POLICE ACADEMY

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

CDSA TELEWARRANTS MAY BE
EXECUTED AT ANY TIME
R. v. Dueck, 2005 BCCA 448
Police executed a telewarrant
to
search
the
accused’s
residence using s.11(2) of the

Controlled
Substances Act (CDSA).

Drugs

and

The warrant was
executed just before midnight and police found
461 marihuana plants along with 20 pounds of
harvested marihuana. The accused were
convicted in British Columbia Supreme Court on
charges of production, possession for the
purpose of trafficking, and fraudulently
diverting electricity.
The accused appealed to the British Columbia
Court of Appeal arguing, in part, that the
warrant should not have been executed during
the night. Although s.11(1) of the CDSA
authorizes the execution of its warrants “at any
time”, the accused submitted that the
telewarrant procedures via s.11(2) of the CDSA
are outlined under s.487.1 of the Criminal Code,
which restrict the execution of warrants by day,
unless night warrants are expressly authorized.
In the accused’s view, the warrant in this case
should have not been executed at night.
Justice Ryan, for the unanimous British Columbia
Court of Appeal, rejected this argument. She
concluded there were two types of warrants
that could be obtained under either the CDSA or
the Criminal Code—warrants or telewarrants. In
the case of CDSA warrants, they may be
executed at any time. Criminal Code warrants, on
the other hand, may be executed only by day
unless specific authorization is granted.

Volume 5 Issue 5
September/October 2005

In interpreting the CDSA provisions that allow
for the authorization of telewarrants, the
provisions of s.488 of the Criminal Code
prohibiting nighttime execution of telewarrants
unless the justice is satisfied there are
reasonable grounds included in the information
to obtain that the warrant should be executed
at night do not apply. In Justice Ryan’s opinion,
there was “no sensible reason…that would
require the provisions of a warrant obtained over
the telephone or by fax under the CDSA to be
different in substance from one obtained in
person where the substantive requirements to
obtain them are the same.” The appeal was
dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
On Police Duty—The well known saying from

Gilbert & Sullivan that "A policeman's lot is not a
happy one" is true -- at times, but it is also true
with regard to all public officials. They must
expect more or less so called abuse. It is an
incident of democratic government and free
speech; and they should bear it, if not in good
humour, at least with reasonable tolerance and
that fact which is a very necessary part of the
equipment of a servant of the public. In this
country a policeman is a peace officer, and his
duty is not only to the public generally but to
every individual citizen, and to protect that
citizen, and to protect him, as far as possible,
even against his own weakness, and not to hail
him before the Magistrate for every foolish
thing he does—Co. Crt. J. Roberts1

1

R. v. Zwicker, (1937) 69 CCC 301 (N.S.Co.Crt.)

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg.
4

Valid Traffic Stop Justifies Detention
No Automatic Right to Search Vehicle
Incident to Arrest

6

Charter Does Not Apply
Investigative Detention

7

to

Private

Crown Required to Show Taking of Breath
Samples Reasonable

9

Location, Time, & Reaction
Reasonable Suspicion

Provide

11

Extended Vehicle Search Incidental to
Detention Unlawful

13

Experienced Police Officer Best to Assess
Circumstances

16

Feeney Warrant not Required to Enter
Apartment Hallway

17

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2006 Police Leadership Conference
20
Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes
only and are not to be construed as legal or other
professional advice. The opinions expressed are not
necessarily the opinions of the Justice Institute of British
Columbia. “In Service: 10-8” welcomes your comments
on or contributions to this newsletter. If you would like to
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National Library of Canada Cataloguing in
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In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8

1. Police - British Columbia - Periodicals. 2. Police –
Legal status, laws, etc. – Canada – Cases – Periodicals. I.
Justice Institute of British Columbia. Police Academy. II.
Title: In service, 10-8. III. Title: In service, ten - eight.

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2

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

All past editions of this
newsletter are available online
by clicking on the Police
Academy link at:

www.jibc.bc.ca

ABSENCE OF GOOD FAITH
MAY BE NEUTRAL IN
ASSESSING ADMISIBILITY
R. v. Smith, 2005 BCCA 334
The British Columbia Court of
Appeal recently reviewed the
meaning of good faith in a case
where a police officer applied
for a telewarrant under the Criminal Code to
search the accused’s home and computer for
child pornography evidence. Under the s.24(2)
Charter analysis to determine the admissibility
of evidence, the good faith of a police officer is
often a factor to consider in determining the
seriousness of a Charter breach. In this
decision, Justice Ryan provided a review of good
faith and had this to say:
As I understand the case-law that has
followed, good faith on the part of the
offending police officers mitigates the
seriousness of the offence while a deliberate
or flagrant disregard will enhance its
seriousness. It is a question of degree. The
cases have not equated a finding of no good
faith with a finding of bad faith. I would
suggest that this is because of the way good
faith has been defined. [para. 56]

She further went on to note that the actions of
the police must be knowingly or intentionally
wrong to qualify as bad faith. She stated:

It is interesting to note that in Kokesch
Sopinka J. concluded (at p. 231) that the
Charter violation in that case was "very
serious, and was in no sense mitigated by good
faith". In the passage above he characterized
the actions of the police in Genest as
enhancing the seriousness of the Charter
violation. I take from all of this that while
good faith will mitigate, and bad faith will
invariably increase the seriousness of the
breach, the absence of good faith may be a
neutral factor or an enhancing factor
depending on the circumstances of the case.
In the case at bar, the trial judge concluded
that the information to obtain contained a
misleading error because the officer who
prepared it was sloppy. He did not do it with
the intention of deceiving the judicial justice
of the peace. It is somewhat unclear whether
the trial judge was prepared to make the
crucial finding that the mistake was
unreasonable. He seems to have treated the
error as within the range of unfortunate but
acceptable human error. In any case even if it
was something that the police officer ought to
have noticed, the trial judge did not find that
the error compounded the seriousness of the
Charter breach.
In my view the trial judge did not err in failing
to find that the police officer acted in bad
faith. [paras. 61-64]

As for the admission of the evidence, Justice
Ryan would not interfere with the trial judge’s
decision. In her view, the police work in this case
was poor but was not motivated by an ulterior
motive or bad faith.
The accused’s appeal
seeking exclusion was dismissed.
Complete case available at www.courts.gov.bc.ca

To sum up, good faith connotes an honest and
reasonably held belief. If the belief is honest,
but not reasonably held, it cannot be said to
constitute good faith. But it does not follow
that it is therefore bad faith. To constitute
bad faith the actions must be knowingly or
intentionally wrong.

Volume 5 Issue 5
September/October 2005

www.jibc.bc.ca

Don’t miss
out!!!

www.policeleadership.org
(see p. 20)

3

DID YOU KNOW…
…that men are three times more
likely to report being dishonest
with police officers than women.
In a recent Leger Marketing
Report entitled “The Honesty of
Canadians,” only 3% of women
said they would be more likely to
be less honest with police
officers compared to 9% of
men2.

