POLICE ACADEMY

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

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

INCOMPLETE INVESTIGATION
RESULTS IN ACQUITTAL
R. v. Egresits, 2002 BCCA 163
While investigating a break and
enter in progress, police discovered
a 21 plant marihuana grow operation
in the basement of a home and
consequently obtained a search
warrant. Although the trial judge found that the police
should have done more to fully investigate the matter,
he nevertheless found there existed a minimum amount
of circumstantial evidence warranting a conviction. In
addition to the testimony from the accused’s mother
that he had keys to the house and sometimes stayed
there, police found an undated envelope addressed to
the accused and a transcript in the name of the
accused at the house. The accused appealed, arguing
that the evidence could not reasonably support the
guilty verdict.
In overturning the conviction and entering an acquittal,
the British Columbia Court of Appeal (BCCA) held that
the evidence against the accused was not any greater
than evidence linking three other persons to the house.
It was noted that the police also located documents
addressed to another male and a telephone bill in the
name of the accused’s brother. Furthermore, the
accused’s mother had a key to open the padlocked door
to the basement area of the house and did in fact do so
when assisting the police in executing their warrant.
The search warrant application included also
information that it did not appear the house was being
lived in at the time. In allowing the appeal, Huddart
J.A. for the unanimous Court stated at para. 8:
The trial judge commented on the lack of a full
investigation of this offence, but concluded that it would
be pure speculation as to what such an investigation
might have turned up. I do not agree with his implicit
suggestion that it would be pure speculation to suggest
someone else might have been responsible for the grow
operation. While [the accused] might be the most likely
perpetrator, the circumstantial evidence linking him to
the grow operation is not sufficiently greater than that

Volume 2 Issue 4
April 2002

linking his mother, his brother, or [the other male] to
exclude them from the realm of reasonably possible
perpetrators of the production offence. It may well be
that a more thorough investigation would have uncovered
sufficient evidence to exclude the others and to spin a
sufficient web to permit the inference of the appellant's
guilt, but that is to speculate. (emphasis added)

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

RIGHT TO ENTER
TO PROTECT INTERESTS OF
OCCUPANTS: REASONABLE
SUSPICION SUFFICIENT
R. v. Kingbell, 2002 SKQB 69
At about 3:20 am an unknown female
flagged down two city police officers
patrolling the area and turned in a
purse found on a city street. After
examining the contents of the purse and finding a
driver’s licence with a name and address, police
attended the address to return the purse to the
owner. Police found lights on at the home and could see
in through the window from the doorstep, noting a
“disheveled” front room, contents strewn about, and a
duffle bag on the floor. Police suspected a break in.
One officer went to the back door and found it to be
slightly ajar although there was no evidence to suggest
it had been forced open. The officers informed their
dispatcher that they were going to enter to check for
a break and enter or to see if anyone was injured. The
officers went to the back door, announced their
presence and after receiving no response, entered.
Inside the officers found open cabinets and drawers,
items strewn about, a number of tools gathered
together in the kitchen, and a number of plants (some
marihuana) growing in one of the bedrooms under
fluorescent lights. The officers proceeded into the
basement where they moved aside a partition and
discovered a complete marihuana grow operation. The
officers called their sergeant who attended and was
shown the discovery. While the two officers waited at

[T]he initial entry of [the officers] was lawful, and did
not violate a reasonable expectation of privacy on the
part of the occupant of the premises in question. Their
discovery of the marihuana grow operation was the result
of an inadvertent discovery of evidence clearly visible in
their attempt to assure themselves that neither an
intruder nor an injured occupant was inside the premises.
The criminal nature of the evidence was immediately
apparent. Thus the requirements of the plain view seizure
of the evidence was at this point established and the
officers were fully entitled to remain on the premises to
secure the scene while awaiting a search warrant.

and remained parked on the property to ensure its
security, a search warrant was applied for and
subsequently executed.
The accused argued that the search and seizure was
unreasonable and the evidence should be excluded
under s.24(2) of the Charter. It was suggested that
although a warrant was executed, the information
relied upon to obtain the warrant was itself tainted by
the entry and search of the premises by the officers.
Furthermore, the sergeant’s entry into the premises to
be shown the discovery further compounded the s.8
violation. Finally, it was contended, the officers could
not remain on the property to secure the premises
while the search warrant was obtained.
In summarizing the evidence, Smith J. of the
Saskatchewan Court of Queen’s Bench stated:
[The officers] entered the residence…on the basis of a
bona fide suspicion that a break and enter could have
occurred, and a reasonable concern that the perpetrator
or an injured innocent party might still be inside. … They
did not enter for the purpose of seeking or obtaining
evidence of a criminal act as against the persons who
owned or resided in the property in question, but only for
the purpose of protecting their property or safety. No
one responded to their announcement of who they were
on entry, and no one asked them not to enter. There is no
evidence that they were aware of the presence of a
marihuana grow operation on the premises or that they
were looking for evidence to support the within charge.

The Law
Section 8 of the Charter is only triggered if the
accused can establish a reasonable expectation of
privacy. If no such privacy interest can be established,
s.8 is not violated and there is no need to consider the
exclusionary mechanism under s.24(2) of the Charter.
In this case, the Court applied the Ontario Court of
Appeal judgment in R. v. Mulligan1 which recognizes an
implied licence at law that permits a police officer
acting on a “bona fide belief that gives rise to a
reasonable suspicion of criminal activity being
perpetrated against the owner or occupant or
property” to enter onto the property where a person
would normally have an expectation of privacy. Since “it
is entirely reasonable to expect a police officer to
investigate” in these circumstances, the occupant of
the home waives their expectation of privacy. In
finding no s.8 Charter breach, Smith J. concluded at
para. 20:

The application for the exclusion of evidence was thus
dismissed.
Complete case available at www.lawsociety.sk.ca
Editor’s note: Officers must be aware that this
implied licence or invitation differs from the implied
waiver that gets an officer from the sidewalk to the
doorstep to communicate with the occupant, much like
a door to door sales person. Although they both waive
the privacy expectation of the homeowner or occupant,
the former concerns legitimate police enquiries in
gathering information, such as neighbourhood enquiries
following a break and entry (gets you to the door2),
while the latter involves the occupants expectation in
the police acting on a reasonable suspicion (something
more than a hunch but less than a reasonable beleif) to
protect the homeowner’s interests (gets you onto the
property and in some cases into the premise).
Furthermore, homeowner interest waiver recognizes
the need to investigate criminal activity perpetrated
against the occupant, not by the occupant. Ultimately,
the analysis will examine the motives of the police at
the time of entry onto the property. In either case,
the intention of the police is not to secure
incriminating evidence against the homeowner.
However, if while acting within the ambit of implied
licence incriminating evidence is found, the entry and
search is not turned into an unreasonable one merely
because such evidence is discovered.

Note-able Quote
“Policy manuals are a poor substitute for training and
should not be used as such3”. Richard N. Holden.

2

See Volume 1 Issue 1 for a detailed discussion on implied licence.
(1986). Modern police management. Englewood Cliffs, NJ: Prentice-Hall Inc. at p.
242.
3

1

(2000) Docket: C32948 (OntCA)

Volume 2 Issue 4
April 2002

2

CRASHING ON COUCH:
NO STANDING TO ARGUE
CHARTER BREACH

R. v. Schwingenschlegel, 2002 ABQB 251
The accused was lying on the couch
in the front room of a friend’s
trailer home when police entered
while executing a search warrant.
Surprised by the police raid, the
accused started to get up when he spilled several
packages of methamphetamine off his chest onto the
floor. He was taken into custody after reaching under
the cushions of the couch where police later found a
weapon. The accused had met the owner of the trailer
two days earlier and had been previously invited to
spend the night. The owner further invited the accused
to use the trailer as “a place to crash” if needed. In
the early morning of the raid, the accused had found
the trailer locked and entered through a window. The
owner was unbothered by the accused’s presence or
mode of entry and left for an appointment; it was
during the owner’s absence that police entered the
trailer.
The accused argued that the search warrant was
defective and that the evidence should be excluded.
However, the trial judge found that the accused did
not have a reasonable expectation of privacy and
therefore did not have standing to complain that his
personal right under s.8 of the Charter was violated;
hence it was unnecessary to rule on the validity of the
search warrant.
The accused appealed arguing that he should have been
able to contest the validity of the warrant because he
did have a reasonable expectation of privacy. On
appeal, Wilson J. framed the question as: “Do we have
an expectation of privacy when, as house guests of our
friends, we are, in their absence, staying inside their
locked homes?” In rejecting the accused’s appeal, the
Alberta Court of Queen’s Bench noted the following
factors:
•
•
•

the accused was offered “a place to crash”;
the accused did not have keys to the trailer; the
owner had the only keys ;
when police entered, there was another male
present who had been admitted by the owner
before his departure for the appointment; the

Volume 2 Issue 4
April 2002

•
•
•

•

owner did not ask the accused if this person’s
presence was acceptable or not;
the owner did not admit the accused as a guest or
at all;
the accused had “crashed” at the trailer one night
previously and the night before the police raid;
the owner’s use of the term “crashed” does not
carry with it any degree of permanence to the
accused resting there or that he kept any personal
belongings there other than what he had on his
person; and
the accused had no propriety or possessory
interest in the trailer.

