hiS mannensm and methods. In other words, never to conclude "he committed a like crime in the P.ast, and he likely did it again." The evidence of similar facts can only ~~resented tf it is relevant to an issue before the court. The issue of identity is the one claimed by defence counsel. The Crown argued that this rule of evidence has a much broader application. 26 Case law does show that similar fact evidence can be used for issues other than identity. As recently as 1987*, the Supreme Court of Canada quoted, with apparent approval, from cases that explored the application of this evidence rule. Quoted the Court: ''Evidence of similar facts has been adduced to prove intent, to prove a system, to prove a plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association, and for other similar and related purposes. This list is not complete.11 (Emphasis is mine.) The B.C. Court of Appeal held that the evidence of the previous victims was properly adduced and admissible. It had shown great similarities in the accused's methods and that lack of consent do not deter him. That was the issue before the Court, and the evidence was relevant to that issue. In relation to the admisSI"bility of the statement by the accused on the occasion of one of the previous criminal events, the B.C. Court of Appeal said: 11 it constituted a tacit admission by the appellant that he had made a sexual attack on the 17-year-old girl. It was evidence that the jury could properly consider, in connection with that given by the 17-yearold gir~ in determining whether she has been sexually molested by the appellant." It other words, it bolstered the credibility of a witness called to establish the previous similar fact. As such, it was admissible. Accused's appeal dismissed. Conviction upheld. ~: The most severe criticism of this rule of evidence is that no instructions to a jury, regardless how eloquent, specific and appropriate in law, will adequately remove the danger that the lay Jury members will not be influenced by the bad character on the part of the accused, such evidence inevitably shows. In all our law, we are so careful not to reveal previous records or bad character to preserve total impartiality and presumption of innocence. The argument is that a legally trained mind may be able to draw the proper distinctions and to "compartmentalize" his or her mind, but that this is too much to expect from the lay person regardless how intelligent or well-trained (in areas other than law) that person may be. * **** * R. v. ROBERTSON - 58 C.R. (3d) 28. 27 SEARCHING PREMISES WI1H CONSENT OF OCCUPANT Regina v. ANDERSON - B. C. Court of Appeal CA 009781 - Vancouver - April, 1989 Business premises had been broken into and tools were stolen. The vehicle the person used to transport the loot apparently scraped a wall. A paintchip of a unique color was found on the scrape-scene. The owner of the business told police that the accused, an ex-employer, had a van of that unique color. The investigating officer discussed the feasibility of obtaining a search warrant for the accused's premises with a superior officer. No warrant was applied for. The officer went to the accused's home and found the uniquely colored van backed into the garage and the accused doing some work inside the vehicle. The officer told the accused how much (or little) he had to suspect him of having committed the burglary. It was all done in a straight-forward conversation, and no legalities such as warnings of rights or reasons to search were mentioned. The accused had responded, "Well, go ahead Take a look. Come on in." The accused's version of the officer's visit was in drastic contrast with that of the officer. The accused testified that he refused the officer to enter, and that he had demanded to see a search warrant. However, nothing had dissuaded the constable from entering over his objections. The trial judge had concluded that the officer's version reflected the events as they truly happened. He held that there was consent (an invitation) to the search, that the accused had not been detained, and that there had consequently been no obligation to make the accused aware of his right to counsel. There simply had been no breach of any Charter rights the trial judge held. The accused had been convicted and appealed that conviction to the B.C. Court of Appeal. The B.C. Court of Appeal found that it had been proved on the balance of probabilities, that the accused gave consent to the search and that consequently there was no infringement of any Charter rights. Appeal dismissed. Conviction upheld •••• • 28 PRIVIl..EGED COMMUNICATION - PASTOR PENITENT CHART&"'l OF RIGHTS AND FREEDOMS R. v. FOSTY - Manitoba Court of Appeal 46 c.c.c. (3d) 449 The accused Fosty bad a girlfriend by the name of Groenke. Ms. Groenke was friendly with an elderly gentleman who pve her a car, travel money, an allowance of $250 every two weeks, and clothing. This 81-year-old man also made a last will and testament~ means of which he was to leave his entire estate to Groenke. Groenke and Fosty killed the elderly man. Groenke had planned the murder and assisted Fosty in the kimng of her gentleman friend. Ms. Groenke had had some problems in her relationship with the victim and had consulted on several occasions a church counsellor. Wlien the counsellor heard of the man's death , she phoned Groenke and inquired if she was O.K. Consequently, Groenke went to see the counsellor and asked how she stood with God if she had oommitted a murder. The counsellor and the pastor assured her of forgiveness, but also told her that sin had consequences. They then advised that telli!tg the truth would spiritually, emotionally and physically make her feel better. Not at any time was Groenke told to be under a doCtrinal requirement to confess or that she would be deprived of ai:iy church privileges if she did not confess. Neither did the doctrine of the denomination require confidentiality in matter like this. In any event Groenke told all. At Fosty's trial, the Crown called the counsellor and the pastor to testify. The defence lawyer raised a unique objection. The law of evtdence only recognizes the privilege of a person who communicates with his lawyer. It also renders communications between man and wife during their marriage privileged, as well communications involving state secrets. The defense argued that if the evidence of the counsellor and pastor was declared admissible (status quo) then that rule of law violates Ms. Gruenke's guaranteed freedom of religion. It would mean that if.Priestpenitent communications are not privilized or at least confidential, then doctrinal or soul cleansing confessions are interfered with. Although this was not explicitly stated, the tenor of defence counsel's argument was that if one cannot privately and in confidence openly communicate with one's SP,iritual shepherd to receive assurance of forgiveness and peace with one's God, then, if that spiritual shepherd can be subpoenaed and is competent to testify as to the content of the confession, we are unjustifiably limited in our freedom of religion. Consequently, counsel urged that the Court declared the communication to be Ms. Groeri.ke's privilige and her confession to be inadmissible. The evidence before the Court did not reveal any denominational practices or doctrines. No evidence was adduced that the practice of confession was part of the denominational doctrine, or that a person subScribing to the church's theological theories, is deprived of any religious priviliges if there is no confession, an expression of repentance, and assurance of forgiveness. Consequently, there was no proof that compelling the counsellor and pastor to testify would limit the religious freedoms of the believers who accepted the doctrines of this denomination. The counsellor and pastor testified that it was urged of Groenke, in accordance to her religious beliefs, that she, for emotional comfort, spiritual well-being, and to make peace with her God, had to take responsibility for her criminal acts. 29 The Court also addressed the issue of general confidentiality when one communicates with one's pastor. Before confidential communication can receive any consideration for exclusion are four prerequisite conditions: 1. The communication must have resulted from a confidence that there will not be any disclosure; 2. The confidentiality must be essential to maintain a full and satisfactory relationship among the parties to the communication; 3. That relationship must be one that in the general public opinion, must be painstakingly maintained for the benefit of the community; and 4. The disclosure of the communication must result in greater injlll}' to that relationship then that resulting from the absence of a correct disposal of the Court case in which disclosure is sought. The counsellor and pastor had been no more than caritlg friends, and there was no "priest-perishioner" relationship per se. Although confidentiality may have been desirable, it was not one that in the public interest must be painstakingly maintained. Fosty appeal was dismissed. ' L i' 30 PHYSICIAN GIVING DRUGS TO PATIENT FOR SEXUAL FAVORS ENTRAPMENT- CONSTITUTIONALITY OF PRIVACY ACT IS GIVING OF TWO DIFFERENT .KINDS OF NARCOTICS lWO ACTS OF TRAFFICKING? nm R. v. VOUTSIS - Saskatchewan Court of Appeal 47 C.C.C. (3d) 451- February, 1989 Lynn attended the accused's medical office armed with a body pack recorder and transmitter. Lynn had told police how the accused, a physician, supylied her with drugs or narcotics in return for sexual favors. She had made her willingness to do so quite clear to him on a previous visit, not just by words but also deeds. On this occasion, she complained of back pain and the doctor administered two kinds of narcotics and in return received license to kiss and fondle Lynn. Consequently, the doctor was convicted of two counts of trafficking a narcotic. He appealed. The first ground for appeal was the admissibility of the evidence that was transmitted to police via the body pack If Lynn had only recorded the conversation, there would not have been any interception and no argument would likely arise under the Privacy Act. The interception was done without a judicial authorization and consequently the evidence was inadmissible argued defence counsel•. It was also submitted that the accused had been entrapped**, and that there was only~ transaction of administering drugs despite the fact she had been given two different kinds of narcotics. In other words, there was only one delict and if there ws to be any conviction it could be one only. Police learned of the accused's methods from Lynn when she was under investigation for offences under the Narcotic Control Act. Charges against her would be dropped if she cooperated with police to get evidence against the accused. She was told of the investigation strategy and fully understood what the intercepted communications between her and the accused doctor were to be used for when she signed the consent for such interception. Despite the trade-off in terms of the charges, the consent to intercept was given free of coercion, voluntary, and freely. The Saskatchewan Court of ~peal responded to this ground of appeal like their B.C. counterpart did in the Wiggins case (although they did not refer to it). There was no~ unconstitutional to recording the conversation and the interce.Ption had been done m compliance with the Privacy Act. Furthermore, the Court re1ected the • Identical argument was raised in B.C. Court of Appeal in R. v. WIGGINS, See Volume 30, page 17 and Volume 32, page 30 of this publication. •• See R. v. MACK+ R. v. SHOWMAN- Volume 33, page 48 of this Publication. 