POLICE ACADEMY

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

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

IN MEMORIAL
On September 27,
2003,
24-year-old
Surete Du Quebec
Constable
Patrick
Levesque was killed in
an aircraft accident
while transporting a
prisoner from Madelaine Island to Gaspe. The
prisoner had been arrested for violating his
parole and was being returned to Gaspe for a
court appearance. The Piper Navaho plane
crashed into a wooded area
approximately two kilometers
from the airport in Gaspe. The
wreckage
was
found
the
following morning. The prisoner
and the civilian pilot of the
airplane were also killed.
On September 26, 2003, 29-year-old Canadian
Forces Military Police Corporal Stephen Gibson
was killed when his unmarked patrol car was
struck from behind on the Trans-Canada Highway
near Medicine Hat, Alberta. Corporal Gibson was
acting as an escort for the Terry Fox Run and was
driving slowly behind the runners, in the right
lane, when a tractor trailer struck his patrol car
from behind at a high rate of speed.
Corporal Gibson had been transferred to CFB
Suffield only five days prior to
the accident. He was killed on
his first day of duty as a
military police officer after
graduating from the Military
Police Academy in Borden,
Ontario.

Volume 3 Issue 6
November/December 2003

This information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/canada

‘LEGALLY BLIND’:
KEEPING CURRENT IS CRITICAL
Policing a democracy is no
easy task. The rule of law is
a bedrock principle and the
police must respect the
limits of the authority they
are granted. There are many
sophisticated nuances in
applying and enforcing the
law and ultimately decision making requires sound
judgment, often in an atmosphere of violence with
little time for reflection. There is no benefit of
hindsight and often there is no opportunity for a
second opinion, academic reflection, or peer
review.
One example of the complexity in the law
enforcement role is the increasing body of case
law that is continually developing. Following the
developments is much like watching a growing
plant, where a new branch will sprout and an old,
dying one will fall. Beautiful to some, distasteful
to others. And of course, some things never
change. In its 1997-1998 Annual Report1, the
Commission for Public Complaints Against the
Royal Canadian Mounted Police noted that policing
is becoming more complex in terms of the legal
regime that governs the rights of the accused
and the admissibility of evidence. And further,
the Commission stated:

1

Available online at www.cpc-cpp.gc.ca/DefaultSite/Reppub/index_ e.aspx?
articleid=403 [November 27, 2003]

RCMP officers need to keep up to date on
developments in criminal law, especially those
that affect the use of police powers,
acceptable methods of gathering evidence, and
the rights of accused persons. In reviewing
complaints,
the
Commission
frequently
concludes that the police officer in question
was unaware of an important element of the
law he or she was attempting to enforce. This
shortcoming is not confined to junior officers
of the Force; some supervisors have given
unsound advice to police under their command
because they failed to consider all relevant
provisions of a law.

HIGHLIGHTS IN THIS ISSUE
In Memorial
Legally Blind: Keeping Current is Critical
Police Leadership 2004 Conference
Finding Fun in Fitness
Community Policing…Starting Inside the
Department
Canadian ‘America Day’ Receives First
Reading
’10-8’ Goes Prime Time
‘In Service: 10-8’ e-Letters to the Editor
Class 93 Graduates
Patrols on the Wild Side: Where Facts are
Often Funnier than Fiction
Where We Have Come From: Contact and
Cover

Pg.
1
1
3
8
16
22
32
36
37
37
61

Plus 44 Case Summaries
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 be added to our electronic distribution list
contact Sgt. Mike Novakowski at the JIBC Police
Academy
at
(604)
528-5733
or
e-mail
mnovakowski@jibc.bc.ca

National Library
Publication Data

of

Canada

Cataloguing

in

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
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.

Volume 3 Issue 6
November/December 2003

This observation is not restricted to the RCMP.
In his 2001 report, “Evaluation of the Training
Provided by the Police Academy at the Justice
Institute of British Columbia”, Dr. Radford noted:
Worthy of special mention was that more than
70% of the police officers interviewed made
spontaneous reference to the need for regular
and useful legal updates.

