IN SERVICE: 10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers in Canada.
Charter Turns 33
The Canadian Charter of Rights and Freedoms became law on April 17, 1982. That was 33 years
ago. Since then, the Courts have been interpreting the Charter and considering how it impacts
Canadian law. Equally, if not more difficult, is applying this developing jurisprudence to the
myriad of circumstances as they arise in life. Well, that is exactly what the police must do. It is
their duty to sometimes take abstract constitutional notions and principles (such as privacy) and
apply them to daily reality, often in a heartbeat, with little time for reflection, second opinion or
timeouts. The call a police officer makes on the street is the one that they, and others, must live
with. Training and education is key! That is why “In Service: 10-8” is now in its 15th year of
publication. We salute all of our readers and thank them for all that they do in maintaining
public safety is this great nation.
Be Smart & Stay Safe
Volume 15 Issue 2
Volume 15 Issue 2 - March/April 2015
Highlights In This Issue
Unless otherwise noted all articles are authored by
Mike Novakowski, MA, LLM. 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 herein
are not necessarily the opinions of the Justice
Institute of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to this
newsletter.
CAPE 2015
4
Without Privacy Interest, No Standing To Challenge
Search
6
Aggregate Of Circumstances Provides Grounds
7
Protestor Stop & Search Not Justified
10
ITO Validity Based On All Information
12
Safety Search Exercised In Reasonable Manner
18
Policing Across Canada: Facts & Figures
15
2nd Annual Metro Vancouver Transit Police Charity
Gold Tournament
18
Evidence Admissible Despite Unreasonable Cell
Phone Search
19
Advanced training provides opportunities for skill
development and career enhancement for
municipal police officers. Training is offered in
the areas of investigation, patrol operations and
leadership for in-service municipal and RCMP
police officers.
Proper Advisement Made: No Right To Re-Charter
20
JIBC
Police
Academy
Alberta’s Top Court Refuses To Reconsider
Suspension Of s. 10(b) Rights During Impaired
Investigation
21
Acquiring Historical Text Messages Did Not Require
Part VI
24
Upcoming Courses
Advanced
Police
Training
See Course List here.
2nd
ANNUAL
METRO
VANCOUVER
TRANSIT
POLICE
CHARITY
GOLF
TOURNAMENT
to
benefit
Special
Olympics
BC
National
Library
of
Canada
Cataloguing
in
Publication
Data
Thursday
May
14,
2015
Main entry under title:
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
Westwood
Plateau
Golf
&
Country
Club
Coquitlam,
BC
See p. 18
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.
PAGE 2
CAPE
2015
May
19-22,
2015
More info on p. 4
Graduate Certificates
Intelligence Analysis
or
Tactical Criminal Analysis
www.jibc.ca
see
page
32
Volume 15 Issue 2 - March/April 2015
In the line of fire: how to handle tough
questions--when it counts.
Jerry Weissman.
Upper Saddle River, NJ: FT Press, 2014.
HF 5718.22 W449 2014
WHATʼS
NEW
FOR
POLICE
IN
THE
LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of its
recent acquisitions which may be of interest to
police.
Canadian organizational behaviour.
Steven L. McShane, Sandra L. Steen, Kevin Tasa.
Whitby, ON: McGraw-Hill Ryerson, 2014.
HD 58.7 M33 2014
Demarginalizing voices: commitment, emotion,
and action in qualitative research.
edited by Jennifer M. Kilty, Maritza Felices-Luna, and
Sheryl C. Fabian.
Vancouver, BC: UBC Press, 2014.
HM 571 D44 2014
Diversity in coaching: working with gender,
culture, race and age.
edited by Jonathan Passmore.
London, UK; Philadelphia, PA: Kogan Page, 2013.
HF 5549.5 C53 D58 2013
Emotionally intelligent leadership: a guide for
students.
Marcy Levy Shankman, Scott J. Allen, Paige HaberCurran.
San Francisco, CA: Jossey-Bass, 2015.
LB 2346 E469 2015
Fundamentals of social research.
Earl Babbie, Lucia Benaquisto.
Toronto, ON: Nelson Education, 2013.
H 62 B223 2013
How we learn: the surprising truth about when,
where, and why it happens.
Benedict Carey.
New York, NY: Random House, 2014.
BF 318 C366 2014
Present with impact and confidence.
Amanda Vickers and Steve Bavister.
London, UK : Teach Yourself, 2010.
HF 5718.22 V53 2010
Show me the numbers: designing tables and
graphs to enlighten.
Stephen Few.
Burlingame, CA: Analytics Press, 2012.
HF 5718.22 F49 2012
Social media marketing for dummies.
by Shiv Singh and Stephanie Diamond.
Hoboken, NJ: John Wiley & Sons, Inc., 2015.
HF 5415.1265 S56 2015
The 27 challenges managers face: step-by-step
solutions to (nearly) all of your management
problems.
Bruce Tulgan.
San Francisco, CA: Jossey-Bass, a Wiley brand, 2014
HD 30.3 T85 2014
The art and science of workplace mediation.
Blaine Donais.
Toronto, ON: Carswell, 2014.
HD 5481 D66 2014
The complete volunteer management handbook.
Steve McCurley, Rick Lynch and Rob Jackson.
Liverpool, UK: Directory of Social Change, 2012.
HN 49 V64 M33 2012
The non-designer's design book: design and
topographic principles for the visual novice.
Robin Williams.
San Francisco, CA: Peachpit Press, 2014
Z 246 W634 2015
PAGE 3
www.10-8.ca
Volume 15 Issue 2 - March/April 2015
CAPE 2015
Canadian Association of Police Educators
715 McBride Boulevard
New Westminster, BC
Effective & Defensible Training Through Collaboration
Conference: May 20-22, 2015
Pre-conference Workshop: May 19, 2015
The Canadian Association of Police Educators (CAPE) promotes excellence in law
enforcement training and education through the guidance of innovative research, program
development, knowledge transfer, network facilitation, and collaborative training
initiatives. In the changing landscape of police training many agencies are stretching their
resources to do more with less. The goal of the 2015 CAPE conference is to promote
discussion on hot topics in police training, highlighting collaboration as a mechanism to
achieve effective and defensible training within the current economic climate.
Sessions at the conference are designed to be short, fast-paced presentations followed by
facilitated group discussions, panel discussions, or question and answer sessions with
panelists to promote interaction and critical thinking. Innovations in police training in BC
will be showcased throughout the conference and scheduled updates from various
organizations and committees will promote collaboration.
PAGE 4
Volume 15 Issue 2 - March/April 2015
Canadian Association of Police Educators
Effective & Defensible Training Through Collaboration
Conference: May 20-22, 2015
Pre-conference Workshop: May 19, 2015
Presentation topics at the 2015 CAPE Conference include:
• Hot topics in police training:
✓ Mental readiness
✓ Two-tiered policing
✓ The Economics of policing
• Training for Vancouver’s Downtown East Side
• The JIBC continuum of training
• Assessing in the real world:
✓ Outcomes based assessment
✓ Reality-based training and assessment
✓ Blended learning: e-learning for outcomes based assessment
• Developing provincial standards:
✓ BC’s Certified Use of Force Instructor Course (CUFIC)
✓ BC’s Firearms working group
✓ Police Services Division – working towards provincial standards in BC
• Assessment Centre
• National Training Inventory
• Collaboration in Police Training
• BC’s Crisis Intervention and De-Escalation training
A limited-capacity pre-CAPE workshop on curriculum mapping will be offered May 19,
2015 where participants will work directly with the BC Police Academy Curriculum
Developer to map their curriculum to the Police Sector Council National Framework of
Competencies.
There will also be opportunities to network and exchange ideas in an informal setting.
cape-educators.ca
PAGE 5
Volume 15 Issue 2 - March/April 2015
WITHOUT
PRIVACY
INTEREST,
NO
STANDING
TO
CHALLENGE
SEARCH
R. v. Steele, 2015 ONCA 169
At about 2:00 am, a police officer
decided to stop a vehicle and check
for proper documentation and driver
sobriety. Although she could see a
driver, she could not tell their gender
or skin colour nor whether there were any other
occupants. After pulling the vehicle over and
approaching the driver’s door, she noticed there
were four black men in the car, including the
accused seated as a front passenger. She called for
back up and three other officers arrived. They stood
at each of the vehicle’s other doors. When asked, the
driver produced the ownership papers and several
expired insurance pink slips but could not produce a
driver’s licence. He said the car belonged to his
friend’s mother. Although cooperative and making
efforts to find proof of insurance, he appeared
nervous. The accused, seated up front, also seemed
nervous. He had also been hunched over with his
hands underneath the passenger seat as if he were
trying to hide something. The officer asked the driver
if he would like her to help him find the valid
insurance slip. He agreed. The other occupants,
including the accused, were asked to get out of the
car while the driver remained in the driver’s seat. The
officer went to the front passenger side of the car.
She knelt on the ground and looked inside the glove
box for the insurance slip but could not find it. As
she rose to leave, she saw part of the butt and barrel
of a gun on the floor partially under the front
passenger seat. The gun was a loaded, prohibited,
semi-automatic firearm. Weapons charges followed.