31 submission that the Privacy Act provision which allows this kind of an interception, is inconsistent with the Charter right to be secure against unreasonable search and seizure•. The Court concluded that even if the provision was unconstitutional, not admitting the evidence would bring disrepute on the administration of justice. The conversation was held to be admissible in evidence. The Court also found that the appealing doctor had not been entrapped. He had been the aggressor all throughout the encounter. He was not induced in any way. Police were conducting a bona fide inquiry into something that was a reaction to a reasonable suspicion and they had not gone beyond providing the accused with a reasonable opportunity to commit the crime. The defence had not rebutted any of these aspects of the investigation. The Court agreed that in these circumstances there was only one transaction, one administering of narcotics, despite the fact that two different types of narcotics were given to Lynn. Consequently, there was only one delict that could result in only one conviction for traffickfilg• •. Conviction on one of the two counts set aside. Accused's appeal dismissed in regards to the other court of trafficking. • This issue is under appeal in the Supreine Court of Canada (R. v. SANEILI). ** See KIENAPPLE v. The Queen (1974) 15 C.C.C. (2d) 524. 32 THE PRIVATE SECTOR AND THE CHARTER CAN A PRIVATE INVESTIGATOR INFRINGE THE RIGHl'S OF A SUSPECT! Regina v. SHAFIE - Ontario Court of Appeal 47 c.c.c. (3d) 27 The accused allegedly manipulated receipts he issued on behalf of his employer and did thereby enrich himself. As the local police declined to investigate the alle~ed theft, a private investigator was engaged. The accused was taken to the investigator's office to be interviewed. Needless to say, the investigator (a person who, in the mind of the accused, could effect the path of prosecution) was a person in authority and voluntariness was conse~uently prerequisite to the admissibility of the admissions the accused made to the mvestigator. There were no problems in that re~ard, and the statement was held to have been given voluntarily and was admitted m evidence. A conviction followed and the accused appealed to the Ontario Court of Appeal. The defence conceded that the statement was voluntary, but argued that it should have been excluded under section 24(2) of the Charter, as the acCUBed's right to counsel had been infringed. An employee superior to the acCUBed in the rank structure of the company, had taken him to the investigator's office. This supervisor had testified that if the accused had refused, he would have considered it to be an act of insubordination. This, the defence counsel submitted, caused detention and had triggered the accused's right to be made aware of his right to counsel. This had not been done by the supetvisor nor the investigator. The fatter had taken the aCCUBed into his office and had closed the door. The aggregate of this event had spelled detention accor~ to the aCCUBed's counsel. After all, the milieu was one of psychological coercton that made the accused believe that he had no choice but to submit to the deprivation of his h'berty." The Ontario Court of Appeal agreed and found that though the accused was not under arrest, he was detained. Then a very interesting question arose: "Does the Charter apply in a private investigation?" Perhaps an explanation of this question would assist in understanding the issue. Section 32 of the Charter stipulates that its provisions apply to the Federal and Provincial governments and their agents. Although this seems uncomplicated and straight forward, it is not when you apply the ancient doctrine of ''Royal Immunity." The 'Sovereign being accountable to the Infallible only, and never to others of the human race, is immune to liability if they, or agents acting on their behalf, fail to com.l?ly with the laws they themselves have proclaimed. Unless law specifically provides that it is also binding on the government, it simply is not. *R v. THERENS - 18 C.C.C. (3d) 481 - Volume 21, page 1 of this publication. 33 The Charter of Rights and Freedoms is part of our entrenched constitution and is not ordinary legislation. The main objective of the Charter is to ensure that our system, its authorities, the administrative processes, or the laws that inevitably deprive us of freedom, are not excessive. In other words, the Charter guarantees that those in authority over us will stay within certain boundaries. Hence, if the Charter, due to Royal Immunity, was not applicable to our ~overnments, it would be a superfluous document. Some CX{>erts reason that a provision as contained in section 32 of the Charter is due to its verr. constitutional nature totally unnecessary "Of course, it applies to the government.' However, this begs the inevitable question: Does it apply to the government only, or to all of us including the government? In other words, is section 32 there to include the government, or to reiterate that it exclusively applies to the government. This question, up until now, has not been fully answered. The defence counsel raised a ve1y persuasive argument. He reminded the Court that the employer had requested the public police service to investigate the theft. Police had declined to do so, and this resulted in the private investigator taking on that task. The results of his efforts caused the Crown to prosecute the accused. These facts made it blatantly obvious that, from the outset, it was the employer's intent to see the accused prosecuted and his investigation was not to recover his losses. He had therefore joined the Crown in its interest. If, in such a relationship and encounters, the Charter would not apply, the Crown could exploit and abuse the private sector for its interests. If the Court would interpret the Charter to be that limited in its application, then abuse and exploitation may result, which would defeat the pnnciples the Charter reflects. Consequently, he urged that where the Crown uses the furits of private encounters between people, as in this case, the person who did the harvesting, regardless of his position or relationship to the accused person, is, for Charter purposes, an agent of the Crown. The Ontario Court of Appeal said, "that however weakly this decision is based on authority," they believed it supported by principle that the Charter had no application in the private sector. The Court contemplated various scenarios involving teachers and pupils, employer and employees, or parents and children. Society would and could not tolerate judiciali7.ation of such relationships. For these reasons, the Court found that the accused had not been detained within the meaning of section lO(b) Charter. Consequently, the statement was not subject to exclusion under section 24(2) of the Charter. Conviction appeal was dismissed. ~: There have been a few cases on this issue but none have resulted in a clear answer to the complexities involved. Furthermore, the courts have not been consistent in their opinions. One court considered that in the case of a citizen's arrest, the Charter did apply due to the authority being derived from statute. Another held that since teachers are employed by the State (or by a subordinate government - the schoolboard), the Charter applied in public schools to teacher - pupil relationships. A Court of Appeal was of the view that a pub owner had searched an underaged patron and had found marijuana on him. The Co~ held that i~ was unnecessary to decide if the Charter applies to actions of one pnvate ,. 34 citizen to another. It held that the search had resulted from a citizen's arrest and was therefore a governmental function and the Charter applied. The search had been unreasonable and the marijuana was not allowed in evidence. H the Charter does apply to private citizens, some very_ interesting issues could surface. For instance, breaking in to ones house and ransacking the place would be the grossest example of unreasonable search and seizure. Wonder how the courts would react if the victim would petition the court for a remedy under section 24( 1) of the Charter. 35 WHAT HARM CAN ONE CONSENT TO IN AFIGHT? - MANS!AUGH'fER Regina v. JOBIDON* - Ontario Court of Appeal 45 c.c.c. (3d) 176 Twenty-five year old Mr. H. attended a "stag" party on the eve of his wedding day. While in a pub, the conversation turned to another patron of the pub (the accused) having "sucker punched" someone in the face. Mr. H. apparently felt obliged to avenge for the sucker punch and he hit the accused in the face. The proprietor broke up the fight, but everyone seemed to sense that this crowd pleasing, senseless, macho event was far from over, and indeed the spectators were treated generously. In the parking lot, some very angry words were exchanged and the fight (to the delight of the crowd) was on between the groom-to-be and the accused. De~ite the fact that H. was bigger than the accused, the latter got the better of H. in this short but very angry and vicious encounter. There is no doubt that both parties were anxious to participate in this fight. A blow to the head rendered H. unconscious. This happened while H. was still preparing for the fisdit. Despite the limpness of his opponent, the accused continued to punch H.'s head with the encouraging apJ>roval of the bloodthirsty crowd, which had angrily disapproved of those who haO tried to stop the encounter. H. never regained consciousness and died on what was to be his wedding day. The sole issue in this case was consent. The accused was charged with mansl&:~ter and the Crown had to prove that the death was caused by an W:tlawful act. In this case, that was assault. The trial judge found that the victim had obviously consented to the contest and therefore the accused had not committed an assault. Neither was there proof that the accused intended to cause bodily harm. The trial court acquitted the accused of unlawfully killing H. and thereby committing manslaughter. The Crown appealed. When reading the definition of assault, it seems to be so straight forward and simple. However, the matter of consent is, after all those years, still a matter of confusion with members of the judiciary going in various directions on their perception of what we can consent to, and bow far consent goes. Fightin~ for instance, is an activity not unlike ballroom dancin$. It requires at least two willing parties. As soon as one withdraws consent (in either activity) the other commits assault. In the case of a fight, can we say that both consenting parties are committing assaults? H this is not so, then how do we determine what the parties consented to: a few body punches, a headlock, or an all-out contest regardless of consequences? What does ilie prize fighter consent to when he enters the riJig or the hockey player when he goes on the ice? The Courts have agreed that the persons consenting to a fight can only agree to participate in a fair fight in "sports?" The consent does not go beyond what the rules of the sporting event condone. That is where consistency in judicial opinions seems to stop.