ISSUES

OF
INTEREST
VOLUME MO. 19

POLICE ACADEMY
Written by John M. Post
~ay

1986

4180 West 4th Avenue
Vancouver, B.C.
V6B4J5

ISSUES OF IRTEKEST
VOLUME HO. 19
Written by John K. Post
Kay 1985

TABLE OF CORTERTS
Page
CHARTER OF l.IGHTS - DAMAGES FOil BOT ALLOWDTG ARRESTED
PBJlSOR TO SEE BIS IAVYEll • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

1

THE CBAJlTElt AND THE DmEPENDERCE OF THE JUDICIAK.Y • • • • • • • • • • • • • •
Re Currie and Niagara Escarpment Commission 13 c.c.c.
(3d) 35 Ontario High Court of Justice

3

Crossman v. The Queen - 12 c.c.c. (3d) 547 Federal Court,
Trial Division (Events occurred in Yukon Territory)

RELIGIOUS Pl.IVILEGE - Pl.IEST AND PDITERT
JUl.ISDICTIOR TO ISSUE SEAR.CH VABROT FOK. A CHURCH • • • • • • • • • • • • • •
Re Church of Scientology and The Queen - 13 c.c.c. (3d) 97
Ontario High Court of Justice

11

SEAR.CH ARD SEIZURE BY A PERSOR O'l"llE.R. 'DIAB A PEACE OFFICER.
APPLICATION OF CllAllTEI. OF l.IGHTS AID> FREEDOMS ••••••••••••••••••
R. v. Locke, 13 c.c.c. (3d) 515, Alberta Court of Queen's Bench

12

THE CBAJlTElt AND PRE-Tl.IAL DISCOVEl.IES
•Is THE CllOVN OBLIGED TO TELL ALL TO ASSIST
ACCUSED Iii PREPA.R.IRG A DEFEllCE•t •••••••••••••••••••••••••••••••
Re Kristman and The queen 13 c.c.c. (3d) 522.
Alberta Court of Queen's Bench

14

USIRG Cl.IKINAL LAW TO COLLECl A DEBT ABUSE OF THE PROCESS OF THE COURT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Van Holland 13 c.c.c. (3d) 225
County Court Judges' Criminal Court Ontario

19

- ii Page

URSCRAMBLING PAY T.V.
THEFT OT TELECOMMDlllCATION SEK.VICES ••••••••••••••••••••••••••
Regina v. Miller & Miller, 12 c.c.c. (3d) 467
Alberta Court of Appeal
POLICE DISCIPLINE REGULATIONS AllD JURISDICTION••••••••••••••••
Bowles et. al. vs. John Post and Attorney General,
B. c. Supreme Court, Victoria Registry No. 184354 January 1985
THE CHA1lTE1l ARD THE ADMISSIBILITY OF STATEMERTS
WHEN IS DIFORKING OF KIGHT TO COURSEL COMPLETE?
Regina v. Michael Johnny, Supreme Court of B. C.,
Vancouver Registry CC841146, September 1984

20

22

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

26

.ABD THE CBARTEK. OF RIGHTS AllD FKEEDOHS ••••••••••••••••••••••••

27

EXECUTION OF SEAR.CH WARRANT - STATEMENTS
Regina v. Capson, County Court of Vancouver No. CC840807,
January 1985
THE LETrElt OF THE LAV ARD ITS APPLICATION
ACCUSED FAILING TO APPEAR. ON URDERTAKING AllD s. 738(3) C.C. •••
Horvath and The Queen, County Court of Vancouver No. CC841904,
December 1984

29

.......

30

ACCEPTING A BRIBE WITH 'l'BE INTEBT TO INTD.FERE
WITH THE ADHiliISTRATIOll OF JUSTICE. ACCEPTING
MOREY FOK. B:R.DIGING HOREY I1iTO A CODECTIOl.IAL IllSTITUTE. •••••••
Regina v. Smalbrugge, County Court of Westminster,
Chilliwack 28/29 February 1984

32

THE COURT AND •THE DEAL• BE'l'VEElf POLICE ARD THE ACCUSED
Regina v. Wood, County Court of Vancouver Island,
Victoria No. 32991, December 1984

- iii -

BREACH 01 PROBATION - BURDEN OF PROOF ••••••••••••••••••••••••
Doggett and The Queen - The County Court of Westminster
No. X012920 November 1984

34

CBAllTElt OF RIGHTS ARD FUKDOHS - TO WHAT EXTENT AKE POLICE
OBLIGATED TO CO-OPERATE WITH AN ACCUSED TO PREP.AKE A FOLL
MSWER. .AND DEFEN'CB • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

35

Regina v. Longejan, County Court of Vancouver Island,
No. 07986, Duncan Registry, January 15, 1985

OBLIGATION TO IDENTIFY ONESELF • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Johnson County Court of Kooteney,
Rossland No. CC58-1984 January 1985

38

- 1 -

CHARTER OF RIGHTS
DAMAGES FOR NOT ALLOWING ARRESTED PERSON TO SEE HIS LAWYER
Crossman v. The Queen - 12 c.c.c. (3d) 547
Federal Court, Trial Division (Events occurred in Yukon Territory)
The plaintiff had been arrested without warrant at 10:00 a.m., for
assault (s. 245.3 c.c.).
At 11:40 a.m. he had phoned his lawyer
requesting him to attend at the Detachment building to give him legal
advice. The lawyer then had spoken to the investigating officer and
told him he'd be over in a few minutes to see the accused. Approximately 12 minutes later the lawyer had arrived at the police office
only to be told he could not see his client until the officer had
finished interviewing him. One hour later the officer had phoned the
lawyer to say that his client was now available. The accused had not
given any statement. He had entered a plea of guilty (was sentenced to
3 months imprisonment) but now sought damages and costs for being
denied his right to counsel (s. lO(b) Charter).
He brought this
action under s. 24(1) of the Charter as a remedy to the infringement
of his rights.
The circumstances are not unique.
Similar situations have surfaced
over the admissibility of statements, or, the evidence of a breath
analysis. In this case no evidence had resulted from the infringement
and the plaintiff apparently suffered no damages from the interview.
Therefore, the damages he claimed were exemplary and punitive in
nature. What the constable did amounted to a tort for which the Crown
is liable.
The Crown submitted that by consenting to the interview and not
refusing to speak until his lawyer arrived, the plaintiff had actually
waived his rights •.
The Court was critical of the constable starting the interview before
the lawyer's arrival, and thought i t "inconceivable" that he had no
access to his client until the interview was completed.
That, said
the Court "is in my view a clear infringement of the plaintiff's civil
rights". Counsel is always entitled to speak on behalf of his client
and "would certainly be justified in invoking on his behalf the right
not to be questioned in the absence of his counsel". It could not be
inferred from the telephone conversation between the lawyer and the
officer, that the plaintiff had been advised not to allow the interview until he (the lawyer) was present. However, the lawyer was most
certainly entitled to see his client at the time he arrived at the
station or sit in on the remainder of the interview. Furthermore the
Court found that the accused had not waived his right to be questioned
with his counsel present.

- 2 -

Once again emphasizing that this was not a matter of determining the
admissibility of evidence, the Court found that the constable had
committed a tort.
Damages in the amount of $500 plus
plaintiff's costs were awarded.
Comment: The Court reminded the parties to the proceedings at least
twice that it was not dealing with the admissibility of a statement
had the plaintiff made one. The Court was dealing with an application
for a remedy under section 24(1) of the Charter and not with the
exclusionary rule under subsection 2.
Had the plaintiff given a statement in these circumstances, this Court
would undoubtedly have found that his rights to counsel had been
infringed.
This would only have triggered consideration for exclusion. The Court would have had to consider all circumstances and if
admission of the evidence would have brought the administration of
justice into disrepute.
In other words, the statement would not
necessarily have been inadmissible.