CONFEDERATION BRIDGE OFF
LIMITS TO PROVINCIAL
HIGHWAY TRAFFIC ACT
R. v. Noel, 2005 PESCAD 16
The accused was stopped for
speeding on the Confederation
Bridge which joins Prince
Edward
Island
to
New
Brunswick. He was issued a
ticket under Prince Edward Island’s Highway
Traffic Act and plead not guilty. At trial he was
convicted and fined $36. His appeal was
dismissed. He then again appealed, this time to
the Prince Edward Island Court of Appeal.
Chief Justice Mitchell, writing the unanimous
decision, granted the appeal and set aside the
conviction. Only the Parliament of Canada can
regulate traffic or create offences on the
Confederation
Bridge
pursuant
to
the
Government Property Traffic Act. Neither the
legislature of Prince Edward Island nor New
Brunswick has any authority related to creating
driving related offences on the Bridge. As Chief
Justice Mitchell noted, “A person who speeds on
the Confederation Bridge no more commits an
offence under the Prince Edward Island Highway
Traffic Act than does someone who speeds in
British Columbia.”
Complete case available at www.canlii.org
2

VALID TRAFFIC STOP
JUSTIFIES DETENTION
R. v. Yague, 2005 ABCA 140
The accused was pulled over by
uniformed
traffic
officers
after
other
members
conducting site surveillance on
an unrelated matter requested his vehicle be
stopped. One of the surveillance officers had
recognized the accused as someone who was
involved in the drug trade. The uniformed
members following him saw the vehicle speed
through a construction zone and noted the rear
licence plate light was not working. The vehicle
was stopped and the accused was arrested on an
outstanding arrest warrant. The other occupants
were identified, including passenger Lau who was
also arrested. He was on a recognizance not to
be in possession of cell phones or pagers and an
officer could see a cell phone and pager within
his reach. The vehicle was then searched and
police found other drug trafficking paraphernalia
including a kilogram of cocaine in a knapsack
under the rear seat.
At trial in the Alberta Court of Queen’s Bench
the accused was convicted of possession of
cocaine for the purpose of trafficking. The
judge erroneously concluded that the police had
the power to stop motor vehicles for the
purpose of gathering intelligence and dismissed
the accused’s application to exclude evidence. He
then appealed to the Alberta Court of Appeal
arguing that the detention and search violated
the Charter. In his view, the police arbitrarily
detained him under s.9 because they did not
have reasonable grounds for stopping his vehicle.
Furthermore, he submitted the search was
unlawful, a s.8 violation, and the evidence should
have been excluded under s.24(2).
A unanimous three member Alberta Court of
Appeal dismissed the accused’s appeal. Although
the trial judge erred in his reasons, the
admission of the evidence was the correct

Source: www.legermarketing.com (June 5, 2005)

4

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

result. In this case, the traffic officer
witnessed traffic violations before stopping the
accused’s vehicle. The police, therefore, had
reasonable grounds and a proper basis on which
to pull the vehicle over. The Court held:
Even though the initial request to uniformed
traffic officers to stop the vehicle was made
when the police in the surveillance team did
not realize that they had sufficient grounds to
support a stop (the outstanding warrant), the
stop which was made later was not arbitrary
since there were reasonable grounds to believe
that the [accused] had committed traffic
violations. The uniformed traffic officer
testified that whatever the surveillance team
wanted, the uniformed officer was not going to
stop this car unless he saw a traffic violation…
Once the initial stop had been lawfully made, a
further search on the suspicion of illegal drugs
does not taint the stop [references omitted,
paras. 7-8]

The detention was not arbitrary and therefore,
did not violate s. 9 of the Charter. As for the
search, it was lawful as an incident to arrest.
The police had reasonable grounds to arrest Lau
for breaching his recognizance “Where the
police have reasonable and probable grounds for
arrest, a search, as incidental to an arrest, is
legal and not in violation of s. 8 of the Charter,”
said the Court. “A search is incidental to an
arrest when there is some valid purpose for the
search, such as, a reasonable prospect of
securing evidence of the offence for which the
accused is being arrested. It does not require
reasonable and probable grounds, only some
reasonable basis for the search”. Here, the
police could search the vehicle incident to arrest
in order to secure evidence of Lau’s breach of
recognizance, which meant searching for other
cell phones and pagers. In upholding the search,
Alberta’s top court stated:
The police seized the phone and pager
observed near Lau. They then found another
cell phone in the front of the vehicle and a box
on the rear seat next to where Lau was sitting.
The box contained, in addition to an empty cell

Volume 5 Issue 5
September/October 2005

phone box, drug trafficking paraphernalia. The
contents of the box further substantiated the
grounds which the police would already have
had to search for drugs. Lau’s release
condition, prohibiting possession of a cell
phone, is common in a recognizance for drug
charges as it is intended to assist in
preventing the continued trafficking of illegal
drugs by taking away one of the common tools
of the trade. As well, the [accused] and Lau
were known to be involved in the illegal drug
trade. The circumstances suggested the three
occupants of the vehicle were involved in
trafficking cocaine. Thus, the search, which
eventually found the knapsack under the back
seat containing cocaine, and the seizure of the
cocaine and drug trafficking paraphernalia
were reasonable and therefore, no violation of
s. 8 occurred. [para. 12]

Finally, even if the accused’s rights had been
violated, the evidence was admissible under
s.24(2).
Complete case available at www.albertacourts.ab.ca

BY THE NUMBERS:
FATAL MVAs
Fatal MVAs—BC’s 2004 Top 10
City/Town
Surrey (RCMP)
Vancouver
Victoria
Abbotsford
Squamish (RCMP)
Langley (RCMP)
Hope (RCMP)
Burnaby (RCMP)
Coquitlam (RCMP)
Prince George (RCMP)

Number
26
21
15
14
13
12
11
10
10
10

Source: BC Coroners Service, Motor Vehicle Accident Deaths1997 to 2004, August 23, 2005

Note-able Quote
For every mile of road there is two miles of
ditch—Leon Fontaine

www.jibc.bc.ca

5

NO AUTOMATIC RIGHT TO
SEARCH VEHICLE INCIDENT
TO ARREST
R. v. Bulmer, 2005 SKCA 90
A police officer stopped the
accused’s vehicle after he
noticed it did not have a front
licence plate and had been
weaving on the road. After producing a driver’s
licence and vehicle registration, the officer
queried the accused on CPIC and learned he had
an outstanding traffic warrant for an unpaid fine
of failing to wear a seatbelt. The accused said he
thought he had paid the fine, but the warrant
was confirmed to be valid and still in effect. He
was arrested on the outstanding warrant and the
officer saw a pocket knife clipped to the inside
of his waistband. The knife was removed and the
accused was patted down, advised of his rights,
and placed in the backseat of the police car.
The officer then searched the vehicle for
further weapons and for evidence of the
accused’s assertion that he paid the ticket, such
as a receipt or copy of the seatbelt ticket. As
the officer looked through the driver’s side
window he saw a black cloth sheath for the
pocket knife lying by the accelerator. He opened
the door and could then smell a strong odour of
raw marihuana. In the trunk the officer found
2.4 kgs. of marihuana vacuum sealed in a
backpack. The accused was then arrested for
possession of marihuana for the purpose of
trafficking. At his trial in Saskatchewan
Provincial Court, the judge found the search
valid as an incident to arrest and the accused
was convicted.
The accused then appealed to the Saskatchewan
Court of Appeal. Justice Jackson, writing the
unanimous appeal court judgment, first examined
the law regarding searches incident to arrest.
She noted that such searches of vehicles can
only be undertaken if the police have a valid
reason for the search, such as ensuring the