•• • •• See Volume 31, page 28. See Volume 21, page 23 and Volume 26, page 13. 36 The Ontario Court of ~eal found support in the Criminal Code for that concept the consent has its limitations. It stipulates that one cannot consent to his death; prize fighting is prohibited and counselling or aiding in a suicide constitutes a crime. However, these statutory limitations to consent are not exhaustive. The common law has, for centuries, determined the breadth of consent. It basically states that inflicting violence, the probable consequence of which is bodily harm, is an offence regardless of consent. In other words, when it comes to that level of force, consent is immaterial. In 1882, a tribunal of 11 judges held that prizefighting was illegal, and that everyone involved (organizers, etc.) was guilty of assault regardless of the consent of the fighters. In 1980, the English court of Appeal was asked by reference, if in a fight to which two parties consent, can one who is charged with assault rely on the defence of consent. The Court's answer was brief and to the point. Where, in a fight bodily harm is intended .QI caused, the one who inflicted the harm is guilty oi assault regardless of consent. The common law undoubtedly limits what we can consent to. The trial judge in this Jobidon case had followed the Canadian straying from the above mentioned common law in the 1970's. Cases emer$ed where the fairness of the fight was the benchmark of the limit of consent. In this case too, the crowd had reminded those who wanted to break up the fight that it was "a fair fight." This spectators' opinion had influenced the accused in doing what he did in that it had caused him to believe that the fight was fair. Following this "fair fight doctrine," the trial judge had acquitted the accused. Simply put, the Crown could not prove that the victim had not consented to the injuries the accused inflicted on him. The Canadian ''fair fight doctrine" reached its peak in R. v. SETR UM* in 1976, when the Saskatchewan Court of Appeal held that even in a fight where force is directly resulting in death, the Crown is obliged to prove lack of consent on the part of the victim. It became obvious, however, that the Canadian judiciary were not ready to accept such a liberal interpretation of the law. In subsequent cases, other Courts of Appeal refused to follow the SE1RUM decision and a retreat occurred from the four-year "go ahead and maim or kill" :precedents. In essence, these Courts have determined that where bodily harm is mtended OR caused consent fails as a defence to assault charges. The Alberta Court of Appeal seems to have had the latest words on this issue in two well-known cases (1987)**. Two combatants consented to a fight with knives. Consequently, one was stabbed. Said the Court: "One cannot consent to be stabbed. The public policy of law intervenes to nullify the apparent consent of each of the combatants. Each committed an assault on the other." In the second case, no weapons were involved, but bodily harm had resulted from a consensus fist fight. In that case, the Alberta Court of Appeal surprisingly did not go as far as it did in the first case. • •• 32 c.c.c. (2d) 109. R. v. CARRIERE (35 C.C.C.) 3d) 276, and R. v. BERGNER (36 C.C.C.) (3d) 25. 37 In this Jobidon case, the Ontario Court of Appeal held that consent is still subject to the limitations the common law placed on it for the protection of the person and the keeping of the peace. Furthermore, consent by voluntary participation in a fight is obtained in an atmosphere of bravado in response to insult or challenge; often in the absence of sobriety or ability to consider consequences. To believe, as our Courts appear to have done for a sliort period of time, that the Parliament through the Criminal Code, gave licence to brawling, maiming, and even killing as long as there was this so-called consent, is to reduce our society to one who adopts the law of the jungle. We must continue to assume that our society intends to be civilized. The accused intended to cause bodily harm and in carrying out that intent, he caused death. In these circumstances, the Crown needs not prove that there was no consent on the part of the victims. Applying the common law, the Ontario Court of Appeal, in essence, said that where in a consensus fight bodily harm is intended or caused the issue of consent is irrelevant as we cannot, in law, consent to injury being inflicted in a contest. Consequently, there was assault, an unlawful act by means of which the victim's life was taken. Crown's appeal allowed. Acquittal set aside. Conviction of manslaughter entered. ***** 38 IS SEEING, BELIEVING? ADMISSIBU .JTY OF CERTIFICATE OF ANALYSIS Regina v. PLAMONDON - County Court of Kootenay C.C. 130683 - Cranbrook, B.C - January, 1989 The officer who demanded breath samples of the accused, testified how he had turned him over to the breathalyzer teChnician, who, in turn, gave the officer a certificate of analysis which was served on the accused. The technician did not testify, and the arresting officer did not say he saw the accused give samples of breath. The trial judge had not allowed the certificate in evidence as the Crown had not established a nexus between the accused and the eerson named in the certificate.* Due to a lack of evidence independent of the certificate, the certificate was ruled inadmissible and the accused was acquitted. The Crown appealed It seems that there was an unawareness of the decision by the B.C. Court of Appeal in October of 1985**. The majority of the Court had held that the certificate IS evidence that two samples of breath were analyzed. Should such evidence be prerequisite to the admiwbility of the certificate, its content may be regarded. The Court of Appeal had concluded that insisting on evidence independent from the certificate to accept that two breath samples were taken would defect Parliament's intent. The le~tion was, after all, designed to make it unnecessary to call the technician. Smd the Court: "H the taking of samples had to be proved by oral evidence, that could only be the evtdence of the technician." The B.C. Court reasoned that the link that needs to be proved is that the breathalyzer tests the certificate refers to are made as a result of the demand made by the arresting officer. In the Schlegel case, as in this Plamondon case, the arresting officer testified that the person from whom the demand was made was turned over to the technician for the purpose of administering the tests and certifying the results. In this case, the Crown had proven the link as described above, and there was no need for evidence extraneous to the certificate that samples of breath were taken. Crown's appeal allowed New trial ordered and acquittal set aside. ...*. • •• R. v. VAN DER SCHOOT- County Court of Vancouver - C.C. 841733 R. v. HRUBY - 4 M. V.R. 192. Alberta Court of Appeal. R. v. SClH...BGBL (1985) 22 C.C.C. (3d) 436, also Volume 22, Page 5 of this publication. 39 MISSPEWNG NAME OF ACCUSED ON CERTIFICATE OF ANALYSIS-ADMISSIBIUTY - EVIDENTIARY YALW Regina v. VAN EGMOND - County Court of Vancouver No. CC 881302 -April, 1989. The Crown proved by means of a certificate by a qualified breathalyzer technician that ''Taylor Ashley Van Egmond's" blood/alcohol level was above the legal limit. Consequent!~, 'Taylor Ashley Van-Egmond" (minus a hyPhen in his surname) was convicted of 'over .08%." Van Egmond appealed claimmg that the certificate had been wrongfully admitted at his trial as it referred to another person. The Crown took the position that the hyphen was not a letter and therefore there was no misspelling. In other words, the name with the hyphen was the same as the one without. The County Court Judge hearing the appeal held that adding a h_yphen to a name changes the nature of the name, consequently adding or omitting a hyphen is a misspelling. In relation to the certificate of analysis, the County Court Judge reminded himself of the views expressed by the Supreme Court of Canada in 1977. • The statutory provisions for the certificate are a short-cut for the Crown and deprive an accused person of normal rights to cross-examine. Therefore, the certificate must be in~ compliance with those provisions to be admissible. Any ambiguity or other shortcoming must be interpreted in favor of the accused. The Court found that the certificate in this case was completely in compliance with the law and was therefore admissible but that its evidentiary value needed to be examined. Was it capable of proving that Van Egmond had a blood alcohol level Van-Egmond was certified to have at the time of the offence? Is the Crown allowed by means of testimony to correct the defects in an otherwise admissible certificate? H so, had the Crown corrected the defect in this case? The "conditions precedent" for a certificate to be admissible are summed up ins. 258( 1) C.C. H the certificate is defect on account of one of these conditions, then the defect cannot be corrected. As a matter of fact, there is nothing to correct as the certificate is inadmissible. H the certificate is admissible and there is a defect other than in relation to a "condition precedent," then the Crown may correct the defect. This was done in a near identical case where it was certified that "Hanz Wright" had a certain blood-alcohol level while a "Hazen Wright11 was on trial. In that case, the technician had been the arresting officer and he testified that the accused and the person the certificate referred to were one and the same. The B. C. Supreme Court,• upon Wright's appeal, held that the Crown had corrected the admissible but defect certificate. • •• R. v. NOBLE(1911) 37 C.C.C. (2d) 193. R. v. WRIGHT(1981) 11M.V.R.217 40 In this Van Egmond case, the technician did not testify. As a general rule, no one other than the person who certified something can remedy an admiSSJ'ble but defect certificate. However, the cases on this J?Oint are all in relation to professional people who, upon examinations and tests, certified a professional opinion. A breathalyzer technician only