*****

- 3 -

THE CHARTER AND THE INDEPENDENCE OF THE JUDICIARY
Re Currie and Niagara Escarpment Commission 13 c.c.c. (3d) 35 Ontario
High Court of Justice
Mr. Currie was to be tried by an Ontario Justice of the Peace under
the provincial Offences Act for allegedly violating some provincial
regulatory law. Section ll(d) of the Charter which unlike the Bill of
Rights applies to provincial legislation and administration, enshrines
a right to be tried by an independent and impartial tribunal. Ontario
Justices of the Peace who are appointed by and hold office at the
pleasure of the provincial cabinet (executive) are not independent
claimed Mr. Currie and he filed a motion for an order prohibiting any
Justice of the Peace from presiding at his trial.
The order was
sought as a remedy under section 24(1) of the Charter.
The Court did a very interesting review of the history of the office
of Justice of the Peace from the time of its inception in the 14th
century.
From Confederation until 1968 the office diminished in
prestige and function. In 1968 the Ontario government abolished the
office of magistrate and part of that office was assigned to the
Justices of the Peace.
In 1979 the Provincial Offences Act gave
jurisdiction to Justices of the Peace to try nearly all provincial
offences which carry a maximum penalty of $10,000. · This is 20 times
that of the maximum fine for a federal summary conviction offence.
When presiding at a trial the Ontario Justices of the Peace are, like
any member of the judiciary, empowered to strike down legislation that
is inconsistent with the Charter or outside the legislative jurisdiction of the Ontario Government.
The Ontario High Court of Justice reviewed the tenure and security of
the Ontario Justice of the Peace.
Appointments of Ontario Justices of the Peace are political in that
they are exclusively done by means of Orders in Council.
Although
political patronage may play a part in the selection there is nothing
unconstitutional or improper about such consideration.
The appointment is for life, but the office is held at the pleasure of
the Cabinet. In other words, any Justice of the Peace can be removed
from office at political whim and without cause. He, therefore has no
security of tenure and holds office at the pleasure of the prosecuting
government. That is hardly independence, held the Court.
Justices of the Peace are totally dependent on administrative directive what judicial duty they may perform. They are also evaluated by
a provincial court judge who may adjust and expand the duties of a
Justice of the Peace.
This again is totally contrary to the principles of independence.

- 4 -

There are classes of Justices of the Peace.
Each has a different
salary arrangement. Some are sitting Justices and others non-sitting,
some are full-time, others part-time. The latter are paid by the hour
or on a piece basis. Again, common sense causes one to conclude that
the Justice is not independent from the executive branch of government.
The Ontario High Court of Justice therefore ordered that Justice of
the Peace Allan and all other Justices of the Peace are not independent and are prohibited from hearing the prosecution against the
applicant.
Comment: The Justices of the Peace in B. C. do have working arrangements not unlike their counterparts in Ontario. In B. C. even provincial court judges have, since the Charter, expressed that they are not
independent and cannot seem to be impartial.
To understand the importance of the Canadian Judiciary and the issues
involved in these recent challenges regarding the independence of
those appointed by the Provinces, perhaps the article I wrote in
August of 1975 as a reaction to the then recently enacted B. c.
Provincial Court Act may be of assistance:
The Provincial Government, being responsible for the
administration of justice, is in an unenviable predicament
with its Court services.
Many factors have created an
apparent imbalance as proceedings are commenced at a rate
greater than the Court can dispose of them. Preservation
of proprieties renders Court time unpredictable; witness
management with any accuracy is practically impossible;
overloads cause fatal administrative errors; legal fancy
footwork under the banner of justice, inhibit finalization
of proceedings;
particularly amendments
to Federal
Statutes have continuously added to this court's jurisdiction; new laws and precedents have made it mandatory for
the Court to conduct more trials on issues, "show cause"
hearings, etc.: and an increase in regulatory laws have
all added to the burdens of the Provincial Court.
The Government has seen fit to attempt to remedy the consequential problems and there has been greater involvement
in the management of this Court over the last years. An
attempt to streamline the services to this Court is quite
noticeable (Sheriff's Services, Crown Counsel, Court
Adminis tr at ors, etc.) and the Bill 100/ 197 5 "The Provincial Court Act".
This Act contains provisions which
affect the Judiciary of the Provincial Court.

- 5 -

Laws that affect the Judiciary are sensitive under our
Federal and "Anglo-American" system, particularly where
those laws tend to bring the Judiciary under government
control. The separation of the Judiciary from government
is considered to be part of the principle known as "the
separation of powers". Too much power in any one institution is a corruptive influence which does not insure for a
good and just government.
Executive Power
The Cabinet consists of elected representatives, selected
by the leader of the political party which has gained the
most seats in the House.
Needless to say that they are
selected from those who gained seats for that party,
unless the party is in such minority that it is forced
into coalition.
The cabinet exercises executive power.
Reading our Constitution one is not left with the impression that the executive is all that powerful.
They are
only the privy council to the Crown.
The Crown can
disapprove legislation which the executive initiated and
which was passed in the House. In other words, the executive when it "suggests" law seems to have to pass two
hurdles: the House and the Crown. In reality, and especially when the party in power has the majority of seats in
the House, there are no hurdles. For a cabinet minister,
or for a government back-bencher to vote against his own
executive is a cardinal political sin which can be very
harmful to the individual's political career in Canada.
Voting in the House is very much party controlled, except
where the issue is one of morality or conscience. There
are some pretty good reasons for this, but they are
irrelevant to the issue involved in this article.
For the Crown to ref use legislation is extremely remote if
not unheard of. The executive itself does by convention
enjoy invaluable privileges.
Cabinet meetings are held
in-camera; orders in Council can result which become law
with only the approval of the Crown; for a minister to
speak out against policy of the cabinet may well be the
end of his or her political career; it controls the
finances, and makes the appointments to official positions
in government.
In fact, the Cabinet is the government.
As you can see, executive power is awesome and immense, to
say the least.
Judicial Power
The Judges of all our Canadian Courts are appointed by

- 6 -

either a Provincial or the Federal Cabinet. The County
Court Judges and up are appointed by the Federal Cabinet
and the Provincial Court Judges by the Provincial Cabinet.
No one denies that these appointments are often
political.
Nevertheless this has had very little effect
on judicial excellence. The Liberals, when in power, may
appoint a good Liberal to the bench, but he must be a
qualified person.
Each party seems to have a choice of
numerous excellent people to fulfill the responsible task
on the benches of our Courts. In Federal Canada this is
indeed a responsible task, more so than in a unitary form
of government. In addition to being the interpretors of
the statutes, our Judges are in reality the referees
between the levels of government or between the public and
the government.
Our Judges, at all levels, when having
jurisdiction, may declare law initiated by that mighty
executive ultra vires that government, or inoperable
because it violates fundamental rights and freedoms.
In
other words, the Courts are the "check and balance" system
by being watchdogs over legislative trespass either by one
government onto the terrain of the other or by any government onto individual rights and freedoms. An independent
Judiciary is therefore one of the essential principles of
our form of government.
R. M. Dawson, a noted Canadian
political scientist said:
"The Judge must be placed in a position where
he has nothing to lose by doing what is right,
and little to gain by doing what is wrong, and
there is, therefore, every reason to hope that
his best efforts will be devoted to the conscientious performance of his duty."
The Separation
In view of the unique role of the Judiciary in Canada the
need for a separation is obvious.
Judicial review is
really the only hurdle the executive has. This, by tradition and of necessity, dictates impartiality in private
disputes and disputes between the individual and the
government. Although it would seem desirable for an overzealous government to control judicial power, the independence of the Judiciary has been preserved and observed by
our governments. The Constitution does place the Judiciary of the Superior Courts (Provincial Supreme Courts
Provincial Courts of Appeal, Federal Court and Supreme
Court of Canada) out of reach of the governments.
It
states that they shall hold office during "good
behaviour".
This means that only criminal and corrupt
behaviour would affect their tenure and can be removed for

- 7 -

such behaviour by "the Governor General on address by the
Senate and the House of Commons".
Note that it does not
say "the Governor in Council". This means that the Federal executive can only remove a Superior Court Judge by the
request of both Houses.
In addition, their salaries are
established by Statute and not by cabinet.
This, of
course, so the livelihood of the Judiciary is not in the
hands of the executive and to ensure that they be paid the
same to avoid political gratitude.
Another safeguard is
the general but eroding policy that the executive does not
promote Judges to a higher Court. This also may smell of
political favour and gratitude.
However, exceptions are
made for the sake of excellence. It seems in recent history quite acceptable for Judges to be promoted to the
more superior Courts.
The County Court Judges are appointed by the Federal Cabinet and can be removed by them.
The separation from the
executive lies, by accident or design, in the jurisdiction.
The County Court is a trial court, and is under
Provincial jurisdiction while the welfare and livelihood
of its Judiciary lies with the Federal executive.
It seems a correct observation that if government can
create laws with controls to make bad Judges good, that
law is equally capable to make good Judges bad.
Therefore, involvement of governments in managing the Judges is
incredibly sensitive.
British Columbia Provincial Court
The Provincial Court Act institutes a Judicial Council
which is to separate the Provincial government from the
Judiciary of the Provincial Court.
The Council consists
of the Chief Judge of the Provincial Court, the Associate
Chief Judge, the treasurer of the B. C. Law Society, the
Chairman of the B. c. Bar Association, one Justice of the
Peace, and three persons appointed by the Provincial cabinet. This gives the council eight members, four of which
will be members by virtue of their office.
Of the four
ex-officio members, two are appointed to their office by
the cabinet.
The Council, therefore, consists of two
members indirectly appointed by cabinet, four directly
appointed, and only two over which the cabinet has no
control. This council under the chairmanship of the Chief
Judge has the statutory mandate to improve the quality of
the judicial services in the Provincial Court.
It must