The Court held that on the totality of the
circumstances the trial judge made no error is his
assessment of the privacy interest of the accused and
the appeal was dismissed. The evidence was admissible
and the conviction upheld.
Complete case at www.albertacourts.ca

Y.O. PEACE BOND INVALID:
YOUTH COURT LACKS
JURISDICTION
R. v. J.L.S., 2002 BCCA 174
The BCCA ruled that a youth court
judge cannot order a young person to
enter into a recognizance under
s.810 of the Criminal Code. In this
case, a young offender was placed on
a one-year peace bond with conditions including
abstinence from the consumption of alcohol. The
accused later violated this condition and was charged
under s. 811 of the Code for breaching the
recognizance. At the trial, the accused admitted all the
essential elements of the breach allegation but argued
that the court did not have jurisdiction to place the
accused on a peace bond in the first place. The Court
agreed and the breach charge was dismissed. The
Crown successfully appealed the acquittal to the
Supreme Court of British Columbia suggesting that the
accused was not entitled to challenge the validity of
the recognizance as a defence to the charge of breach
of recognizance. In other words, the accused should
have challenged the peace bond on appeal from the
original order, not during the breach of recognizance
proceedings (also known as a collateral attack). The
accused further appealed to BC’s highest court.

3

Although the BCCA dismissed the accused’s appeal on
the “collateral attack” issue, it did hold that a youth
court does not have the jurisdiction under the Young
Offenders Act (YOA) to bind a young person with a
recognizance under s.810 of the Criminal Code. Section
5(1) of the YOA gives a youth court exclusive
jurisdiction with respect to “offences” committed by
young persons. However, s.810 of the Criminal Code
does not create an offence even though an information
is sworn, but is a form of preventative justice.
Therefore, the wording used in s.5 of the YOA
prevents a youth court from imposing such an order.

done until almost a year later when a report was
submitted to Crown Counsel for consideration of
assault charges. Of course, this precluded a summary
conviction prosecution due to the six-month statute of
limitations under s. 786(2) of the Criminal Code for
summary offences. Although the Crown could proceed
by way of indictment, it was decided that there were
“no exceptional or compelling circumstances” to
warrant this process. The plaintiff sought an order
from the Court compelling the Attorney General of
British Columbia to prosecute the CPR police officer.

Editor’s note: The Court noted that a youth court
judge does have the power to place young persons on
recognizances other than a s.810 Code recognizance
such as those found in s.49 of the YOA. Furthermore,
the new Youth Criminal Justice Act, which is expected
to come into force in the spring of 2003, includes a
specific provision allowing a youth court to bind a young
person with a s.810 recognizance.

In dismissing the plaintiff’s application, the court held
that a judge may only interfere with prosecutorial
discretion in cases of “flagrant impropriety” which can
“only be established by proof of misconduct bordering
on corruption, violation of the law, [or] bias against or
for a particular individual or offence “. In this case,
McKinnon J. found no evidence that the prosecutor
conducted himself in such a manner when deciding not
to prosecute.

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

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

PROSECUTORIAL DISCRETION
IN NOT CHARGING OFFICER
UPHELD
Meyer v. Attorney General et al.,
2002 BCSC 257
The plaintiff alleged she was
assaulted after being approached by
a CPR police officer investigating a
trespass violation contrary to the
British Columbia Railway Safety Act.
After complaining to a local RCMP detachment, she was
directed to lodge her complaint with the CPR Police
which was ultimately dismissed. During this time, the
accused was convicted of trespassing and sentenced to
10 days in prison. Although her subsequent conviction
appeal was dismissed, her sentence was varied to an
absolute discharge. The plaintiff returned to the local
RCMP detachment and was told to complain to the
RCMP Office of the Police Complaint Commissioner but
was told by the Commission that they lacked
jurisdiction to investigate complaints against the CPR
police.
The plaintiff returned to the local RCMP detachment
where a complaint of assault was taken but nothing was

Volume 2 Issue 4
April 2002

CONSENT SEARCHES: SIMON
SAYS OR MOTHER MAY I?
Sgt. Mike Novakowski
Warrantless
searches
conducted without consent are
presumptively
unreasonable
because, prima facie, they
encroach
on
a
person’s
expectation
of
privacy4.
However, a person may waive their privacy rights
protected by s.8 of the Charter5. If a search is
consensual, no search warrants are necessary and a
consent search or seizure is no search or seizure at all
for the purposes of s.86. The question becomes whether,
having regard to all the circumstances, permission was in
fact given7. The burden in establishing consent on the
balance of probabilities rests with the Crown (police).

4

R. v. Blinch (1993) 83 C.C.C. (3d) 158 (B.C.C.A.) at p.169.
R. v. Wills (1992) 70 C.C.C. (3d) 529 at p.541, R. v. Glasgo 2000 BCSC 1140 at
para. 23.
6
R. v. Wills (1992) 70 C.C.C. (3d) 529 at p.549, see also R. v. Fowler (1990) 61
C.C.C. (3d) 505 (Man.C.A.) per Hubard J.A. at p.513.
7
R. v. Duncan [1993] B.C.J. No.653 (B.C.C.A.) at para. 6.
5

4

Requirements
The test for valid consent is two fold8.
•

•

volition. A proper waiver requires an intentional or
voluntary relinquishment of a known right9. Consent
may be given expressly by words, either orally or in
writing, or may be implicit by actions or conduct10.
In fact, permission to search can effectively be
given without particular formality, even in a cursory
fashion11.
knowledge. The person must be aware of the
consequences of giving consent.

Volition
Mere compliance, passive acquiescence, or failure to
object by themselves do not amount to valid consent12.
Consent means to actually agree and cooperate13 and
must be consciously, freely, and voluntarily given14. For
consent to be validly given, a person “must have the
ability to prevent the police from conducting a search or
seizure by withholding…consent”15; the person must have
the freedom to prefer one option (no search) over
another (search). Consent cannot be the result of police
oppression, compulsion, coercion, or other external
conduct negating the right to choose. Police
representations that they would otherwise apply for a
search warrant if consent is not obtained, in proper
circumstances, does not necessarily require a finding of
coercion16.
Included under the rubric of voluntariness is an
awareness of the right to refuse the search17. An
awareness of the right to refuse may be implied by the
conduct of the person such as their initial hesitation in
permitting a search, questioning the police as to why the
search is being requested18, or by a person's awareness
that they need not cooperate with the police19.
Although, the police are under no obligation to formally
advise a person of their right to refuse consent, it would
be prudent for the police to expressly tell a person of

8

R. v. Kennedy 2000 BCCA 362 at para.23, R. v. Head [1994] B.C.J. No.2522
(B.C.C.A.) at para. 22.
9
R. v. Blinch (1993) 83 C.C.C. (3d) 158 (B.C.C.A.) at p.169.
10
R. v. Meyers [1987] 52 Alta.L.R. (2d) 156 (Alta.Q.B.).
11
R. v. Duncan [1993] B.C.J. No.653 (B.C.C.A.) at para. 6.
12
R. v. Head [1994] B.C.J. No.2522 (B.C.C.A.) at para. 18.
13
R. v. Knox (1996) 109 C.C.C. (3d) 481 (S.C.C.) at p.485.
14
R. v. Meyers [1987] 52 Alta.L.R. (2d) 156 (Alta.Q.B.)..
15
R. v Stillman [1997] 1 S.C.R. 607 at para.60.
16
R. v. Haglof 2000 BCCA 604 at para. 42.
17
R. v. Head [1994] B.C.J. No.2522 (B.C.C.A.) at para.22.
18
R. v. Wotton (1998) Docket: GSC-16008 (P.E.I.S.C.) at para.10.
19
R. v. Eakin (2000) Docket:C24289 (Ont.C.A.)

Volume 2 Issue 4
April 2002

this right since the onus lies with Crown in proving
volition20.

Knowledge
The right to make a valid choice as to whether or not to
permit the search requires sufficient available
information to make the choice meaningful21. The
standard of an informed constitutional waiver must be
met22. The person consenting must be aware of the
consequences of waiving their s.8 right. The degree of
awareness required is dependent on the particular facts
of the case and it will not be necessary for the person
to have a detailed comprehension of every possible
outcome of their consent. However, if the police are
planning to use the product of the seizure in a different
investigation from the one in which the person was
detained, the person should be made aware of that
fact23. If a person is mentally incompetent, intoxicated,
or a language barrier exists, there will be a question of
the level of their awareness (similar to the questions
raised for the right to counsel waiver). Included under
the rubric of knowledge is:
an awareness of the nature of conduct to which
the person is being asked to consent (the search),
and
an awareness of the potential consequences of
giving consent. The person must appreciate in a
general way what their position is vis-à-vis the
ongoing police investigation24. In some cases this
may include that any material found may be used
against the person. Deceit or trickery by the police
of the true reason for the search will invalidate the
consent25.
A court may infer from the facts that it was more likely
than not that the person was aware the police were
searching for evidence. Thus, where a person is given a
Charter warning and police caution regarding an
investigation of an attempted break and enter, the
person knew the officer was looking for evidence that
would connect the person with the matter under
investigation26. Although there is no affirmative duty to
advise the person of the consequences, the onus placed

20

R. v. Blackstock [1997] O.J. No.3597 (Ont.C.A.)
R. v. Borden [1994] 3 S.C.R. 145 (S.C.C.) per Iacobucci J. for the majority.
22
R. v. Deprez (1994) 95 C.C.C. (3d) 29 (Man.C.A.) at p.36.
23
R. v. Borden [1994] 3 S.C.R. 145 (S.C.C.) per Iacobucci J. for the majority.
24
R. v. Wotton (1998) Docket: GSC-16008 (P.E.I.S.C.) at para.11.
25
R. v. Adams (2001) Docket:C34243 (OntCA)
26
R. v. Head [1994] B.C.J. No.2522 (B.C.C.A.) at para.31, see also R. v. Wells (2001)
Docket:C13744 (Ont.C.A.) at para.43-44..
21

5

on the Crown by the waiver requirement once again
disappears in large measure if the police advise the
individual that anything found may be used as evidence27.