reads from a dial scientific data and certifies what they indicated. In this case, the arresting officer testified that he turned Van Egmond over to the technician, was present when he gave samples of his breath and observed the readings obtained. The Van-Egmond certificate was referring to Van Egmond, the accused. The Crown had therefore remedied the defect. Appeal dismissed. Conviction upheld. ••••• 41 ACCEPTINGREFUSALATTHESCENE WAS OFFICER GIVING LEGAL ADVICE WHEN HE RESPONDED 1HAT HIS DEMAND WAS LEGAL? Regina v. EMMIE KING HONG LEUNG - County Court of Vancouver c.c. 881772 -April 1989. Very close to the police station, the accused was stopped for crossing a divider line several times. The officer, who stopped her, gave all the appropriate warnings and made her aware of her right to counsel. Her response to, "Do you understand?" was the familiar gesture across the lips simulating the doing up of a zipper. When asked to accompany the officer, she said each time, "No, no, no, no, you are unreasonable. I'll walk.' She al!!io asked over and over again if the demand made of her was legal. The officer each time said it was. Finally, the officer accepted her refusal at the scene which resulted in a conviction for refusing to accompany and supply breath samples. The accused appealed. Defence counsel submitted that the appellant had asked the officer for a legal opinion which he had not hesitated to give. He should have referred her to a lawyer and provided her with time to do so, despite the fact that the appellant had not once asked to consult counsel. Counsel felt that her very question, "Is your demand legal?" is the equivalent of asking for legal counsel. The Appeal Court Judge found that the failure to consult counsel was a direct result of the appellant's unreasonable attitude and nothing the officer did had caused that failure or the unreasonableness. She had not requested counsel and the officer had not rendered legal advice or opinions. He simply meant he was serious about the demand he effected Appeal dismissed. Conviction upheld. ••••• 42 CREATING A DISTIJRBANCE OPPOSING INTERPRETATIONS OF lllE IAW- B.C. PRECEDENT RAKIC and the Queen - County Court of Vancouver C.C. 881859 June 1989 There are in essence two interpretations of the offence of causing a disturbance in or near a public place. The origiilal, or "orthodox," judicial views of this Criminal Code offence was that if one by the means listed in the well-known section interrupted the peace and tranq_uility of the community, the offence was complete. Then there developed judictal views that the disturbance must be more than one which causes the emotional upset of a community member (excluding peace officers) or interrupts tranquility. The disturbance created must liken in terms of sufficiency (the breach of peace aimed to be prevented) to an affray, riot or unlawful assembly. In other words, whatever the disturber did in or near a public place must be as traumatic to the disturbed number(s) of the public as an affray riot or unlawful assembl~. It seems that the Courts with their contem1,>orary interpretation, have added 'a secondary activity'' to the orthodox definition of a public disturbance with (in terms of severity) an included gauge. IN 1982* a Mr. Peters appealed his conviction of creating a disturbance to the B.C. Court of Appeal. He urged the Court to adopt the new judicial perception of the offence. Instead, the Court reconciled the cases on this issue. Peters was at the scene of some ocCurrence police attempted to control. He and his buddy were told to leave and to go in a certain direction. While saying (shouting): "res, sir, fucking pig sir ... "he went in the opposite direction. New orders only received the same reaction and obscene response. There was no evidence that anyone other that the officers heard or were offended by the profanities. As a matter of fact, the officers in their testimony did not say anything about their own emotions when they became the target of Peters' excessive language. The B.C. Court of Appeal described the orthodox approach to the interpretation of the offence: "All that the section requires is that one of the specified acts, i.e., fi.Jditing, screaming, etc., be done in circumstances where it disturoed a person or persons, or where such disturbance might reasonably be inferred" The new judicial perception is: "That it is necessary that the specified acts, i.e. fighting, screaming, etc., must cause a secondary activity and that such secondary activity itself must be in the nature of a disturbance;" • R. v. PETERS(1982) 2. W.W.R. 520- Volume 5 page 19 of this publication. 43 The B.C. Court of Appeal held (in 1982) that the correct interpretation lies somewhere in between these two opposing views. Mere shouting at police officers and hurling obscenities their way IS by itself incapable of causing a Oisturbance, and Peters' conviction was set aside. The reactions to or results of the specified acts~ cause a secondary situation which by itself is a disturbance-needless to say then the persons who committed the S{>ecified act(s) created that disturbance. H the result of the specified act(s) is that a atizen was disturbed as intended by the enactment then also, the offence is complete. The kernel aspect of the offence is the interruption of the public peace and tranquility to which every community and citizen is entitled and lias a right. Mr. Rakic was stopped for a traffic violation. When approached by one of the two officers and asked for his driver's licence, he went literally off the deep end. He was hostile and aw.essive while the officer wrote out the traffic ticket. Rakic screamed and yelled while standing near the police car and made obscene gestures. The description of the accused's behaviour was vivid and would give anyone cause to doubt his sanity. He also turned in the same hostile demeanor (all verbal) to people nearby. The evidence left no doubt that people in a nearby buildin~ were awakened by the accused's performance. His utterances included threats against the officers. When the officers, in the hope that matters would return to normal if they left the scene, tried to drive off, Raldc jumped in front of the police car. The driver drove around him. When he was abreast of Rakic, he loudly and hysterically screamed claiming the police cruiser struck him. Peters claimed that he had not caused a secondary activity which was of itself a disturbance. Following the binding Peters decision, the County Court judge found that the trial judge had not erred when he held that the offence was complete when Rakic, by his conduct, had "affected" one or more persons. His disorderfy conduct had interrupted the peace and tranquiHty of the community. Either situation justifies a conviction. The fact that his conduct did not create a secondary activity that by itself amounted to a disturbance, did not preclude a conviction. Accused's appeal dismissed. •••• • 44 DOES OMISSION OF ADDUCING EVIDENCE OF PREREQUISITE KNOWLEDGE MAKE THE DETENTION CAUSED BY THE DEMAND ONE OF AN ARBITRARY NATURE? REGINA v. TOWNSEND - County Court of Vancouver Prior to the Charter coming into effect, a Mr. Rilling was tried and convicted of a drinking/driving offence. The grounds of his appeals to superior courts were in relation to the officer's reasonable and probable grounds upon which the demand for breath samples was made. From his case arose the binding precedent that once someone does give samples of his breath upon demand, the reasonable and probable grounds prerequisite to making it are irrelevant. In this case, Mr. Townsend was convicted of "over 80 ml" and he appealed to the County Court. Although the officers did have reasonable and probable grounds to believe the accused was impaired and had been driving, the eVIdence simply did not include anythln,g to show that the driving had taken place within two preceding hours from the time the demand was made. The demand had resulted from the officer attending a two car accident in which Townsend was involved. The only evidence of the time of driving, was from the other driver in the accident, which indicated that the demand was made 30 minutes after the accident occurred. However, the officer must believe the driving occurred within the preceding two hours arid there was no evidence of such belief. Hence, there was no evidence before the Court the demanding officer had belief of the prerequisite grounds that the law stipulates, argued the defence. The Crown on the other hand, reminded the Court of the binding Rilling decision. Townsend did give samples of his breath and therefore, the lack of grounds which the demand must be made is irrelevant. The County Court judge held that the Rilling decision is still the law, except where there is an infringement of a Charter of right involved. In this case, the defence argued that a demand causes detention, and without prerequisite grounds, detention is arbitrary and contrary to section 9 of the Charter. Although Charter violations must be proved by the person who alleges it (in this case, Mr. Townsend), the Criminal Code provisions for breath demands seem to indicate that grounds for such a demand must be proved by the Crown. Where the Crown's evidence shows there was detention, then lack of proof of the grounds required to involve such detention lead to an inference that the detention was arbitrary. Having concluded that the essential breath analysis evidence had been obtained in a manner that infringed Townsend's rights, the Court had to decide if admitting the evidence could bring disrepute on the Administration of Justice. In view of the evidence of the other driver that the accused drove a half hour before the demand was made of him (which did not assist the Crown in showing the officer knew this), made the infringement a technical one. Consequently, no disrepute would result. Appeal dismissed. Conviction upheld. 45 Comment: One cannot but be curious how this case would fare in further appeals to courts of superior jurisdictions. The precedents show (seemingly except in an assertion of unreasonable search and seizure) that the burden of proof is on the accused to show, on the balance of probabilities, that his rights were infringed before a remedy or exclusion of evidence under section 24 of the Charter can be considered. The pasition can be taken that the defense proved nothing. There simply was an oversi~t on the part of the Crown to establiSh that the officer knew the driving had taken place within two hours when he made the demand. This omission was seen as the defence having met its burden of proof for consideration for exclusion of the certificate evidence. In view of the other driver's evidence, it seems probable that the officer knew. However, that does not satisfy the burden on the Crown to show the prerequisite to the demand, neither does the omission referred to above seem able to show that the detention that the demand constituted was arbitrary. The proof that the officer knew was at best, on the balance of probabilities, a far cry from it being beyond a reasonable doubt. The proof on the part of the accused, that the officer did not know, was at best on the balance of possibilities, a far cry from the balance of probabilities. It seems that the admissibility of the certificate was a simple matter of the Crown perhaps not having proved one element requisite to this statutory evidentiary short cut, rather than it being worthy of the constitutional trip the defence lured the Court to take. In any event, it appears challengable if the defence had made out a case of arbitrary detention. 