- 8 -

propose prospective appointees to the bench; conduct
inquiries respecting the Judges or Justices of the Peace;
propose improvements in Judicial services; organize the
training and conventions; prepare and revise a code of
ethics; and report to the executive anything it (the
executive) may deem necessary. Judges can be removed the
same way they are appointed.
Though they hold office
while of good behaviour, the Act lists a number of other
reasons for removal.
Their salary is fixed by the
Attorney General, their jurisdiction is for the Province
and there are no provisions for a Judge to serve in a
specific district.
This could mean that their welfare,
livelihood and place of employment is, in essence, in the
hands of the Council and the Executive.
Yet we cannot
afford a Judicial Siberia for those who the public depend
on to stand between them and the government. If there is
a dispute, the referee cannot be an employee of one of the
parties to the proceedings. If a dispute is between the
Federal and the provincial government, the mediator ought
not to feel that he or she must be loyal to the employer.
The Act gives the Judges an appeal to the Provincial court
of Appeal but only for removal from office. They could be
as vulnerable as other government officials.
Rebuttal:
There are rebuttals to these submissions.
Some can be
found by comparing the provisions of the Provincial Court
Act with those applying to other Courts or by comparison
with Courts under other Federal systems.
One could say
that the Judges of the Supreme Court of Canada are totally
at mercy of the Federal cabinet. The Act under which the
Court operates is not entrenched. It can, therefore, be
repealed by a simple majority in the House and Senate and
all nine Judges would be removed en bloc. The same could
be said in relation to the Federal Court.
In West
Germany, which is also a Federation, the Judges of the
Courts are all government employees who, in addition,
enjoy a promotional system. One could argue that whenever
a Provincial Court Judge makes a decision on a constitutional issue, it will, in all likelihood, be appealed; or
decisions of Provincial Court Judges are not binding on
other Courts. One could demonstrate, that for a democracy
our Canadian Courts are too powerful and that they in fact
legislate by interpreting the Constitution and thereby
affect the supremacy of Parliament and obstruct government.
Democracy means people's power, and we must be
governed by elected representatives who are responsible to
the people but not by appointed Judges.

- 9 -

Reality:
To suggest that the Parliament of Canada may repeal the
Supreme Court Act is, of course, absurd. The same applies
to the Federal Court which has unique jurisdictions, distinct from Courts in the provinces.
To compare the Canadian Federation with that of West
Germany can be misleading as it is different in concept
and character. Firstly, the Judiciary - the same as in
many unitary systems - only interpret the law and have,
with the exception of one court, no power to judicially
review the constitutional propriety of legislation.
Furthermore, the German Provinces (Laender) have little
original authority and do in practice depend on delegation
of power by the senior government. There is, therefore,
no "referee" role and little reason why the Judges should
not be government officials.
As to the argument that
Provincial Court decisions on constitutional issues will
be appealed and do not set a binding precedent, is of
course without value.
The Canadian "horizontal" Court
system gives our lower Courts, when having jurisdiction,
as much authority to deal with constitutional issues as
the Courts of Superior Jurisdiction. The parties to proceedings before a Provincial Court are therefore entitled
to judicial excellence and should not have to depend on an
appeal for that.
The Judiciary of this Court must as a
consequence be as independent as their counterpart in the
Superior Courts. To say that our Courts are by interpreting the law interfering with Parliament is incorrect. The
interpretation will only be of significance or binding
while the law stands as it was when interpreted. Parliament may amend the law if the court's interpretation does
not reflect Parliament's intent. As far as the constitutional issues are concerned, the Courts cannot be superseded unless there is a constitutional change which could
be a long drawn-out process. Our system, however, cannot
permit the makers of the law to be its interpreters, to
determine the constitutional propriety of legislation or
to have control over those who are responsible for this.
Then, finally, there is the defence that all Courts have a
Chief Justice or Judge. This is true, but there seems a
distinction between their role and that of the Chi~f Judge
of the Provincial Court. The others administer the Court
and assign sessions and workloads. The Chief Judge of the
Provincial Court seems the liaison between the Judiciary
and the Cabinet and, as Chairman of the Council, a sort of
disciplinarian.

- 10 -

Summary
It seems that if the Provincial Court Judges were treated
similarly to the Federally appointed Judges, there would
be no question about their independence. The Provincial
Court Act could, from this constitutional point of view,
be amended to ensure independence. For instance:
1.

The members of the judicial council could each year select
from their own number a chairman with the Chief Judge and
Associate Chief Judge as consultants to this Council to
represent the Judiciary, and, be present at all its
meetings.
The liaison between this council and the
executive should be by means of that chairman only.

2.

It could be provided that removal of a Judge should only
be possible by "the Lieutenant Governor on address by the
Legislative Assembly".

3.

The salary of
statute.

4.

Perhaps a Judge should not be transferred unless it is upon his
request or when there is no longer a judicial function to be
performed where he is."

the

Provincial Court

*****

Judges

could be

set by

- 11 -

RELIGIOUS PRIVILEGE - PRIEST AND PENITENT
JURISDICTION TO ISSUE SEARCH WARRANT FOR A CHURCH
Re Church of Scientology and The Queen - 13 c.c.c. (3d) 97
Ontario High Court of Justice
The Church allegedly sold items which according to their pamphlets,
were to give their owner all kinds of religious and health benefits.
These items (one of them a "crude" galvanometer) were sold for costly
prices while the benefits to be derived were scientifically
impossible; nor was the quality as representeda By this the Church
allegedly defrauded the purchasers.
Police obtained a search warrant for the Church and seized the
stock of the items and related documents. The Church applied to the
High Court of Justice to have the search warrant quashed and the goods
returned, claiming that on the grounds of religious privilege there is
no jurisdiction to issue a search warrant for a church and that the
docwnents seized come under the Priest-Penitent privilege.
The Court conceded that, preaching of a religion is no business of the
State, but held that religious practices may conflict with the law.
Rendering to God that which belongs to God and to Ceasar that which
belongs to Ceasar, a church cannot practice religion contrary to law
with impunity.
The seized artifacts were, therefore, legitimate
exhibits to prove the charge of fraud. Furthermore, there is no known
privilege that interferes with the Judiciary's jurisdiction to issue a
warrant to search a church.
In regards to the Priest-Penitent issue the Court held that at common
law or through the Charter, there exists no such privilege in Canada.
The preferential treatment the clergy sometimes receive in the Courts
is no more than courtesy, completely in the province of a trial
judge. The practice has resulted in pressing counsel not to pursue
questions that would compel a member of the cloth to breach a confidence. Sometimes Judges have declined to compel a minister or priest
to answer a question where he has claimed the non existing privilege.
In general, it is no more than respecting religious confidentiality.
Application to quash warrant and have artifacts returned was dismissed •

.

*****

- 12 -

SEARCH AND SEIZURE BY A PERSON OTHER THAN A PEACE OFFICER
APPLICATION OF CHARTER OF RIGHTS AND FREEDOMS
R. v. Locke, 13 c.c.c. (3d) 515
Alberta Court of Queen's Bench
The accused was asked to leave a tavern as he could not prove his
age. He complied. A short time later he was back again. This time
he was requested to accompany a couple of tavern employees to the
manager's office. He again complied and when asked to do so, emptied
his pockets. After this, one of the employees, without asking consent, went through the accused's pockets and found a quantity of marihuana. Police were called and a charge of possession was preferred.
The trial judge acquitted the accused.
He held that the accused's
right to be secure against unreasonable search and seizure had been
infringed. It was by means of this very infringement that the marihuana was discovered and, consequently, the find was inadmissible in
evidence.
Section 32 of the Charter states that it applies to the Parliament and
Government of Canada and the legislature of each government of the
provinces. This means, it was urged, that in this case, where persons
who were not government agents or law enforcement officers had
obtained the evidence, the Charter did not apply. Furthermore, that
should the Charter apply there was no infringement under section 8 and
if the Court found that there was, it did not call for the exclusion
of the evidence under s. 24( 2).
These were the points the Crown
raised when they appealed the accused's acquittal.