The Courts, as well, have sometimes been critical
of the police demonstrating a lack of legal
knowledge. In some cases, judges have recognized
that if the police did not know the law, they at
least ought to have known it. Just as ignorance of
the law is no excuse for the citizen2, it is also no
excuse for the police3. And nor should it be. In R.
v. Houle (1985) 24 C.C.C. (3d) 57 (AltaCA), a
police officer was attempting to enforce a law
that he honestly and reasonably believed existed,
but had been repealed a few days earlier without
the officer’s knowledge. The Alberta Court of
Appeal was required to decide whether the
officer was nevertheless acting within the lawful
execution of his duty for the purposes of
resisting arrest, obstruction, and assaulting a
police officer charges. In holding that the officer
was not so engaged, the court held:
In balancing the two competing interests that
must be considered in determining the extent
of the peace officer's duty, namely, the
See s.19 of the Criminal Code
See R. v. Profeit, [1999] Y.J. No. 46 (YTTerCrt), R. v. Houle (1985), 24 C.C.C. (3d)
57 (AltaCA)
2
3

2

protection of police authorities as against
individual liberty, I would resolve the
competition in favour of the citizen. I would
not interpret police duties and powers as
extending to the enforcement of non-existent
law. I would not extend the duties to embrace
actions taken in ignorance of the law -- an
ignorance which does not excuse the citizen
and should not protect the peace officer

This issue of an officer’s legal knowledge and
understanding has also been addressed many
times when courts examine whether an officer
was acting in good faith. For example, in the
recent case of R. v. Lam, 2003 BCCA 593, a 28
year police veteran testified that the law
regarding consent searches was indecisive, or as
he described it, like a “bowl of Jell-O…that
seemed to change”. The court disagreed. In the
majority’s view, “there was no reasonable basis
for any uncertainty” because the Supreme Court
had clearly laid down the rules for a valid consent
in 1994. Similarly, the comments of Justice
Stuart4 in 1999 are clear:
Measuring the good faith of police depends
significantly on their honest, reasonable basis
for belief in understanding the law. An honest
but mistaken belief that is not sustained by
reasonable efforts to appreciate the law
precludes any claim to good faith. Good faith
requires taking reasonable efforts to
understand and be current in their knowledge
of the law.
Evidence of good faith emanates from what
police forces do to provide continuing
education and from what the specific officer
has done. Regular upgrading courses within the
police department and supervision by lawyers
or specialists within the force are essential
measures in establishing good faith. The
officer involved in the case must take full
advantage of the services a police force
provides to advance the basis of his/her
knowledge of the law.

Police are professionals, and one of the
underpinnings of a profession is a specialized

field of knowledge5. Like it or not, the police
make decisions every day that require careful and
prudent deliberation that will impact people’s
lives, in some cases forever. Errors can be costly.
When the cops screw up, cases, careers, and even
lives can be at stake. “There is an old saying,
‘Doctors bury their mistakes while lawyers send
theirs to prison’. Police officers do a little of
both”6. As professionals, the police owe it to
themselves, their families, their organizations,
and their communities to pursue a path of
continuous learning that keeps pace with today’s
demands.
This is one reason why the “In Service: 10-8”
newsletter was created. It is a quick way to stay
on top of your game. Of course, it is not the endall-be-all. It is simply one method of bringing that
golden legal nugget from the courts to you,
officers who day in and day out hit the streets.
Nearly all cases are cited with web addresses
where the entire case decision can be accessed
for your reading pleasure. Stay current and stay
safe!!!

POLICE LEADERSHIP
2004 CONFERENCE
APRIL 5-7, 2004
Register soon, spaces are
filling up! The British Columbia
Association of Chiefs of Police,
the Ministry of Public Safety
and Solicitor General, and the
Justice Institute of British
Columbia Police Academy are hosting the 2004
Police Leadership Conference in beautiful
Vancouver, British Columbia. This is Canada’s
largest police leadership conference and the
theme for this year is Excellence in Policing

through Community health, Organizational
performance, and Personal wellness.

Tinsley, P. (2002). Codes of Ethics and the Professions. Canadian Association of
Chiefs of Police. Fall, 2002.
Holden, R. (1986). Modern Police Management. Englewood Cliffs, NJ: Simon &

5

6
4

R. v. Sawicki [1999] Y.J. No. 55 YTTerCrt

Volume 3 Issue 6
November/December 2003

Scuster, Inc. at p.243.