Ontario Superior Court of Justice
It was agreed that the accused’s mother
was the owner of the car and had lent it
that day to the driver and the accused,
her son. The judge concluded that the
initial stop of the vehicle was authorized under
Ontario’s Highway Traffic Act (HTA), which permits
random stops to check driver and vehicle
documentation, and driver sobriety. He also found
the HTA gave police officers the power to search the
vehicle for proof of insurance and that the accused
had no standing to challenge the driver’s consent to
the search of the vehicle. Furthermore, there was no
evidence of racial bias or racial profiling. When the
officer saw the car she could not see the race or
gender of the driver, or any other occupants of the
vehicle. She only determined the number of
occupants and their race after she stopped the car.
As well, when she went to the front passenger side
and looked into the glove box, she was “intent on
finding that valid insurance slip”. Finally, even if
there had been a Charter violation, the evidence was
admissible under s. 24(2). The judge found that the
accused knew the gun was there, was trying to hide
it from police, and was exerting a measure of control
over it. He was convicted of possessing a loaded,
prohibited, semi-automatic firearm.
Ontario Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions contending, in part, that
the gun was found during an
unreasonable search. He argued
that the search was not authorized by law, the
driver’s apparent consent to the search was
insufficient, and the stop and subsequent search was
partially motivated by racial bias. Thus, in his view,
the gun should have been excluded as evidence
under s. 24(2).
Reasonable Expectation of Privacy
Whether or not a person has a reasonable
expectation of privacy depends on the totality of the
circumstances. Factors to consider the privacy
analysis include the accused’s presence at the time
of the search; possession or control of the property
or place searched; ownership of the property or
place; historical use of the property or item; ability
to regulate access, including the right to admit or
exclude others from the place; the existence of a
subjective expectation of privacy; and the objective
reasonableness of that expectation. In this case, the
Court of Appeal held the accused lacked a
reasonable expectation of privacy in the car:
PAGE 6
Volume 15 Issue 2 - March/April 2015
In the circumstances of the present case, the
[accused] did not have a reasonable expectation
of privacy in the car. The [accused] was a
passenger in the vehicle at the time of the
search, and he was authorized by his mother, at
the very least, to be a passenger in the vehicle.
However, the [accused’s] degree of possession or
control, historical use, or ability to regulate
access to the vehicle is unknown.
driving misconduct. Further, there were some
inconsistencies between the officer’s trial evidence,
her notes, and her previous testimony that suggested
the stop was racially motivated. A stop or search
motivated by racial bias or racial profiling will
breach the Charter. However, in this case, the trial
judge did not err in finding no such motivation. The
officer gave evidence about when she first saw the
vehicle and when she realized that one or more of
the occupants was black. There was no basis to
interfere with the trial judge’s findings of fact that the
stop and search were not racially motivated.
In general, it would be objectively reasonable
for an individual using a family member’s car to
have a reasonable expectation of privacy in that
vehicle. Here though, the [accused] did not
identify himself as a person to whom the car had
been loaned, and he did not indicate his
connection to the vehicle’s owner. He was only
a passenger in a vehicle driven by another
person who claimed to have borrowed the car.
Further, the police had no reason to believe that
the [accused] had any connection to the vehicle
other than as a passenger. Moreover, the driver
was attempting to produce required
documentation to police, and had apparent
control of the vehicle. Under these
circumstances, there is no basis for a person in
the [accused’s] position to have subjectively
expected privacy in the vehicle. [paras. 19-20]
s. 24(2) - Admissibility
Since the accused had no reasonable expectation of
privacy in the car, there was no Charter “search” and
therefore no s. 8 breach. It was unnecessary to
address the issue of consent to search or determine
whether the police conduct was reasonable.
The Court of Appeal did note, however, that there
was no statutory authority in Ontario permitting the
search of the vehicle for proof of insurance. “Some
provinces explicitly authorize the search of a vehicle
where an officer has reasonable grounds to believe
that the vehicle is being operated in violation of
regulatory requirements,” said Justice Pardu.
“However, neither the Highway Traffic Act nor the
Compulsory Automobile Insurance Act ... contains
any such provision that is applicable in this case.”
Racial Bias
The accused submitted that the police stopped and
searched the car because one or more of its
occupants was black. In his view, this was a random
vehicle stop of four black men without any apparent
As for the admissibility of the evidence under s. 24
(2), even if there had been a Charter breach the trial
judge did not err in concluding that the gun should
not be excluded. “Even if the [accused] had had
some expectation of privacy in the vehicle, it was
highly attenuated,” said Justice Pardu. “The officer
acted in good faith. The trial judge found that she
was not undertaking a search for evidence of a
crime, but was attempting to help the driver find
proof of insurance. She asked the driver if he wanted
her help, and looked in the glove box in reliance on
his consent. The societal interest in a trial on the
merits was substantial. The gun was highly reliable
and probative evidence unaffected by any Charter
breach.”
The accused’s appeal against his conviction was
dismissed.
Complete case available at www.ontariocourts.on.ca
AGGREGATE
OF
CIRCUMSTANCES
PROVIDES
GROUNDS
R. v. Italiano, 2015 ONCA 179
A police officer had previously
received general information from
two confidential informers that a man
named Michele Santonato was a
large scale drug dealer, specifically in
cocaine, and operated out of a house at 36 Celt
Avenue in Toronto. While watching the house, the
PAGE 7
Volume 15 Issue 2 - March/April 2015
law does not expect the same kind of inquiry of
police as to whether to arrest someone that it
demands of a justice faced with an application
for a search warrant.
police saw the accused Italiano enter it and emerge
a few minutes later carrying a distinctive looking
shoebox. It was red and white with stripes. He
entered his car and drove away. The police followed.
About 15 minutes later, Italiano stopped his car and
another man, the accused Abdul-Hamid got into the
passenger seat. Abdul-Hamid then got out two
minutes later holding the shoebox, entered his own
car, and drove away. The police followed AbdulHamid, stopped him, and arrested him at
gunpoint. Following the arrest, the vehicle was
searched and the shoebox was found. It contained
one kilogram of cocaine. The men were charged
with drug offences.
There must be a constellation of objectively
discernible facts amounting to reasonable and
probable grounds for there to be a lawful arrest
without warrant.
The flow of investigative detention, arrest and
search may be a dynamic process. A s. 8 analysis
ought not to be reduced to an over-analytical
parsing of events into static moments without
practical regard to the overall picture.
The totality of the circumstances relied upon by
the arresting officer formed the basis for the
objective assessment. It would be an error of law
to assess each fact or observation in isolation.
The objective assessment will include dynamics
within which the officer acted and his or her
experience. Because a trained officer is entitled
to draw inferences and make deductions based
on experience, a reviewing court must take these
factors into account.
Ontario Superior Court of Justice
Both men challenged Abdul-Hamid’s
arrest and subsequent search on the basis
t h a t t h e a r r e s t i n g o f f i c e r l a ck e d
reasonable and probable grounds. Thus,
the search incident to arrest was unlawful and the
evidence should have been excluded under s. 24(2)
of the Charter. The judge described the test for
reasonable grounds to arrest this way:
The Criminal Code of Canada and case law
indicate that an arresting officer must
subjectively have reasonable and probable
grounds, but those grounds must also be justified
from an objective point of view. A reasonable
person, placed in the position of the officer must
be able to conclude there were reasonable and
probable grounds for the arrest. Reasonable
grounds can be equated to reasonable
probability. They do not require that the police
have a prima facie case before they effect an
arrest ... .
... ... ...
The cumulative effect of the factual elements
may provide the objective support for the
officer's subjective belief he had reasonable and
probable grounds to arrest. The whole is greater
than the sum of the individual parts. [references
omitted, paras. 36-43, 2013 ONSC 1744]
In this case, the judge found the arresting officers
had sufficient reasonable and probable grounds to
make the arrest based on the information that they
received, as well as from their observations and the
surveillance conducted:
The information from the two confidential
informants alone or the two confidential
informants together but without everything else,
would not be a lawful basis to arrest Mr.
Santonato and that is not what is before me here.
While the confidential informant information
regarding Mr. Santonato is not compelling, it has
elements of credibility and corroboration. There
is surveillance of Mr. Italiano which was a
reasonable step for the officers to make from
which they drew conclusions and they did not
act in terms of arresting anyone until they saw
the handoff to [Abdul-Hamid].
Information that would not meet the
reasonableness standard on an application for a
search warrant may still meet that standard in
the context of an arrest.
The dynamics at play in an arrest situation are
very different from those on an application for a
search warrant. The decision to arrest often must
be made quickly in volatile and changing
situations. Judicial reflection is not a luxury the
officers can afford. The police officer must often
make a decision based on available information,
which is often less than exact or complete. The
PAGE 8
Volume 15 Issue 2 - March/April 2015
In my view, having reviewed all of the evidence
carefully, the confidential informant information,
as corroborated to some extent by the
surveillance, adds a layer to what was observed
by the police and provides a basis for reasonable
and probable grounds to arrest [Abdul-Hamid]
and I find that they had those grounds. [paras.
50-51, 2013 ONSC 1744]
There were no ss. 8 or 9 Charter breaches, the
evidence was admissible, and the accused Italiano
and Abdul-Hamid were convicted of trafficking and
possessing cocaine for the purposes of trafficking.