Withdrawing Consent
Consent may be withdrawn at any time during the
search. However, withdrawal of consent may not be used
in forming reasonable grounds to justify a search28. The
police cannot use the fact a person invokes their
constitutional protection and draw an adverse inference
when they change their mind and revoke permission they
did not have to give in the first place. If at the time
consent is withdrawn, the officer has sufficient grounds
to justify an arrest, an arrest may be effectuated and a
search incidental to lawful arrest may be undertaken.

Scope
General Consent
Consent may be of a general nature allowing a complete
search of the area, place, person or thing. Where
evidence is obtained under "open ended" consent,
evidence may be used for any legitimate police purpose
unless limits, if any, were placed on the consent29.

Limited Consent
Consent may be limited in purpose or by location and a
search exceeding the limitations will be unreasonable.
The search may be “conditional” or limited in scope by
the person consenting or by the police. For example, the
police may preface their request for consent by
informing the person that the object pursued, such as a
blood sample for DNA testing, will only be used for
comparison to a specific investigation. Similarly, consent
given for a specific purpose such as to enter a residence
to search for a person does not authorize a search of
the remainder of the residence once the person sought
has been located30. Moreover, consent by an individual
for a limited non-police purpose such as the taking of
blood by a physician for medical purposes does not grant
police officers the right to use the blood for
investigative purposes31. Consent limited by location may
include circumstances such as consent to search the
interior of a vehicle but not the trunk.

Third Party Consent
For consent to be valid it can only be given by someone
having the authority to grant the consent. A person who
has a sole expectation of privacy may consent to an
intrusion into that private area. What governs the
legitimacy of obtaining consent from a person with a
"shared" expectation of privacy? If an individual would
not reasonably expect another person to be able to
authorize a search, then that person cannot validly
consent to the search32. Stated positively, if a “suspect“
reasonably expects that a third person could authorize a
search, the third party could consent to the search. The
question becomes whether the consent given by the
third party, which led to the invasion of the suspect's
privacy is an acceptable substitute for the absence of
prior judicial authorization33. Examples where third
party consent may become a viable search or seizure
option for police include co-habitants, spousal34,
parental35,
employee/employer,
or
registered
owner/occupant of vehicle relationships. Although a
third party may in some cases validly consent vicariously
to a search, private areas not accessible to the third
party would remain such.
For example, hotel management could not consent to
police entry and search of a hotel room where the room
was rented, the registered guests were absent, and a
"Do not Disturb" sign had been left on the door. The
renter of a hotel suite maintains a reasonable
expectation of privacy from uninvited state intrusions
with respect to their belongings left inside the room
despite their awareness that cleaning staff will enter
their rooms daily for cleaning purposes. In particular,
objects not left in plain view or stored in areas that do
not require daily maintenance remain private. Thus,
where police erroneously entered a rented hotel room at
the invitation of the hotel manager, rather than
obtaining the permission of the occupants, the entry and
search constituted a violation of s.836.

32

27

R. v. Wills (1992) 70 C.C.C. (3d) 529 (Ont.C.A.)
R. v. Brownridge 2000 BCSC 795 at para. 36, R. v. Brownridge 1999 BCCA 27 at
para. 16.
29
R. v. Arp [1998] 3 S.C.R. 339 (S.C.C.)
30
R. v. Smith (1998) 126 C.C.C. (3d) 62 (Alta.C.A.)
31
R. v. Pohorestsky [1987] 1 S.C.R. 945 (S.C.C.)
28

Volume 2 Issue 4
April 2002

“Search and Seizure Law in Canada”, 1993, Hutchison, Carswell Thomson
Professional Publishing
33
R. v. Mercer (1992) 70 C.C.C. (3d) 180 (Ont.C.A.) leave to appeal to S.C.C. refused
74 C.C.C. (3d) vi.
34
See for example R. v. Van Wyk [1999] O.J. No.3515 (Ont.S.C.J.) at para. 41.
35
See for example R. v. Rai [1998] B.C.J. No. 2187 (B.C.S.C.), R. v. Wells [1998]
O.J. No.3371 (Ont.C.J.)
36
R. v. Mercer (1992) 70 C.C.C. (3d) 180 (Ont.C.A.) leave to appeal to S.C.C. refused
74 C.C.C. (3d) vi.

6

Right to Counsel
The right to counsel is triggered on
arrest or detention, not on search or
seizure37. Therefore, informing a person
of their right to counsel is dependent on
whether in law there is a detention or
arrest. In many cases, even where the
right to counsel has been denied, “the denial… has no
relevance to a determination of the reasonableness of a
s.8 search”38

Pre-Detention Consent
The right to retain and instruct counsel derives from
arrest or detention and not from the fact of being
searched39. When the police attempt to obtain consent
from an individual in the absence of detention or arrest,
there is no obligation on the police to provide
information respecting the right to counsel.

Consent Following Arrest or Detention
Police may legitimately seek
consent from a person who is
detained or arrested.. In R. v.
Haglof 2000 BCCA 604, police
obtained valid consent from a
person who was under arrest and
in custody at the police station.
The accused had provided written consent to search his
residence in the face of representations that the police
would otherwise apply for a search warrant.
If the police detain an individual and seek that person's
consent following the detention, the detainee has the
right to counsel and the police are obligated to inform
the detainee of their right. If the lawfulness of the
search is dependent on consent of a detainee or
arrestee, the police must provide the person with a
reasonable opportunity to exercise their right to counsel
before obtaining consent if the person asserts their
desire to contact counsel. In the absence of waiver, the
consent is valid provided the person took advantage of
the opportunity afforded them and thereafter agreed
to the search and/or seizure40. However, if the police
obtain consent and either fail to advise the person of
their right to counsel or fail to provide a reasonable
opportunity for the person to exercise their right, the

s.10(b) Charter
unreasonable41.

violation

will

render

the

search

If the detainee or arrestee does not wish to exercise
their right to counsel, consent can be validly obtained.
This may occur in circumstances where a person has
been arrested and an officer wishes to search an area
beyond the scope authorized as incidental to lawful
arrest without obtaining a warrant.

Consent v. other Lawful Authority
Where a police officer has lawful authority to conduct a
search without consent, such as by warrant or
otherwise, it is an unnecessary step to attempt to obtain
consent. In R. v. Brownridge 2000 BCSC 795, a police
officer testified he had reasonable grounds to search a
vehicle without consent, yet the officer asked the
accused for permission. The Court found the officer's
evidence of the existence of reasonable grounds for an
arrest inconsistent with his conduct, suggesting the
officer was unsure of his authority. The Court drew an
adverse conclusion from the conflict between the
officer’s assertion he could search without consent and
the fact he attempted to obtain permission.

Subjective Good Faith
Where the police mistakenly believe they have consent
to conduct a search, the otherwise invalid search will not
be rendered valid. However, this mistaken belief is an
important consideration in determining whether to admit
the evidence under s.24(2) of the Charter42. In
assessing the officer’s good faith belief, the Court will
review the interaction between the person and the
police, including the words spoken by the police and the
responses given by the person43. A finding of good faith
may mitigate the Charter violation and favour inclusion
of evidence.

Note-able Quote
“No man is above the law and no man is below it; nor do
we ask any man’s permission when requiring him to obey
it”. Theodore Roosevelt (1904)

37

R. v. Rube (1992) 10 B.C.A.C. 48 (B.C.C.A.)
R. v. Carpenter (2001) 151 C.C.C. (3d) 205 (B.C.C.A.)
R. v. Debot [1989] 2 S.C.R. 1140
40
R. v. Deprez (1994) 95 C.C.C. (3d) 29 (Man.C.A.) at p.39.
38

41

39

42

Volume 2 Issue 4
April 2002

43

R. v. Debot [1989] 2 S.C.R. 1140 per Lamer J.
R. v. Leveillee (1984) Docket:CA831359 (B.C.C.A.)
R. v. Tang 2001 BCCA 165.

7

B.C.’s 2000 CRIME STATS
The Municipal Police case
burdens for the year 2000 have
recently been published by the
Police Services Division of the
Public Safety and Regulatory
Branch, Ministry of Attorney General44. A summary is
as follows:
Dept.

Strength

Population46

Crimes

Victoria
Abbotsford
Vancouver
New
Westminster
Nelson
Esquimalt
Port Moody
Delta
Saanich
Oak Bay
Central
Saanich
West
Vancouver

178
143
1,066
111

74,996
115,195
567,351
54,904

17
33
30
138
136
22
21

Total

16,355
10,791
78,107
8,120

Crime
Rate48
218
94
138
148

Case
Burden49
92
75
73
73

9,677
16,400
23,819
101,440
106,814
17,664
15,553

1,189
2,088
1,811
7,260
6,942
948
850

123
127
76
72
65
54
55

70
63
60
53
51
43
40

77

44,679

2678

60

35

1,972

1,148,492

137,139

119

70

45

47

The RCMP municipal detachment with the highest case
burden was the Courtenay RCMP with 151 cases per
officer while North Saanich RCMP had the lowest at 53
cases per officer. Overall, there were 2,669 municipal
RCMP officers policing a population of 2,187,606 with
260,694 Criminal Code offences for an average crime
rate of 119 offences per 1000 people.