3

The Conference will provide an opportunity for
delegates to hear leadership topics discussed by
lively and renowned keynote speakers.
The Conference will be held April 5-7, 2004 at
the beautiful and picturesque waterfront Westin
Bayshore Resort & Marina. Register early as the
2000 and 2002 conferences were sold out. Early
registration is $325 before March 1, 2004.

Keynote speakers:
Chief William J. Bratton
Appointed
the
54th
Chief of the Los Angeles
Police
Department,
William
J.
Bratton
oversees the operations
of one of the largest
major
municipal
law
enforcement agencies in
the United States. His
responsibilities include the supervision of 9,304
sworn and 3,055 civilian employees with an annual
budget of $927 million. A strong advocate of
transparent community policing that embraces
partnership, problem solving and prevention, he
initiated a major re-engineering of the Los
Angeles Police Department, moving towards a
decentralized police bureaucracy with stronger
area commands that are more responsive to local
community needs, and better trained and
motivated police officers. Chief Bratton's vision
includes a comprehensive and assertive strategy
for dramatically reducing crime, disorder, and
fear in the largest metropolitan city on the West
Coast. Particular emphasis has been placed on
gang-related crimes and the culture that creates
it.
Chief Bratton is a former New York Police
Commissioner who led that department to 39%
decline in serious crimes and a 50% reduction in
homicides. He also initiated the internationally
acclaimed COMPSTAT system - a computer driven
management accountability process that is an
integral part of his decentralized management

Volume 3 Issue 6
November/December 2003

philosophy. It emphasizes a "management from
the middle down" style that prioritized
empowerment, inclusion, accountability, and the
use of timely and accurate crime analysis to drive
the organization.
Chief Bratton is a graduate of the FBI National
Executive Institute and was a Senior Executive
Fellow at Harvard University's John F. Kennedy
School of Government. He is a past president of
the Police Executive Research Forum, a frequent
guest lecturer, writer and commentator, and is
the co-author of his critically acclaimed Random
House autobiography "Turnaround." Among his
many other honours and awards, Chief Bratton
holds the Schroeder Brother's Medal, which is
the Boston Police Department's highest award for
valour.

Mr. Gordon Graham

Gordon Graham is a 30
year veteran of California
Law Enforcement. He
holds a Master's Degree
in Safety and Systems
Management from the
University of Southern
California,
a
Juris
Doctorate from Western
State University, and was awarded his teaching
credential from California State University. His
education as a Risk Manager and experience as a
practicing Attorney, coupled with his extensive
background in law enforcement, have allowed him
to rapidly become recognized internationally as a
dynamic presenter with multiple areas of
expertise.
Over the last decade, Mr. Graham has spoken to
over 300,000 law enforcement and other public
safety professionals from every state in the US.
Since 1990, he consistently received the highest
evaluations on California P.O.S.T critiques. In
1995, Mr. Graham received the Governor's Award
for Excellence in Law Enforcement Training, the
highest tribute available in the critical mission of
training police professionals. His penetrating wit

4

coupled with his vast knowledge in multiple
disciplines provides the enlightened listener,
regardless of rank, with an information packed
seminar that will benefit them in current and
future assignments.

Sir Ronnie Flanagan
Sir Ronnie Flanagan
joined the Royal Ulster
Constabulary in 1970
and
was
promoted
through
the
ranks,
attaining the post of
Chief
Constable
in
1996. In 1998 he
received a Knighthood
in the New Year Honours List. In 2002, Sir Ronnie
retired from the police service and was appointed
Her Majesty's Inspector of Constabulary for
London and the East Region and also the Ministry
of Defence Police, UK Atomic Energy Authority
Police, Guernsey, Jersey, the Sovereign Base in
Cyprus and the Isle of Man. His portfolio
responsibilities include Public Order, Terrorism,
Ports and Special Branch, and Officer Safety.
Sir Ronnie has travelled extensively in Europe and
the United States to study policing methods. He
has attended all the major courses, including the
Senior Command Course at the Police Staff
College at Bramshill. Holding a Bachelor of Arts
degree and a Master of Arts degree in
Administration and Legal Studies, he is also a
graduate of the FBI Academy. In 2002 Sir Ronnie
was awarded a Knight Grand Cross of the Order
of the British Empire in the Queen's Birthday
Honours List.