An examination of U.S. cases on this point (whether the Charter also
applies to the actions of a private citizen) was not very helpful.
The wording of the U. S. Charter is quite different on this point. It
simply enshrines that no State shall make or enforce law that
infringes the rights recognized by the Charter.
In other words,
through the U. s. Charter "the American Constitution protects the
rights of citizens against government interference whereas the
Canadian Constitution protects the rights of citizens against any
interference, be it government or private"*·
The Court reasoned that if it was intended to exclude the Charter in
matters between citizens, section 32 would have read: "This Charter
only applies ..... instead of "This Charter applies".
* Re Edmonton Journal and Attorney General of Alberta et. al. (1983) 4
c.c.c. (3) 59.

- 13 -

The Court turned to a research article entitled "The Charter of Rights
and the Private Sector"*.
It is pointed out in this article that
although one may be tempted to infer from s. 32(1) of the Charter that
its provisions only apply to governmental activities it obviously is
meant to cover activities in the private sector as well. Legislation
applies to everyone within the geographical jurisdiction of the enacting legislature, except to the Crown (see section 14 of the Interpretation Act). It is a long established principle that the Crown is not
bound by the law unless explicitly included.
Section 32 of the
Charter is precisely for that purpose. In other words if it was not
for section 32 of the Charter, its provisions would only apply to the
private sector and exclude the Crown and its activities.
Section· 32 was also enacted to ensure its provisions applied to
provincial legislative assemblies which was not the case with the Bill
of Rights (1960).
For these reasons one civilian can infringe the rights of another
civilian and in this case the personnel of the tavern did violate the
right of the accused to be protected against unreasonable search and
seizure.
The Court further found that this infringement was not a
"mere gossamer possibility of prejudice against him" in the eyes of a
fair minded community at large. Therefore, admission of the evidence
obtained thereby would bring the administration of justice into disrepute.
Appeal dismissed.
Acquittal upheld.

* * * * *

* U. of Manitoba, 12 Man. L.J. p. 213 (1982) Professor Dale Gibson.

- 14 -

THE CHARTER AND PRE-TRIAL DISCOVERIES
"IS THE CROWN OBLIGED TO TELL ALL TO ASSIST
ACCUSED IN PREPARING A DEFENCE"?
Re Kristman and The Queen 13 c.c.c. (3d) 522.
Alberta Court of Queen's Bench

Mr. Kristman was apparently driving dangerously and was apprehended
with the assistance of a police dog. The events resulted in charges
of dangerous driving, impaired driving and refusing to provide samples
of breath.
The Crown proceeded by way of summary conviction and a
trial date was set.
Mr. Kris tman' s counsel wrote the Chief of Police and asked for the
names of the officers involved in this matter and an opportunity to
interview all of them. The Chief responded that he could not comply
This
and referred counsel to the Attorney General's Department.
prompted defence counsel to write the prosecutor with the same
He added notice that non compliance would be viewed as
demands.
prejudicing Mr. Kristman in preparing a full defence. This, counsel
wrote, would result in a request for adjournment and an application
for a judicial stay of proceedings.
Crown Counsel responded by pointing out that particulars and information to the practising bar is provided by his office and "If you have
not as yet obtained such particulars, feel free to do so".
Defence counsel, apparently not to be deterred from his plan to have
an examination of discovery by interviewing all police witnesses
before trial, demanded, in answer to Crown Counsel's letter, to
receive a copy of the policy that police officers are not to be made
available for such purpose. In addition he promised to serve "Notice
to Attend" on the police compelling them to appear in Judge's chambers
to give evidence regarding the policy. He claimed that the particulars available through Crown Counsel's office were already in his
possession and now demanded particulars about all communications
regarding the officers involved not wishing to be interviewed by him.
The prosecutor's response to this demand was:
"If they (the officers) choose not to submit to interviews
by you they have no obligation to explain their decision
to you."

- 15 -

Defence counsel then made application to the Court of Queen's Bench
for a remedy under section 24 of the Charter, to the denial of his
client's rights "to be presumed innocent until proven guilty according
to law in a fair and public hearing by an independent and impartial
tribunal" (s. 11 of the Charter). He requested that the Court order
the criminal proceedings against his client be stayed unless within
two weeks the Crown satisfied the Court of the Queen's Bench that:
1.

all names of the officers
revealed;

involved in the investigation are

2.

the Crown advises the police department to rescind its policy
that no officers make themselves available for interviews with
defence counsel as such policy is unethical, illegal and obstruct
a person from receiving a fair trial; ~

3.

that i f the police officers, on their own initiative, still
refused to be interviewed by defence counsel, Crown Counsel
conducts the interviews of the officers and provide all details
to defence counsel.

In support of the application, defence counsel lamented how police and
the prosecutor are in possession of all information and decide whether
or not to prosecute. They also decide what aspects of the case are to
be investigated and to what extent, while more in-depth investigation
may well shed a different light on matters.
Not having that
information an accused person is disadvantaged and cannot prepare his
defence and ensure that there will be a true verdict. He claimed that
s. 11 of the Charter cries out for a full discovery policy and concept
as had been suggested already in 1974, some 8 years prior to the
Charter becoming part of an entrenched Canadian constitution.
Furthermore the Canadian Bar Association's "Code of Professional
Conduct" states that defence counsel may properly seek information
from any potential witness and has a duty to interview witnesses.
'

It was submitted that at preliminary hearings, for instance, the
prosecutor may call just enough witnesses to make a prima facie case
against the accused, leaving defence counsel to discover through
cross-examination who the other witnesses are. At least the defence
does then have an opportunity to interview these witnesses and
subpoena them where this is astute to do so.
In cases where there is no preliminary hearing the accused person must
have similar opportunity to discover the case against him, argued Mr.
Kristman' s defence counsel.
In this case Crown Counsel and police
breached their duties in regard to the principles of criminal justice
and had interfered with the accused's constitutional rights, he
claimed.

- 16 -

A couple of interesting cases were brought to the attention of the
Court. One* was where the Crown concluded its case while there were
more witnesses listed on the back of the indictment. Defence counsel,
when he objected, was invited to call those witnesses himself.
He
declined to do so on the premise that a defence counsel ought never to
call a witness unless he first determines what evidence the witness
will give. Said the Ontario Court of Appeal: "You are at liberty to
communicate with them and find that out ••• ".
"The counsel for the
defence may not attempt to influence the story that that witness may
give ..... "The mere fact that he interviews a witness in preparation
of his defence has no effect upon the Crown". The Supreme Court of
Canada held** after noting that the accused did not request inf ormation in possession of the Crown but had demanded evidence for the
purpose of his defence:
"In my opinion, the failure of the Crown to provide
evidence to an accused person does not deprive the accused
of a fair trial unless, by law, it is required to do so".
In this Kristman case the accused did not ask for evidence for his
defence but requested information in possession of the Crown.
Summing up the applicant's position that he has a rightt to interview
witnesses or have access by alternative ways to their evidence, the
Crown said that the Court was asked to depart from· procedures established by a long line of cases and establish a new practice.
This
would include removing historical discretion from the Crown and compel
it to assist defence counsel in providing lists of witnesses, arrange
for interviews, and should these witnesses decline to speak to defence
counsel, provide details of their evidence. Police departments would
have to establish systems by which officers would be taken away from
their duties to be available to defence counsel for interviews.
Crown Counsel concluded his submission by pointing out that the
accused is not entitled to a remedy under s. 24 of the Charter unless
there is an infringement of a freedom or a right. Not making police
officers available to him to be interviewed for him to discover the
Crown's case against him is not such an infringement.
The Court observed that there is a legislative scheme for pre-trial
disclosures, which includes provision for preliminary hearings.
It
held that it is incorrect by judicial law making, to go beyond what
the Charter itself and the Criminal Code are silent on. Extravagance
R. v. Gibbons (1946) 86 c.c.c. 20.
** Duke v. The Queen (1972) 7 c.c.c. (2d) 474.

*
t

A "Right" as opposed to a "Freedom" places an obligation on another
person to respond, comply or perform.