Spousal Assault50 Incidents
In British Columbia, there were 10,121 spousal assault
incidents reported (Municipal and RCMP) in 2000; an
increase of 254 from 9,867 in 1999. Of these spousal
assault incidents, 7,916 involved male offenders, 1,307
involved female offenders and 898 involved both
parties of a spousal or intimate relationship assaulting
each other. From the 10,121 incidents, 11,296 Criminal
Code offences were investigated resulting in 8,916
44

Complete data available at www.pssg.gov.bc.ca/police_services
Based on authorized police strength as of December 31, 2000.
46
Populations are based on Canada Census data.
47
Criminal Code offences obtained from Uniform Crime Reporting Survey and do
not include traffic offences.
48
The number of Criminal Code offences per 1000 population excluding tourists,
commuters, or “part time” residents such as students.
49
The number of Criminal Code offences per authorized police strength.
50
Including marriages, common-law marriages, same-sex relationships, and intimate
partners.

people charged51 with 3,610 convictions52. Forty nine
percent, or 4,944 incidents, were alcohol related. A
municipal breakdown follows:
Department
Abbotsford
Central Saanich
Delta
Esquimalt
Nelson
New Westminster
Oak Bay
Port Moody
Saanich
Vancouver
Victoria
West Vancouver

Total Offenders53
250
1
113
25
8
211
7
35
57
1,186
112
30

Note-able Quote
“Although there are well-settled restrictions on their
treatment of detained persons and certain affirmative
obligations set out in the Charter and the Code, the
primary function of the police is to investigate crime
with a view to solving it and obtaining a conviction54”.
OntCA Justice Finlayson.

OUR ERROR
In last month’s issue of “In Service:
10-8”, the Nelson Police Department’s
2001
Enhanced
Counterattack
Statistics were incorrectly reported.
The statistics reported were for the
2001 Christmas Counterattack Campaign and not for
the whole year. The correct numbers for the 2001
Enhanced Counterattack Roadcheck statistics for
Nelson are:
Vehicles
checked

Roadside BACs

Impaired
Charges

215s

23,309

123

5

66

We apologize for any inconvenience or embarrassment
this may have caused.

45

Volume 2 Issue 4
April 2002

51

An RTCC has been filed and does not necessarily imply the swearing of an
information.
52
Either plead guilty or found guilty.
53
Detailed data for Esquimalt, Vancouver, and Victoria was not available and was
estimated by the Ministry.
54
R. v. Bain (1989), 47 C.C.C. (3d) 250 (Ont. C.A.).

8

INTENTION TO CARRY OUT
THREAT NOT NECESSARY
R. v. Deneault, 2002 BCCA 178
The accused was convicted of
knowingly uttering a threat to cause
death or bodily harm contrary to
s.264.1(1)(a) of the Criminal Code
which reads as follows:
Every one commits an offence who, in any manner, knowingly
utters, conveys or causes any person to receive a threat to
cause death or bodily harm to any person;

Two forestry workers performing road inspections
were told by the accused, who was in company of two
other native males, that he was taking over and kicking
everyone off the land of the Shuswap nation by
escorting them out of the Upper Adams Valley and was
“willing to shoot and burn to protect his land”. The two
forestry workers proceeded to leave the area and were
followed out by the accused and the two other males
for approximately 2 kms.
The accused appealed his conviction arguing that the
words spoken did not constitute a threat to be taken
seriously nor did he threaten “any person” as the term
has been defined in law. The accused contended that
the words used were “at best a frustrated, bitter
outburst and at worst an idle threat”. Furthermore,
even though the accused said he was willing to shoot
and burn to protect his land, he never stated he would
or planned to do so.
In dismissing the appeal, the BCCA noted that the
actus reus of the offence is the uttering of the
threats of death or bodily harm while the mens rea is
that the words spoken were meant to intimidate or to
be taken seriously; there is no need for the Crown to
prove the intention to carry out the threat. Since the
accused did not testify in this case, the subjective
intent of the accused could be inferred by looking
objectively at the words used and their context. The
Appeal Court stated, at para. 49:
Given the words used by the appellant and the context in
which he used them, along with the evidence of his having
followed the forestry workers for some distance after
his encounter with them, … there was ample evidence
from which the trial judge could conclude that the
appellant intended the words he uttered to intimidate
and to be taken seriously by the forestry workers and
others who came into the Upper Adams Lake Valley.

Volume 2 Issue 4
April 2002

Even though the threats were not exclusively directed
at the forestry workers, it is not necessary under this
section that “any person” be restricted to a specific
individual target; it is sufficient that the threat be
made against an “ascertainable group of citizens”. In
this case, the threats were directed against nonmembers of the Shuswap Nation finding themselves in
the Upper Adams Lake area, and given the context of
the utterance, forestry workers in particular. Here,
the ascertainable group of citizens was identifiable as
those non-Shuswap members entering the area.
Complete case available at www.courts.gov.bc.ca

QUESTIONING DURING
INVESTIGATIVE DETENTION
PROPER DESPITE NO s.10(b)
WARNING
R. v. Sloan, 2001 ABPC 116
Two police officers were on patrol
when they stopped a car with a
license plate not matching the
vehicle (which was apparently not
registered or insured). Suspecting
that it may be stolen and wanting to know if she was
connected to the vehicle, an officer asked the accused
passenger for identification. She orally provided a
name and the officer followed this up by asking if she
had any identification. The accused opened her purse
on her own volition and the officer saw a quantity of
mostly unpacked syringes in plain view in the open
purse. The officer asked the accused “What are all
those needles for” to which she replied she was a
heroin addict.
The officer asked her to step from the vehicle to
obtain some form of photo identification and to
further investigate whether the needles were related
to illegal drug activity. The officer asked the accused
for photo identification and to empty the contents of
the purse onto the hood of the car. When she dumped
her purse out, the needles, and a cigarette package,
which the accused attempted to conceal, fell out.
After the officer looked inside the cigarette package
and found a deck of cocaine, he arrested the accused
for its possession. Later, the officer warned the
accused about obstruction and consequently obtained
the accused’s true identity. The accused argued that
the officer had no right to question a passenger, failed

9

to provide the accused the s.10(b) Charter warning
prior to asking what the needles were for, and that the
search was unreasonable because there was no warrant
or consent.

judge, “[w]ith real evidence staring him in the face, his
decision to carry on the investigation and further
detain the accused, was neither based on intuition or
hunch”.

The Charter and Investigative Questioning

The accused also argued that the officer should have
ceased questioning and immediately arrested and
Chartered the accused upon seeing the needles. The
judge found that when an officer “observes unusual
evidence leading him to reasonably believe criminal
activity is afoot, he may make reasonable inquires
aimed at confirming or dispelling his suspicions without
either arresting the suspect or reading her Charter
rights or providing her with the opportunity to consult
with counsel”. At para. 31, Daniel J. stated:

If finding the request for identification reasonable in
the circumstances, the trial judge stated:
The licence plate did not match the vehicle. The
registered owner was a woman and obviously not the man
who was driving. Consequently, this was much more than a
traffic stop. It was a criminal investigation relating
possibly to a stolen vehicle with two potentially involved
parties: the driver and the passenger. As such, the police
had the right and obligation to question both the driver
and the passenger, with a view to determining their right
to be in the vehicle at all. The police were engaged in the
lawful execution of their duty.
Clearly, upon stopping the vehicle, the two occupants
were detained. It was not an arbitrary detention. It did
not infringe s.9 of the Charter. The constables had
articulable cause to detain them and demand
identification from each. They had no obligation to either
arrest or advise either of the occupants of their Charter
rights before demanding identification. At this point , no
search had been undertaken. (emphasis added)

Furthermore:
Defence counsel argues the constable should have
confined his questioning to matters relating to ownership
of the car, asking the accused a question such as, "Does
this vehicle belong to you?" instead of simply asking for
identification. With respect, I disagree. As indicated
before, this was not simply a traffic stop; it was a
criminal investigation. When police are in an investigative
stage such as this, surely they have the right to initiate
their investigation as they deem fit under all the
circumstances. Asking first for identification is
reasonable, as the police have a right to first establish
with whom they are dealing.
In addition, the police have the power to detain a person
in the course of a police investigation where there is a
constellation of objectively discernible facts which give
the detaining officer reasonable cause to suspect the
detainee is criminally implicated in the activity under
investigation.

The judge found the accused opened her purse on her
own without prompting or suggestion by the police. The
needles were in plain view and at this time the officer
“had articulable cause to suspect the accused was
implicated in illegal drug activity and to detain her
pending further investigation”. As stated by the trial

Volume 2 Issue 4
April 2002

Had [the accused] actually been an innocent diabetic, and
had she been immediately arrested, without further
inquiry, surely defence would have roundly criticized the
constable. It would be alleged he had insufficient
grounds for the arrest and that he should have asked her
for a reasonable explanation for possessing the needles
before arresting her. In all investigations police are
compelled to ask questions for the legitimate purpose of
sorting out facts to determine if arrest is appropriate.
To require arrest before all reasonable investigative
inquiries are completed would immediately paralyze police
forces, quickly fill our jails and clog our courts with
lawsuits against the police for unreasonable and unlawful
arrest.