Dr. Kevin Gilmartin
A veteran of the U.S.
Marine
Corps,
Dr.
Gilmartin is a principal
in Gilmartin, Harris and
Associates a Behavioral
Sciences/ Management
Consulting
Company

Volume 3 Issue 6
November/December 2003

specializing in law enforcement/ public safety
consultation. He holds a doctoral degree in clinical
psychology from the University of Arizona and is
the author of the book Emotional Survival for Law
Enforcement: A Guide for Officers and Their
Families. He holds adjunct faculty instructor
positions with the University of Massachusetts
Police Leadership Institute, and the Sam Houston
State University Law Enforcement Management
Institute of Texas. He is an instructor at the FBI
Academy in Quantico, Virginia and a faculty
member of the FBI Law Enforcement Executive
Development Institute (LEEDS and EDI). He is
also a guest instructor at the Federal Law
Enforcement Training Center in Glynco, Georgia.
He is retained by several Federal law
enforcement agency critical incident response
teams.
Dr. Gilmartin formerly spent twenty years in law
enforcement in Arizona. During his tenure, he
supervised the agency Behavioral Sciences Unit
and the Hostage Negotiations Team. He is a
former recipient of an IACP-Parade Magazine
National Police Officer Citation Award for
contributions during hostage negotiations.

RCMP Commissioner Giuliano Zaccardelli
Commissioner Giuliano
Zaccardelli joined the
RCMP in 1970, and
following
recruit
training was posted to
Alberta
where
he
performed a number of
general policing duties.
He was commissioned in
1986 and was promoted to the rank of Deputy
Commissioner,
responsible
for
National
Headquarters. In August 1999, Commissioner
Zaccardelli assumed the newly created position of
Deputy Commissioner, Organized Crime and
Operational Policy.
In 2000 Commissioner Zaccardelli officially
became the 20th Commissioner of the Royal

5

Canadian Mounted Police. He holds a Bachelor of
Commerce degree in Business Administration
from Loyola College in Montreal and has
completed the National Executive Institute
Program at the FBI Academy in 1998. He is also a
graduate of the Senior Command Course at
Bramshill Police Staff College in England.

CURRENT POLICE LEADERSHIP
2004 CONFERENCE SPONSORS
Platinum

Advanced Seminar/ Increment Course
Like years past, Police Leadership 2004 will be
offering an additional two seminar days in
conjunction with the Conference for an extra
$75. Participants will attend the JIBC on April 5,
the Westin Bayshore April 6 and 7 for the
conference, and return again to the JIBC on April
8, providing a full 4-day course. Dr. Darryl
Plecas (EdD) and Dr. Greg Anderson (PhD) will be
instructing and facilitating the additional 2 days.
Keeping in line with the conference theme, Day 1
of the advanced seminar will provide a general
introduction and background to issues involving
personal and organizational wellness.
This
experience will heighten the participant’s
awareness of key concepts, and allow them to
take in and assimilate the information presented
during the conference with a higher level of
understanding. The day following the conference
will provide participants an opportunity to review
the material presented during the conference
during focus groups. This day will also end with a
discussion of specific issues emerging within
policing today, including information on the
physical demands of police work, use of force,
firearms training and multi-tasking. Interested
police officers are advised to check with their
departmental training officers to determine
whether the course is eligible for increment
status.
For more updates on this conference as they
develop, please bookmark:

www.policeleadership.org

or contact the Police Leadership 2004
Conference Coordinator Sgt. Mike Novakowski at
604-528-5733, toll free 1-877-275-4333 ext.
5733, or e-mail at mnovakowski.jibc.bc.ca.

Volume 3 Issue 6
November/December 2003

Bronze

If you, or your business, are interested in
becoming a Police Leadership 2004 Conference
sponsor, please contact the Police Leadership
2004 Conference Coordinator Sgt. Mike
Novakowski at 604-528-5733, toll free 1-877275-4333
ext.
5733,
or
e-mail
at
mnovakowski.jibc.bc.ca.