6

safety of the police and public, protecting
evidence from destruction, or to discover
evidence. But in this case, Justice Jackson found
the search could not be justified for safety. In
dismissing the safety reason, Justice Jackson
noted the following:
• The accused was young (18 years old), had no
prior record, was fully cooperative, and was
locked in the back of the police car;
• The jackknife had a 2 ½ inch blade and was
not a prohibited weapon; and
• Two other officers were present as back-up.
As for looking for more evidence, it could not be
said that further evidence was required with
respect to the seatbelt ticket. Nor did seeing
the pocket knife sheath give the officer a new
reason to search. Only when he smelled the
marihuana did the officer have new and
reasonable grounds that marihuana was in the
vehicle. Since the accused had a reasonable
expectation of privacy in his vehicle and the
officer lacked a valid purpose in mind when
searching the vehicle, the accused’s s.8 Charter
right protecting him against unreasonable search
and seizure was violated.
As for the admission of the evidence, it was
excluded under s.24(2) even though vehicles
attract a reduced expectation of privacy.
Although the evidence was non-conscriptive and
necessary to prove the Crown’s case for a
serious offence, there was no urgency and no
reasonable grounds for the search once the
accused was arrested and secured in the back of
the police car.
“[The accused] was not under arrest in
furtherance of a suspected new crime [but] was
arrested pursuant to a warrant for arrest,” said
Justice Jackson. “And the warrant for the
arrest was for the failure to appear in relation
to a summons to pay a seatbelt infraction. If
one contrasts the seriousness of the reason for
which [the accused] was arrested with the

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

ultimate consequence of the unlawful search, the
disproportion alone seems to dictate exclusion.”
Moreover, the legal limits of a stop like this in
relation to a minor traffic offence need to be
clearly understood by police and the Court was
not prepared to condone this unacceptable police
conduct. To do so would further bring the
administration of justice into disrepute. The
evidence was excluded and an acquittal was
entered.
Complete case available at www.canlii.org

CHARTER DOES NOT APPLY TO
PRIVATE INVESTIGATIVE
DETENTIONS
R. v. Dell, 2005 ABCA 246
A bouncer entered the men’s
washroom of a bar, looked into a
cubicle through a crack, and saw
the accused fiddling with a black
film canister. Suspecting it was
drugs, the bouncer detained the accused and
alerted the manager who patted him down for
weapons. The manager found the canister,
opened it up, and saw rocks—later determined to
be cocaine—wrapped in cellophane. The manager
returned the canister, called police, and detained
the accused until police arrived. The accused was
arrested and subsequently charged with
possession of cocaine.
At trial in the Alberta Court of Queen’s Bench
the accused unsuccessfully argued his Charter
rights were violated. In the judge’s view, the
Charter did not apply to the manager’s search of
the accused because it occurred between private
individuals. The cocaine was admitted as
evidence and the accused was convicted.
However, he appealed to the Alberta Court of
Appeal arguing he was arbitrarily detained by
bar staff contrary to s.9 of the Charter and
that the cocaine should have been excluded
under s.24(2).

Volume 5 Issue 5
September/October 2005

Justice Fruman, with Justice Hunt and Cote
concurring, first outlined the difference
between an arrest and a detention:
[T]he legal distinction in Charter cases
between mere detention for investigative
purposes and actual arrest is well established.
An investigative detention is brief, based on a
reasonable suspicion that an individual is
connected to a particular crime…An arrest is a
continuing act, based on reasonable and
probable grounds a crime has been committed.
It involves a detention and a measure of
ongoing restraint until the arrested person is
delivered to the police…[references omitted,
para. 4]

The Charter has limited application in that it
applies only to government actions, not private
individuals (such as private security officers) or
private institutions. However, there are two
exceptions:
1. when a private individual acts as an agent of
the state (such as the police). The relevant
question to be asked is whether the exchange
between the private individual and the
accused would have taken place in the form
and manner in which it did, had the police not
intervened; or
2. when a private individual can be categorized
as “part of government” because they are
performing a specific government function or
implementing a specific governmental policy
or program.
In this case, bar staff could not be
characterized as an agent of the state because
the police did not intervene until after the
accused’s detention and search. Nor was the
detention a specific government function. Unlike
a citizen’s arrest, which is a specific government
function delegated to private individuals,
investigative detentions by private persons do
not attract Charter protection. In summary,
Justice Fruman wrote:
…the bouncer’s work may overlap with the
government’s interest in preventing and

www.jibc.bc.ca

7

investigating crime. However, it cannot be said
that in conducting a brief investigative
detention, the bouncer was acting as a
delegate of the government, carrying out its
policies and programs. Accordingly, the
Charter does not apply to the actions of the
bouncer in detaining Dell, or the search and
seizure flowing from the detention. [para. 27]

Although Justice Cote concurred with Justice
Fruman, he wished to add further comments. He
agreed that the Charter did not apply when the
bouncer temporarily detained the accused in the
washroom. However, if he were wrong in holding
that the Charter did not apply, he would have
found that there was no s.9 breach, or if there
was one, that it was justifiable. He stated:
Such Charter rights are not absolute; they all
have limits and exceptions. It would be
astonishing if temporary detention was always
a Charter breach, regardless of its duration or
purpose. It is not: only an arbitrary or
unreasonable detention is a breach, even where
the Charter applies.
In any event, the bouncer was not snooping
because he was bored or curious. His employer
had instructed him to check the washrooms
regularly for a number of types of people and
things, most revolving around safety. That was
plainly not altruism: it was sound and necessary
preservation of business and property.
Disgruntled patrons sometimes try to burn
down
bars,
and
sometimes
succeed
spectacularly. Shootings and stabbings are
more common in bars than in (say) bookstores.
Drug dealers often try to peddle their wares
in bars. People bring date rape drugs to bars
and slip them into other patrons’ drinks (as
Crown counsel reminded us here).
None of that is good for business. Very few
patrons will knowingly enter a bar dangerous to
their health. Not many more will go to what
looks like a lawless dive. And activity which will
wreck the physical premises is commercially
dangerous too.
If the Charter had any application to this
bouncer, it is unthinkable that it would remove
the bar owner’s right to take reasonable steps

8

to protect the safety of his patrons,
employees, and premises. If the bouncer found
someone in the washroom with a can of
gasoline,
or
five
clips
for
a machine gun, surely he could detain that
person and not let him go out to get the
accompanying blowtorch or machine gun.
………
In my respectful view, the bouncer reasonably
thought that the film container contained hard
drugs, not film. (Most cameras are now digital,
and photography is not common or suitable in
bars or their washrooms). That was a danger
to the bar’s business and patrons. The bouncer
took
reasonable steps to contain the danger, and
have a responsible person (his boss)
investigate. The delay to the appellant was 2-5
minutes, which the appellant did not protest.
Nor does his counsel today argue that that
time was undue.
Reasonable safety and defence of property
and others has been made out on this
evidence…[paras. 41-47]

The evidence was admissible and the appeal was
dismissed.
Complete case available at www.albertacourts.ab.ca

FAST FACTS
2004 BC Municipal Police Strengths 100+
Municipality
Vancouver
Surrey (RCMP)
Burnaby (RCMP)
Victoria
Richmond (RCMP)
Abbotsford
Delta
Saanich
Coquitlam (RCMP)
Kelowna (RCMP)
Prince George (RCMP)
Langley Township (RCMP)
Kamloops (RCMP)
Nanaimo (RCMP)
New Westminster