The officer was simply providing the accused with an
“opportunity to give him a reasonable explanation in
what
otherwise
were
extremely
suspicious
circumstances for her”. In this case, the question was
“a sound and justifiable inquiry based on real evidence
voluntarily displayed in plain view for the [officer] to
see”. The judge found there had been no s.10(b)
Charter violation by either the demand for the
identification or the question regarding the possession
of the needles.

The Charter and the Purse Emptying
Having found the initial opening of the purse voluntary,
the Court next examined the emptying of the purse’s
contents. The accused argued that this search was
unreasonable and furthermore, the officer should have
read the s.10(b) Charter rights at this time and allowed
an opportunity to consult with counsel prior to
commencing the request to empty the purse. The judge
found that the search of the purse was lawful because
the officer had the right to search for identification.
However, at this time the officer had seen the drug

10

paraphernalia and had reasonable grounds to search for
evidence; he should have informed the accused of her
right to counsel. In any event, the evidence was
admissible under s.24(2) of the Charter.

finding “not only was the evidence sufficient, it was
overwhelming”. The appeal was dismissed.

Complete case at www.albertacourts.ca

‘PRESSURE FILLED’, INTENSE,
& PERSISTENT QUESTIONING
ADMISSIBLE

THROWING PACKAGE OVER
PRISON FENCE: TRAFFICKING
VERDICT REASONABLE
R. v. Kwok, 2002 BCCA 177
A correctional officer observed a
male acting suspiciously outside the
perimeter fence surrounding a
prison. After observing the man on
several occasions approach the fence
and then retreat, the officer saw him throw a package
over the fence. The officer retrieved the package
(which contained heroin), exited the correctional
centre, and pursued the man through an adjacent park.
While walking along the park trail, the officer
apprehended the accused (who matched the
description of the male the officer saw at the fence)
standing slightly off the trail.
Among other grounds, the accused argued the trial
judge’s verdict was unreasonable because the evidence
could not support a finding of guilt. First, the accused
asserted there was no evidence of trafficking or that
“he knowingly trafficked to a person in jail”. Since the
evidence was unclear whether the accused knew the
fence surrounded a prison, his actions were equally
consistent with simply discarding the package. In
finding this submission unacceptable, the BCCA held
the nature of the packaging (heroin, a needle, and a
rock for projectile weight) was consistent with the
drug trade and that the accused intentionally threw it
over the fence. This was sufficient to warrant the
conviction and it was not necessary to prove the
accused” knowingly trafficked to a person in jail”.
Second, the accused argued he was not the person who
threw the package over the fence but was merely in
the park watching birds and enjoying the solitude,
despite the officer testifying he observed the accused
at the fence, pursued and found the same person, and
also identified him in court. The trial judge found the
accused’s evidence “vague and unsatisfactory” and
“inconsistent” with other evidence. The Appeal Court
refused to interfere with the trail judge’s decision

Volume 2 Issue 4
April 2002

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

R. v. J.P.F., 2002 BCSC 106
The accused was arrested by police
at the airport following his return
from a vacation and advised of his
right to counsel. He was transported
to the police station where, after
speaking to counsel, he was interrogated by two police
officers for approximately three hours. At the
beginning of the interview, the accused informed the
officers that his lawyer told him not to have any
contact with them. In spite of this information, the
officers persisted in questioning the accused. The
questioning was intense and consisted of lengthy
monologues directed at the accused with the officers
taking turns. Three breaks were taken during the
interrogation including a 12-minute cigarette break
initiated by the accused and one where the accused
wrote an apology to the victim. During the voire dire to
determine the admissibility of the accused’s
statements, Romilly J. described what occurred as
follows:
During the interview, the accused was constantly asked to
take the first step to getting help by admitting his crime.
[The police] also pointed out that his daughter would have
to take the stand in court if he did not own up to the
crime. The accused eventually broke down into tears and
admitted that he touched his daughter improperly on a
few occasions when she was asleep and when he was
bathing her. He stated that the writings which were found
were only his thoughts and fantasies. The accused
eventually wrote two letters of apology: one to his
daughter… and the other to her mother…. He asked the
police to deliver them for him. On his way to court after
the interrogation he thanked the officers for their help.

The accused argued that the persistent questioning
violated the common law confessions rule of
voluntariness because the police statement that the
accused’s daughter would be required to testify was an
inducement. Furthermore, it was submitted “the police
should have desisted from questioning the accused

11

NEW CRIMINAL CODE & CDSA
AMENDMENTS

when he told them that he was advised by his counsel
not to talk to them”.

Confessions Rule
Under the confessions rule, a statement made to the
police will only be admissible if the Crown can prove
beyond a reasonable doubt it was made voluntarily
(free from oppression or improper inducements). In
some cases, persistent police questioning can create an
atmosphere of oppression if extracting the statement
overcomes the free will of the person to confess. In
this case, the Court found that although the
questioning was “pressure filled”, intense, and
persistent, the accused was allowed breaks and the
interrogation did not result in an atmosphere of
oppression.
Improper inducements, such as hope of advantage or
the prospect of lenient treatment in exchange for a
confession can also render a statement involuntary.
This involves determining whether there was a quid pro
quo offer. Although, the police implied that his
daughter would have to testify if he did not talk, he
might not see her again, and he would get psychological
help if he confessed.
Quid pro quo (kwid proh
These statements were not
kwoh) is a Latin term
quid pro quo offers and did
meaning “something for
not render the statement
something”.
involuntary.

Continued Questioning after Consulting Counsel
The accused also argued that the police violated his
right to counsel by questioning him after he specifically
told the officers his lawyer told him not to talk. Once
an arrestee expresses a desire to contact counsel, the
police are obligated to provide a reasonable opportunity
for the communication to occur. Furthermore, the
police must refrain from questioning the person until
this opportunity is facilitated. However, once the
arrestee speaks to counsel, the police are not
prohibited from questioning an arrestee after they
have retained counsel. Here, the Court found the
officers were “entitled to continue to interview the
accused even after he told them that his lawyer told
him not to speak to them”.
The statements were voluntary and not obtained in a
manner that violated the accused’s Charter rights.
Thus, the statements were admissible at trial.
Complete case available at www.courts.gov.bc

Volume 2 Issue 4
April 2002

There have been several recent
amendments to the Criminal Code
and
Controlled
Drugs
and
Substances
Act.
Highlights
include:
•

The definition of “offence related property” under
s.2 of the Criminal Code has been changed by
removing references to criminal organization
offences. The new definition reads:

"offence-related property" means any property, within or
outside Canada,
(a) by means or in respect of which an indictable offence
under this Act is committed,
(b)that is used in any manner in connection with the
commission of an indictable offence under this Act, or
(c)that is intended for use for the purpose of committing an
indictable offence under this Act;

•

The definition of “offence related property” under
s.2 of the Controlled Drugs and Substances Act
has been changed by removing references to
significantly modified real property. The new
definition reads:

"offence-related property" means, with the exception of a
controlled substance, any property, within or outside Canada,
(a) by means of or in respect of which a designated substance
offence is committed,
(b) that is used in any manner in connection with the
commission of a designated substance offence, or
(c) that is intended for use for the purpose of committing a
designated substance offence;

•

•

Intimidation under s.423 of the Criminal Code has
been changed from a summary conviction offence
to a dual offence now bringing a maximum
punishment of 5 years.
A new intimidation section protecting justice
system participants or journalists with a maximum
sentence of 14 years has been added:

s.423.1 Criminal Code
(1) No person shall, without lawful authority, engage in
conduct referred to in subsection (2) with the intent to
provoke a state of fear in
(a) a group of persons or the general public in order to impede
the administration of criminal justice;
(b) a justice system participant in order to impede him or her
in the performance of his or her duties; or
(c) a journalist in order to impede him or her in the

12

transmission to the public of information in relation to a
criminal organization.
Prohibited conduct
(2) The conduct referred to in subsection (1) consists of
(a) using violence against a justice system participant or a
journalist or anyone known to either of them or destroying or
causing damage to the property of any of those persons;
(b) threatening to engage in conduct described in paragraph
(a) in Canada or elsewhere;
(c) persistently or repeatedly following a justice system
participant or a journalist or anyone known to either of them,
including following that person in a disorderly manner on a
highway;
(d) repeatedly communicating with, either directly or
indirectly, a justice system participant or a journalist or
anyone known to either of them; and
(e) besetting or watching the place where a justice system
participant or a journalist or anyone known to either of them
resides, works, attends school, carries on business or happens
to be.
Punishment
(3) Every person who contravenes this section is guilty of an
indictable offence and is liable to imprisonment for a term of
not more than fourteen years.