Ontario Court of Appeal
As for the search incidental to arrest, it was validly
conducted:
Motor vehicles are legitimate objects of search,
incident to arrest as they attract no heightened
expectation of privacy that would justify an
exemption from the usual common-law
principles. The search must be truly incidental to
the arrest. The police must be attempting to
achieve some valid purpose connected to the
arrest. It depends on what the police are looking
for and why. The only requirement is that there
be some reasonable basis for doing what the
police did. The police have considerable leeway
in circumstances of an arrest which they do not
have in other situations. "Truly incidental to
arrest" means if justification for the search is to
find evidence, there must be some reasonable
prospect of securing evidence of the offence for
which the suspect is arrested. The limits on
search, incident to arrest are no different for
motor vehicles than for any other place. The
right to search a vehicle, incident to arrest and
the scope of the search will depend on a number
of factors, including the basis for the arrest, the
location of the car in relation to the place of
arrest and other relevant circumstances. In this
case, Mr. Abdul-Hamid was arrested, I have
found, based on lawful authority. I find he did
have a degree of expectation of privacy in the
vehicle, but the police also had a power to
search that vehicle, incident to arrest. In this
case, the police were not on a fishing
expedition. They were looking for a very
distinctive shoebox that had been very recently
passed to the applicant. The item was observed
and recovered on the floor in the rear passenger
area. [The searching officer’s] evidence was that
the box was not covered. This search was to
achieve a valid purpose related to the arrest and
provides evidence of the offence for which Mr.
Abdul-Hamid was arrested. [para. 55, 2013
ONSC 1744]
Both accused appealed their
convictions arguing the police did
not have reasonable and probable
grounds to arrest Abdul-Hamid and
therefore the evidence out to have been excluded. In
a short endorsement, the Ontario Court of Appeal
upheld the trial judge’s ruling.
The trial judge found that during the
investigations the officers involved in the arrest,
including the arresting officer and the officer
who had the tip from the confidential
informants, were part of an investigative team
conducting surveillance and they kept in contact
by radio. He concluded that based on the
information regarding Santonato and the officers'
observations, the arresting officer was entitled to
order the arrest of Abdul-Hamid. We agree.
In our view, the arresting officer had the
requisite reasonable and probable grounds to
conduct the arrest. In this case, [the arresting
officer] ordered the [accused] Abdul-Hamid’s
arrest. At the time, this officer had received
confidential information communicated through
[another officer], that Santonato was a significant
drug-dealer. [The arresting officer] could rely on
a summary of the information given to him by
[the other officer] in deciding whether he had
grounds to make the arrest. Santonato was
observed at 36 Celt Avenue. The [accused]
Italiano went into 36 Celt Avenue and emerged
a few minutes later with a shoebox. The shoebox
was later seen in the [accused] Abdul-Hamid’s
possession. He took it in his car and then
left. [The arresting officer], who ordered AbdulHamid’s arrest, made most of these observations
in person, and was informed of the rest by his
fellow investigating officers.
The Court must consider the totality of the
circumstances to determine whether the
constellation of factors taken together supports
the officer’s reasonable and probable grounds.
We are satisfied that the evidence established
PAGE 9
Volume 15 Issue 2 - March/April 2015
the requisite reasonable and probable grounds
relied on by [the arresting officer] to make the
arrest. [paras. 6-8]
Ontario Superior Court of Justice
The appeal was dismissed and the convictions
upheld.
Complete case available at www.ontariocourts.on.ca
Editor’s note: Additional facts taken from R. v.
Abdul-Hamid, 2013 ONSC 1744.
PROTESTOR
STOP
&
SEARCH
NOT
JUSTIFIED
Figueiras v. Toronto (Police Services Board),
2015 ONCA 208
During the second day of the 2010
G20 Summit of world leaders held in
Toronto, the applicant and some of
his friends went downtown to
demonstrate in support of animal
rights. As they walked they were stopped by a team
of several police officers about one city block north
of a security fence that had been set up to enclose
the summit site. They were told that if they wanted
to cross the street and go any further, they would
have to submit to a search of their bags. Although his
companions complied, the applicant refused to
permit a search of his backpack saying he had
nothing to hide and regarded the request as a
violation of his civil rights. At one point, the officer
said, “Either we look through it, or you can go.
What’s it going to be?” When the applicant stated “I
don’t consent to a search,” the officer stepped
forward, wrapped his arm around the applicant’s
shoulder, gripped him firmly by the shirt, pulled him
in so they were face-to-face and said “You don’t get
a choice.” The officer then pushed the applicant
away and said, “Get moving.” Other comments
made by police included, “There’s no civil rights
here in this area. How many times do you got to be
told that?” and “This ain’t Canada right now.” The
applicant eventually gave up his plans to
demonstrate and went home.
“This ain’t Canada right now.”
The applicant applied to the Court for
declarations that the police had violated
his rights to freedom of expression,
peaceful assembly, and liberty under ss. 2
(b) and (c) and 7 of the Charter. He also wanted a
declaration that the officer grabbing him had
committed the tort of battery. Although it was agreed
that the officers had no statutory authority to
demand the a search in this case, the judge
nevertheless found it was authorized under the
common law as an ancillary police power. Targeting
demonstrators walking down the public street and
requiring that they submit to a search of their
belongings if they wished to proceed fell within the
general scope of the police duty to preserve the
peace as well as their power to cordon off the area
to protect the foreign dignitaries. As for the police
action in fulfilling these duties, the judge found it
was reasonably necessary. Tailoring the searches to
only suspected demonstrators rendered the police
intervention minimally intrusive and was not an
abuse of authority. He also analogized these
searches to those carried out at courthouses and
airports. Finally, the alleged battery was de minimis
(trifling) at worst and, in any event, was justified
under s. 25 of the Criminal Code, which permits
police to use “as much force as is necessary” in the
course of their authorized duties when acting on
reasonable grounds.
Ontario Court of Appeal
Th e a p p l i c a n t a p p e a l e d t h e
dismissal of his request for a
declaration. He maintained that the
police violated his Charter rights to
liberty, freedom of expression, and peaceful
assembly.
Common Law Ancillary Powers Doctrine
Under the common law, police officers are given
broad duties, such as preserving the peace,
preventing crime and protecting life and property, as
well as powers ancillary to those duties. However,
police powers ancillary to a police duty are limited.
PAGE 10
Volume 15 Issue 2 - March/April 2015
“Effectiveness in the context of police powers is not measured by whether a risk does or
does not in fact materialize. Rather, the effectiveness of a given power is determined by
considering whether, objectively, the measure serves to materially reduce the risk of a
breach of the peace.”
Ancillary police action must be reasonably
necessary in all of the circumstances for the carrying
out of the police duty. In determining whether police
conduct falls within a common law ancillary power,
the courts utilized a two-part analysis (also known as
the Waterfield test):
1. Does the police conduct in question fall within
the general scope of any duty imposed on the
officer by statute or common law?
2. If so, in the circumstances of the case, did the
execution of the police conduct in question
involve a justifiable use of the powers
associated with the engaged statutory or
common law duty? Here, the competing
interest of the police duty and the liberty
interests of the individual must be balanced.
In this case, the Court of Appeal framed the police
power exercised as “the power of individual police
officers to target demonstrators and, where no crime
is being investigated or believed to be in progress,
but with the intention of preventing crime, to require
that they submit to a search if they wish to proceed
on foot down a public street.” As for the liberty
interests at stake, they were identified as “the
freedom of expression under the Charter and the
common law right to travel unimpeded down a
public highway.”
The parties agreed that the officers’ conduct fell
within the scope of the police duty to preserve the
peace and prevent damage to property or persons.
However, the Court of Appeal disagreed with the
lower court that the police conduct in interfering
with the applicant’s liberty was necessary for the
police to carry out their duty in keeping the peace.
First, the power the police used was not effective.
“Effectiveness in the context of police powers is not
measured by whether a risk does or does not in fact
materialize,” said Justice Rouleau speaking for the
Court of Appeal. “Rather, the effectiveness of a given
power is determined by considering whether,
objectively, the measure serves to materially reduce
the risk of a breach of the peace.” This team of
police officers only targeted those who appeared to
be protestors. Of the thousands of people downtown
that day, only 70 to 100 were stopped. Furthermore,
any would-be troublemakers who were turned back
could have taken a different route to get to the
security fence.
Second, the warrantless weapons searches of only
those appearing to be demonstrators were not
rationally connected to their purpose of keeping the
peace:
• It was unclear whether the previous day’s
violence at the Summit was initiated by
demonstrators or others who had infiltrated and
mixed with groups of demonstrators.
• The previous day’s violence was not limited to
the area near where the officer’s were. It
occurred throughout the downtown core.
• The previous day’s violence did not involve the
use of weapons that might be secreted in a
backpack. Rather, uprooted newspaper boxes,
street signs, sandwich boards, and bricks pried
loose from a paved boulevard were used.
Nor were the stops analogous to searches at
courthouses. Unlike these searches, courthouse
searches are statutorily authorized, require everyone
entering submit, are publicized in advance, do not
occur on a public street, and do not target
identifiable groups.
Justice Rouleau also found the lower court erred in
the Waterfield balancing exercise. For example, the
judge equated minimal impairment on the
applicant’s rights by only considering the amount of
people targeted by police (only apparent
PAGE 11
Volume 15 Issue 2 - March/April 2015
demonstrators) rather than minimizing the impact on
those targeted:
The fact is that for a demonstrator such as Mr.
Figueiras, the impairment of his rights was in no
way lessened because the officers had
determined to interfere with only the rights of
people “like him.” The number of people who
are the target of the intrusion is reduced, but the
intrusion felt by each target is neither minimized
nor reduced. The officers not only stopped and
questioned would-be protesters, they also
insisted that these would-be protesters submit to
a search if they wished to proceed, regardless of
the answers they gave in response to the officers’
questions. Additionally, it is arguable that by
targeting demonstrators and making it known
that only demonstrators were being stopped and
searched as a condition of passage, those
stopped might justifiably feel an even greater
sense of state interference, since they knew they
were the only ones being targeted. The decision
to target demonstrators in no way lessens the
impairment of Mr. Figueiras’s rights. [para. 24]
The applicant’s appeal was allowed and the Court of
Appeal declared that the police violated the
applicant’s common law right to travel unimpeded
on a public highway and his Charter right to
freedom of expression. The Court of Appeal also
declared that the tort of battery had been committed
against the applicant.