46 An explosive storage magazine had been broken into and a quantity of explosives and detonating devices had been stolen. Tire tracks were found outside the building. Nearly two years later, the accused's property and house trailer were searched. The tires on his car matched those found on the scene. Buried under his trailer, police found explosives and devices of the same brand and quantity as what was taken durill2 the break-ins. Some notes were also found. These outlined a plan to commit a rob6ery of a large scale which would include the use of explosives. The accused was convicted of the break and enter and possession of explosives with intent to cause serious harm. He appealed this conviction, claiming tluit the Crown had failed with its circumstantial evidence to prove beyond a reasonable doubt what had been alleged The tires on the accused's car were three of one kind, and one different tire. Considering the nearly two years that had passed from the crime to the time of the search and arrest, anyone could have changed a tire. Therefore, the identical configuration of tires on his car as the one used in the crime was sheer coincidence or accidental. Furthermore, if it was indeed his car that was used in the crime, the Crown failed to prove he (the accused) drove it. He also argued that the explosives were not found in the trailer, but outside of it. Anyone coilld have buried them there. For him to have possession, the Crown must prove that he had knowledge of the presence of the explosives. It had failed to do so, claimed the accused. The appellant also argued that the three notes outlining the wicked plot to commit robbery, had been found in his trailer among hundreds of papers. The Crown had failed to prove that he was the author of these notes or that he even was aware of them. The appellant had failed to testify at his trial. The B.C. Court of Appeal concluded that the trial judge was entitled to draw the inferences of possession and knowledge from all the evidence (the aggregate of it) and to find it consistent with the conclusion that the accused had committed the break and enter and had possession of the explosives for the purposes outlined in the notes - and inconsistent with any other rational conclusion. The Court of Appeal declared, despite the expiration of nearly two years, that the possession in these circumstances was recent. This triggered the well known rule of evidence that in the absence of an explanation capable of belief, it ma)'. be found that the possessor had the knowledge re9uisite to criminal possession or did commit the crime by which the goods were obtamed. The appellant had not explained at the time he was found to have possession of the explosives, nor did he do so during his trial. Reiterating their opinion on this, as expressed in an earlier decision, the Court said: 47 ... "there was evidence of a direct nature which inculpated him and which the jury accepted as truthful, then this Court may well consider his failure to testify as a factor in disposing of this appeal." The inferences of ~t that were drawn from all of the evidence was something the trial court was entitled to do. Appeal dismissed. Convictions upheld. 48 REFUSAL - RIGHT TO COUNSEL- OBLIGATIONS ON POLICE TO ENSURE TIIAT RIGHT TO COUNSEL IS NOT INFRINGEJ) R. v. EVANS - County Court of Vancouver c.c. 880465 -April 1989 The Crown appealed the accused's acquittal of refusing to comply with a demand to provide samples of his breath. Close to midnight, the accused was given access to a telephone to contact a lawyer. After 11 minutes, including police assistance in dialing, the accused made police aware that he would not give any sample of his breath. Police, knowing that the accu8ed had been unsuccessful in his attempts to contact counsel, accepted his refusal and charged him accordingly. According to the trial court, police bad not fulfilled their obligation in regards to the accused's ri$ht to counsel despite the Charter warning and assistance. He was consequently acqwtted. The Crown argued before the County Court that the accused received a reasonable opportunity to contact counsel and had voluntarily, after 11 minutes, abandoned any ftiither attempts to exercise his right. There was no further obligation on police regarding that right in these circumstances, submitted the Crown. The County Court Judge included in his reasons for judgment the complete text of his brother, Judge Leggatt's summary of the principles which govern police practices following detention, as the result of a demand:• • 1. A person detained by police in order to provide a sample of his breath must be given "a reasonable opportunity to retain and instruct counsel." What is "reasonable" will depend upon the facts of each case. 2. The police cannot establish arbitrary time limits in which detainees are expected to retain and instruct counsel. A detainee is not automatically entitled to two full hours in which to make this consultation. 3. The police may, without violating the detainee's right to counsel, demand that a detainee provide a breath sample, and expect compliance even though there has been no consultation with counsel when: a) The situation is urgent (in this case, when the two hour time limit is about to expire). b) The police know, or have reasonable grounds to believe, that the detainee has actually, retained and instructed counsel, or c) The detainee has clearly and unequivocally waived this right to counsel. R. v. McLEAN - County Court of Vancouver No. C.C. 870298-November 10, 1988 49 4. The police cannot demand that a detainee provide a breath sample when he is in the course of actually retaining and instructing counsel 5. H the police know that a detainee is awaiting a call from a lawyer they cannot require him to comply with a demand. There is an obligation upon police to discern how long the detainee is going to have to wait for this call. 6. A detainee must diligently pursue his right to counsel. H he does not, the police can le~timately demand that he provide a breath sample. This may violate the oetainee's right to counsel, but any evidence collected in this manner will be admissible in court, as it's admission does not bring the 'administration of justice into disrepute.' a) a person remainidffi silent and refusins to use a telephone is not ·gently pursuing his rights, b) if a .Person is silent after having used a phone, the police have an obligation to diScem whether he has spoken with counsel. H he is awaiting a call from a lawyer, the police cannot interrupt. H he refuses to answer, or has retained counsel they can demand a breath sample. 7. While a detainee does not have an absolute right to retain counsel of his choice, when acting in good faith he must be given every opportunity to seek the instruction of his own lawyer. In the course of his review of the authorities, Judge Le~att dealt with situation in which the accused is silent Iollowmg a telephone call. He said at p. 16: Of a somewhat different nature yet, is the case where a detainee apparently finishes using the telephone, but is silent as to what has occurred. The police may be left wondering whether he has completed consulting with a lawyer, in which case a valid demand can be made, or whether he is in the process of retaining and instructing counsel, and an "interruption" would result in a Charter breach. In such a case, I am of the opinion that the police have an obligation to ask the detainee what has occurred. Such a duty is similar to the one imposed by the court in Elefante [~ Elefante (1986) 47 Alta. LR. 139 (CA)]. 50 CONSTITUTIONAL VALIDITY OF TRAFFIC REFEREES OFFICER-WITNESS-PROSECUTOR ROLEAPPARENT BIAS RANDAIL /Jr. The Queen - County Court of Vancouver CC 881138 - May, 1989 Ms. R. felt harassed and unfairly treated when she appeared before a Justice of the Peace to dispute the Traffic Violation Report issued to her. The police officer who issued the ticket was also the witness and prosecutor during the proceedings. She reasoned that a prosecutor has a semi-judicial role that excludes the notion of winning or losing. He ought to be an agent of the Crown who is a party to the quasi criminal dispute. With the officer being a witness and the prosecutor, it cannot but leave the im;Pression of prejudice on the part of a party who should be impartial. The officer issued the ticket and he wants to prove that he was correct and therefore desires to win. This, at least, is the inevitable inference the lay person (and even the experts) will draw. Needless to say, that this flies in the face of the dictum that justice must not only be done but must also seen to be done. The lower the court, the more important this appearance of justice is. Furthermore, the officer may be a prosecutor but is for numerous reasons not an agent of the Crown. Ms. R. appealed the finding that the violation occurred on the grounds that the procedures were an infringement of s. 7 and s. 11 of the Charter. The former assures the right to life, liberty and.security of the person while the latter guarantees us to be presumed innocent until proven guilty by an independent and impartial tribunal. A traffic violation is, in terms of these Charter provisions, the equivalence of an offence due to there being consequences when it is found that the violation occurred though they are not the traditional fines and default sentences. The County Court Jud~e held therefore that the procee~s with the witness-prosecutor violated particularly s. 11 of the Charter as that gives rise to an operative bias. The constitution, however, does not exist in a vacuum and practical matters may well justify the limits a law or procedur!fllace of our guaranteed freedoms (s. 1 of the Charter). Due to the volume of tr c tickets (70% of all those issued) are heard in these traffic courts. Furthermore, the discretion is retained by Crown counsel if a traffic allegation will be heard with a Crown representative present. This balances the effect of the current system and "the apparent bias in the objective of processing a high volume of routine traffic tickets in an informal, inexpensive and largely fair and efficient manner." Despite the proceedings being inconsistent with the Charter provisions, the constitutional violation is saved by s. 1 as a reasonable limit prescribed by law. Appeal dismissed 51 CAN A DRIVER DELEGATE HIS OBLlGATIONS UNDER TIIE "IIlT AND RUN" LAWS TO AN01HER PERSON? Regina v. MORYS-EDGE - County Court of Vancouver C.C. 890100 - August 1989. The accused who conceded to be under the influence of alcohol at the time, collided with a number of unoccupied parked cars. He stopped, gave his wallet to one of his passengers and instructed her to identify him as the driver of the offending car. He left his driver's licence and all necessary documents with his delegate. Leaving his car at the scene, the accused walked away not wanting to face the possible consequences of his condition. Despite the fact that by delegation and personally, he had met all his obligations, he was convicted of criminal "Hit and Run." He appealed on the ground that it was proper and lawful to fulfill his duties under the hit and run laws by delegation. No precedent could be found among Canadian cases to resolve this issue. However, the Road Traffic Act of E~land contains hit and run laws similar to those in our criminal code. In one English case, an employer instructed an employee to stay on the scene of an accident with the company vehicle that had been involved, so he could go back to his office approximately a block away from the location of the mishap.