Police Strength
1,124
491
241
211
190
175
145
144
121
121
121
117
112
112
105

Source: Police Services Division, Ministry of Public Safety & Solicitor
General, British Columbia—July 2005, Municipal Case Burden Report:
www.pssg.gov.bc.ca/police_services

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

CROWN REQUIRED TO SHOW
TAKING OF BREATH SAMPLES
REASONABLE
R. v. Haas,
[2005] Docket:C41963 (OntCA)
The accused was stopped by
police driving and admitted to
consuming alcohol. The officer
formed a reasonable suspicion
the accused had alcohol in his
body and made a demand for a breath sample
into an approved screening device. He failed and
the officer formed the opinion the accused was
over 80mg% and arrested him. He was
Chartered, read the breath demand, and agreed
to comply, subsequently providing samples over
the legal limit.
The accused was charged with operating a
motor vehicle with a blood alcohol level over
80mg%. During a voir dire in the Ontario Court
of Justice the Crown did not call evidence that
the police officer making the demand under
s.253(4) of the Criminal Code had reasonable
and probable grounds to do so. The trial judge
ruled that the Crown had not proved the
necessary grounds thereby violating the
accused’s s.8 Charter right and the breath
samples were excluded as evidence. The charge
was dismissed.
On appeal to the Ontario Superior Court of
Justice, the court ordered a new trial. In the
appeal justice’s view, the accused bore the onus
of proving the absence of reasonable and
probable grounds rather than the Crown proving
such grounds existed. Since the accused failed
to lead evidence that the search was
unreasonable, a s.8 violation should not have
been found. The accused appealed to the
Ontario Court of Appeal arguing that Crown was
obliged to call evidence that reasonable and
probable grounds existed for the breath
demand, and without it, the readings should
have been excluded.

Volume 5 Issue 5
September/October 2005

Justice Goudge, authoring the unanimous
Ontario Court of Appeal judgment, first noted
that the taking of breath samples is a seizure
for the purposes of s.8 of the Charter.
Furthermore, all warrantless seizures are prima
facie unreasonable and once it is demonstrated
that a seizure was warrantless, the onus then
shifts to the Crown to show it was reasonable
(on a balance of probabilities). In this case, the
taking of the breath sample was warrantless.
The same onus shifting to the Crown in
warrantless seizures generally also shifts to the
Crown in breath demand seizures. Thus, the
Crown bore the burden of demonstrating that
the officer had reasonable and probable
grounds for the breathalyzer demand. Justice
Goudge stated:
Moreover,
both
statutory
and
policy
considerations suggest that warrantless
breath demands should not be [an exception to
the general rule that warrantless searches and
seizures are prima facie unreasonable]. To
demonstrate compliance with s. 254(3) the
Crown must show that the police officer
making the breath demand had the necessary
reasonable and probable grounds to do so. The
evidence of this will normally be the same
evidence that would be called to show that the
warrantless seizure of breath was reasonable.
If the Crown is faced with a s. 8 Charter
challenge, it is reasonable to require the Crown
to call as evidence to resist that challenge the
very evidence it would call at trial, particularly
if that evidence can be called only once in a
proceeding blending the trial and s. 8 voir dire.
Moreover, as a matter of policy, to require the
accused in a s. 8 Charter challenge to
demonstrate the unreasonableness of the
seizure of breath ignores the reality that the
Crown is in the best position to know how and
why the seizure took place.
From this
perspective it is sensible to require the Crown
to prove reasonableness, rather than asking
the accused to prove the opposite. [paras. 3637]

Since the Crown called no evidence at the voir
dire on the seizure of breath, the taking of the

www.jibc.bc.ca

9

sample was deemed to be unreasonable and a
violation of the accused’s s.8 Charter rights.
The accused’s appeal was allowed and the trial
verdict dismissing the charges was restored.
Complete case available at www.ontariocourts.on.ca

STOP LACKING MOTOR
VEHICLE PURPOSE VIOLATES

CHARTER

R. v. Nguyen & Bui, 2005 BCPC 0202
A plain clothed police officer
conducting surveillance of a
house suspected of being the
site of electricity theft saw
persons exit the house and enter a van. The
officer then requested a uniformed officer stop
the van and identify its occupants. The driver
did not have her driver’s licence with her and the
accused Nguyen, a passenger in the van, provided
identification in his name. The van and its
occupants were allowed to leave and the
uniformed officer provided the occupants’ names
to the plainclothes officer.
A day or two later the uniformed officer again
stopped another vehicle—a GMC Jimmy—seen
leaving the house at the request of the
plainclothes officer. The plainclothes officer had
previously noted a rear taillight was not working
and provided this information to the uniformed
officer to use as a reason for the stop.
The accused Bui was the driver and the accused
Nguyen was the passenger. The accused Bui was
issued a notice and order to repair the light and
let go, again with the occupants’ names being
provided to the plainclothes officer, who
subsequently applied for a search warrant based,
in part, on the information gleaned from the two
traffic stops. During the execution of the
Criminal Code search warrant respecting
electricity theft, the police found a marihuana
grow operation and obtained another search
warrant under the Controlled Drugs and
Substances Act.

10

During a voir dire in British Columbia Provincial
Court, the accused argued that their rights were
violated by the traffic stops. Justice Seidemann
III agreed and held that the two vehicle stops
breached s.9 of the Charter. The police may
arbitrarily stop motorists for legitimate highway
traffic concerns, but in this case the police were
purportedly using the highway safety aim for a
non-authorized purpose—the general detection
of crime. The judge stated:
I find that that was what occurred in this
case. The stop of the gold van was clearly a
breach of the defendant's rights. There was
no valid Motor Vehicle Act purpose for that
stop. The officers…who testified were candid
that the purpose of that stop was to
ascertain the identity of the occupants,
although [uniformed officer] was of the
opinion that pursuant to the Motor Vehicle
Act, she was authorized to perform that
stop. If she had been doing that for a Motor
Vehicle Act purpose, it would have been. It
was not done for that purpose.
The stop of the red GMC Jimmy was also a
breach. There may have been two purposes,
but the principal one was unrelated to Motor
Vehicle Act enforcement, and the Motor
Vehicle Act cannot save it. This is more akin
to that situation…where there may have been
two purposes, but in this case, clearly the
principal purpose and the only reason why the
stop actually occurred was to ascertain the
identity of these persons, and that was
clearly a breach of their rights pursuant to
the Charter. [paras. 30-31, references
omitted]

Although the information concerning the traffic
stops was excised from the search warrants,
there was nonetheless sufficient grounds for
their issuance. The evidence resulting from the
search warrants was therefore admissible.
Complete case available at www.provincialcourt.bc.ca