- 17 -

either in one direction or the other, in relation to fundamental law,
will only bring disrepute on the justice system the court observed.
What had to be strived for is "timely disclosure" as mentioned in the
"Canons of Legal Ethics". Said the Court:
"'Timely disclosure' of the Crown's case and the formal
examination for discovery of all persons who may peripherally be involved or aware by hearsay or otherwise of facts
relative to a charge are clearly different things".
The position of defence counsel for the applicant is clear observed
the court; he does not seek a simple interview with Crown witnesses,
he demanded a total pre-trial discovery including all peripheral
material including police reports. In respect to police reports the
court said:
"They are an accumulation of facts known to the officer,
suppositions or inferences by him, references to what he
was told, suspected or thought."
Defence counsel asked for a fishing licence on the waters of this
material without indicating what species he was out to catch, doing it
by any means available. Witnesses would be without judicial guidance
or legal counsel during this expedition; even without protection on
fundamental points or matters that cannot be disclosed.
Whether a person receives a fair trial (the accused claimed that without the evidence he wanted in advance he could not have one) is very
much up to the trial judge. If he feels an accused is disadvantaged
by not possessing certain information he can adjourn the trial and
order that the Crown divulges whatever is necessary.
Many other
aspects of the trial or rulings made can cause a trial not to be
fair. When this happens, then an accused can object or take whatever
action necessary to have that infringement of his right remedied. In
this case the accused asked for reparation before the defect had
occurred. By analogy, his application was in the category of preventative maintenance. The symptoms the accused identified simply fell
short of justifying the diagnosis that an unfair trial would result.
Said the court:
". • • nor am I able to conclude the s. ll(d) of the
Charter, has such reach, so as to provide to the accused
the right of pre-trial discovery because, evidence as yet
unknown, may be uncovered, and may prove useful at trial
to the defence.
The Charter does not provide such discovery".

- 18 -

Considering that:
1.

production of evidence before trial is a discretion of the Crown
and production of evidence at trial is a discretion of the trial
judge;

2.

the accused has no discretion in this area;

3.

the Crown is not to withhold evidence for an oblique motive and
especially not because it would assist the accused; and

4.

complete pre-trial disclosure is not part of our law and, therefore, access to all evidence and witnesses is not a right of an
accused person;

there was no infringement of a right and consequently no entitlement
to a remedy under subsection (1) of section 24 of the Charter.
Application dismissed.

*****

- 19 -

USING CRIMINAL LAW TO COLLECT A DEBT
ABUSE OF THE PROCESS OF THE COURT
Regina v. Van Holland 13 c.c.c. (3d) 225
County Court Judges' Criminal Court Ontario
When the accused arrived for work on Monday morning his boss, the
Branch Manager of a trust company, was waiting for him and guided him
into the Boardroom.
There an auditor told the accused how he had,
over the weekend, gone over the books and discovered that the accused
had misappropriated $80,000.
The accused conceded that he was
responsible and apologized. However, he refused to sign a confession
claiming that the amount was only $65,000. When that was amended he
declined to sign until he had spoken to his lawyer. The confession,
prepared by the branch manager, included an undertaking to make
restitution and a verbal promise was made that a signature on the
dotted line would avoid police involvement. Upon this assurance the
accused did not only sign the confession but also a demand note in
favour of his employer. At the accused's trial, the branch manager
denied the promise of no police involvement and testified that he had
simply been anxious to obtain the confession before involving the
police.
The matter was reported to police who did not interview the accused
for several weeks.
During this time, pension funds, accounts and
stocks were signed over to the trust company by the accused to apply
these funds to his indebtedness.
Three months after the theft was
discovered, police arrested the accused without warrant on a charge of
theft. This had "shocked" the accused in view of the payments he had
made and the promise that there would be no police involvement. While
out on bail he had lunch with the branch manager who promised that if
the accused would make full payment in the next few days, he (the
manager) would contact Head Office, in an attempt to have the charges
dropped. Although the manager denied to have made such promise, the
accused, immediately upon the meeting, arranged a mortgage on his home
and paid the debt. He said he would not have done so if it was not
for that promise.
However, the day before he paid the debt, the
manager had sworn the information, charging the accused with fraud.
The Court believed the accused and found that the company had used the
criminal process as a means to collect a debt. The criminal law was
not designed for that purpose. Had the accused paid his debt a couple
of days earlier the criminal allegations would not have been made.
Therefore, proceeding with the trial would amount to abusing the
process of the Court.
Stay of proceedings ordered.

*****

- 20 -

UNSCRAMBLING PAY T.V.
THEFT OT TELECOMMUNICATION SERVICES
Regina v. Miller & Miller
Alberta Court of Appeal

12 C.C.C. (3d) 467

A municipal police officer noticed a "turnable stub" attached to the
Millers' television installation. The Millers were questioned about
this length of coaxial cable and tin foil and the following story
unfolded.
Mr. Miller, who has some expertise in telecommunications, attempted to
clear up the "co-channel interference" he experienced on his cable
T.V. reception.
He attached the "turnable stub" and the impaired
reception became clear. However, to the Millers' surprise they discovered that this gadget gave them a windfall benefit. The pay T.V.
channels, with a little bit of fine tuning, came in clear and crisp.
They did not complain and enjoyed thereafter the entertainment that
came their way free of charge.
The Millers were charged with fraudulently obtaining telecommunication
services and thereby committing theft contrary to section 287(1) c.c.
They were acquitted and the Crown appealed on the grounds that the
trial judge had accepted the explanation by the Millers while expert
evidence made their story incapable of belief.
According to the
experts the problems the Millers claimed they had, could not be
remedied by the contraption Mr. Miller fabricated.
Furthermore
Miller's claim that he was receiving the pay T.V. channels clearly in
black and white, prior to the installation of the "turnable stub" was
technically impossible.
The stub was, according to the experts "an
instrument of theft". However, the Court of Appeal was not enthusiastic about reassessing Miller's credibility.
The trial judge had
believed him and with that the Justices could not interfere. Secondly
the Crown claimed that mere watching of a pay T. V. channel without
paying for it amounts theft whether or not it is possible . that the
reception was not intended. Should the Court find that the reception
of the pay channel was a windfall situation and could not amount to
theft, then it should consider the "second obtaining" of the services
when they subsequently to the windfall continued to receive this benefit without intending to pay for it.
The Crown actually asked the
Court to apply a theory similar to "theft by finding". Finding something is innocent, keeping it without letting it be known that it was
found so the owner will not claim it amounts to theft.
The Court
declined to do so on account of the wording of the charge. The information alleged that the accused "fraudulently obtained" the T. V.
service. They had not so obtained the service if one was to believe
Mr. Miller.

- 21 -

The Court held that if the T. V. company wanted to prevent unpaying
spectators they simply had to build higher fences.
If non paying
viewers receive unscrambled signals through no connivance of their
own, watching the program does not result in an offence under
287(1)(b)

c.c.

Acquittal upheld.
Appeal dismissed.
Comment:
The subsection under which the accused was charged also prohibits
fraudulently "using telecommunication facilities".
It makes one
wonder i f a pay T. V. channel is a "facility" and i f watching it
includes "use". However, the Crown selected to charge under that part
of the subsection that prohibits the fraudulent obtaining of telecommunication services and was, in the circumstances, unsuccessful.

* ****

- 22 -

POLICE DISCIPLINE REGULATIONS AND JURISDICTION
Bowles et. al. vs. John Post and Attorney General, B. C. Supreme Court
Victoria Registry No. 184354 January 1985
A good time was had by all at a "platoon" social get-together at the
home of a municipal constable who lived well outside the boundaries of
the municipality he and the platoon members served. The host and two
other platoon members got the "Rembrandt" urge and allegedly painted
grafitti on a retaining wall. The symbols and words were apparently
aimed at and incredibly offending to an elderly neighbour. When she
inquired why she was targeted, the alleged response by the host was
equally off ending.
The provincial police were called and advised the lady of the
procedure under the Discipline Code appended to the Police Act. This
resulted in a complaint in writing along with pictures and details
being forwarded to the chief constable, the Mayor and Attorney
General.
An attempt to resolve the complaint informally failed and the chief

constable ordered an investigation.
The procedures as outlined in
section 39 of the Police Act and the Police Discipline Regulations
were followed. The chief received the investigation report together
with the statements by the witnesses and the three constables. He
refrained f .rom familiarizing himself with the content of the statements, in compliance with the spirit of section 12(1) of the Regulations which states that the decision whether to proceed with preferring a charge must be based on the investigator's report and to
prevent a claim of prejudice as he intended to preside over the hearing himself.
He personally served the necessary documents on the
constables and presided over the hearing when the constables denied
the charges of "acting disorderly thereby likely bringing discredit
upon the reputation of their police force".
The bargaining unit to which the constables belonged petitioned the
Supreme Court to prohibit the chief constable from conducting and continuing the disciplinary hearing. Grounds they raised in support of
the application were, in essence, as follows:
1.

The constables were off shift and therefore the Chief Constable
had no jurisdiction over them;

2.

The constables were not within the geographical boundaries within
which they are municipal constables and peace officers;

3.

There is an apparent bias when the presiding officer over the
discipline hearing was the recipient of the investigation report
and the person who decided if and what charges would be preferred;

- 23 -

4.