• The Queen's Bench upheld the employer's conviction of hit and run. Allowmg a driver to delegate his obligations opens the door to him escaping liability for, for instance, ~~ent to drive. It would simply render the legislation ineffective in some · g it is designed to capture and include. H delegating a driver's personal obligation at an accident would be permitted, he could escape criminal liability if his ability was impaired by alcohol, probably the very cause of the accident. Appeal dismissed. Conviction upheld. LEE v. KNAPP[1961] 3 ALL E.R. 961 (Q.B.D.) 52 ''WHO, FOR THE PURPOSE OF THE PROWUNG IAWS, IS THE PERSON ON WHOSE PROPERTY THE TRESPASS OCCURS?" Regina v. CROWE - County Court of Vancouver c.c. 890326 - July 1989. The accused had been convicted of "prowling upon the property of 5th Avenue Apartments Limited." The section defining the offence stipulates that the prowling must have been done "on the property of another person ..." He appealed the conviction on the ground that there was inadequate proof of ownership and that the Crown failed to prove that he did not own the building. The County Court Judge went further than the accused did in his aJ?peal. He reasoned that the offence of prowling is a trespass of which the victim is not the owner of the property but the person the sanctity of whose home was violated. It is law that prOVIdes protection for the people who live on the property and does not protect some commercial interest. The word property means more than a chunk of real estate, if this law is to meet its objective. For the purpose of the prowling section," the property of another person" does not refer to ownership but to tlie residential users of the property. The owner, a corporate structure, leased out the residential use of the building and has limited access to the dwellings contained therein. Not likely did the corporate structure "5th Avenue Apartments Limited" live in the building. Hence, it had no right in relation to the sanctity of the home, to declare trespass under the prow~ section. Such declaration is not needed but the Crown must show who the person 1s that could. This failure and the 5th Avenue Apartment Limited obviously for the purpose of s. 177 C.C. not being the other person on whose pro{>erty the ap1_>ellant prowled, caused the appeal court to allow the appeal and set aside the coDVIction. 53 TRAFFICKING OR A "RIP OFF?" Regina v KEILTY - County Court of Vancouver June 1989 "Any smoke?" asked the undercover officer of the accused. They made a deal, $35 for three (3) grams of weed The officer was asked to go to a certain place and wait there. The accused joined him shortly after, over a cup of coffee. The accused told the officer that he had been warned that he, the officer, was a policeman. The officer assured the accused he was a construction worker. The accused then told the officer to wait, while he went away with 35 of the officer's dollars in his pocket. He said he would be back shortly with the weed The officer's last words to him were: "Don't rip me off'' to which the accused replied: "Just keep my coffee warm." The last request was a near impossibility as the accused failed to return. Despite the absence of any "weed," the accused was charged with trafficking in marijuana. The accused testified that there was no marijuana and that he had been desperate for money. "I thought, well maybe this guy will give me money and let me out of his sight, so I just played it out." In other words, he claimed that the encounter was a "rip off'' and that he therefore was not guilty of trafficking. The Crown relied on the definition of trafficking under the Narcotics Control Act which includes the offering to sell a narcotic. The accused, of course, did make such an offer. The defence argued that the accused could not have had the intent to traffic as be simply did not have the contraband. H making an offer to sell a drug does not require the mental element of intent, then the offence of trafficking is one of absolute liability. The evil intended to be cauJdit by the trafficking laws is the possession, sale or other distributive means ofnarcotics and not the act of deception that the accused committed. Hence the offer to sell must be one made with the intent to traffic and does not include offers made in jest or, in this case, to deceive. In 1978, the Supreme Court of Canada, in Regina. v. the City of Sault Ste. Marie, defined "absolute liability." An offence of absolute liability is one where the Crown must prove, beyond a reasonable doubt, that the accused committed the offence without having to prove any relevant mental element. The defences of due diligence or mistake of fact are not available in absolute liability offences. A person can be convicted of such an offence even if he is morally innocent or without fault. Absolute liability offences are usually failures to comply with regulatory laws where we, for the sake of public health or safety, cannot afford the usual defences (hygiene standards in kitchens of restaurants; undersize wildlife or fish etc.) .. Furthermore, the defence argued that section 7 of the Charter requires that intent is an essential element of trafficking. It is an offence that carries a maximum penalty of life imprisonment and it can hardly have been the intent of Parliament that 54 punishment of that severity be imposed for an absolute liability offence. If so, it Should be declared to be without any force or effect for its inconsistency with the principles of fundamental justice. (It should be remembered that our narcotic and nded. The Court rejected this submission. The response by the accused was the offer. He had immediately asked the officer: "How much" to establish the quantity required That amounted to an offer to get the officer what he wanted. Accused convicted of trafficking. 55 WHEN IS A TRAFFIC CONJRQL DEVICE TO BE OBEYED Regina v. BRAYBROOK- County Court of Yale C.C. 34465 - Kamloops, B.C. - June 1989 On our highways in B.C., the sign "Check Brakes" is common at the approaches to a steel' dec1Ine. In this case, the sign said ''Trucks over 5500 kg Licensed Gross Vehicle Weight Check Brakes - exit 500 m." The driver of a large transport truck ignored the sign and was convicted of disobeying a traffic control device. He appealed his conviction. The sign was no doubt a traffic control device, but was it of the kind we have to obey or was it one that simply recommends something. Section 23 of the Motor Vehicle Act Regulations does clearly indicate that those devices are subdivided into those two categories. For instance, on the approaches to curves, there are signs that indicate speeds below the speed limit of the road. These signs are warning signs that recommend a safe speed. Non-conformance does not constitute an offence. Section 130 of the Motor Vehicle Act (which supersedes the Regulations) clearly makes no distinction between traffic control devices that are adVisory and those that must be obeyed. It simply says that unless otherwise directed by a peace officer, we must obey the instructions of a traffic control device. We must assume that this offence section refers to the signs that are identified as regulatory rather than advisory in the Regulations. All regulatory signs are depicted in the Regulations and the sign the accused disobeyed is not included. Consequently, the sign was advisory only, unless the instructions on the sign "are clear, unambiguous and obviously mandatory." As these were not the case, no offence was committed. Crown's appeal dismissed. 56 CARE AND CONTROL OF A "STUCK" MOTOR VEHICLE R. v. WEISZBECK - County Court of Yale - Kamloops C.C. 32589 - March 1989. The accused was found in an impaired condition in the early morning hours behind the wheel of his four-wheel drive motor vehicle which was stuck in a ditch alons the highway. The engine of the pick-up truck was running when the police found him. At his trial for having care and control while impaired, the accused testified how he had demonstrated the truck to a friend. When 1t got stuck in the ditch they walked to the friend's house where he got drunk. He walked back to his vehicle and sat in it waiting for the morning when he would get towed. As it was cold, he started the engine to have the benefit of the heater. He said, he knew that the truck could not be moved and therefore had no intentions of even trying to set it into motion. The trial judge made no decision on whether the vehicle was immobile, as this, in his view, was immaterial. Based on a decision by the Supreme Court of Canada in 1982*, a person can be guilty of care and control, even when the vehicle is immobile. As long as the person had access to and used the fittings and equipment of the vehicle, care and control is complete. This left the County Court Judge, who heard the accused's appeal from his conviction of having the care and control of a motor vehicle while impaired, to assume that the accused's version of the events were accurate and that the truck was stuck. A relevant case decided by the Supreme Court of Canada in 1985* * (not referred to by the trial judge) was applied by this appeal court. In R. v. Toews**, the Supreme Court of Canada modified and clarified their Ford decision. It felt that "care and contra~ short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of ~tting the vehicle in motion so that it would become dangerous." Then, our 'ghest Court warned that each case will vary from others and need to be decided on its own merits. The County Court Judge concluded that "the possibility of creating danger is a material aspect in a charge of care and control of a motor vehicle while impaired." Knowing that the vehicle was immobile (something the Court had to accept due to the absence of a decision by the trial judge) the accused could not create a danger in doin~ what he did. This meant that the accused (appellant) did not have the reqwsite intent to be convicted as he was. * ** FORD v. The Queen - 65 C.C.C. (2d) 392. Also, Volume 5, page 23 of this publication. R. v. TOEWS (1985) 47 C.R. (3d) 213. Also Volume 22, page 24 of this publication. 