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

LOCATION, TIME, &
REACTION PROVIDE
REASONABLE SUSPICION
R. v. Chaisson, 2005 NCLA 55
A police officer saw a lone
vehicle with two occupants
parked in the dark at the rear
parking lot of a closed gas
station just after midnight. Its
lights were out and it was not running. There was
a 24-hour donut shop and a closed restaurant
nearby. The officer pulled up along the
passenger side of the parked vehicle about three
feet away. The occupants did not initially see the
officer, but when they did they were shocked—
the driver threw something onto the floor and
tried to stuff something under the seat.
The officer asked the men what they were doing
and asked them to get out of the car. As the
passenger exited, the officer saw, in plain view, a
plastic bag containing marihuana on the floor and
a small piece of marihuana on the seat. The
accused (driver’s seat occupant) was arrested
and placed in the back of the police car while the
passenger was also arrested and held outside the
vehicle. The officer searched the vehicle and
found two sets of scales in plain view, more
marihuana under the driver’s seat, and just over
a kilogram of marihuana in the trunk. After the
search was complete—about twenty minutes
after the arrest—the accused was advised of his
right to counsel. The accused was taken to the
police station and searched further. In his
pockets additional drug items were found.
At trial in the Provincial Court of Newfoundland,
the accused was acquitted on a charge of
possession of marihuana for the purpose of
trafficking. In the trial judge’s view the
accused’s Charter rights were violated and the
evidence was excluded under s.24(2). The Crown
appealed to the Newfoundland Court of Appeal,
conceding breaches of the accused’s rights
under ss. 8 and 9 of the Charter, but arguing the

Volume 5 Issue 5
September/October 2005

trial judge’s decision to exclude the evidence
under 24(2) was in error. Justice Welsh,
however, in authoring the unanimous appeal court
judgment (in an unusual turn) rejected the
Crown’s concessions of the Charter breaches.

The Detention
Although the accused was detained when he was
asked to get out of the vehicle, it was not
arbitrary. The police are entitled to detain
persons for investigative purposes. However, in
assessing whether an investigative detention is
arbitrary, a two prong analysis must be made.
First, it must be determined whether the police
were acting within the scope of their duties
recognized under statute or at common law
(which includes the preservation of peace,
prevention of crime, and protection of public
order). Second, it must be determined whether
the
detention
was necessary
for the
performance of the recognized duty (that there
exists reasonable grounds to detain—formerly
known as articulable cause). In holding that the
detention passed constitutional muster, Justice
Welsh stated:
As applied to the case before this Court…I
conclude that the officer did not arbitrarily
detain [the accused] within the meaning of
section 9 of the Charter. Given the location
of the vehicle, the time of day, and the
reactions of [the accused] and the passenger,
exhibiting shock and apparently trying to hide
something, the officer had reasonable
grounds to suspect that the occupants of the
vehicle were involved in criminal activity, and
that a detention for the purpose of
questioning them was necessary. The
detention was conducted in a reasonable
manner and was very brief in duration. [para.
28]

The Seizures
The seizure of the evidence in this case fell
under two categories—plain view and search
incident to arrest. Addressing the seizure of the
marihuana in plain view, Justice Welsh wrote:

www.jibc.bc.ca

11

Reliance on the doctrine depends on three
requirements. First, the officer must be
lawfully in a position from which the evidence
was plainly in view. Second, discovery of the
evidence must be inadvertent, that is, the
officer must not have knowledge of the
evidence in advance. Third, it must be
apparent to the officer at the time that the
observed item may be evidence of a crime or
otherwise subject to seizure.
In this case, these three requirements are
satisfied to validate the seizure of the items
that were in plain view when the occupants
got out of the vehicle. The officer was
lawfully in a position to see inside the
vehicle…. Discovery of the evidence was
inadvertent in the sense that the officer had
no preconceived view regarding what he would
find when he approached the vehicle. Finally,
when the occupants got out of the vehicle and
the officer saw the ziplock bag containing
what appeared to him to be marihuana,
together with a small piece of what he
believed to be marihuana on the passenger
seat, in plain view, he was aware that these
items may be evidence of a drug related
offence. [paras. 33-34]

Following the seizure of the bag containing
marihuana, the officer arrested the accused.
The power to search incident to an arrest may
include an automobile provided the police are
attempting to achieve some valid purpose
connected to the arrest, such as protecting or
discovering evidence. Here, “the search was
conducted in a reasonable manner and for the
purpose of discovering and preserving evidence
incidental to arrest,” said Justice Welsh.
Similarly, the search back at the police station
was also conducted in a reasonable manner and
for a valid purpose incidental to the arrest.

Right to Counsel
Under s.10(b) of the Charter an arrestee is
entitled to be advised of his right to counsel
without delay (which effectively means
immediately) . In this case, the officer did not
advise the accused of his rights until some 20

12

minutes after arrest, which amounted to a
breach. However, contrary to the trial judge’s
decision, Justice Welsh ruled the evidence
admissible under s.24(2).
The Crown’s appeal was allowed, a conviction was
entered, and the matter was remitted back to
the trial judge for sentencing.
Complete case available at www.canlii.org

DID YOU KNOW…
…that the average age of a police recruit is 28
years old. The following two tables outline
recruit profiles from two recent recruit studies:
British Columbia
Municipal Police Recruit Profile
Age
Average
Range
Gender
Male
Female
Education
High School only
Some College/University
College Diploma
Undergraduate Degree
Graduate Degree
Previous Police Experience
No
Yes: Regular Member
No: Reserve/Auxiliary Member

28 yrs.
21-42 yrs.
72%
28%
2%
16%
30%
48%
3%
76%
3%
21%

Source: Novakowski, Mike (2003) Exploring Field Training Within
British Columbia’s Independent Police Agencies: It’s the Singer,
Not the Song
Data based upon 242 recruits from 2000-2002

Ontario Police College Recruit Profile
Age
Average
28 yrs.
Range
20-50 yrs.
Gender
Male
81%
Female
19%
Education
No College/University
5%
Some College/University
13%
College Program
49%
BA/BSc
33%

Source: Morris, Ramona (2004) Canadian Review of Policing
Research
Data based upon 7,900 recruits from 1998 to 2003.

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

POLICE ALLOWED TO ENTER
ONTO PROPERTY TO
INVESTIGATE B&E
R. v. Nguyen, 2005 BCSC 963
At 3 am an off-duty police
officer, looking out her third
story window, saw two men on
the sidewalk directly across the
street from her apartment. They were walking
alongside the front yard fence of a house and
peering into the yard. They entered onto the
property and began skulking around. One male
had a flashlight and peered into a window by the
font door while the second male appeared to
bend over and pry the window. The officer called
911 and reported a possible grow rip because she
had earlier suspected the house contained a
marihuana grow operation. As a marked police
car arrived, the off duty officer saw one of the
men run across the yard, jump a fence and run
towards the back alley. A police dog track was
unsuccessful, but police found a suspicious
vehicle driving nearby containing two passengers
who matched the general description of the men
seen in the yard. These passengers, along with
the driver gave suspicious stories.
Police went into the yard and saw several
windows with pry marks, including one with a
screen removed and an open window large enough
for a person to enter. A strong odour of
marihuana could be detected, fans could be
heard running, and a Mylar film could be seen.
The police felt it necessary to enter the
residence and determine whether any more
suspects were inside or whether any residents
were harmed. Police knocked on the door and
the accused answered. He was arrested and
police entered to sweep the residence for other
persons. No one else was found but a marihuana
grow operation was discovered. A search warrant
was subsequently obtained and evidence was
seized.