Complete case available at www.ontariocourts.on.ca
ITO
VALIDITY
BASED
ON
ALL
INFORMATION
R. v. Whalen, 2015 NLCA 7
As a result, the Court of Appeal concluded that “the
police did not have the power to target apparent
demonstrators and require that they submit to a
search in order to continue down a public street.”
The interference with the applicant’s liberty was not
prescribed by law and therefore s. 1 of the Charter
could not be used to justify the breaches.
Battery
As for the police officer reaching around the
applicant and pulling him in, this was more than “de
minimis” touching, such as tapping a person on the
shoulder to get their attention. Here, the tort of
battery, intentionally applying unlawful force to the
body of another, had been made out. “The contact
with Mr. Figueiras in this case was more than just a
‘de minimis’ touching,” said Justice Rouleau. “It was
the kind of unnecessary manhandling that, in my
view, would offend the dignity of a person and serve
to intimidate that person.” Since the officer had no
statutory or common law authority for his action, s.
25(1) of the Criminal Code could not protect him in
using force and shield him from civil liability.
Two confidential informers stated that
the accused (Denise Whalen) was
selling prescription drugs, including
Ritalin, morphine and Oxycontin,
from her home. They told police that
people came to her front door to buy pills,
completed the transactions very quickly, and then
left. The sources gave the prices she charged for the
pills, said how she acquired the drugs, and stated
she kept them in a locked safe in her basement.
Source A, a paid informer and admitted drug user,
had no criminal record and had been providing
information for one month, which resulted in one
arrest. Source A said that Denise lived at the address
with “Billy”. Source A described “Billy” as having
facial tattoos and a bluish/grey Montana van, which
he parked in front of the house. Source B, a drug
user with a criminal record (but no dishonesty or
deceit offences), said they saw 10 to 15 drug
transactions shortly before the search warrant was
issued. Source B had been a confidential police
informer for approximately 2½ years and provided
intelligence on a regular and ongoing basis
regarding criminal activity which was consistent
with information received from others. Source B’s
past information, which he had been paid for, had
led to the arrest of between five and ten individuals.
That same day the police set up a surveillance team
and observed short visits by no fewer than eight
people to Denise Whalen’s home over a period of 92
minutes. Searches of police data bases confirmed
some of the information from Source A: Denise
Whalen lived at the address with William “Billy”
PAGE 12
Volume 15 Issue 2 - March/April 2015
Whalen and he had facial tattoos. Police
surveillance also confirmed that William Whalen
kept his bluish/grey Montana van parked in front of
the house, as stated by Source A. The police set out
the information obtained from the two confidential
informers, described as reliable, and from the police
surveillance of Denise Whalen’s residence. A search
warrant under s. 11 of the Controlled Drugs and
Substances Act was obtained. The police found
drugs and both accused were charged with drug
possession offences.
Reasonable Search
A search will be “reasonable” under s. 8 of the
Charter if it is authorized by law, the law itself is
reasonable and the search is conducted in a
reasonable manner. When a search warrant is
properly issued the search is authorized by law and
it is presumed to be valid unless the accused
demonstrates its invalidity. Justice Barry, speaking for
the unanimous Court of Appeal, stated the test for
reviewing the validity of the search warrant as
follows:
Newfoundland Provincial Court
The judge, reviewing the warrant’s
issuance, concluded there was
insufficient grounds in the ITO for the
warrant to be issued. First, he gave little
weight to the information provided by Source A
because their past performance was very limited
(only for a month). Source A couldn’t provide the
Whalen’s surname, and it was unclear how they
came upon the information or how they would have
access to information that the drugs and cash were
locked up in a safe in the basement. Although the
information regarding the reliability of Source B was
stronger, it was still insufficient to provide the basis
for the issuance of a search warrant. Despite some
corroboration by independent police database
searches that the residence belonged to Denise
Whalen, the police surveillance had not yielded any
probative evidence of illegal activity. The judge
noted it was not possible to infer that two of the four
females sighted entering or leaving the home were
not residents and there was no corroborative
evidence of illegal activity involving Denise. The
judge quashed the search warrant and the evidence
was excluded.
Newfoundland Court of Appeal
The Crown appealed the warrant’s
quashing. It argued that the trial
judge erred in concluding there was
insufficient information in the ITO
to support reasonable grounds to believe that an
offence had been committed and that evidence of
that offence would be found in Denise Whalen’s
house.
In reviewing whether a Provincial Court judge
properly issued a search warrant, a reviewing
judge must ask whether the accused has shown
that there was no justifiable basis according to
law upon which the authorizing judge could
have granted the warrant. In the present case this
question comes down to whether the accused
has shown that the authorizing judge did not
have sufficient credible information before him
to establish reasonable grounds to believe that
drugs were being trafficked from the Whalen
residence at the time of issuing. [para. 18]
Reasonable Grounds
The concept of “reasonable grounds to believe” is
“the point where credibly-based probability replaces
suspicion”. Grounds for a search must go beyond
subjective belief and mere suspicion. The proper test
is one of “reasonable probability” rather than “proof
beyond a reasonable doubt” or “prima facie case”.
Nor is a judge reviewing a search warrant to
substitute their view for that of the issuing
judge. Rather, the reviewing judge is to show a high
degree of deference to the issuing judge by
determining whether the issuing judge, on the basis
of the record, could have granted the warrant. “A
reviewing judge does not conduct a rehearing of the
application for a warrant,” said Justice Barry. “The
test is whether there was reliable evidence that
might reasonably be believed on the basis of which
the authorization could be issued.”
In assessing whether there are reasonable grounds
for a search warrant, the totality of circumstances in
the ITO are to be considered as a whole, not by
“parsing and microscopically examining the words,
phrases or paragraphs in isolation.”
PAGE 13
Volume 15 Issue 2 - March/April 2015
“A reviewing judge does not conduct a rehearing of the application for a warrant. The
test is whether there was reliable evidence that might reasonably be believed on the basis
of which the authorization could be issued.”
Three concerns arise when reviewing the sufficiency
of information set out in an ITO: was the information
predicting the offence compelling, was the source of
the information credible and was the information
corroborated by police investigation. However,
corroboration or confirmation of the offence itself is
not required.
In this case, the information provided by source B
was compelling because it provided specific and
convincing detail regarding Denise Whalen’s drug
trafficking activity including what she was selling,
where and how she sold it, and how much she
charged. As for Source B’s credibility, it was strong:
The source of the knowledge is the personal
observation of “B”. Indicia of the reliability of
“B” are past performance over 2½ years as well
as consistency with information obtained by
police from other sources and, to some extent,
consistency with searches of police data bases
and with the brief surveillance.
In addition, the information supplied by Sources
“A” and “B” provides some corroboration for
each other’s statements. [paras. 40-41]
The credibility of Source B was also enhanced by
certain corroborative information. First, although the
information of Source A was less reliable than
Source B, there was some corroboration because of
the similarity of the information regarding the types
of drugs, how they were sold, and where they are
stored. Further:
There is also some corroboration from the
comings and goings during the police
surveillance, consistent with the brevity of the
transactions described by the sources, even
allowing for the fact that much of the activity
may have been nothing more than that of a
normal household. At least four individuals
made visits to the Whalen premises of such a
short duration as to be consistent with the
sources’ statements regarding the type of activity
they observed. Some further corroboration of
neutral facts came from the police search of data
bases, where the information of the sources
regarding the address of Ms. Whalen was
confirmed, as well as the presence of Mr.
Whalen and his vehicle. [para. 43]
In this case, the trial judge substituted her opinion
for that of the issuing judge rather than asking
whether there was a basis to issue the warrant. There
was sufficient information in the ITO, in the totality
of the circumstances, to establish reasonable
grounds to believe that drugs would be present at
the premises on the day the warrant was
executed. The reference by both sources to drugs
and money being kept in a safe in the basement, and
the specific details regarding the types of pills,
moved the corroboration evidence beyond “general
public knowledge.” It was also a reasonable
inference from the information that Denise Whalen
kept her stash “topped up” and that illegal
prescription pills would be found when the warrant
was executed. “Source ‘B’ supplied information
which, considered with the other information,
reached that point and permitted the authorizing
judge to conclude it was sufficient to establish
reasonable grounds to support issuing a search
warrant,” said Justice Barry. “There was sufficient
credible and reliable information in the ITO to justify
the Provincial Court judge finding reasonable
grounds to believe an offence was being committed
and that evidence of that offence would be found at
the specified time and place.”
The trial judge erred in quashing the search warrant.
The warrant was valid, there was no Charter breach,
and therefore no basis to exclude the evidence
found in the search. The Crown’s appeal was
allowed and the matter was remitted for a new trial.
Complete case available at www.canlii.org
Sign up for the electronic distribution of “In
Service: 10-8” now. Go to:
www.10-8.ca
PAGE 14
Volume 15 Issue 2 - March/April 2015
POLICING
ACROSS
CANADA:
FACTS
&
FIGURES
Canada’s Police Officers by CMA - Top 9
CMA
According to a recent report
released by Statistics Canada,
there were 68,896 active police
officers across Canada in 2014.