The Police Act and particularly the Discipline Code dictate
procedures that deprive the accused municipal constables of the
principles of fundamental justice; and/or

5.

The procedure as outlined in section 39 of the Police Act was not
adhered to.

In respect to points 1 and 2 above the Court held that the Police Act
or its Regulations do not restrict the chief constable's jurisdiction
to municipal constables who are on shift or within the geographical
boundaries of the municipality they serve.
Whenever a municipal
constable discredits the reputation of the force, then regardless
where he is ("at Shawnigan Lake, Vancouver, or New York") the chief
constable must have power to discipline and correct; this to maintain
the effectiveness of the force and public respect.
In regards to point 3 above, the Court pointed out how the chief
constable, under the Discipline Code has the power to order an investigation, receive the resulting report, lay charges and preside over
the disciplinary hearing.
That does not create an apprehension of
bias, as he cannot and must not personally investigate the complaint
or prosecute the charges. Neither can the chief sit on the appeal of
his decisions.
With appeal procedures in place and the Chief's
actions leading up to the hearing being merely mechanical and
procedural (including his decision to lay charge), there is no inter~
ference with the fair and impartial hearing the constables are
entitled to. Therefore the reasons in 4. above were rejected also.
However, the Court held that the chief constable had made a procedural
error. Section 39 sets out a four part procedure:
1.

The complaint must be lodged with the appropriate disciplinary
authority;

2.

The disciplinary authority shall attempt to resolve the complaint
informally;

3.

If that informal process fails, then the complainant may submit
the complaint in writing to the disciplinary authority; and

4.

The disciplinary authority, receiving a written complaint under
(3) shall cause the complaint to be investigated.

As explained, the complaint was triggered by an elaborate and detailed
letter from the complainant. Therefore, when step 2. failed it seemed
superfluous and redundant to ask the complainant to write again. The
author of the section has seemingly assumed complaints to be verbal in
the first instance. In any event, the section is procedural and not

- 24 -

designed to protect anyone's interest or to prevent abuse.
As a
matter of fact should step 2. be successful and no written complaint
follows, a disciplinary authority is not prevented from taking disciplinary action.
Although the trend is that only departures from
strict procedure which are protective in nature are fatal, the Supreme
Court Justice considered this technical error sufficient to grant the
order to prohibit the chief constable from continuing with the
hearing.
Comment: The outcome of this application in respect to the bias and
jurisdictions was somewhat predictable. Although any person who is to
perform a judicial role must be conscious of the appearance of
justice, he can hardly be considered biased for performing the duties
imposed by statute.
From time to time the issue of bias has been
raised in regard to magistrates or provincial court judges who may
have entertained an information supporting the application for a
search warrant, before whom the proceeds of the search were brought,
who may have issued a warrant in the first instance, then presided
over the first appearance of the accused, decided on the bail hearing,
presided over the trial and subsequently did so in respect to a coaccused. Whether the Judge was biased must be demonstrated in the way
he conducted the trial.
If the rules of evidence were adhered to,
natural justice was appropriately applied and the facts found, and the
verdict is supported by the evidence, then previous knowledge is of no
consequence.
We are inclined to equate the rules related to jury
members to those applicable to persons presiding over trials.
In
respect to the jurisdiction the Court applied a theory similar to that
in criminal law. Where the perpetrator committed the crime outside
the geographical jurisdiction of the court by which he is tried but
where the victim suffered the consequences of that crime within those
geographical boundaries, the court has jurisdiction. Mail frauds and
those committed by means of credit cards are good examples.
The
Courts have held that, unless the accused has been convicted elsewhere
for those very criminal acts, he can be tried in any of the jurisdictions where the victim suffered the consequences of the crime. The
Police Act and its Discipline Code seem to similarly say i f the
behaviour of a municipal constable brings disrespect on the force he
serves then, regardless when or where he does it, disciplinary
proceedings can be preferred and concluded in the jurisdiction of the
victimized force.
The Justice made it quite clear to be of the opinion that a chief
constable can, in these procedural circumstances, go ahead with a
disciplinary hearing. The Court held that sections 38(l)(b) and 40(2)
of the Police Act provide for this.

- 25 -

Although section 38 is somewhat obscure as to its meaning, it seems
that it, as well as section 40 are referring to public inquiries.
These cannot be conducted until the "investigation is complete" (see
39(4)). This, according to section 54(2) of the Discipline Code Regulations is not the case until the "presiding officer" has found that
the alleged disciplinary action should be dismissed, or on the date
punishment is imposed.
The investigation is not complete when the
investigators present their report to the disciplinary authority. It
is with the greatest respect that I wonder if the Justice was aware of
section 54 of the Regulations. The applicable portions of section 38
and 40 appear to only provide that a sentence can be enforced despite
the fact that the municipal constable or the complainant has requested
a public inquiry.

*****

- 26 -

THE CHARTER AND THE ADMISSIBILITY OF STATEMENTS
WHEN IS INFORMING OF RIGHT TO COUNSEL COMPLETE?
Regina v. Michael Johnny, Supreme Court of B.
CC841146, September 1984

c., Vancouver Registry

The accused, a 19 year old native person, had been arrested for murder and was subsequently questioned by two police officers.
These
officers informed their prisoner of his rights to counsel four times
and asked him if he understood what he had been told.
The response
had been:
"You mean ••• do I have • • • I tell you story about what
happened, then you tell lawyer"? He was then told that what he would
say • • • "we could say in Court, yes.". When asked, "Do you want to
call a lawyer", the answer was "No".
The accused had then made a
statement which the Crown adduced in evidence.
The accused was, at the time, a pupil at the school for the deaf. His
hearing is severely impaired, his vocabulary is like that of a 6 year
old while his reading capability is at a grade 4 level. One of the
officers, before questioning the accused, had phoned the principal of
the school and learned that the accused knew sign language. The officer was given the name and phone number of an interpreter. However,
the officers decided to proceed without the interpreter.
Evidence during the voir dire showed that the accused did not know the
meaning of the words - "duty" - "inform" - "right" - "retain" or
"instruct".
Despite the four times he had been told of his rights,
the court was asked to find that the accused's right to be informed of
his right to counsel had been infringed. It was also submitted that,
considering the circumstances, admitting the statement in evidence
would bring the administration of justice into disrepute.
The Justice found that due to the accused not knowing the meaning of
the key words in the form read to him, he was not informed of his
rights as it was intended under the Charter of Rights and Freedoms.
Having established that there was an infringement of the accused's
right to be informed of his right to counsel and levying some criticism at the officers as they ought to have known the accused's disabilities, the statement was not allowed in evidence as such would bring
the administration of justice into disrepute.

*****

- 27 -

EXECUTION OF SEARCH WARRANT - STATEMENTS
AND THE CHARTER OF RIGHTS AND FREEDOMS
Regina v. Capson, County Court of Vancouver No. CC840807, January 1985
Police obtained a search warrant for the accused's home under the
Narcotic Control Act. They showed the accused and the lady he lived
with an unsigned copy of the warrant and confined the two in the
kitchen area of their apartment.
A bag containing 42 smaller bags
with marihuana (378 grams in total) was found. When asked who owned
the marihuana, the accused said "It's mine" or words to that effect.
The accused was then placed under arrest and for the first time during
this episode, told that he had right to counsel. A further search
resulted in the finding of more marihuana and a pair of scales.
The accused, the lady he lived with and her daughter (who had arrived
during the search) testified during the voir dire to determine the
admissibility of all this evidence.
They told the court that the
accused, upon being informed of his rights, had asked to phone a
lawyer.
The answer had been:
"There's lots of time for that".
Subsequent requests to phone a lawyer were ignored. When he was taken
to the police car to be transported to the detachment, the lady
offered to phone a lawyer for the accused. He accepted her offer.
The officers denied that any such requests were made and that no such
conversation took place. They also denied that the accused asked at
the police off ice to be allowed to phone a lawyer before he gave them
several statements.
Defence counsel argued that all evidence should be excluded on the
basis that the warrant was improperly obtained and was,
therefore,
invalid. Consequently the search was unreasonable under s. 8 of the
Charter. Furthermore the copy of the warrant shown to the accused was
unsigned. This argument was rejected. Firstly, the officers had not
obtained the warrant by any improper means.
If there was anything
amiss with the warrant, it was of a technical nature. For the purpose
of the search the warrant was valid and the officers acted in good
faith. In other words they acted in "objectively reasonable reliance"
on a warrant issued by an impartial Justice of the Peace.
In
addition, an invalid warrant does not necessarily mean that the search
is unreasonable*. The fact that the copy of the warrant was unsigned
did not taint the search either, and the search and seizure were held
to be reasonable.