Volume 5 Issue 5
September/October 2005

During a voir dire in British Columbia Supreme
Court on charges of production of marihuana and
possession for the purpose of trafficking, the
accused argued that the initial police entry into
the yard lacked legal justification and therefore
violated his rights under s.8 of the Charter
protecting him against unreasonable search and
seizure. Justice Joyce, however, rejected this
submission. He stated:
I have come to the conclusion that the police
had lawful authority to go into the yard and
look at the windows, in order to investigate
whether a break and enter had taken place. I
am of the opinion that in the circumstances
the police had an implied licence to be on the
property and that in investigating the state
of the windows they did not exceed the scope
of the licence. [para. 26]

And further:
I am satisfied that in this case the police did
not enter onto the property with the
intention of gathering evidence against the
occupant. While [the off duty officer]
strongly suspected that the house was the
site of a marihuana grow operation when she
and her fellow officers entered onto the
property, I accept her evidence and find as a
fact that when she went into the yard and
went up to the house she was continuing an
investigation into a possible break and enter
under the Criminal Code, not an investigation
of a suspected marihuana grow operation
under the Controlled Drugs and Substances
Act…I am satisfied the entry into the yard
was not a ruse, the real purpose of which was
to gain evidence in support of a search
warrant. When they looked at the windows
the police were looking for evidence to
confirm a break and enter or attempted
break and enter.
In my view, when the police had seen
suspicious men lurking around the house and
apparently trying to force their way in
through a window, they were entitled within
the scope of the implied licence to take a look
at the windows for signs of forced entry,
before knocking on the door to communicate

www.jibc.bc.ca

13

with the occupants and advise them why they
were and what they had seen.
It is my opinion that the owner of a home may
be taken to authorize the police, who see
persons attempting to break in, to come into
their yard and check the front windows or
door to see whether the home has been
breached, without first having to knock on
the door and ask permission. In my view the
occupant can be said to have waived his
privacy rights to that extent, unless he has a
locked gate or has posted signs barring entry
onto the property.
Counsel for [the accused] submits that if the
police had not suspected a marihuana grow
operation they would have been justified in
going into the yard and looking at the windows
for evidence of a break and enter. He
concedes that absent such suspicion the
police could act upon an implied licence.
However, counsel submits that because of
their suspicion the police knew they would
likely be unwelcome visitors and that in these
circumstances there can be no implied licence
of waiver of privacy rights.
I do not accept that submission. The police
had only a suspicion. They had no strong
evidence when they went into the yard that
there was a marihuana grow operation in the
residence. Furthermore, [the accused] had
taken no steps to limit or nullify the implied
licence. [references omitted, paras. 31-42]

The evidence was admissible and the accused
was convicted.
Complete case available at www.courts.gov.bc.ca

BY THE NUMBERS: HOMICIDE
Homicide by the Numbers BC’s 2004 Top 5
City/Town
Vancouver
Surrey (RCMP)
Victoria
Prince George (RCMP)
Abbotsford
Richmond (RCMP)

Number
26
11
7
6
5
5

Source: BC Coroners Service, BC Homicide Statistics-1997 to 2004,
August 24, 2005

14

EXTENDED VEHICLE SEARCH
INCIDENTAL TO DETENTION
UNLAWFUL
R. v. Batzer,
(2005) Docket: C41793 (OntCA)
Two police officers responded to
a 911 call from a homeowner that
two men dressed in dark clothing
were outside his residence
armed with a gun. The caller was
frantic and police received further information
that the men were now believed to be on the
roof. The house was one of three located in an
isolated area where shots had been fired in a
random, unsolved drive-by shooting at one of the
other houses two weeks earlier. The officers
parked their car nearby and walked to the house
where they spoke to the homeowner. The
homeowner thought the suspects may have went
into a field, but there were no tracks in the snow
around the house.
While on scene, the officers approached a
vehicle parked a short distance away from their
cruiser. They did not hear the vehicle arrive and
were concerned that the gunmen may have
returned. The two occupants matched the
general description of the suspects—both males
wearing dark clothing—and were detained for
investigation. They were ordered out of the car
onto the ground, handcuffed, and asked what
they were doing. The accused (driver) explained
he had been invited to come over by a resident
of the house but got stuck in the snow as they
arrived. The men were patted down for weapons
and the car was searched once but nothing was
found. Then, on a second search, the glove
compartment was checked and a zippered, nylon
case with “Remington” (a gun manufacturer)
written on it was found inside. It was opened and
police found it contained 22 grams of cocaine
and 13 ecstasy pills. The accused was arrested
and charged with possession of drugs for the
purpose of trafficking.

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

At trial in the Ontario Court of Justice the
accused was acquitted of the drug charge.
Although the initial detention for investigation
and incidental pat down for safety was lawful,
the extended vehicle search was unreasonable
and violated s.8 of the Charter. She found the
circumstances were not so exigent that the
police could have determined whether the
accused’s innocent explanation for his presence
was true. Had they checked out the accused’s
story there may have been no need to search the
car at all. The evidence was subsequently
excluded under s.24(2) of the Charter. The
Crown then appealed to Ontario’s top court.
Justice Goudge, authoring the Ontario Court of
Appeal’s judgment, suggested that “on the right
facts, a search incidental to a lawful stop could
comply with the common law and pass
constitutional muster even though it went
beyond a pat down.” However, in this case the
trial judge’s conclusion that it was unreasonable
for police to extend the search as they did was
well founded. As Justice Goudge noted:
Ultimately, [the trial judge] found that the
[accused’s] story could have been checked out
by the officers and that the situation faced
by them was not sufficiently exigent or
critical to warrant extending the search to
the contents of the closed box in the glove
compartment of the car. It was not
reasonably necessary for the search to go
that far. She concluded that in all the
circumstances the extended search was
unreasonable.
Her finding that the circumstances were not
sufficiently critical is supported by the fact
that the occupants of the car were said to
match a description that was only very
general and unspecific, the absence of
weapons on their person, the innocent
explanation offered for their presence, and
the apparent absence of footprints fleeing
the area of the house.

handcuffed and on the ground. The officers
were a very short distance from the house,
and had just spoken to the owner. They were
aware that there was a second male in the
house. The [accused’s] story could easily have
been checked, with no meaningful if any
extension of the appellant’s detention beyond
that required for the extended search. If
confirmed, the extended search would have
been unnecessary. [paras. 18-20]

As for whether the evidence was nonetheless
admissible, again the trial judge made no error:
[T]he extended search could reasonably be
viewed as a relatively serious breach of the
[accused’s] Charter rights. It went beyond
what was required to mitigate concerns about
officer safety. The officers had no
reasonable and probable grounds. There is a
considerable expectation of privacy in a small
case that is zippered shut in the glove
compartment of one’s car. And where one of
the officers makes clear that she would have
searched this car and any car coming down
the road that night regardless of whether
she has the common law power to do so, it is
hard for the police to rely on good faith in
light of this ignoring of the scope of the
officers’ authority. Finally, in all the
circumstances, including the readily available
alternative of checking out the [accused’s]
explanation for being there, I cannot fault
the conclusion that the administration of
justice would be brought into disrepute if the
evidence obtained by the extended search
was admitted. [para. 24]

The appeal was dismissed and the acquittal
upheld.
Complete case available at www.ontariocourts.on.ca

The same is true of the finding that their
innocent explanation could readily have been
checked so as to make the extended search
unnecessary. The two occupants were

Volume 5 Issue 5
September/October 2005

www.jibc.bc.ca

Coming
soon!!!
www.policeleadership.org
(see p. 20)