This represented a decrease of
354 officers over 2013, down
1.6% from the previous year. Ontario had the most
police officers at 26,148, while Nunavut had the least
at 119. With a national population of 35,540,419,
Canada’s average cop per pop ratio was 194 police
officers per 100,000 residents.
Source: Statistics Canada, Police Resources in Canada,
2014, Catalogue no: 85-225-X, March 2015
Officers
% Change
Number
per 100,000
2013>2014
Toronto, ON
9,875
167
-2.4%
Montreal, QC
7,420
186
+2.2%
Vancouver, BC
3,551
145
-4.0%
Calgary, AB
2,201
160
-1.6%
Edmonton, AB
1,998
155
-2.9%
Winnipeg, MN
1,535
191
-0.6%
Ottawa, ON
1,375
141
-2.5%
Hamilton, ON
1,120
153
+0.1%
Quebec, QC
1,018
1,363
-2.1%
CANADA: By the Numbers
Royal Newfoundland Constabulary
396
Total population: 35,540,419
2014
Quebec Provincial Police
5,694
YK
135
BC
8,754
Ontario Provincial Police
4,202
NWT
192
NU
119
NL
895
AB
6,990
SK
2,294
MN
2,646
ON
26,148
QC
16,201
PEI
236
NB
1,291
In 2013 the total expenditure on policing was
$13,596,486,000
PAGE 15
NS
1,884
RCMP ‘HQ’ &
Training Academy
1,111
Volume 15 Issue 2 - March/April 2015
2014
FAST
FACTS
GENDER
• On the snapshot day of May 15, 2014 there
were 68,896 police officers in Canada. There
were an additional 28,409 civilians, which
represented 29% of all police personnel. There
were 2.4 officers for every civilian employed.
Canada’s authorized police strength on the
snapshot day was 71,457. The difference
between actual and authorized strength was due
to unfilled vacancies.
• Manitoba had the highest provincial rate of
police strength at 206 officers per 100,000
residents (cop to pop ratio). The Northwest
Territories had the highest territorial cop to pop
ratio at 440.
• 54% of police officers were 40 years of age or
older. 11.5% of police officers were under 30
while only 4.9% were 55 years or older.
• The Winnipeg, MB Census Metropolitan Area
(CMA) had the highest police strength at 191
officers per 100,000, followed by Thunder Bay,
ON (187) and Montreal, QC (186). The CMA of
Saguenay, QC had the lowest police strength at
106.
• For the 2013 calendar year, 73% of officers
hired were recruits. The remainder were
experienced police officers.
• Recruits have a higher proportion of college
certificates/diplomas than experienced officers.
• At the end of the 2013 calendar year, 11% of
police officers were eligible to retire.
Newfoundland had the highest proportion of
officers that could retire at 22%.
• In May, 2014 there were 84 Canadian police
officers involved in several United Nations
peacekeeping operations.
• Women represented 67% of civilians employed
by police services.
• Canada continues to have a lower cop to pop
ratio (194) compared to other countries such as:
• Ireland - 307.2
• Germany - 293.4
• France - 290.3
• Australia - 263.1
• United States - 221.8
• Sweden - 215.9
* based on 2012 stats
There were 14,175 female officers in 2014
accounting for 20.6% of all officers, or roughly 1
in 5. This is up from 1.3% from the previous year.
Quebec had the highest
%
percentage of women (24.7%) Area Female
while Nunavut had the lowest
(8.4%). The RCMP HQ and QC
24.7
Training Academy were 26.6%
BC
21.9
female.
The number of women in all
ranks continued to rise. Senior
officers, such as chiefs, deputy
chiefs, superintendents, inspectors
and other equivalent ranks, were
10.9% female, more than
doubling since 2004. Noncommissioned officers, such as
corporals, sergeants and staff
sergeants, were 17.6% female,
more than twice the 2003
percentage. Constables were
22.2% female. This was a slight
increase over last year.
NL
20.1
SK
19.9
ON
19.1
AB
18.7
NS
17.6
NB
16.3
YK
15.6
MN
14.8
PEI
14.0
Overall, the representation of
women in policing continues to
rise.
NWT
11.5
NU
8.4
OTHER
FA$T
FACT$
• Police expenditures rose for the 19th
consecutive year, more than doubling since
1994.
• Per capita costs for policing in fiscal 2013
translated to $387 per Canadian (capita).
• Among provinces, the most spent on policing
was in Ontario ($4,544,424,000) followed by
Quebec ($2,550,320,000), British Columbia
($1,504,0724,000), Alberta ($1,359,093,000)
and Manitoba ($452,673,000). The Yukon
($31,091,000), Prince Edward Island
($34,765,000), Nunavut ($48,888,000) and the
Northwest Territories ($58,584,000) spent the
least. Other RCMP expenditures on such things
as HQ, international operations and national
policing services amounted to $1,957,255,000.
PAGE 16
Volume 15 Issue 2 - March/April 2015
RCMP
RCMP On-Strength Establishment
The RCMP is Canada’s largest police
organization. It is divided into 15 Divisions
with Headquarters in Ottawa. Each
division is managed by a commanding
officer and is designated alphabetically.
RCMP DIVISIONS
Division
Area
Depot
Regina, SK (Training Academy)
National
National Capital Region
B
Newfoundland & Labrador
C
Quebec
D
Manitoba
E
British Columbia
F
Saskatchewan
G
Northwest Territories
H
Nova Scotia
J
New Brunswick
K
Alberta
L
as of September 1, 2014
Rank
#
of
positions
Commissioner
1
Deputy Commissioners
5
Assistant Commissioners
25
Chief Superintendents
48
Superintendents
171
Inspectors
347
Corps Sergeant Major
3
Sergeants Major
3
Staff Sergeants Major
13
Staff Sergeants
863
Sergeants
1,890
Corporals
3,480
Constables
11,509
Special Constables
68
Prince Edward Island
Civilian Members
3,956
M
Yukon Territory
Public Servants
6,269
O
Ontario
Total
V
Nunavut Territory
Source: www.rcmp-grc.gc.ca/about-ausujet/organi-eng.htm
28,651
RCMP Officers by Level of Policing - Canada 2014 (numbers do not include 1,111 members at HQ & Training Academy)
Level / Region
BC
AB
SK
MN
ON
QC
NB
NS
PEI
NL
YK
NWT
NU
Total
Municipal
3,464
1,079
118
182
-
-
208
47
10
-
-
-
-
5,108
Provincial
1,771
1,391
881
624
-
-
475
760
96
400
109
168
106
6,781
Federal
745
317
227
174
1,663
913
134
171
23
83
18
14
6
4,488
Other
136
49
30
28
47
44
26
28
8
16
8
10
7
437
Total
6,116
2,836
1,256
1,008
1,710
957
843
1,006
137
499
135
192
119
16,814
PAGE 17
Volume 15 Issue 2 - March/April 2015 !
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PAGE 15
$
!
Volume 15 Issue 2 - March/April 2015
EVIDENCE
ADMISSIBLE
DESPITE
UNREASONABLE
CELL
PHONE
SEARCH
R. v. Adeshina, 2015 SKCA 29
The police stopped a minivan after
seeing it travelling 144 km/h in a 100
km/h zone. The accused was in the
passenger seat. Police conducted a
database search and located an
outstanding warrant for the driver’s arrest. He was
arrested, searched, and found to posses three small
plastic bags containing white powder, which
appeared to be cocaine. The accused was then asked
to step out of the minivan and searched. He was
found to possess an LG cell phone and $1,444.71 in
cash. The minivan was then searched and police
discovered a Blackberry cell phone, a Samsung
Galaxy cell phone, and a duffle-bag containing 33
Ziploc bags of marihuana having a net weight of
7,692 grams. The accused was then arrested for
possessing a controlled drug for the purpose of
trafficking. A cursory search of the text messages on
the LG cell phone was made but nothing of
consequence to the investigation was discovered.
More than 2½ months later the Samsung Galaxy cell
phone was removed from exhibit storage, its text
messages were checked, and relevant information
was recorded. Then, about four months later, the
three cell phones were sent to a Tech Crime Unit for
examination. Nothing was retrieved from the
Blackberry or LG devices but a “data dump” of the
Samsung Galaxy resulted in a 682 page report about
the data retrieved from its memory. This report
revealed the Samsung Galaxy belonged to the
accused and that he was connected with the
marihuana seized from the minivan. He was charged
with possessing marihuana for the purpose of
trafficking and possessing proceeds of crime.
Saskatchewan Court of Queen’s Bench
The officer explained that the 2½ month
delay in searching the Samsung Galaxy
resulted from him being on leave for his
wedding and then being busy on his
return. Nevertheless, the judge found the searches
conducted of the cell phone some months after the
accused’s arrest was too far removed in time to be
considered incidental to it. Thus s. 8 of the Charter
had been breached. However, the judge refused to
exclude as evidence all of the information acquired
by the police from their searches of the cell phones.
Although he found that the impact of the searches
on the accused’s, Charter-protected interests had
been significant, the judge found the Charterinfringing conduct of the police had not been
serious and there was a clear societal interest in
adjudicating the case on the merits. Balancing these
three factors, the judge concluded that the text
messages should not be excluded under s. 24(2). The
accused was convicted of possessing marihuana for
the purpose of trafficking and possessing proceeds of
crime.