57 The appeal court allowed the appeal but held that it could not make a final disposition, as it had not been determined if the trial judge believed the accused and whether the vehicle was really stuck. Accordingly, Conviction set aside. New trial ordered. Note: In 1967, the Supreme Court of Canada decided on appeal by the Crown that a person can be in care and control of a motor vehicle even though it is immobile.* However, that case in terms of intent is distinct from this Weiszbeck case. Saunders had no idea the vehicle was inoperable and was apparently in an impaired condition attempting to make it mobile m: simply took care and control being unaware or indifferent to the state of mobility. Concluded the County Court Judge in this Weiszbeck case: '"Thus a person could be guilty if he has care and control of a vehicle and does not know that it is inoperable." The only distinction then is the mental element. The wrongful act (actus reus) is the same, but the intent (mens rea) is lacking where there is knowledge that the vehicle is immobile. ***** * R. v. SAUNDERS [1967] 3 C.C.C. 278. 58 VALIDITY OF DRIVER'S LICENCE SUSPENSION WHERE SUSPECT IS REFUSED AN ANALYSIS OF BREATH ms Regina v. JEWER - County Court of Westminster 19543 - Chilliwack B.C., June 1989 A police officer suspended J ewer's driver's licence under section 214(6) of the B.C. Motor Vehicle Act. Jewer immediately requested a test to determine his bloodalcohol level. The officer refused this request as he felt that the suspect would not exceed 80 mg. and that no criminal charge would result. Jewer drove after the suspension was imposed, and was convicted accordingly. The applicable section of the Motor Vehicle Act stipulates that where a driver, who is requested to surrender his driver's licence, forthwith requests a peace officer to administer and does undergo as soon as practicable a test that indicates that his blood alcohol level does not exceed 50 mg. of alcohol in 100 ml of blood, the prohibition is terminated. Upon appeal, the County Court found that the officer's belief that the accused would blow less than 80 mg was totally irrelevant. The Court held that the wording of the section clearly indicates that where a suspended person requests a test to determine his blood alcohol level, there is an obligation on the part of the peace officer not to unreasonably refuse such a request. In these circumstances, the appellant could not stand convicted of driving while under suspension. Conviction quashed. Acquittal entered. 59 LEGAL TIDBITS COPYING VIDEO TAPES - FRAUD The accused stacked the shelves of his video rental store with videos he had duplicated. Some of the original tapes had been rented for this purpose from other video rental places. Police searched his store and received the accused's full cooperation m identifying the pirated tapes. Some 140 of these were seized and the accused was charged with "Fraud" under the criminaJ code. He argued that he should have been charged under the copyright Act or should have been sued should the State or anyone want to pursue his action. Furthermore, he argued that as he bad only copied and not deprived the others of property his actions did not amount to fraud. The County Court of Westminster (the trial court) held that the CopYright Act is not the only act applicable. Furthermore, it held that Fraud does not anse only where there is actual economic loss but also where there is a risk of such loss. By copying the tapes contrary to law, he had reduced the market for those who lawfully produce, sell and distribute such tapes at an economic advantage. Accordingly, the accused was convicted. The County Court of New Westminster - X018847. January, 1989. ••••• SEATBELTS ARE UNCONS1ITUTIONAL (IN Al .BERTA) Mr. Maier was charges with not wearing his seatbelt. He adduced evidence at his trial that injuries are caused by seatbelts whether properly worn or not. Although the rate of mjuries caused by seatbelts is low, there is nonetheless a risk of injury when wearing one. Taking his conviction to the Alberta Court of Queen's Bench, the appellant argued that the seatbelt law infringed his right to the security of his person as guaranteed bys. 7 of the Charter. This Court found that no person in the pursuit of a lawful activtty (driving) can be subjected to a penal sanction for refusal to comply with legislation regulating that activity, when doing so would render him at risk of injury. The Crown not havi~ advanced evidence to show that the seatbelt law was a reasonable limit of the right to the security of the person, the Court had no choice but to declare that law without force or effect. R. v. MAIER - Alberta Court of Queen's Bench - 47 C.C.C. (3d) 214. ••••• 60 ONUS OF PERSON ACCUSED OF A RESTRICl'ED WEAPONS OFFENCE THAT HE WAS THE HOLDER OF A REGISTRATION CERTIFICATE The accused was convicted of having a .44 magnum revolver in his possession, without having a registration certificate issued to him for that restricted weapon. Due to section 115 C.C., the accused and not the Crown had the onus to prove that there was an appropriate document that authorized him to possess the weapon. The accused argued before the Supreme Court of Canada that section 115 C.C. offended the Charter, depriving him of his right to be presumed innocent, including his right to remain silent This Court held that the section does no more than compelling a person to produce a certificate, which, by virtue of the Interpretation Act, is proof of its content. Consequentl_Y., the production of such a certificate favours the accused. The production of a certificate or licence is the reasonable obligation of the holder or possessor. The section does not force the accused person into the witness stand as the _presence of a certificate would forestall criminal proceedings. The disputed section was not considered to be unconstitutional. SCHWAR1Z v. The Queen - 45 C.C.C. (3d) 97. *• * >l< • .WHATCOURTHASJURISDICTIONOVERANADULTPERSON CHARGEDWITHFAII.lNGTOCOMPLYWITHA YOUTHCOURTDISPOSIDON By disposition of a Youth Court judge, the accused was to report to a youth worker. He did so until he was 18 years old, and then stopped, despite the fact that the time period for reporting extended beyond his 18th birthday. He was consequently charged in open Court for the summary conviction offence under the Young Offenders Act, for failing to comply with the disposition. The argument was that the Provincial Court bad no Jurisdiction over the matter, as he should have been tried in Youth Court. Despite the provision under the Young Offenders Act that a person continues to be a minor with respect to proceedings of an offence he committed while he was still under the age of 18 years, if he commits an offence in relation to the proceedings when he is 18 years or older, then the Provincial Court has jurisdiction over that offence and the accused, held the B.C. Court of Appeal. R. B. M. and the Queen - 46 C.C.C. (3d) 315. ••••* 61 POSSESSION OF A DEVICE FOR OBTAINING TELECOMMUNICATIONS WITIIOUT PAYMENT OF LAWFUL CHARGES The accused was found in possession of nine Zenith decoders which were modified to receive the pay T.V. signals of a cable company without the Eayment of the lawful fee. On the surface, such possession is contrary to s. 327 C.C. (89 Code). The section stipulates that for the possession to be culpable, it must be in circumstances that "give rise to a reasonable inference that the device has been used or was intended to be used" to obtain the use of the T.V. cable service without pay (as it happened to be in this case). The accused, who had modified the decoders, mtended to sell them. He argued that the section did not apply to his situation. He bad no idea what people would do with the gadget despite the f~ct that such interception was the only use they had after modification. He himself had no intention of using them. The trail judge held that it is only an offence if the person is in possession for the purpose of his/lier own use of the decoder. The Ontario Court of Appeal disagreed and held that the section was sufficiently broad to capture the accused in the circumstances in which he had possession of the decoders. R. v. FUWP- 46 C.C.C. (3d) 427. • •••• AGENT PROVOCATION AND ADMISSIBILITY OF STATEMENTS MAPE TO SUCH AGENT The accused was in custody awaiting trial for very serious crimes. He was reported to be boasting about his past criminaJ accomplishments and the future of his criminaJ career. Two undercover officers who were instructed not to initiate conversations or ask leading q.uestions, were put as qents provocateur in cells with the accused. He made many mcriminating statements to them and even tried to recruit them for joining his g~. The admissibility of these statements was strenuously opposed as the accused's nght to counsel and the principle's of fundamental justice were infringed. The Ontario Court of Appeal ruled that all statements were admissible and that the right to counsel or the nght to remain silent had no application here. Neither were any fundamental principles of justice offended. R. v. WGAN - 46 C.C.C. (3d) 354. •• ••• 62 AllEGED POllCE BRUTAllTY USED AS A DEFENCE FOR REFUSAL The accused was observed driving erratically. A constable stopped him and demanded a "roadside breath sample." He said: "You got me. rm impaired. I'm not going to take the test." He then made a number of obviously fake attempts to blow. Without arresting him, the officer charged the accused wtth refusal and she told him of his right to counsel The car (van) was towed away and the officer asked where the accused wanted to be dropped off. He refused to go home and said that as the van was his home, he was her problem. As she did not want to leave him stranded in the snowstormy weather, the officer took the accused to the police station where an all out effort was made to find someone who would accommodate the accused After a scuffle, the accused was placed in a police car and droJ>Ped off at his girlfriend's place. The accused described the scuftle as a severe beating and the officers testified hov1 they had used reasonable force to remove a very hostile man from the office and supplied him with transportation. When home,the accused had himself transported by ambulance to the hospital where they could not fin~ any reason for the accused's "severe neck pains." As a defence to the charges of refusal and impaired driving,the accused raised that his Charter rights to security of his person, not to be arbitrarily detained and not be subjected to unusual or cruel treatment, were infringed. The Nova Scotia Court