•

•

A new part (II.1) addressing terrorist offences has
been added. Included in this part is a power of
arrest for police officers. Section 83.3(4) of the
Criminal Code now authorizes a peace officer to
arrest, without a warrant, a person they believe will
carry out a terrorist activity or suspect a
recognizance is necessary to prevent the carrying
out of terrorist activity if it is impracticable to
first appear before a judge to lay an information
and necessary to prevent the terrorist activity.
Once arrested, the person must be taken before a
provincial court judge.
A new mischief section specific to religious worship
property has been added:

s.430(4.1) Criminal Code
Every one who commits mischief in relation to property that is
a building, structure or part thereof that is primarily used for
religious worship, including a church, mosque, synagogue or
temple, or an object associated with religious worship located
in or on the grounds of such a building or structure, or a
cemetery, if the commission of the mischief is motivated by
bias, prejudice or hate based on religion, race, colour or
national or ethnic origin,
(a) is guilty of an indictable offence and liable to imprisonment
for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction
and liable to imprisonment for a term not exceeding eighteen
months.

Volume 2 Issue 4
April 2002

OFFICER HAS A DUTY TO
INVESTIGATE SUSPECTED
CRIMINAL ACTIVITY
R. v. Robichaud, 2001 NBQB 245
A police officer set up surveillance
from an unmarked police car in a
parking lot because of an ongoing
theft from vehicle problem. After
observing several people go to,
spend a short time at, and then depart from a parked
SUV in the parking lot, the officer became suspicious,
briefed a second officer in a marked unit, and asked
him to check it out. This second officer observed a
vehicle of similar description about to leave the parking
lot as he drove by. The officer turned around and as he
again approached the parking lot, the driver of the
SUV turned around and proceeded back into the lot and
parked. The officer checked the vehicle and found the
accused driver had a slight odour of alcohol on his
breath. The accused submitted to a breath test and
was charged with impaired driving and over 80mg%.
At trial, the judge found the stop arbitrary and a
violation of s.9 of the Charter because the officer
lacked an articulable cause to stop the vehicle. The
breathalyzer results were subsequently excluded under
s.24(2) of the Charter. The Crown successfully
appealed to the New Brunswick Court of Queen’s
Bench. Riordin J. found the detention to be justified in
the circumstances. At para. 20 he stated:
With the background information that he had been
given…shortly before and in addition with what he
observed as [the accused] drove back into the parking lot
upon the police vehicle arriving in the immediate vicinity
and obviously readily apparent, this officer had
reasonable cause to suspect that the driver of the
vehicle was possibly involved in illegal activity. The action
of the officer to take further action and detain the
operator of the vehicle was justified. The detention of
[the accused] was not arbitrary and in my view there was
an articulable cause for such action and the police
officer’s conduct was justifiable. He was carrying out his
duty to investigate suspected criminal activity.

Note-able Quote
“The wicked man flees though no one pursues”.
Proverbs 28:1

13

ACCUSED MUST ASSERT
DESIRE TO CONTACT COUNSEL:
REMINDER NOT NECESSARY
R. v. Leedahl, 2002 SKCA 5
A police officer stopped the accused
after observing his vehicle being
operated in an erratic manner. After
observing
various
signs
of
impairment, the officer arrested the
accused for impaired driving and recited the standard
right to counsel warning and breathalyzer demand. The
accused indicated he understood the Charter warning
but did not wish to contact a lawyer at that time. The
accused subsequently provided breath samples with
readings of 160mg% and 150mg%. The accused argued,
in part, that although he was asked at the roadside
whether he wanted to speak to a lawyer, he expected
to be asked again at the police station before providing
a sample of his breath. The trial judge stated:
[The accused] said he expected to be asked again. Well,
he never communicated that to the officer. And there’s
really nothing in the evidence that would indicate that
the officer would have expected to have to tell him again.
…an officer is not expected to know about secret doubts
or misunderstandings on the part of a suspect. He’s
entitled to assume, in the absence of evidence to the
contrary, that the accused understood what his rights
were, especially when he said he did. Also entitled in the
absence of some unusual circumstances to assume that
the accused will request a call when the first reasonable
opportunity presents itself.

Although the accused was convicted at trial of having a
blood alcohol level over 80mg%, his conviction was
overturned on appeal to the Saskatchewan court of
Queen’s Bench because the officer’s imperfect
compliance with s.10(b) of the Charter; the officer
should have again asked the accused if he wanted to
call a lawyer at the police office. On further appeal to
the Saskatchewan Court of Appeal, the conviction was
restored.
Tallis J.A. for the unanimous Appeal Court found the
officer properly advised the accused of his right to
counsel and was under no obligation to go further
unless the accused asserted a desire to exercise the
right. Furthermore, the burden in establishing noncompliance with the Charter lies with the accused; the
prosecution does not need to prove compliance. In this

Volume 2 Issue 4
April 2002

case there was “no suggestion that [the accused] was
incapable of understanding the right to counsel or that
he was incapable of acting on his right”.
Complete case available at www.lawsociety.sk.ca

PHOTOS OF BODY INCIDENT
TO ARREST
R. v. Ilina, 2001 MBQB 317
The accused was arrested and
Chartered for the death of her
husband after she had been
transported to the police station and
left in an interview room for just
over an hour. She was advised of her right to counsel
and cautioned but declined to contact counsel. Over
the next 7 hours and 45 minutes she was interviewed
three times. She had agreed to provide bodily samples
including hair, saliva, blood, and fingernail clippings. She
was told that she was not obligated to provide the
samples and that they may be used as evidence against
her. The accused was also subject to a non-consentual
strip search by a female officer to view her body for
injuries. Finally, photographs were taken of the
accused with a particular focus on her hands.
Although the accused’s statements were ruled
inadmissible because they had not been proven beyond
a reasonable doubt to be voluntary, the consent to
provide bodily samples was valid. The police had
explained there was no requirement to participate and
if provided, they could be used as evidence. In holding
the strip search and subsequent photographs to be
lawful as an incident to arrest, Monnin J. at para. 85
stated:
Given the information the police had at the time, it was
reasonable to make a further investigation as to whether
or not [the accused] had injuries or marks on her body
given the violence of the attack and the amount of blood
at the premises. It was not an unreasonable step to take
in the investigation in order to preserve evidence.
Similarly, the taking of photographs of [the accused’s]
hands and of her body at the time is a matter which I
find falls within the requirement to preserve evidence
when done reasonably and in keeping with powers
incidental to arrest.

As a result, the evidence from the bodily samples, strip
search, and photographs were admissible.

14

INSERTED OBJECT A WEAPON:
OFFENCE MADE OUT

Without providing an exhaustive definition of "injury" or a
catalogue of distinctions between "injury" and "bodily
harm", it is sufficient to say here that there was evidence
of injury. The complainant testified that the assault was
hurting her, and the doctor who examined the complainant
testified to finding extensive recent bruising in her groin
area. She bled sufficiently that traces of blood were left
on the [accused’s] sofa. The [accused], who is now
admittedly guilty of sexual assault, cannot exonerate
himself from having caused the injury by claiming that the
bleeding may have been triggered by a pre-existing
medical condition of the victim. In the same way, it is not
open to him to claim, in the circumstances of this case,
that the injuries to the complainant may not be
attributable to the insertion of the object in her vagina
against her will, but may have resulted from the part of
the assault in which no object was used. In my view, a
proper application of the criminal causation rules allowed
the trial judge to conclude that the complainant was
injured by the sexual assault committed on her by the
[accused], and that the use of the object was sufficiently
linked to the injuries to allow the conclusion that the
object used in committing the assault was a weapon as
defined in s. 2. This reasoning applies equally to physical
and psychological injuries.

R. v. Lamy, 2002 SCC 25
The victim accepted a ride from a
bar offered by the accused. During
the ride however, the accused made
a stop at his home and invited her in.
At his home he sexually assaulted
the victim, which included the insertion of a bamboo
dildo in the shape of a baseball bat. The victim
testified the assault had hurt her and that she was
bleeding afterwards. Furthermore, a physician
testified to finding extensive recent bruising in her
groin area. Although the accused was acquitted of
sexual assault causing bodily harm at trial, he was
convicted of sexual assault with a weapon which was
reduced on appeal to sexual assault simpliciter by the
Quebec Court of Appeal because the accused had not
used the dildo to kill, threaten, or intimidate as the
French version of the Criminal Code definition of
weapon requires.
The Supreme Court of Canada overturned the Court of
Appeal’s decision and restored the decision of the trial
judge. In its reasoning, the Court found the English
text of the definition of “weapon” resolves any
ambiguity arising from the French text and includes an
object “used…in causing…injury”. Weapon is defined in
s.2 of the Code as follows:
“weapon” means any thing used, designed to be used or
intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
and, without restricting the generality of the foregoing,
includes a firearm.

“Injury” as is used in the definition of “weapon” is not
synonymous with the term “bodily harm” as defined in
s.2 as “any hurt or injury to a person that interferes
with the health or comfort of the person and that is
more than merely transient or trifling in nature”. In
other words, injury for the purpose of determining
whether an object is a weapon does not need to amount
to the severity of “bodily harm”. Even though the
injuries of the victim in this case were not sufficient
to amount to “bodily harm”, an accused who is acquitted
of sexual assault causing bodily harm can nonetheless
be convicted of sexual assault with a weapon. Arbour
J., for the unanimous Supreme Court wrote:

Volume 2 Issue 4
April 2002

Complete case available at www.scc-csc.gc.ca.