* R. v. Heisler (1984) 11 c.c.c. (3) 475, Alberta Court of Appeal.
R. v. Cameron, November 1984, B. C. Court of Appeal CA001541.

- 28 -

The defence also submitted that the evidence should be excluded on
account of the infringement of the accused's right to be informed of
his right to counsel when, before his arrest, he was detained in the
kitchen of his home during the search. The Court, applying the famous
Chromiac test* held that the restraint during the search was not the
detention contemplated by the Charter. Said the Court:
"In my opinion there was no obligation on the part of the
police officers when they directed the accused to remain
in the kitchen area to then deny him of his right to
retain counsel".
Then the defence argued that the accused was denied his right to
counsel when he, according to his testimony and that of his witnesses,
had been refused access to a phone.
The Judge had been impressed by the accused and his two witnesses.
The officers who at the preliminary hearing testified not to recollect
any request from the accused, had at trial "vehemently and abruptly"
denied that any such request was made.
the balance of probabilities, the Judge found that the accused's
right to have access to counsel had been denied. He therefore found
that all statements the accused made after his arrest, were inadmissible.
The marihuana and the accused's admission of ownership were
admitted in evidence.
On

*****

* See page 3 of Volume 1 of this publication.

- 29 -

THE LETTER OF THE LAW AND ITS APPLICATION
ACCUSED FAILING TO APPEAR ON UNDERTAKING AND s. 738(3) C.C.
Horvath and The
December 1984

Queen,

County

Court

of

Vancouver

No.

CC841904,

Horvath was arrested for theft and assault. He had been released by a
Justice of the Peace upon his undertaking to appear. He did appear,
and a date for trial was set. On the date of trial the accused failed
to appear and as his lawyer had received no instructions the matter
was adjourned.
The court warned that i f the accused failed to show
the Court would proceed ex parte. The accused did not instruct his
lawyer, failed to show up for his trial and was convicted in his
absence, of both counts. The accused now appealed the convictions.
Section 738(3) C.C. empowers a summary conviction court to proceed in
the absence of the accused if he has failed to appear for trial where
he was served with an appearance notice or had been served with a
summons. This does not include an undertaking argued the accused and
therefore the trial judge had no jurisdiction to proceed in the
accused's absence.
The Court found it unexplainable why Parliament would limit ex parte
proceedings for two means only by which a person is compelled to
appear. An undertaking is no less personal in terms of notification
than the serving of an appearance notice or summons.
The Judge
assumed it was a draftman' s oversight.
Though Courts have inherit
jurisdiction over its own process they cannot try a person in his
absence unless the law specifically permits it.
Convictions set aside.

*****

- 30 -

THE COURT AND "THE DEAL" BETWEEN POLICE AND THE ACCUSED
Regina v. Wood, County Court of Vancouver Island, Victoria No. 32991,
December 1984
Police arrested the accused, an 18 year old youth, with a quantity of
marihuana in his possession.
He had it for the purpose of selling
it. When charged accordingly, there was no problem in proving the
requisite facts. However, the accused claimed that there was a deal
made between him and the police that should he cooperate and identify
his source, the charge would be simple possession only. Despite the
fact that the youth identified his supplier, he was released on an
appearance notice which noted a charge of possession for the purpose
of trafficking.
The police acknowledged that there was such a "deal" but had felt that
they could, in view of the evidence, not take it upon themselves to
reduce the charge. They had however, in an attempt to comply with the
agreement, sought the favour of the prosecutor. This was apparently
unsuccessful.
Counsel for the defence sought similar consideration
for his client as was given in undistinguishable cases*.
Another part of the defence was an issue raised in respect to the
Charter. The accused had been wrongly released. The offence stated
on the appearance notice carried a maximum penalty of life imprisonment. An appearance notice can only be issued in the case of summary
conviction offences and indictable offences over which a Provincial
Court Judge has absolute jurisdiction (see s. 451 and s. 483 c.c.).
If we give the most liberal interpretation to the curious section 454
(1.1) c.c., the accused could not be released by police other than on
a Promise To Appear or a Recognizance.
In any event police discovered their error after they released the
accused and remedied it by re-arresting him. When the original arrest
was effected the accused was told of his right to counsel, upon the
second arrest he was not. This the defence claimed was an infringement of his rights and should result in some kind of remedy under s.
24 of the Charter.
In regards to "the deal" the Court acknowledged that arrangements and
plea bargaining are not unheard of but held that such matters as these
must be left between the accused, his counsel and the Crown. However,

* R. v. Smith 22 C.C.C. (2d) 268.

- 31 -

he concluded that the accused had been misled by police and was not
dealt with fairly. He did as was asked of him and yet he ended up
being charged with the offence of possession for the purpose of trafficking.
The Court also found the "re-arresting" of the accused heavy handed.
The Judge suggested it would have been better to allow their error "to
sift through the Court for remedy". They could have released him on a
simple possession charge and made the accused aware that that may not
be the charge he would be facing. "Deals" are a matter involving public policy which lies exclusively with the Crown. That should have
been made clear to the accused and that would also have justified the
suggested release on simple possession.
When re-arrested, the accused should have been informed of his right
to counsel held the court. Particularly in view of the complications
that were caused by the error and the action to remedy it, a lawyer
could easily have arranged with Crown Counsel a release as suggested
above. Instead the accused spent the night in jail.
This infringement triggered access to a remedy under s. 24 of the
Charter. Although the Court seemed to imply that without this constitutional provision it had inherent jurisdiction to rectify injustices
and unfairness.
The reasons for judgment are not clear whether the Judge used section
24 of the Charter or the "court's duty to protect the judicial
process", but a stay of proceedings was ordered on the charge of
possession for the purpose of trafficking and a conviction entered for
the charge of simple possession.

*****

- 32 -

ACCEPTING A BRIBE WITH THE INTENT TO INTERFERE
WITH THE ADMINISTRATION OF JUSTICE. ACCEPTING
MONEY FOR BRINGING MONEY INTO A CORRECTIONAL INSTITUTE.
Regina v. Smalbrugge, County Court of Westminster, Chilliwack 28/29
February 1984
The accused, a food services officer at a correctional institute, did
on two occasions, bring money into the gaol for an inmate. He was
tried for that he did "corruptly with the intent to interfere with the
administration of justice, accept money for bringing money into the
institute" ••• contrary to the rules of the institute.
The inmate, testifying for the Crown, said that the accused knew that
the money had been given by persons on the outside, who believed that
he would use it to take a hairdresser's course. The accused also knew
that the money was for purchasing drugs and had agreed to bring the
funds in as long as he would receive part of it in remuneration. The
accused denied this in his testimony and said that he believed the
inmate needed the money to pay the tuition fees for the course and
that he had accepted some money for his services only after the inmate
had insisted he did so.
There was no doubt that the money was contraband for whatever purpose
it was brought into the jail.
The accused was fully aware of the
rules and he was at all relevant times a peace officer. The defence,
however, claimed that the rules prohibiting the money being brought
in, was no more than an institutional administrative rule and was
not included in "the administration of justice". The Crown took the
position that the sentence the prisoner served was judicially imposed
and that, therefore, the rules of the institution were part of the
administrative structure that governs convicted offenders.
This is
clearly part of the responsibility under the constitutional provision
that the government provides for the administration of justice.
In
other words, the course of justice continues until the penalty is
satisfied.
The Crown claimed that if the front end of the system
belongs to the administration of justice* then so does the tail end.
This~ as the Supreme Court of Canada has said regarding the administration of Justice in s. 109, that it is "••• not restricted to what
takes place after an information is laid but includes the taking of
necessary steps to have the person who has committed an offence
brought before the proper tribunal".

* Supreme Court of Canada in Kalick v. The King (1920) 61 S.C.R. 1975.

- 33 -

The Court was not persuaded and held that the administration of
justice, as used in s. 109 C.C. "does not include the punishment
itself, unless in the infliction of that punishment there arises a
violation either by the punished or by those executing the punishment". In this case there was no interference with the administration
of justice as was intended by s. 109 C.C. Parliament meant to provide
punishment for those who subvert the process of justice. The accused,
if he had brought drugs in the gaol he would have conunitted the crime
of trafficking; if he had assisted in an escape he would have been
charged with that specific offence. He violated a rule made by his
employer and he was "rightly fired for it". Had he, if it was within
the range of his authority, arranged for the accused's sentence to be
altered from what was intended by the Court, then perhaps he would
have interfered in the administration of justice. He did not have any
control over such matters and the money given to him was therefore not
a bribe.
Accused acquitted.