6

MISTAKEN LEGAL
INTERPRETATION ERADICATES
ARTICULABLE CAUSE
R. v. Chamberlain, 2003 NBQB 347
A police officer stopped the
accused after observing a
vehicle stop briefly at a railway
crossing with flashing warning
lights and then cross the tracks while the lights
continued flashing. An odour of alcohol was
detected and the accused failed a roadside
screening test. Breathalzyer readings were
subsequently obtained and the accused was
charged with driving while over 80mg%.
At trial the Crown suggested that the police
reasonably believed that the accused was
committing an offence under s.182(1)(a) of New
Brunswick’s Motor Vehicle Act, which reads:
s.182(1)(a) Motor vehicle Act
Any person driving a vehicle approaching a railroad
grade crossing shall stop such vehicle within fifteen
metres, but not less than five metres from the nearest
rail of such railroad, when
(a) a clearly visible electric or mechanical signal device,
designed to give warning of the approach of a railroad
train, is exhibiting a warning signal,
and shall not thereafter cross over the railroad track
or tracks until the imminent danger from traffic on the
railroad has ceased to exist.

Although the Act requires drivers to stop at a
railway crossing with a flashing signal, it does not
obligate them to remain stopped until the lights
stop flashing. Provided there is no longer
imminent danger from railway traffic, the driver
may proceed through the flashing lights.
The trial judge concluded that the officer
erroneously believed the accused had to remain
stopped at the flashing warning lights in the
absence of imminent danger. Thus s.182(1)(a)
could not be relied upon as statutory authority to
justify the stop. Since there was no other reason
to stop the accused, the officer lacked an
articulable cause and his right under s.9 of the

Volume 3 Issue 6
November/December 2003

Charter to be free from arbitrary detention was

breached. The breathalyzer results were
excluded under s.24(2) of the Charter and the
charge was dismissed.

The Crown appealed to the New Brunswick Court
of Queen’s Bench arguing, in part, that the trial
judge erred in applying the law on articulable
cause.

Articulable Cause
A police officer may lawfully detain a motorist at
common law provided the police have an
articulable cause (aka: reasonable suspicion) on
which to justify the detention. The Crown
submitted that the officer honestly, but
erroneously, believed an infraction had occurred
when he saw the accused cross a railroad track
with warning lights flashing. This, it was
contended, was sufficient to meet the articulable
cause threshold. The accused, on the other hand,
suggested that there was no objective basis for
the officer’s subjective, but mistaken, suspicion.
Justice Guerette, of the Court of Queen’s Bench,
agreed with the accused:
There is only one "fact" before this Court (and
before the Court below) which the Crown
alleges constitutes articulable cause: The fact
that the police officer honestly believed the
[accused] was committing an offence. That
assumption was based on an erroneous
interpretation of the law. The [accused] was
not committing an offence and otherwise was
not demonstrating any behavior which would
lead a police officer to suspect that an
offence was being committed.
The police officer, though acting honestly, did
not have any "objectively discernable facts" on
which to base his conclusion about the
[accused]. If it were otherwise, it would
encourage willful ignorance of the law on the
part of the police. The objective standard is a
key component of articulable cause and is
there precisely to review the conduct of police
officers when they arrest and detain people
they "honestly" believed were committing a
crime.

7

The Crown had failed to provide sufficient
evidence of an articulable cause and the
detention was unlawful. The appeal was dismissed.
Complete case available at www.canlii.org

COUNSELLING REQUIRES
INTENT THAT CRIME BE
COMMITTED
R. v. Hamilton, 2003 ABCA 255
The accused sold a package of
files to 20 people over the
internet, including an undercover
police officer. Five of the 200
files in the package contained
material related to constructing bombs, breaking
and entering, visa hacking, and generating credit
card numbers. The accused was charged with
counselling
four
indictable
offences
not
committed under s.464 of the Criminal Code. At
his trial the accused testified that he did not
read all of the files and did not encourage
customers to commit crimes. No one receiving the
files committed an offence as a result of
receiving the information.
The judge concluded that the accused did not
possess the requisite mens rea and acquitted him
on all counts. In her view, the accused must not
only intend to counsel the criminal act but must
also intend that the counseled crime be
committed. The Crown appealed to the Alberta
Court of Appeal suggesting, in part, that the trial
judge erred in interpreting the mens rea
requirement. It was the Crown’s position that the
only mens rea required was that the counselling
be intentional and proof of an intention that the
counselled crime be committed was not required.