Saskatchewan Court of Appeal
The accused argued, among other
things, that the trial judge’s
assessment under s. 24(2) was in
error and that the text messages
ought not to have been admitted as evidence. But
the Court of Appeal disagreed. Conducting its own
assessment under the s. 24(2) admissibility analysis,
the Court of Appeal upheld the admission of the
evidence.
• Seriousness of the Charter-infringing state
conduct (admission may send the message the
justice system condones serious state
misconduct). This was not serious:
1. The law respecting cell phone searches at the
time was unsettled and unclear.
2. This was not a deliberate Charter violation.
The officer honestly believed, although
wrongly, that he had lawful authority to
conduct the searches and acted in a manner
consistent with the general policy of his
detachment on such matters.
3. There were compelling reasons to search cell
phones in connection with drug arrests and
the officer could have obtained a warrant if he
had sought one.
4. Although the forensics examination took place
some months after the accused’s arrest, the
officer offered a reasonable explanation for
the delay.
PAGE 19
Volume 15 Issue 2 - March/April 2015
• Impact of the breach on the Charter-protected
interests of the accused (admission may send the
message that individual rights count for little). This
was very significant. The privacy interests in the
contents of computers and mobile devices like
cell phones is high. The search of the Samsung
Galaxy cell phone was particularly intrusive,
involving a comprehensive “data dump”.
• Society’s interest in the adjudication of the
case on its merits. The evidence of the Samsung
Galaxy cell phone’s contents was reliable and real
evidence connecting the accused to the
marihuana. It was extremely important to the
Crown’s case and was key to the adjudication of
the charges against the accused. There was a clear
societal interest in seeing this case adjudicated on
its merits.
Chief Justice Richards, speaking for the Appeal
Court, found this case tipped the balance against
excluding the evidence. The evidence was
admissible, the accused’s appeal was dismissed, and
his convictions were upheld.
Complete case available at www.canlii.org
PROPER
ADVISEMENT
MADE:
NO
RIGHT
TO
RE-CHARTER
R. v. Bonnell, 2015 NBCA 6
About two months after a 16-year-old
girl went missing, her 29-year-old first
cousin was arrested on an unrelated
charge of sexual assault. He was also a
suspect in the death of his cousin. He
was read an arrest script which conveyed his legal
rights on both the unrelated sexual assault charge
and being the subject of a police investigation into
the death of his cousin. He was advised of his right
to counsel and warned about his right to silence. He
was then transported to a police detachment to
facilitate his right to counsel. Despite being urged to
call a lawyer and told that murder was a serious
crime, he refused to contact counsel. He was
subsequently advised of his right to counsel three
more times before being interviewed the following
day. He later led police to the burial site of his
cousin’s body in an isolated wilderness area and was
charged with first degree murder.
New Brunswick Court of Queen’s Bench
The accused claimed that once the
interview topic changed from the sexual
assault investigation to the homicide, he
should have been advised of his right to
counsel relating to the murder. The judge, however,
disagreed and found that the accused had been
clearly and repeatedly told he was the subject of a
police investigation into the murder and kidnapping
of his cousin, and indignities to her body. There was
no change in his jeopardy in any legally significant
way. The police were therefore not obligated to
provide further notice of the right to counsel when
questioning changed form the alleged sexual assault
to the murder. Thus, s.10(b) of the Charter was not
breached. His statements were admissible and he
was convicted by a jury of first degree murder. He
was sentenced to life in prison with no eligibility for
parole for 25 years.
New Brunswick Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
conviction arguing, among other
grounds, that his statements should
n o t h ave b e e n a d m i t t e d a s
evidence because the police failed to advise him
that his legal jeopardy had changed when the first
stage of questioning relating to the alleged sexual
assault was completed and questioning about his
cousin’s disappearance and suspected murder
started. In his view, the police were required to stop
the interview and provide him with further notice of
his Charter rights (re-advise him under s. 10(b)). The
Crown, on the other hand, argued that the accused
had been lawfully arrested and detained regarding
the sexual assault allegation and lawfully detained
regarding the murder investigation.
Justice Quigg, writing the Court of Appeal’s opinion,
agreed with the trial judge that there had been no
change in the accused’s jeopardy. He had been
advised repeatedly that he was being investigated for
the murder of his cousin and of his rights as a result
of that investigation. The evidence was properly
admitted and the accused’s appeal was dismissed.
Complete case available at www.canli.org
PAGE 20
Volume 15 Issue 2 - March/April 2015
ALBERTAʼs
TOP
COURT
REFUSES
TO
RECONSIDER
SUSPENDING
s.
10(b)
RIGHTS
DURING
IMPAIRED
INVESTIGATION
R. v. Caswell, 2015 ABCA 97
A police officer stopped the accused
driving a truck. He thought the truck
was in a hurry and discovered the
vehicle was registered to a woman.
The officer told the accused he had
pulled him over to check for sobriety and
documentation. Although the accused said he had
not been drinking, the officer noticed that he
covered his mouth when he spoke, looked tired, and
was slightly slurring his speech. The officer also
detected a moderate smell of alcohol on the
accused’s breath. The officer told the accused he
suspected that he may be impaired and radioed for
another officer to bring an approved screening
device (ASD). The accused was told to leave his cell
phone in his truck when the officer asked him to the
police vehicle. The ASD arrived within two minutes
and the officer requested a breath sample. The
accused said he would not blow until he had spoken
with his lawyer on his cell phone. After several
minutes of discussion about calling a lawyer, the
accused was arrested for refusing to provide a breath
sample. After an hour he was released at the scene
on a promise to appear but was never allowed to
call a lawyer during this time. His truck, which
contained his cell phone, was towed and
impounded under Alberta’s provincial administrative
scheme.
Alberta Provincial Court
The officer testified he did not allow the
accused to use his cell phone to call a
lawyer because he had been taught that
detained persons were not allowed to
contact a lawyer when faced with an ASD demand.
The judge found the officer had no duty to allow the
accused an opportunity to contact a lawyer before
providing a roadside sample. While s. 10(b) of the
Charter guarantees the right to retain and instruct
counsel without delay upon detention or arrest, she
found the law was settled that s. 10(b) rights are
suspended while a detained motorist is asked to
participate in roadside screening tests. This s. 10(b)
suspension is justified as a reasonable limit under s.
1 of the Charter. She also rejected the arguments
that she could ignore binding precedent (R. v.
Mitchell, 1994 ABCA 369) by reconsidering earlier
case law in view of recent developments in cellular
technology and should adopt a “reasonable
accommodation” framework. Furthermore, even if
there was a s. 10(b) breach, the judge ruled the
accused’s refusal to comply with the ASD demand
was nonetheless admissible. The accused was
convicted of refusing to provide an ASD sample.
Alberta Court of Queen’s Bench
An appeal judge upheld the trial judge’s
ruling. The accused’s right to counsel had
not been breached. The suspension of the
right to consult a lawyer when a roadside
breath demand is made is justified under s. 1 as long
as the test can be done “forthwith”. The appeal
judge found the societal objectives of detecting and
deterring impaired driving and the practical
operational realities in doing so continue to be
relevant and improvements to cellular technology
did not allow for a reconsideration of earlier
precedent. Plus, even though it might have been
possible for the accused to access legal advice, the
overall purpose and justification for suspending the
right to counsel during roadside sobriety
investigations remained. The accused’s appeal was
dismissed.
Alberta Court of Appeal
Th e a c c u s e d r e q u e s t e d
permission to further appeal
his case and wanted the case
o f M i t ch e l l , a n e a r l i e r
decision of the Alberta Court of Appeal, to be
reconsidered. In Mitchell, the suspension of the s. 10
(b) right to counsel during an investigative detention
for impaired driving was found to be justified under
s. 1 of the Charter, irrespective of whether the right
could be facilitated in the particular circumstances
of the case. In the accused’s view, the trial judge
PAGE 21
Volume 15 Issue 2 - March/April 2015
comply with a peace officer’s demand to provide
forthwith a sample of breath for analysis by an
approved roadside screening device.
Parliament’s point, recognized in [R. v. Thomsen,
[1988] 1 SCR 640], was that a roadside
screening device test is to be administered “at
such time and place as the motorist is stopped,
and as quickly as possible”. And, owing to (inter
alia) the strong possibility of detection of
erred, among other things, in limiting the scope of
the s. 10(b) right to counsel upon investigative
detention for impaired driving to situations where
the ASD test cannot be conducted forthwith. In
seeking a reconsideration of Mitchell, the accused
argued:
•
If a reasonable opportunity to contact counsel
existed when the ASD demand was made, it
should be on the Crown to establish in each
case that the s. 10(b) suspension of the right to
counsel was nevertheless justified pursuant to s
1 of the Charter.
•
The meaning of “forthwith” in s 254(2) of the
Criminal Code since Mitchell has been given a
broad interpretation in the jurisprudence.
•
A provincial administrative scheme has added
to the length of time a driver may be detained
and has increased the severity of the potential
consequences flowing from a roadside breath
demand.
•
The case law on the right to counsel has
developed and the importance of this right has
been emphasized.
The Crown, on the other hand, submitted that the
law was well settled in this area and the right to
counsel is suspended during ASD screening so long
as it is done “forthwith”. In the Crown’s view, the
increased availability of cell phones did not detract
from Parliament’s legitimate need to suspend the
right to counsel in order to quickly and effectively
implement roadside sobriety screening.