*****
Note: Section 109 C.C. (l)(v) deals with accepting a bribe with the
intent to procure or facilitate the commission of an offence.
The
Court hinted that if the Crown could have proved that the accused knew
the money was intended for the purchase of drugs, a conviction could
have been possible had he been charged under that subsection.

- 34 -

BREACH OF PROBATION - BURDEN OF PROOF

Doggett and The Queen - The County Court of Westminster No. X012920
November 1984
The accused, convicted of theft, was placed on probation. One of the
conditions was a curfew until he was fully employed or attending
school. He was found in apparent violation of the probation order and
charged accordingly under the Criminal Code. The accused was convicted and appealed.
The accused had remained silent on the issue of his employment, when
arrested and during his trial. He argued that the Crown had failed to
prove that he was not employed.
The Court would not accept the defence position and held that the
trial judge had appropriately applied section 730 C.C. which provides
that the burden of proving that "••• an exception, exemption, proviso,
excuse or qualification prescribed by law operates in favour of the
defendant, is on the defendant". The employment and school attendance
was clearly an exception, exemption, etc. Failure on the part of the
accused to show that he was employed or attended school at the time of
the offence allowed the trial judge to assume that the accused was not
engaged in either.
Appeal dismissed.
Conviction upheld.

*****

- 35 -

CHARTER OF RIGHTS AND FREEDOMS

To what extent are police obligated to co-operate with an accused to
prepare a full answer and defence.
Regina v. Longejan, County Court of Vancouver Island, No. 07986
Duncan Registry, January 15, 1985
The accused just could not believe that his blood-alcohol level was as
high as the breathalyzer operator said it was (200 mlg). He asked to
be shown the dial after each test, but was refused. He then asked
that a third sample and a blood sample be taken. Police declined the
offers and instead placed him in cells for approximately four hours
before releasing him.
Some of the details about the process followed by police are important
to explain the innovative and interesting submissions advanced by
defence counsel. The arresting officer had made the demand for breath
samples of the accused followed by the "police warning" which is
assumed to include the right to remain silent and the right to
counsel.
After the breath samples were analyzed the accused was,
without him requesting access to counsel or a doctor to take a blood
sample, placed in cell.
Not at any time was he officially placed
under arrest but was told he would be charged with impaired driving
and "over 80 mlg". When questioned by defence counsel the officer who
had processed the accused said that he had decided to detain the
accused in cells because of his state of intoxication. Although he
did not inform the accused of this, the custody was in essence because
of the wording of section 43 of the Liquor Control and Licensing Act.
The section prohibits an intoxicated person to be or remain in a
public place. Defence counsel argued that not releasing the accused
on account of his intoxication amounted to the detention being for
intoxication in a public place.
The accused was not arrested or
informed of this, nor was he arrested for the drinking driving
offences.
The officer, on the other hand, seems to have wanted to convey to the
Court that although he failed to officially place the accused under
arrest, the detention was for the charges he informed the accused he
would face in the Court. His reason for not releasing the accused, as
he is compelled to do when the public interest has been satisfied, was
that he would have permitted the accused to comm.it an offence under
the B. c. Liquor laws, had he released him.

- 36 -

Defence counsel, however, submitted that his client:
1.
2.

was arbitrarily detained contrary to section 9 of the Charter;
and
could not be penalized except in accordance with the principles
of fundamental justice which includes to be afforded an opportunity to prepare a full defence.

The latter point was raised as a consequence of the refusal to let the
accused see for himself what the readings were, the rejection of the
demand for a third breath test, and not being afforded the opportunity
to have a blood sample taken. These events had deprived the accused
from obtaining evidence to the contrary to rebut the presumption in
section 237 c.c. that the blood alcohol level at the time of analyses
is equal to that at the time of driving.
The Court found that the officer had improperly invoked the detention
of the accused. Nevertheless, the detention was not arbitrary. The
detention corroborated the officer's opinion that the accused was
intoxicated which would justify the detention under s. 452 (1) (f)
c.c. to prevent the continuation or the commission of another
offence. The four hour detention, in the circumstances, was reasonable. In relation to all the prerequisites to a legal detention the
Court reminded how the accused was made aware of all his rights when
"the demand" was made of him; furthermore, before being placed in
cells he was informed of the charges that would be pref erred against
him.
In regard to the blood test, the Court held that there was no obligation on the police to provide for such a test.
The accused should
have arranged for that himself.
Despite his detention, there was
nothing standing in his way to make the arrangements.
Quoted the
Court*:
"If it were established that the police, upon arresting
someone suspected to having committed an offence, were
advised that unless active steps were taken immediately to
preserve evidence favourable to the accused such evidence
would be lost, and they in bad faith did or failed to do
something which caused that evidence to be lost, then the
accused person might have good cause to raise the Constitution Act 1982 ......

In other words had the accused been hindered by police to make the
necessary arrangement for the blood test he wanted, his argument that
the principles of fundamental justice had not been adhered to in his
case would have been successful. Neither police nor the detention had
hindered or prevented the accused from making his arrangements and his

* Regina v. Strayer (1983) 5 CCC (3d) 573.

37 -

argument therefore failed.
In an Ontario case* the appellant had raised a similar argument that
he was deprived of making a full answer to the charges against him in
that police had refused to let him see the dial that indicated his
blood-alcohol level.
The Ontario Court had held that a suspect is
"entitled" to see the dial to ensure what is written on the certificate coincides with what the dial indicates. However, the Court also
held that where the accused's attitude raises reasonable risk of
damage to or interference with the breathalyzer the suspect must
justifiably forego that entitlement. In the Ontario case the suspect
had been such that there was a reasonable apprehension that damage or
interference would result.
In this B. c. case the accused had been
"polite and co-operative throughout."
The B. C. County Court Judge reasoned that the Ontario case does not
propose that every refusal to be shown the results of an analysis on a
breathalyzer scale, is a denial to make full answer and defence.
Cutting through a lot of reasoning on this point, the County Court
Judge in essence said to the defence counsel that if he had prepared
better for the argument he may well have succeeded.
Although the
transcript shows that the operator in his testimony admitted that the
accused asked to be shown the dial, he was not asked why he had
refused to comply with the request.
Neither did defence counsel
dispute the accuracy of the reading the operator announced at the time
and subsequently certified.
The police officer is not duty bound to comply with the request, but
ought to if there is no reason to refuse. In this case neither the
Crown nor the defence pursued the reason for the refusal. Therefore
there was no evidence before the Court that the accused's entitlement
to see for himself what the reading was, had been triggered.
Appeal dismissed.
Conviction for "over 80"
mlg. upheld.
Comment:
Please note that the B. C. Judge did not reject his
Ontario's counterpart's view in relation to the "entitlement" (which
he could have done) but, in fact, accepted it.
He ruled, however,
that the onus to show the prerequisite condition of the "entitlement"
are on the accused.
I am not so sure other courts would be that
generous.
This particularly in view of recent reasoning by the
Supreme Court of Canada that seems to favour that the Crown must show
that there was no infringement of a right or freedom. Although that
was in regard to a right not raised in this defence, it nevertheless
may be the beginning of a trend.

*****
* The Queen v. Douglas Thunder Bay District Court No. 12380/83.

38 -

OBLIGATION TO IDENTIFY ONESELF

Regina v. Johnson County Court of Kooteney, Ross land No. CC58-l 984
January 1985
Larry Johnson, the accused, told police his name was Bolivar Swatwater
and was not believed. He, along with three buddies was seen smoking a
marihuana cigarette.
This was inferred by the way they held the
cigarette, the fact that it was passed from one to the other and the
strong smell of marihuana smoke.
When the officers arrived at the
scene, the butt was ground under foot. What was retrieved was inadequate for an analysis.
The three buddies identified themselves but
the accused was hostile and persisted that Swatwater was his name. In
addition he gave an absurd birthdate and a non existing address. He
was convicted of obstructing a peace officer in the lawful performance
of his duty.
The accused appealed his conviction arguing that he was, in the circumstances, not obligated to identify himself.
Defence counsel
reminded the Court that the Crown had to prove the officers were
performing a lawful duty and that the alleged obstruction must have
been wilful on the part of the accused; the latter meaning that it had
to be intentional and without lawful excuse.
The Court held that an offence had been and was seen to be committed.
What they saw gave them reasonable grounds for so believing.
This
placed the officers under a duty to attempt to identify the offender
so process could be commenced against him. This placed an obligation
on the accused to identify himself. His failure to do so was therefore wilful and the circumstances support that it was intentional.
The appeal was dismissed and
Conviction for obstruction upheld.

*****