FAILURE TO BRING SUSPECT
FORTHWITH TO COURT W/I 24
HOURS NOT ARBITRARY: NO
CHARTER BREACH
R. v. Tate, 2002 BCCA 189

The accused appealed his conviction
for the first-degree murder of his
wife. Among other grounds, the
accused argued that he was
arbitrarily detained contrary to the
Charter because the police failed to bring him before a
justice of the peace in a timely manner as required by
s.503 of the Criminal Code and his statements to police
should be excluded. The accused was arrested at his
residence at 11:30 am and not taken before the court
until 26 ½ hours later (2:00 pm the following day).
During the intervening period the following activities
occurred:
•

After his arrest, the accused was transported to
the hospital because he had taken a quantity of
sleeping pills. At 11:50 am while enroute to the
hospital, the accused acknowledged he put a
“pickaxe” to his wife’s head;

15

•

•
•
•

•

He spent approximately 7 hours in the hospital
(from 12:00 pm-7:00 pm) where he admitted to
being ashamed of what he had done;
He spent 13 hours in police cells (from 7:00 pm9:00 am);
Between 9:20 am and 10:15 am the accused was
interviewed. This was recorded on videotape.
At 11:20 am the accused was taken to court.
However, the officer suggested, and the accused
agreed to, doing a “re-enactment”. This was done
between 11:20 am and 12:00 pm.
The accused arrived at the courthouse at 12:15 pm
but remained in custody until his court appearance
at 2:00 pm. During this time, the police spoke to
Crown Counsel and swore the information.

In admitting all the statements made to the police, the
trial judge found that although the police failed to
comply with s.503(1)(a) of the Code, the accused was
neither arbitrarily detained nor suffered any breaches
of his s.7, 9, or 11 Charter rights. The failure of the
police to deliver the accused earlier to court “was the
result of a combination of factors including a shortage
of personnel to handle what is, for this small police
force [the Central Saanich Police Department], a major
investigation”.
On appeal by the accused to the BCCA, Hall J.A. for
the unanimous court held the trial judge did not err in
his conclusion. Furthermore, the appeal court noted:
…there was no causal connection between the failure to
take the [accused] to court earlier on the 25th and his
willingness to give the statements he did on that date.
The circumstances of the taking of all the statements
are fully disclosed in the evidence and there was nothing
unreasonable, oppressive or improper in the conduct of
the police on either January 24 or 25, 2000, in their
dealings with the [accused]. I would not accede to the
argument advanced by the [accused] concerning the
conduct of the police after his arrest.

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

Note-able Quote
“There is no recognized principle in Canadian law that
the end justifies the means55”. BCProv.Crt. Judge
Alexander.

55

INTENT SURROUNDING
ARREST LINKED TO THAT OF
ACCUSED, NOT THE OFFICER
R. v. Jackson,
(2002) Docket:C32921,C28624 (OntCA)
A uniformed police officer attempted
to stop the accused under Ontario’s
Highway Traffic Act for riding a
bicycle double on the sidewalk. The
accused did not comply with the
officer’s request and began to jog away. As the officer
pursued, the accused turned and fired a shot in the
officer’s direction from a .357 Magnum revolver while
there were five other people in the area including two
children. The accused stopped running and fired a
second shot while the officer took cover behind a
parked car. The accused fled to a nearby apartment
building and hid the revolver, which was later
recovered. The accused was convicted by a jury of
several weapons offences including discharging a
firearm with intent to endanger life and intent to
prevent an arrest. Section 244 of the Criminal Code
reads:
s. 244 Criminal Code
Every person who, with intent
(a) to wound, maim or disfigure any person,
(b) to endanger the life of any person, or
(c) to prevent the arrest or detention of any person
discharges a firearm at any person, whether or not that
person is the person mentioned in paragraph (a), (b) or (c) is
guilty of an indictable offence…

The accused appealed these convictions as well as the
respective concurrent sentences of 7 and 5 years,
excluding the 14 months spent in pre-trial custody.
Among several arguments, the accused submitted that
the element of arrest in s.244(c) relates to the actus
reus of the offence and not the mens rea. Although the
accused testified he discharged the revolver to avoid
arrest, the police officer testified he had no intention
to arrest the accused. Irrespective of the accused’s
intent, the accused argued that the offence had not
been made out because the officer neither had the
intention to arrest nor began to effect one. The
Ontario Court of Appeal rejected this ground of appeal
and found the element of arrest in s.244 is “linked” to
the intent, or mens rea, of the accused and there is “no
valid reason to require proof of an actual arrest,

R. v.Luu & Chan 2002 BCPC 0067.

Volume 2 Issue 4
April 2002

16

whether in progress or intended, as part of the actus
reus of this offence”. In other words, what was in the
mind of the accused concerning arrest is relevant and
not necessarily the intent of the police.
On his sentence appeal, the accused contended the
trial judge erred in giving the police officer an
opportunity to address the Court without complying
with the victim impact statement procedures found in
s.722 of the Criminal Code. By complaining of the rules,
regulations, and bureaucratic red tape tying the hands
of the police, and that it was his opinion that the
accused set the officer up to shoot him, the officer’s
statement “exceeded the limits” of a proper victim
impact statement. These comments went beyond the
statements of “the harm done to, or loss suffered by,
the victim” permissible under the victim impact
provisions. Because of this error, the Appeal Court was
open to review the sentence imposed.
After considering the grade 12, 20 year old accused’s
previous record (one prior conviction of assault) and
letters submitted by his teachers on the one hand, and
the serious threat to public safety of firearms
possession and the use of a firearm against a police
officer on the other, the Court reduced the total
sentence to 4 years and 8 months.
Complete case available at www.ontariocourts.on.ca.

JIBC’s ANNUAL BUY A BOOK
CAMPAIGN
The Justice Institute is
honoured to recognize
William Deverell, award
winning crime writer,
lawyer,
and
former
journalist as the first
Honourary
Campaign
Chair of the Justice
Institute's Annual Buy a
Book Campaign taking
place throughout the month of April. Deverell's most
recent novel, The Laughing Falcon, was published in
September 2001.
The Buy A Book Campaign is an initiative by the
fundraising arm of the Justice Institute, the JI
Foundation, in support of the JI Library.

Volume 2 Issue 4
April 2002

The JI Library serves 40,000 users around the
province including students and professionals who work
in the areas of municipal policing, firefighting,
emergency medicine, corrections and community
justice, social services, courts, emergency management,
and conflict resolution.
"The campaign enables us to maintain our diverse
collection and provide the information our clients
need," says Institute Librarian April Haddad.
Financial contributions to the library translate into an
ability to purchase the most current and relevant
information for professionals working in the fields of
public safety, social services and conflict resolution the people who keep BC's communities safe.
The Justice Institute of BC is a dynamic, postsecondary learning organization with a unique provincial
mandate that encompasses education and training for
all aspects of public safety that lead to safer
communities. Locally and globally, the JI model brings
together police, fire, paramedic, courts, corrections,
emergency management, traffic education, conflict
resolution, and social services. Each year, the JI’s
distinctive educational co-op model attracts more than
20,000 students with 27% of the curriculum delivered
via distance learning and referred to as the “Virtual”
JI.
For further information or to make a donation contact:
Francine Gaudet or Karen Wanders
JI Foundation
Justice Institute of B.C.
(604) 528-5582 or 528-5874

INMATE SUES FOR LOST
SLEEP: MOTION TO DISMISS
REJECTED
Wild v. Correctional Services of Canada,
2002 FCT 219
A Federal Court judge dismissed an
application
by
the
defendant
Correctional Services of Canada
(Mission
Medium
Institution)
seeking an order striking the
plaintiff’s claim. The defendant argued that there was
no reasonable cause of action and the plaintiff’s suit
was frivolous or vexatious. The plaintiff is suing the

17

Correctional Services of Canada for awakening him
unnecessarily during regular inmate counts causing him
to lose 509 full nights of sleep, 312 of which were
when the plaintiff was in REM sleep. Furthermore, he
contends he was not treated humanely, his dignity was
undermined, and his current or future health was
jeopardized. The accused seeks damages for emotional
stress and physical and neurological damage. Hugessen
J. dismissed the defendant’s motion finding there is
“absolutely nothing” to support the claim that the
action is frivolous or vexatious. The lawsuit will
proceed.
Complete case available at http://decisions.fct-cf.gc.ca

ATTEMPT MURDER OF
POLICE OFFICER CONVICTION
UPHELD
R. v. McCallum, 2002 BCCA 198
The accused (driver) and another
male (passenger) drove to a bank in
Victoria. The passenger entered the
bank dressed in a RCMP uniform,
demanded money while armed with a
shot gun, and left the bank and entered into a vehicle
driven by the accused. The suspect vehicle sped away
but was observed by police (one officer in a police car
and another on a motorcycle) who began to pursue it.
The vehicle stopped at one point and a shot was fired
in the direction of the pursuing officers. The vehicle
took off again with police in pursuit and a second shot
was subsequently fired from the moving vehicle.
The motorcycle officer continued the pursuit during
which he was shot at a further five times. As this
officer came around a blind corner, he found the
vehicle stopped, the passenger door open, and the
passenger facing him with a gun at his shoulder pointed
directly at the officer. The officer took an evasive
maneuver to avoid gunfire. The vehicle fled again and
officer was able to continue the chase and later locate
the vehicle stopped in a driveway. The passenger
emerged from the vehicle and fired his weapon in the
direction of a police officer who arrived at the scene.
The accused and the passenger fled on foot but were
later apprehended.
The accused, who was the driver of the get away
vehicle, appealed his attempted murder conviction.
Section 21(2) of the Criminal Code creates criminal
culpability for collateral offences committed where a