The Majority
Justice Brown, writing the two member majority
decision, rejected the accused’s application to
reconsider Mitchell. He summarized the limitation
on the right to counsel while detained:
Parliament limited the right to consult counsel
that would normally arise upon detention by
imposing the requirement, contained in what is
now section 254(2) of the Criminal Code, that a
person reasonably suspected to have alcohol or
a drug in his or her body and who has operated
a motor vehicle within the preceding three hours
!"#$!!%&'("$)*+#
LEGALLY SPEAKING:
!"#$%&'()#'%*+,-.'-/+0#)*1)&1
WHAT MITCHELL SAID
23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&
“We do not read [Thomsen and other
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+
Supreme Court decisions] as saying
%9+ /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+
8%"41
that where communications are
6&)*#-1+#$-+)"#$%&'()#'%*<+
difficult the police need not allow
access to a lawyer3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'before demanding a roadside
screening sample. We read them as saying that
#$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$
Parliament requires motorists to give roadside
%99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'##-1
screening
without any
chance/'44+
to obtain
legal-.'1-*8-+ %
#$)#+
#$-+samples
)"#$%&'()#'%*+
7%"6$#+
)99%&1+
advice first, and that any violation of the Charter is
%99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+
pardoned
by s. 1 of the Charter.
%9+
#$-+ )"#$%&'('*6+
5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/
@"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7
It is not for us to disregard decisions of the Supreme
/$'8$+
)"#$%&'('*6+
5"16-+
8%"41+ law
$).-+ 6&)*#-1
Court of #$-+
Canada.
For a lower court
to disregard
)"#$%&'()#'%*<+
laid down by higher courts because the lower court
thinks that the reasoning or criteria lack force at
3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()#'%*+'9+7)
different places or different times, is largely to ignore
%*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B#$-+#
the doctrine of precedent. We cannot and will not do
%9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8
that. …
)"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C7+9"*8#
#%+
#$-+that
7"==%&#'*6+
)99'1).'#+
)7+when
)+ /$%4->+ )*1+ *
… -D);'*-+
And we think
the Supreme
Court …,
7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,#
!"#$"#%&&#'()#*'+,#KLLM+
KLLM+
%9+!==-)4+H$'-9+I"7#'8-+J'*8$>+
!"#$"#%&&#'()#*'+,#
sometimes stop motorists for investigation
of
KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+
possible impaired driving at times and in places
where communication with a lawyer might be
www.10-8.c
possible.
… Even in 1988 … car telephones were fairly
common.” – Alberta Court of Appeal in R. v. Mitchell,
'-$)"+&.$.%&'%+/012"&
1994 ABCA 369 at paras. 9-11.
PAGE 22
3$.4'*5"&-"$/&60$42$7&
81+9"0"+8"
1:;<=>?&@ABC&DEEF
Volume 15 Issue 2 - March/April 2015
“Parliament limited the right to consult counsel that would normally arise upon detention
by imposing the requirement, contained in what is now section 254(2) of the Criminal
Code, that a person reasonably suspected to have alcohol or a drug in his or her body
and who has operated a motor vehicle within the preceding three hours comply with a
peace officer’s demand to provide forthwith a sample of breath for analysis by an
approved roadside screening device.”
impaired drivers and to the deterrent effect of the
perceived risk of their detection, the Supreme
Court was satisfied that the consequent
imposition upon the right to counsel was
reasonable and demonstrably justified in a free
and democratic society, having regard to the fact
that the right to counsel would be operative at
the more serious breathalyzer stage. [references
omitted, para. 30]
In the majority’s view, the changes to the legislative
scheme and the proliferation (if not ubiquity) of cell
phones was neither a significant development in the
law, nor was it a change in circumstances or
evidence that has shifted the parameters of the
debate in a fundamental way such that Mitchell (and
thus Thomsen) should be reconsidered:
As to the amendments to the pertinent legislative
scheme, “significance” must be considered with
reference to the rationale for the rule that
scheme establishes. While the legislative
changes which the [accused] points to (notably,
provincial statutory amendments authorizing
seizing and impounding of vehicles) have
obviously increased the stakes for someone in
the [accused’s] position, they are not relevant to
the rationale for the decision in Mitchell (nor, for
that matter, for the rule in Thomsen). [para. 42]
sample forthwith is inconsistent with the right to
consult counsel, so long as such consultation
delays the immediate provision of a breath
sample upon demand. The applicant’s case – in
which approximately two minutes passed
between the demand and the arrival of the
screening device – does not demonstrate
otherwise. While he stresses that he had a cell
phone, and repeatedly asked to use it to contact
a lawyer, no suggestion was made to us that he
could necessarily have used it to (1) contact a
lawyer, (2) instruct a lawyer and (3) have a
reasonable opportunity to obtain legal advice
from a lawyer, all before the arrival of the
screening device. [para. 44]
This ground of appeal was dismissed.
A Different View
Justice Veldhuis would have granted the accused’s
leave to appeal and allow Mitchell to be
reconsidered:
[The Mitchell] decision is 20 years old; since the
case was decided there have been many relevant
and significant advances in technology allowing
instantaneous communication; changes to the
legislative scheme; it is a memorandum of
judgment rather than a reserved judgment; and a
number of subsequent appellate decisions have
established exceptions to the general rule set out
in Mitchell. This is a situation where the matter
can be revisited based on developments in the
law and a change in circumstances that
fundamentally shifts the parameters of the
debate. Cell phones have profoundly altered the
And further:
The proliferation of cell phones, however, does
nothing to invalidate that starting premise in
Mitchell and Thomsen. Even where a cell phone
is present, the requirement to provide a breath
“Even where a cell phone is present, the requirement to provide a breath sample forthwith
is inconsistent with the right to consult counsel, so long as such consultation delays the
immediate provision of a breath sample upon demand.”
PAGE 23
Volume 15 Issue 2 - March/April 2015
way of life of Canadian society and certainly the
post-1994 generation. [references omitted, para.
15]
Justice Veldhuis opined that this ground of appeal
was reasonably arguable and it was clearly an issue
of substantial public importance.
Appeal Allowed On Other Grounds
Permission for the accused to appeal his other
grounds was allowed by all three judges of the Court
of Appeal:
• whether evidence of his refusal while his right
to counsel was suspended could be used as
evidence for a criminal conviction.
• whether his s. 10(b) right was breached when
the police failed to facilitate his right to counsel
in the hour between his arrest and release on a
promise to appear.
Complete case available at www.canlii.org
ACQUIRING
HISTORICAL
TEXT
MESSAGES
DID
NOT
REQUIRE
PART
VI
R. v. Belcourt, 2015 BCCA 126
While investigating a home invasion
style robbery where a man was shot
dead, the police obtained two
production orders under s. 487.012 of
the Criminal Code requiring Telus to
produce all incoming and outgoing text messages
sent at or around the time of the offence related to
two cellular phones − one associated with the
accused and the other to another suspect. Some of
the text messages included evidence relevant to the
incident. The accused and the other man were
charged with, among other things, second degree
murder.
rather than a production order as they did. In his
view, the acquisition of any text messages could
only be authorized under Part VI because all the text
messages were “private communications” that were
“intercepted” within the meaning of s. 183 of the
Criminal Code. Thus, the text messages could not be
acquired by police without giving the accused the
benefit of the privacy protections in ss. 185 and 186.
The judge, noting that Telus kept copies of the text
messages on its database for about 150 days and
was legislatively allowed to do so, found the seizure
of the messages under the production orders was not
an interception within the meaning of Part VI. This
was not a prospective acquisition of future text
messages as found in R. v. Telus, 2013 SCC 16, but
the stored text messages had already been
transmitted and received more than a month before
the production order was granted. And, even if the
acquisition of the text messages breached s. 8 of the
Charter, the judge would have admitted them under
s. 24(2). The accused was found guilty of second
degree murder.
British Columbia Court of Appeal
The accused appealed, in part,
arguing that the trial judge erred in
not excluding the text messages
under the Charter. In his view, the
production orders allowing the police to acquire his
stored text messages from the service provider’s
database fell within the definition of “interception.”
Again, he contended that only Part VI could
authorize the acquiring of the text messages.
Justice Kirkpatrick, speaking for the Court of Appeal,
concluded that the seeking of stored messages in this
case was not “prospective”:
British Columbia Supreme Court
The accused argued that the police were
required to obtain an authorization
under Part VI of the Criminal Code to
lawfully acquire the text messages,
PAGE 24
... I appreciate the privacy concerns arising from
technology that allows for text messages to be
“stored” in a database before they are received
by the intended recipient. However, as I
understand the evidence, there is a five day
“push period” during which the service provider
attempts to deliver messages and during which
the text message is stored electronically on the
server without having been delivered to the
Volume 15 Issue 2 - March/April 2015
intended recipient. In this regard, the most
notable feature of the electronic storage is that it
allows for the message to be continuously and
instantaneously re-sent until either it is received
or a pre-set time occurs (i.e., the “push period”
ends).
The use of the production order in this case did not
amount to a breach under s. 8 of the Charter.
“Privacy rights are not absolute,” said Justice
Kirkpatrick. “In this case, the acquisition of the
historical text messages by police was authorized by
law by way of s. 487.012.” Since there was no
Charter violation there was no need to consider s.
24(2). The accused's appeal was allowed, however,
on the basis that the trial judge erred by improperly
instructing the jury on the murder charge.