15

EXPERIENCED POLICE OFFICER
BEST TO ASSESS
CIRCUMSTANCES
R. v. Furness, 2005 BCPC 0389
Two plain clothed police officers
driving an unmarked police car
were travelling in a high drug
trafficking and drug use area.
They saw the accused and a known female “drug
middler” in an alcove area. The two left and
began to walk up the street towards a park, a
known location for drug use. The accused was
walking purposely and appeared to have a crack
pipe in the palm of his hand. Believing they were
going to smoke crack, the two were arrested by
police on a stairway to the park. The accused had
a crack pipe in his hand and police found a rock
of cocaine in his pants pocket. He was charged
with possession of a controlled substance.
At his trial in British Columbia Provincial Court,
the accused argued there were insufficient
grounds upon which to make the arrest under
s.495 of the Criminal Code. Justice Cowling,
however, ruled the arrest lawful. In determining
whether an officer has reasonable grounds, a
two prong analysis is used. First, the officer
must honestly have a subjective belief that a
person committed the offence. Second, a
reasonable person standing in the place of the
arresting officer would also believe that
reasonable grounds existed to make the arrest.
In this case, Judge Cowling found the officer
possessed the requisite subjective belief. As for
the objective test he wrote:
There are, in this world, matters of opinion
where reasonable people may reasonably hold
different views. Probably the best person to
assess the dynamics of [the accused’s]
situation on the Cavan Street sidewalk would
be an experienced police officer or an
experienced addict, and for the rest of us it
is a question of being an armchairquarterback. [para. 9]

16

And further:
I find it, nevertheless, difficult to evaluate
on an "objective" basis an incident, the proper
value of which is more the subject of art than
science. I accept the evidence of the
officers as credible and trustworthy in this
matter and that their assessment of the
situation was honestly made. In their place, I
personally would have been less confident to
presume what [the accused] was about, but
that is not the same as saying that I consider
their
decision
to
be
erroneous
or
unreasonable.
I am prepared to accept that the arrest was
valid, although the approach I would take to
the matter is that in all of the circumstances,
the observation of [the accused] with the
additional element of the apparent crack pipe
sticking out from his hand, would have
justified the investigative detention of him.
In this case, that detention would have
lawfully led to the confirmation that the item
was a crack pipe and the necessary basis for
a search which would have disclosed the rock
of crack cocaine would, in my view, then exist.
[paras. 15-16]

Since the arrest was lawful a search incidental
to the arrest was permissible. Furthermore, even
if the judge was in error in holding the arrest
lawful he would have nonetheless admitted the
evidence under s.24(2) of the Charter.
Complete case available at www.provincialcourt.bc.ca

BY THE NUMBERS:
TEEN SUICIDE DEATHS
Teen Suicide Deaths—BC’s 2004 Top 4
City/Town
Surrey (RCMP)
Vancouver
Abbotsford
Campbell River (RCMP)

Number
3
3
2
2

Source: BC Coroners Service, Teen Deaths-1997 to 2004, August
26, 2005

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

including police, are impliedly invited or
permitted to be in the common areas of such
buildings and are not trespassers at law if
they approach the unit door for the purpose
of communicating with an occupant.

FEENEY WARRANT NOT
REQUIRED TO ENTER
APARTMENT HALLWAY
R. v. Beune, 2005 BCPC 175
The accused called 911 from his
apartment to make a noise
complaint about his neighbour.
Police responded and became
aware that the complainant was
wanted on an outstanding warrant for uttering
threats. Two officers attended, entered the
building without being buzzed in by the accused,
and knocked on the accused’s door. He was asked
to open the door and step into the hall. The
police learned the noise had stopped and the
warrant then became the focus of the police
contact. The accused was told he was under
arrest for the warrant and the officer put his
hand on the accused’s shoulder. The accused
bolted towards the suite and began yelling and
flailing, but he was handcuffed and taken to jail.
As a result of his resistance to being arrested,
the accused was charged with obstructing a
police officer.
At trial in British Columbia Provincial Court the
accused argued, among other grounds, that the
hallways of his apartment building were part of
his dwelling and the police required a “Feeney”
warrant (ss.529/529.1 Criminal Code) to enter a
dwelling house for the purpose of arresting a
person therein, absent exigent circumstances.
His submission hinged on an interpretation that
the hallway was within the “curtilage” of the
dwelling house under the s.2 Criminal Code
definition of dwelling house. In holding that the
area of the hallway was not part of the dwelling,
Judge Dhillon wrote:
In summary, the law has carved out a
distinction in the treatment afforded to
those occupying a residence in multi-unit
buildings by holding that the common areas
(such as the lobby, hallways or corridors) are
for the use and enjoyment of all occupants
and their respective invitees. Persons,

Volume 5 Issue 5
September/October 2005

Moreover, these common areas are for access
to and egress from an occupant’s home or
dwelling. There is no compelling privacy
interest in these areas because they are not
used for private personal activities normally
conducted within one’s residence such as
eating, grooming, socializing or sleeping.
In the case at bar, a locked door and buzzer
is not sufficient to absolutely bar public
entry into the common areas of the building
at 590 Alexander Street. All residents are
deemed to impliedly consent to visitors and
invitees. Absent an express revocation of
that consent, no case for trespass could be
made out against the police or any other
person on the common property. I conclude
that police are permitted to approach the
door of any resident of an apartment without
the necessity of a Feeney warrant.
I do not discount the position urged by
counsel for the accused that no court appears
to have considered whether, in modern
society, the relationship between an
apartment building and a residential unit
within it falls within the area of the dwelling
curtilage. There may be a plausible argument
to be made that the unit in which [the
accused] resided at the time, being connected
directly by a hallway or passageway to the
front door of the outer building envelope, may
fit within the statutory definition of
dwelling-house under section 2 of the Code.
I prefer to answer the broader question of
whether, absent prior judicial authorization,
police lack legal authority to enter upon the
common areas of apartment buildings for
purposes of enforcing process at the suite of
an occupant. I find the line of authority
referred to above to be compelling and
persuasive that police do not trespass when
they enter into the common hallways of
apartment
buildings
and
prior
legal

www.jibc.bc.ca

17

authorization in such a case is not required…
[references omitted, paras. 47-51]

Despite the ruling on the hallway issue, the
accused was acquitted of the obstruction
charge. In the trial judge’s view, there was a
reasonable doubt as to whether the accused had
the necessary intent to sustain a conviction. He
stated:
I find that the evidence of [the accused]
raises a reasonable doubt as to his guilt. [The
accused] is clearly an intelligent person who
testified in a forthright manner. He said that
when he was told about the arrest warrant, he
asked to see a copy in the absence of which he
turned immediately to go into his unit to get a
phone to call his lawyer. I accept his evidence
of his motive to return to his suite. He was in
his doorway when the police prevented him
from moving any further. At that time, he was
not explicitly warned that he was resisting
arrest and his actions were obstructing the
police. The police agreed that they were not
going to let him go back into his unit because
they felt they had no lawful authority to
follow him inside without a Feeney warrant.
They restrained him as he tried to get to the
phone to call his lawyer. His resistance to the
restraint is the basis for the charge.
In considering whether [the accused] had the
necessary criminal intent to obstruct the
police in carrying out his arrest, I accept [the
accused’s] evidence of his intent to call a
lawyer. This evidence, coupled with the lack of
a warning by police that his conduct amounted
to obstruction, leaves me in reasonable doubt
on the issue of his intent to obstruct. Had the
police themselves not been constrained by
their inability to enter his suite, I doubt that
the matter would have unfolded in the manner
in which it did. [paras. 62-63]
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
On Assaulting Police—Sir Robert Peel, who is

considered to be the animator of the modern
police force, indicated that "The police are the

community, and the community is the police."
That is the relationship that should exist
between modern police services and their
community. In many ways police act as society's
surrogates. They do the tasks that society finds
unpleasant, and while members of society
generally may be able to turn a blind eye to the
more unpleasant aspects of our societal
interaction, police must not turn a blind eye,
they must go out and do those unpleasant tasks.
It's the nature of doing their duty which makes
them vulnerable. The assault on Constable De
Guzman and on Constable MacNeil represents an
assault on society at large—Ontario Court of
Justice J. Taylor3