Counselling a Crime not Committed
Section 464 of the Criminal Code creates an
offence for a person to counsel another to
commit a crime if the crime is not in fact
committed. Because there is no legislative
direction on the means rea, it is presumed that a

Volume 3 Issue 6
November/December 2003

subjective form of mens rea is necessary. While
the actus reus of the crime of counselling is that
“the accused must pass on material or make
statements that, when viewed objectively,
“actively” induces or encourages a criminal
offence”, the most demanding standard of
subjective mens rea, intention, is required. The
lesser standards of recklessness or willful
blindness will not suffice. Justice Conrad, for the
unanimous Alberta Court of Appeal stated:
In summary, intention is the appropriate level
of mens rea for counselling under section 464
because it is the strictest standard. This
section was never intended to catch within its
net a professor teaching a class how to make
bombs or an RCMP instructor teaching
students how criminals create credit cards.
Rather, it is aimed at those who encourage
others to actually commit crimes. [para. 33]

Thus, the appeal court held that the counsellor
must not only intend the acts of inducement, but
also must intend that the counselled crime be
committed. The appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

FINDING FUN IN
FITNESS
Cst. Kelly Keith
Quality vs. Quantity
When it comes to working out (weights, aerobics,
etc.), we must always keep in mind that the
quality of the workout and the benefits we
receive derive from the effort we put in. I am
not a fan of many group exercises since the group
is only pushed as hard as the weakest link, if you
are mandated to stay together. It does not stand
to reason that we write exams or compete at the
weakest person’s level, just as it does not stand
to reason that we will make gains in physical
fitness if we compete at the weakest link’s level.

8

If I regularly run a 6 minute mile and the group
pace is a 10 minute mile I will never improve my 6
minute mile pace and will not push my heart rate
up to a level to make gains at a 10 minute mile
pace. If I bench 200 lbs for 10 reps, however as
a group we bench 140 lbs for 10 reps, again I will
not make any gains.
TO MAKE GAINS THE
EXERCISE TIME YOU PUT IN MUST
CHALLENGE YOU ! Group exercises are great if
everyone in the group is able to push "THEIR"
own physical abilities. I am a fan of circuit
training for this very reason. You work as a
group, however you are pushing your "OWN"
physical abilities.

What if I want to run with my partner or
work-out with a person who lifts less
weight?
This can still be done very efficiently. If you are
running, swimming, etc. with a partner that is not
at the same aerobic level, simply ensure you
include some wind sprints. For example, if you are
on a 5 km run you can do you wind sprint ahead at
every 1 km interval and then sprints back to rejoin your partner.
With a weight work-out,
simply ensure you are working at the weight that
pushes your strength to its limit and not to your
partner’s. You can still do the same exercises and
both make gains!

How do I rate if I had a quality workout?
As Charles Staley so elegantly stated, “If we rate
our performance based on feeling fatigued and
terrible after the work-out we could simply apply
for a sparring partner for Mike Tyson.”

Can Quality be judged by what our goals
are?
If it is a pure strength workout you are after
then our goals will be to lift a heavier weight. In
other words, 2 reps of 185 lbs is a higher quality
workout than a set of 8 reps with 165 lbs - even
though 165 lbs may feel more difficult!

Volume 3 Issue 6
November/December 2003

If flexibility is your goal, you need to have an
accurate measure of where you're at and each
session attempt to push at least 1 mm past this
point. If endurance training is your goal, use a
heart monitor. The higher the heart rate the
harder you’re working.
A heart monitor is
extremely important if you are serious in
improving your aerobic conditioning.
Keeping a Journal of your fitness is an excellent
way for you to be accountable for your gains!

Charles Staley’s 5 tips on improving your
skills training:
1) Practice your skills while you’re fresh and
concentration levels are high;
2) Shorter, more frequent sessions
preferable to longer sessions;

are

3) Make sure you have a method to assess both
the quality and quantity of you training;
4) Once a skill is stable, it can be maintained
with a lower volume of training; and
5) Fatigue is largely specific - if you are having a
hard time practicing a skill that has a large
balance element, switch and work on a skill
that has a different quality, such as a
technique that required a high degree of
speed.
Succinctly, in order to make Physical Gains we
need to push ourselves to new limits. This
requires QUALITY TRAINING rather than
QUANTITY. Shorter quality workouts vs. longer
less frequent workouts will ensure you make the
hard earned gains you are after!