I readily concede that the acquisition of a text
message by the police in this interim transit
period could constitute an interception within
the plain meaning of the word. However, this is
because the recipient has yet to receive the
message, and may never receive the message. In
stepping between a sender and recipient to
acquire a message and its content before it is
received, and when it may never be received,
the police are “intercepting” the message in the
most literal sense of the word. [paras. 44-45]
Complete case available at www.courts.gov.bc.ca
TECHNICAL
BREACH
DID
NOT
WARRANT
EXCLUSION
OF
EVIDENCE
Here, however, the police did not “interject
themselves in the communication process by using
an investigative technique that comes between the
sender and receiver of a message.” Rather, they
sought “to obtain a stored electronic record of a text
message after it has been sent and received.” Since
the stored, historical messages were already in
existence, the investigative technique in obtaining
them was not “prospective” and was outside the
ambit of Part VI:
The detailed requirements found in Part VI exist
to address the fact that the evidence sought to be
acquired by the police has not yet come into
existence at the time that the judicial
authorization for its acquisition is being sought.
Indeed, the constitutionality of Part VI derives
from the safeguards that are imposed by the role
of the judge granting the authorization, which
exist because of the danger that the interception
of private communications could easily
transform into a fishing expedition. Put simply, it
is inherent in the nature of Part VI authorization
that the investigative technique to be utilized by
the police is prospective, which requires a
distinct form of judicial authorization in
comparison to other search warrant provisions.
In my view, applying Part VI to evidence already
in existence is a misapprehension of the form of
authorization provided for in that section of the
Code. [references omitted, para. 47]
R. v. Shin, 2015 ONCA 189
During a street-level undercover
cocaine trafficking investigation
dubbed Project Isis, the accused
became a target of the investigation
based on evidence linking him to
other traffickers. Police observed these traffickers
entering an apartment building several times over a
two month period, where they generally stayed for
only a few minutes. As a result of this police
surveillance and the execution of general warrants
authorizing covert entries into the traffickers’
residences, the police believed that the apartment
was being used as a “stash house”. Based on
surveillance and other information, the police
sought a general warrant authorizing covert entry
into the apartment to, among other things, search it
and seize drugs and other items. The general warrant
authorized the police to:
covertly enter [the Apartment]…[t]o search the
premises or storage unit for, to photograph, and to
alter or seize any firearms, ammunition, controlled
drugs, proceeds of crime (cash) and any other
information about, or evidence, of the above-noted
offences, including drug packaging, cocaine
adulterants, debt lists, weigh scales, cellular
telephones or telephone records, banking
documents, documents relating to the occupancy
of the residence and photographs of the coconspirators.
PAGE 25
Volume 15 Issue 2 - March/April 2015
The police entered the apartment, which was
unoccupied, opened a locked bedroom door, and
found powder cocaine (2369.2 grams), crack
cocaine (81.3 grams), methamphetamine (6.1
grams), heroin (2.8 grams), hashish (525.7 grams),
marijuana (7454.3 grams), cash ($235,335), and
drug trafficking paraphernalia. This included a
money counter, digital scales, a vacuum sealer and
vacuum seal packaging, latex gloves, empty
packaging, and cocaine cutting agent. All of the
substances were seized and removed from the
apartment. However, three officers remained in the
apartment in case the accused returned. The time set
out in the warrant had not yet expired.
About half an hour after the seized items had been
removed from the apartment, the accused entered,
using keys which also opened the locked bedroom
door. Police immediately arrested him and seized
the keys, which he had dropped on the floor during
his arrest. His car was searched incident to arrest. In
it, police found documentation in his name,
marijuana (4865.3 grams), and $5,200 in cash. He
was advised of his right to counsel moments after his
arrest and immediately indicated he wanted to
speak with a lawyer. However, the arresting officer
began to question him. The accused said that the
apartment was his, that there was marijuana in his
car, and he gave the password to his cell phone. He
was taken to a police station and told he could not
contact his lawyer until the investigation was
complete. He was not permitted to contact counsel
for about six hours. Three hours of that delay was
due to the execution of other warrants for Project
Isis and the other three hours of delay was because a
new warrant was needed to address a mistake in it.
The accused was charged with possessing
marijuana, cocaine and heroin for the purpose of
trafficking, and possessing proceeds of crime over
$5,000.
Ontario Superior Court of Justice
Police testified that they believed the
warrant permitted them to remain in the
apartment to see if anyone entered it.
Such an observation, in their view,
would constitute information about the offence,
which the warrant permitted them to gather. Officers
also said they believed they had grounds to arrest
the accused and to search his car incident to arrest.
The lead detective testified that he directed the
accused not be permitted to contact counsel. He
wanted to ensure officer safety and the protection of
evidence during the execution of various search
warrants as part of Project Isis.
The accused sought the exclusion of the items
seized from the apartment and his car. He also
wanted the observations that the police made of him
as he came through the front door using his keys to
enter the apartment, the data seized from his cell
phone on his arrest, and the statements he made
immediately following his arrest ruled inadmissible.
The judge did find several Charter violations:
•
•
•
s. 8 - the warrant did not authorize the police
to remain in the apartment and wait for the
accused to return after they had seized the
evidence; therefore the search was conducted
in an unreasonable manner.
s. 10(b) - the police delayed the exercise of the
accused’s right to counsel.
ss. 8 and 10(b) - the police questioned the
accused after he indicated he wished to
exercise his right to counsel.
The accused’s statements following his arrest were
excluded. The data from his cell phone seized at the
time of his arrest was also inadmissible because of
the improper questioning which led him to reveal
the password. The other evidence, however, was
admitted under s. 24(2). First, there was no bad faith
on the part of the police. Second, there had been a
minimal impact on the accused’s Charter-protected
interests when the police overstayed in the
apartment. The accused had a minimal expectation
of privacy in the apartment (it was not his residence
nor was it a dwelling-place) and the police had
lawfully entered it to seize drugs and other
evidence. Remaining in the apartment after the
evidence had been removed was merely a technical
breach. Finally, society’s interest in adjudicating the
case on its merits favoured admission of the
evidence. Most of the evidence was lawfully
obtained, highly reliable, crucial to the Crown’s
case, and its admission would not bring the
administration of justice into disrepute. Thus, only
PAGE 26
Volume 15 Issue 2 - March/April 2015
serious end of the spectrum. The admission of
“evidence obtained through inadvertent or
minor violations of the Charter may minimally
undermine public confidence in the rule of
law”. Furthermore, the absence of bad faith
reduces the court’s need to disassociate itself
from the police conduct. I do not find that the
o v e r s t ay i n g w o u l d t e n d t o b r i n g t h e
administration of justice into disrepute.Second,
the court must consider the impact of the breach
on the [accused’s] Charter-protected interests. In
this case, there can be no serious challenge to
the application judge’s finding that the [accused]
had a diminished expectation of privacy in the
stash house. A dwelling used solely for the
commercial trade in drugs attracts a diminished
privacy interest. The Apartment was a storage
and packaging facility for drugs and the illicit
proceeds of trafficking in drugs.
the accused’s statements to the police following his
arrest and the data from his cell phone were
excluded. A jury convicted the accused of
possessing marijuana for the purpose of trafficking
and possessing proceeds of crime over $5,000. He
was sentenced to six years in prison.
Ontario Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions by arguing, among
other grounds, that the trial judge
failed to exclude the evidence of
his entrance to the apartment under s. 24(2). His
possession and use of the keys was evidence about
his knowledge and control over the apartment. He
contended that the trial judge failed to properly
consider the admissibility of this evidence and, had
he done so, it would have been excluded.
The Warrant authorized the police to enter the
Apartment, conduct an invasive search and
create property damage. There is nothing to
suggest that the officers acted improperly in the
short period between the seizure of drugs and
money, and the [accused’s] arrival at the
Apartment. In these circumstances, staying
inside the Apartment for a short while longer
than was authorized is a minimal intrusion.
Furthermore, the police gained no special or
private information by remaining inside the
Apartment. Had they waited in the corridor
outside the Apartment or followed the [accused]
to it, they would have seen the [accused] use his
keys to enter the Apartment. Thus, in my view,
the impact of the overstaying on the [accused’s]
Charter-protected rights was minimal.
Justice Gillese, delivering the Court of Appeal’s
opinion, concluded that the trial judge properly
considered the key entry evidence. However, even if
he hadn’t, the result would have been the same admission of the evidence:
The Crown has conceded that the Warrant did
not authorize the police to remain in the
Apartment after the search and
seizure. Assuming that the police conduct was
overreaching, I do not find it to be a serious
breach. Their conduct in remaining in the
Apartment to determine who had possession of
the drugs and cash was logically and reasonably
connected to the core of the authorization under
the Warrant. Furthermore, on the findings of the
application judge, the police officers’
overstaying was not in bad faith and was not a
deliberate violation of the Warrant. The
overstaying was short in duration, occurred
within the time that the Warrant authorized the
police to be inside the Apartment, was done
without the intention of breaching the terms of
the Warrant, was a technique for which ample
grounds existed, entailed no breach of privacy
beyond that authorized by the Warrant, and was
intended to end the investigation with an arrest
in a safe and controlled manner.
Accordingly, I view the breach to be honest,
minor and technical in nature, falling at the less
Third, the court must consider society’s interest
in the adjudication of the case on its merits.
These were very serious crimes. The keyed entry
evidence was real and reliable. In my view, the
third Grant factor points squarely to admission
of the keyed entry evidence. [references
omitted, paras. 66-70]
On balancing the three admissibility factors, the
Court of Appeal found the admission of the key
entry evidence would not bring the administration of
justice into disrepute. The accused’s conviction
against his appeal was dismissed.
Complete case available at www.courts.gov.bc.ca
PAGE 27
!"#$%&'!(%)*+,A PEER READ PUBLICATION
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