of Appeal responded to the accused's appealing his conviction of refusing to blow: "The incident ... (scuffiejbeating) ... took place an hour and a half after the original detention and had no bearing on the charge." In addition, the Court found the police had made every effort to accommodate the accused, except give him back hiS van. One and one half hours were spent, and he was not to be apeaced Police had been more than reasonable, and in any event, it had no bearing on the refusal that had happened a couple of hours before to the "scuffle." R. v. DAVIDSON - 46 C.C.C. {3d) 403. ••••• 63 CONSTITUTIONAUTY OF PRESUMPTION 1HAT A PERSON WHO ENTERS A BUILDING WITIIOUT IAWFUL EXCUSE DOES SO TO COMMIT AN INDICTABLE OFFENCE A shift worker who was asleep and home alone in the middle of the afternoon, was awakened by someone calling from downstairs: "Hello." The man got up and met the accused near the top of the stairway wearing rubber gloves. The accused immediately turned around and went back downstairs wliere he told the occupant of the house that he was stuck down the road and needed a tow. Then, the accused's son, who was sitting in the accused's car in the driveway, came inside and said there was an injured dog down the road and that they thou2ht that the dog possibly belonged at the house that was entered. The son of the accused and the son of the occupant of the house had been friends. While this conversation was ongoing, the son of the occupant arrived home. He had_ not seen any cars stuck or an mjured dog. The trial judge bad no doubt that the accused intended to commit an indictable offence in the house. Using the wellknown presumption that a person who, without lawful excuse, enters a building, intends to commit an indictable offence therein, convicted the accused (he had not believed the accused's testimony). The accused appealed, challenging that the presumption infringes his right to be presumed innocent until the Crown proves his intent to commit an indictable offence in that house. Because the essence of the law providing protection for our most private places and considering the high incidence of break and enter offences, the presumption provision in the Criminal Code was found to be demonstrably justified m a free and democratic society. The "evidentiary assist" the presumption provides is to control the commission of offences that are not trivial but are to be categorized as pressing and substantial, concluded the Ontario Court of Appeal. The appeal was dismissed. R. v. NAGY - 45 C.C.C. (3d) 350. ~: The Ontario Court of Appeal held that this familiar Criminal Code provision placed an evidential burden on the accused to raise a reasonable doubt to the existence of the presumed essential fact. The presumed fact was that he intended to commit an indictable offence in the house upon proof that he had entered without lawful excuse. However, the proven fact (that he entered without lawful excuse) does not lead "inexorabJY' to the conclusion that the fact to be presumed (that he entered with the requisite intent to commit an indictable offence) exists. The Supreme Court of Canada held in 1988* that statutory (or common law) provisions which, upon proof of a substitute fact, allow an essential fact to be presumed, do violate the presumption of innocence, unless the former leads to an inexorable conclusion (beyond a reasonable doubt) of the existence of the latter. The Ontario Court of Appeal held that being unlawfully in a dwelling does not lead to the inexorable conclusion of the essential element of the break and enter offence, that the house was entered with the intent to commit an indictable offence. • R. v. WHY'IB - 42 C.C.C. (3d) 97. 64 Consequently, the provision is inconsistent with the Charter right of being presuniedinnocent until proven ~ty beyond a reasonable doubt After applying the "section 111 test to this provision, the Court declined to declare the section without force or effect. In this test, two things are considered: 1. the importance of the unconstitutional provision to warrant overriding a constitutional protection, and 2. the balance between the interest of society and the individuals or group (the latter is also known as proportionality test). 1. Provisions which ensure objectives that are "trivial or discordant" with the constitutional right they offend cannot withstand the test; .awl 2. Provisions that offend the Charter must be rationally connected to their objectives to survive a "section 1n test. Considering the gravity and high incidence of breaking and entering, the "intent" presumption does not have a trivial objective. The fact to be proven is rationally connected with the fact that may be presumed. **•** 65 DEFAULT SENTENCES SPEOAL CONSIDERATION FOR AGE GROUP IS UNCONSTITIJTIONAL The Criminal Code of Canada provides that no person between the ages of 16 and 21 shall be committed to jail for the non-payment of a fine unless the Court has received and considered a report of the conduct and means to pay'' of that eerson. Ms Hebb was fined $500 or 30 days in default for the theft of a package of cigarettes. She failed to pay the fine and a warrant of committed upon conviction was issued by the Court. Ms Hebb is 35 years of ~e, on social assistance and a soup kitchen regular. She has a history of mental illness, is illiterate and is not employable. she applied for the Nova Scotia Supreme Court to quash the warrant for committed as a remedy under s. 24(1) of the Charter. She had no choice but to default. If she had been 15 years younger, then the special consideration afforded that age group would probably keep her out of jail. Consequently, she claimed that the law discriminates , contrary to her right under s. 15 of the Charter. Everyone should be entitled to the special consideration granted to the young only. No person ought to serve a jail sentence for the inability to pay a fine. The Court therefore declared the words restricting this special sentence consideration to those between the ages of 16 and 21 years to be without any force or fault. As the Court had not given Ms Hebb special consideration, the warrant for her committal was quashed. 11 Regina v. HEBB - 47 C.C.C. (3d). Nova Scotia Supreme Court, February 1989. ••••• THE WHQLE TRUTII AND NOTIUNG BUT'fHE TRUTH Judge questioning a six-year-old girl to determine if she should be allowed to testify: The Court: Child: The Court: Child: The Court: Child: The Court: Child: The Court: Do you know what is meant by telling the truth? Yes. What happens when you don't tell the truth? God will get upset. That's a good answer. Do you like school? Yes. What is your favourite subject? Recess. Consistent with my views when I was your age! Regina v. D. (RR)- 4 C.C.C. (3d) 97. 66 RQADSJDE SOBRIETY TEST In November 1987, the B.C. Court of Appeal decided that a roadside sobriety test constitutes detention. A party by the name of Bonogofski* was acquitted as he had not been told of bis right to counsel before he was subjected to such a test. All evidence had been excluded. This case did not seem to saturate the police community so lllit.DX prosecutions failed and continued to fail after very short trials. In J~ 1989, the B.C. Court of Ai>?'al considered the case of The Queen v. BONIN* which was indistinguishable for Bonogofski It held that the test does constitute detention, but that"briefly delaying the Charter warning until the test is completed is justified under s. 1 of the Charter. This has now caused appeals from pre-Bonogofsld cases (most post-Bonogofski cased did not make it past the trial stage) to 6e abandoned. Assuming, uyon non-appearance of counsel for the appeflants, that the Bonin case had disposed of tile matter, the County Court of Westminster dismissed three appeals. • •• R. v. Bonogofski- Volume 29, Page 1 of this publication. R. v. Bonmn- Volume 34, Page 1 of this publication. R. v. JACOBSEN X018758 - R. v. Malloney X018897 and R. v. Wlll1E X018662 - (New Westminster Registry) June 1989. • •• •• MUST "REFUSING" PARTY BE TOLD? The accused was caught up with at his home after a display of abnormal driving. A demand for breath samples was made to which the response was an unhesitating: "I refuse." The accused then gave the officers the name of his lawyer and told them to contact him. He appealed bis conviction for refusing to blow claiming that when he refused, he should liave been told again of his right to counsel and the fact that refusing amounted to an offense. The County COurt of Vancouver held that the demand caused detention but the appellant had been ~rly told of his rights. When he refused and the officer acknowledged the re the accused coufd not possibly have felt detained although he may have expected an arrest for refusing. However, the officer simply issued an appearance notice for "refusing" in lieu of arrest. There was no need to tell the accused of the posstole consequences of refusing in these circumstances, although it may be advisable practice. The appearance notice was sufficient notice of the offence and there had been no need to tell the accused a~ain of bis Charter riah.ts as there simply was no longer detention and no new situation of detention hadooen created. Conviction upheld Regina v. JONES - County Court of Vancouver - C.C. 880044 - June, 1989. ••••• 67 IDT AND RUN - INTENT TO ESCAPE LIABIUTY VALIDITY OF PRESUMPTION OF INTENT Mr. Gosselin struck two pedestrians with his car. One was thrown for quite some distance and was found dead on the side of the country road where the accident occurred. Gosselin stopped some distance from the scene and saw other motorists assist the one victim. A few minutes later he called the police to report the accident but failed to identify himself and did not say he was the driver. A good hour later, he again phoned police and gave his name and address and disclosed he was the driver responsible for the accident The accused testified that he had asked the surviving victim if he wanted an ambulance and police. Upon an affirmative answer, the accused had gone to a restaurant from where he bad made two calls. Appealing his conviction for hit and run, the accused argued that the Crown bad failed to prove that he had not fulfilled his obligations under the Criminal Code. Should the Crown rely on the statutory presumption that failing to stop and assist is, in the absence of any evidence to the contrary, proof of intent to escape civil or criminal liability. The accused argued that the presumption was unconstitutional as it offends the presumption of innocence. The Ontario Court of Appeal held that the phone calls and remaining at the restaurant are facts capable ofamounting to evidence to the contrary that he intended to escape liability. The Court also found that the presumption contested by the accused was a reasonable limit of the presumption of mnocence (s. 1 Charter). Appeal allowed - new trial ordered. R. v. GOSSBUN - 45 C.C.C. (3d) 568. Lt:G 1 1989 BRITISH COLUMBIA iioucE COMMl!;SIOW