INSUFFICIENT NEXUS
BETWEEN PERSON & CRIME:
DETENTION UNLAWFUL
R. v. Konopski, Lee & McLaughlin,
2005 BCPC 0298
Police executed a search warrant
at a residence and found a grow
operation in the basement. While
the police were still at the
residence, the accused Lee
arrived with a female and knocked on the door.
An officer answered and Lee identified himself.
The officer knew Lee was associated to the
residence as an owner or landlord and believed
he may be associated to the grow operation. The
officer was also concerned for his safety with
the two people attending the door of an active
crime scene. He detained Lee and the female,
handcuffed them both and directed them into
the residence. Lee and the bag he was carrying
were searched. Police found $6,000 cash in Lee’s
jacket pocket and items that could be used to
weigh and package marihuana in his bag. Lee was
then arrested.
At trial in British Columbia Provincial Court on
charges of marihuana production, possession for
3

18

R. v. Swift [2005] O.J. No. 3203

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005

the purpose of trafficking and electricity theft,
Lee argued, among other grounds, that he was
arbitrarily detained contrary to s.9 of the
Charter and the searches of both his person and
his bag violated s.8 of the Charter. The Crown
contended, on the other hand, that the
detention was not arbitrary and the searches
were the lawful product of an investigative
detention.
Judge Bastin agreed with the accused. He said:
In my opinion, it was reasonable for [the
officer] to secure Mr. Lee and his female
companion because they posed a potential
danger to him and to the other officers in
the course of their investigation of an active
crime scene. It does not follow, however, that
there was necessarily a clear nexus between
Mr. Lee and the crime or crimes being
investigated. Clearly there was no evidence at
all to suggest the female was associated to
the crimes occurring in the residence.
The difficult issue for the court to decide in
this case is whether [the officer] had proper
grounds to detain Mr. Lee for investigative
detention. I conclude from the evidence on
the voir dire on the balance of probabilities
that [the officer] did not have the required
grounds to detain Mr. Lee for investigative
purposes. Mr. Lee's presence at the front
door, and the fact that he knocked at the
door, and [the officer’s] belief that he was
the landlord for the residence did not amount
to the "clear nexus" between Mr. Lee and the
marihuana grow operation that was required
to meet the legal test for investigative
detention that is established by the Mann
decision.
I therefore find that Mr. Lee and his female
companion were both arbitrarily detained by
[the officer]. Clearly, then, the s. 9 Charter
right of Mr. Lee was infringed or denied.
The Mann case dealt with police powers of
search when a person is lawfully detained for
investigative purposes. There are no such
powers when a person is not lawfully detained
for investigative purposes. I find, therefore,
that the search of Mr. Lee's person and the

Volume 5 Issue 5
September/October 2005

search of his bag resulted in his s. 8 Charter
rights being infringed or denied.
My finding that Mr. Lee was arbitrarily
detained, to use a colloquial phrase, is a "close
call". I can appreciate that another court
could reach an opposite conclusion; therefore,
if I am in error in finding that Mr. Lee was
arbitrarily detained, I would rule in the
alternative that the search of Mr. Lee's
person was still unreasonable as going beyond
a pat- down search. The search of Mr. Lee's
bag would be also unreasonable as going
beyond the limits of police powers of search
of a person detained for investigative
purposes as that was determined by the Mann
decision. [paras. 52-56]

As a result the evidence was excluded under
s.24(2).
Complete case available at www.provincialcourt.bc.ca

BY THE NUMBERS:
ILLICIT DRUG DEATHS
Illicit Drug Deaths—BC’s 2004 Top 11
City/Town
Vancouver
Surrey (RCMP)
Victoria
Nanaimo (RCMP)
Kamloops (RCMP)
Coquitlam (RCMP)
Abbotsford
Prince George (RCMP)
Burnaby (RCMP)
Kelowna (RCMP)
Maple Ridge (RCMP)

Number
64
18
15
7
6
5
4
4
3
3
3

Source: BC Coroners Service, Illicit Drug Deaths-1997 to 2004,
August 23, 2005

Note-able Quote
If we think we’re in a grey area, we may be, but
grey is just white tainted with black—Grant

Warkentin

www.jibc.bc.ca

19

To date, Police Leadership 2006 has confirmed
the following presenters:

2006 POLICE LEADERSHIP
CONFERENCE
APRIL 10-12, 2006

Lieutenant-General Roméo Dallaire
O.C., C.M.M., M.S.C., C.D. (Retired)

Mark your calendar! The British
Columbia Association of Chief's
of Police, the Ministry of Public
Safety and Solicitor General
and the Justice Institute of
British Columbia will be hosting
the "Police Leadership 2006 Conference" April
10 to 12, 2006 at the Westin Bayshore in
Vancouver, British Columbia. This is Canada’s
largest Police Leadership Conference and was
sold out in 2004 with more than 600 delegates
attending.
Leadership in policing is not bound by position or
rank and this conference will provide delegates
from the police community with an opportunity to
engage in a variety of leadership areas. Police
Leadership 2006 will bring together experts who
will provide current, lively, and interesting topics
on leadership. This carefully chosen list of
speakers will provide a first class opportunity at
a first class venue to hear some of the world’s
outstanding
authorities
on
leadership.
Therefore, early registration is encouraged so
you do not miss out on this great opportunity.
Beautiful downtown Vancouver will provide the
backdrop for the Police Leadership 2006
Conference. The host hotel, the Westin
Bayshore Resort and Marina, offers state of the
art facilities, excellent accommodation rates,
and promises to be an enjoyable venue for the
conference. The Westin is located on the shores
of Coal Harbour, overlooking Stanley Park, and is
a short walk to the downtown’s business district,
shopping, and entertainment. Or you may choose
to jog, bike, or roller blade along Vancouver’s
famous Seawall.

20

Stephen Covey

Author, The 7 Habits of Highly Effective People

Richard Boyatzis

Author, Primal Leadership

Rick Dinse

Chief of Police, Salt Lake City Police Department

John King

Assistant Chief of Police, Montgomery County
Department of Police

Eddie Compass
Former Chief of Police, New Orleans Police
Department

Conference Cost
The registration fee for the Police Leadership
2006 Conference is $385 CDN (plus GST) if you
register before March 5, 2006. The conference
fee for registrations received AFTER March 5,
2006 will be $425 CDN (plus GST). The
registration cut off date is April 5, 2006.
The conference fee includes a reception on
Monday evening, lunches on Tuesday and
Wednesday, and a banquet dinner on Tuesday.
Each participant will receive a "welcome package"
upon registration. Register early, as the number
of delegates is limited and past conferences
have sold out prior to the registration cut-off
date.
Conference attire is business casual.

For more information visit

www.policeleadership.org

www.jibc.bc.ca

Volume 5 Issue 5
September/October 2005