Volume 2 Issue 4
April 2002

person has a common intention with another person to
commit a primary offence. Since the offence was
attempted murder, the Crown must prove that the
accused had knowledge that the passenger would do
something with the intent to kill in carrying out the
common purpose (robbery). The accused argued that
the passenger never attempted to shoot the
motorcycle officer when he rounded the blind corner
and simply pointing a firearm under these
circumstances does not lead to a common intention to
kill. The submission of the accused was that the
passenger aimed the gun at the motorcycle officer to
dissuade him from pursuing, not to kill him.
The trial judge held that the intent to kill was formed
by the passenger before the motorcycle officer
rounded the corner and continued until the evasive
action of the officer made it “impractical and
unnecessary” to carry out the intention to murder. In
defining the robbery as “well-planned” involving a fake
RCMP uniform, masks, false licence plates and
numerous firearms, the trial judge found both the
accused driver and the passenger were assisting each
other in carrying out the common purpose of
committing the robbery and both were assisting each
other in escaping from police. Moreover, the only
reason the accused stopped the vehicle on the blind
corner was to allow the passenger to exit the vehicle to
get a clear shot at the pursuing officer; the previous
attempts at eliminating this officer had been
unsuccessful. In dismissing the accused’s conviction
appeal, the unanimous BCCA found the trial judge drew
a reasonable inference from the evidence of the
accused’s knowledge of the passenger’s intention to
murder and that the accused participated in this
attempt.
Complete case available at www.courts.gov.bc.ca

CHARTER TURNS TWENTY
On April 17, 2002 the
Canadian
Charter
of
Rights
and
Freedoms
celebrates
its
20th
Anniversary.
For
the
police, the Charter is like
a living tree, continually
growing to find a just and
proper balance between
the competing interests of individual rights and the
needs of law enforcement to effectively protect
society.

18

‘INSIGNIFICANT,
INACCURATE, & OVERSTATED’
OBSERVATIONS FATAL TO
SEARCH WARRANT
R. v. Luu & Chan, 2002 BCPC 0067
Several police officers executed a
search warrant at a residential
premise and found both accused and
a 236 marihuana plant grow
operation inside. The accused challenged the validity of
the search warrant and a voire dire was declared to
determine if there was a breach of s.8 of the Charter.
The information to obtain (ITO) the search warrant
stated:
On the 4th of December, 2000, information was received
by the Burnaby RCMP from an anonymous tip that the
residence located at 8496 16th Avenue has a marihuana
grow operation located in the basement. On January 11th,
2001, the peace officer attended and confirmed that
8496 16th Avenue, Burnaby, British Columbia, did in fact
exist. The peace officer made note that the lower
windows in the basement were blacked out with no light
showing through the blinds; this observation made by the
police officer on five previous attendances to this
address. The police officer also smelled a strong odour of
growing marihuana directly in front of the house at 8496
16th Avenue, Burnaby, British Columbia. The police
officer determined that the given location of the house
on the corner and, with the given direction of the wind,
that the odour of growing marihuana could only be coming
from that residence. The police officer has experience
with 25 marihuana grow operations. The anonymous tip of
the home containing a marihuana grow, the darkened
windows in the basement, and the detection of odour of
growing marihuana coming from the home, are all
consistent with a home that is currently growing
marihuana. The police officer verily believes that the
information contained herein to be true and correct.

At trial, the officer was called as a witness and
provided further testimony as to his observations;
much of this information was not included in the ITO.
The trial judge found the officer did not disclose a
number of material facts, including “physical
difficulties in observing the property due to its
location and lack of lane access, the existence of
another home immediately backing the subject
residence, and the consequent potential difficulties in
isolating any odour”. Furthermore, the officer did not
disclose he did not detect any odour of marihuana on
four prior attendances at the property. Although a

Volume 2 Issue 4
April 2002

strong odour of marihuana may be sufficient to justify
a search warrant, the trial judge found the officer was
not in a position to properly isolate the odour to the
accused’s residence. The officer’s conclusion that the
odour could only emanate from the accused’s residence
was unreasonable. The trial judge also found the
officer “ill prepared to testify” and made “the
impression that he had not even taken the time to
glance at his notes before giving evidence”. There were
inconsistencies in his evidence and the judge found the
officer to be unreliable.
After assessing the information and excising several of
the observations made by the officer from the ITO,
what remained could not properly support the issuance
of the search warrant. In excluding the evidence under
s.24(2) of the Charter, the trial judge stated, at para.
28:
In considering the seriousness of the breach, I take into
account the relatively insignificant, inaccurate and
overstated observations of the peace officer in support
of the application for the search warrant. The resulting
breach was beyond technical or inadvertent. It was a
deliberate entry into a personal residence on the spurious
grounds. Though I am unable to conclude on the evidence
before me that the peace officer acted in bad faith, his
actions are consistent with an attempted shortcut to a
more through investigation.

And further at para. 30:
[T]he search was not undertaken on reasonable and
probable grounds, but on the barest suspicion initiated by
a tip of unknown reliability. Further investigation may
have yielded more concrete grounds for the peace
officer’s suspicions, and hence a proper basis for a
warrant. However, the evidence as presented falls short
of that threshold.

Complete case available at www.provincialcourt.bc.ca

WE WANT TO MAKE YOUR
EXPERIENCE A POLICE
ACADEMY SCENARIO
Have
you
had
an
experience that you want
to share involving a police
tactic that went right, or
wrong?
If so, we are
interested
in
hearing
from you.

19

We want to expose police recruits to your real life
experiences so that we can address officer safety
issues or to reinforce good, solid police tactical
training, before they hit the streets.
So, please e-mail us your experiences to Sgt. Frank
Querido
fquerido@jibc.bc.ca
or
Sgt.
Tammy
Schellenberg at tschellenberg@jibc.bc.ca.
If we use your scenario, during our simulations, we will
send you a JIBC Police Academy “Sharing the Moment”
t-shirt. Be safe out there!!!

IN MEMORIAL
Last month, Canadian police
lost two officers in the line
of duty. This brings the total
number of officers killed this
year to five. Our hearts and
prayers go out to the family
members
of
our
fallen
colleagues. Their bravery and
courage will not be forgotten and the circumstances
surrounding their deaths are a reminder to the dangers
police officers face as they protect and serve us all.
On March 29, 2002, 29-year-old British Columbia
RCMP Constable Wael Toufic Audi lost his life in an
automobile accident. He made an abrupt U-turn at
about 3 p.m. near Brackendale, BC. A tour
bus, unable to slow down, sliced open his
unmarked car. Doctors who happened on
the scene tried to save Constable Audi,
but he died from massive injuries.
Constable Audi was the liaison officer for Mamquam
Elementary School, and often visited the school to help
with sports and an anti-drug program. Constable Audi
was a five-year veteran of the RCMP.
On March 12, 2002, 35-year-old Alberta RCMP
Constable Christine Diotte was struck and killed by a
vehicle while she and her partner investigated an
accident on the Trans-Canada Highway
near Banff, Alberta. After the two
constables exited their patrol car an SUV
lost control on the icy road and struck
both of them, causing fatal injuries to
Constable Diotte. Her partner was transported to a
local hospital in stable condition. Constable Diotte had
been with the agency for eight years and was survived
by her husband.

Volume 2 Issue 4
April 2002

On February 28, 2002, 29-year-old Montreal Police
Officer Constable Benoit L'Ecuyer was shot and killed
following a chase with a stolen car. He died in hospital a
few hours after the shooting in the city's
north end. Police said the shooting
occurred after a brief chase involving a
police van and a stolen car. Following a
collision between the two vehicles, three
suspects got out of the vehicle and a foot chase
ensued. The officer, a seven-year police veteran, was
shot several times in the chest and was wearing a
bullet proof vest. His partner, who was not hit, tried to
return the fire. Constable L'Ecuyer is survived by his
wife and two children.
On February 18, 2002, 31-year-old Toronto Police
Officer Constable Laura Ellis and her partner,
Constable Ronald Tait, were responding in their scout
car to an emergency call when their
vehicle collided with another car. The
crash occurred on Brimley Road at
Huntingwood Drive in Toronto and
Constable Ellis was pronounced dead at
the scene. Constable Tait received serious, but non life
threatening injuries. The driver and lone occupant of
the private car was also taken to hospital with non life
threatening injuries. Constable Ellis is the first female
police officer killed on duty in Toronto. She joined the
force in December, 1996 as an officer in training and
was appointed constable in June, 1997. She is survived
by her husband and one-year-old daughter.
On January 18, 2002, 37-year-old Parks Canada
Warden Michael Wynn was stationed at the Columbia
Icefields warden station in Alberta. Part of his duties
included forecasting avalanche
conditions. Warden Wynn and
two other Jasper wardens,
Randy Fingland and Brad Romaniuk, were conducting
avalanche risk assessments at the ridge when a massive
slide engulfed them. Fingland, also an auxiliary member
of the Jasper RCMP, suffered only minor injuries to his
leg, while Romaniuk escaped unharmed. Wynn was taken
to Banff Mineral Springs hospital, and later went to
Foothills Hospital where he succumbed to his injuries.
He is survived by his wife and 2-year-old son.
The above information provided with permission by
Officer
Down
Memorial
Page
available
at
www.odmp.org/ canada.
For comments on this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy at (604)
528-5733 or e-mail at mnovakowski@jibc.bc.ca
20
Past issues available online at www.jibc.bc.ca