Don't be a Kelly
I wish sometimes that " I would do as I say,
rather than do what I do ". I was training for
an adventure race in Port Angeles and had trained
quite hard for the race, putting in many hours. I
have always had tight hamstrings, and have many
times been laid up due to pulling them. Well my
hamstrings were feeling fine while I was training

9

so I began to neglect my stretching routine. I
continued to train hard and one week before the
race I pulled my hamstrings, and could not enter
the race - If anyone should know better it's me!
So my point—train your weak body parts first and
do not neglect stretching!
If I had kept up my stretching routine, this
injury would most likely never have happened. My
hamstrings should be my first priority BEFORE I
start any exercising. Just because my hamstrings
felt good on a certain day is absolutely no excuse
for not stretching them, subsequently I paid the
price.

Nutrition tidbit
Kashi makes a great cereal called Kashi Crunch.
This cereal is great tasting right out of the box
and the ingredients are very nutritious. If you’re
looking for a healthy, sweet tasting, and
nutritious snack - put some in a plastic baggy, add
a small amount of almonds, and enjoy. As well
Natures Path makes a cereal called Optimum
Power Breakfast. It contains a great combination
of protein, carbohydrates, and flax and also
tastes great. Give them a try!

Note-able Quote
“All that is required for evil to prevail is for good
men to do nothing.”-Edmund Burke

JI GETS NEW LOGO
As you may have noticed from viewing the front
of this newsletter, the Justice Institute of
British Columbia now has a new logo.

SECURITY GUARD NOT ACTING
AS POLICE AGENT
R. v. Chang, 2003 ABCA 293
Concerned about possible illicit
activities in a mall parking lot
near some after hours clubs, a
uniformed private security guard
approached a parked vehicle with
its lights on. Two persons were in the vehicle and
the accused, occupying the driver’s seat, quickly
hid something in his hand. Concerned about her
safety, the security guard asked what he was
hiding. He showed the guard an open pill bottle
containing gel caps, but labeled ephedrine
“tablets”. The guard was familiar with ephedrine,
but had never seen them in this form. The guard
called police who arrived on scene within minutes.
The officer seized the 44 pills for analysis and
the accused was subsequently charged with
possession of ecstasy for the purpose of
trafficking under s.5(2) of the Controlled Drugs
and Substances Act.
At trial, the Alberta Court of Queen’s Bench
justice concluded that the Charter applied to the
security guard’s actions. In his view, although the
security guard was not acting under the direction
of the police, she was familiar with police
procedure and was acting as an agent of the state
when she questioned the accused about the item
in his hand. Furthermore, the guard failed to
advise the accused of her suspicion, tell him why
she was asking, or advise of him of his right to
counsel. The evidence was excluded under s.24(2)
of the Charter and the charge was dismissed. The
Crown appealed the acquittal to the Alberta Court
of Appeal arguing, in part, that the trial judge
erred in finding that the guard was acting as an
agent of the state.

Police Agent?
Unless a private citizen is acting as an agent of
the state, performing a specific state function,
or their actions are “part of government”,
Charter scrutiny is not triggered. Despite her

Volume 3 Issue 6
November/December 2003

10

familiarity with police procedures, in this case
the security guard was not acting under police
direction and police intervention did not occur
until after the guard had obtained the drugs. The
guard’s inquiries with the accused arose from her
own safety concerns and her private parkade
patrol duty at the mall, rather than the
performance of a state function like initiating
criminal charges. Comparing the role of the
security guard to that of a school principal, the
unanimous Alberta Court of Appeal held:
In our view, the security guard’s responsibility
for protecting mall property and well-being is
analogous to that of a principal’s responsibility
for enforcing school discipline. Given that
responsibility and the finding of no prior police
contact specific to this case, it was an error
of mixed fact and law to conclude that the
security guard was acting as an agent of the
state when she inquired about the item in the
respondent’s hands. Nor could it reasonably be
inferred that her mere familiarity with police
procedure disclosed a motivation to initiate
criminal charges. Hence in our view, contrary
findings of the trial judge in that regard do
not warrant deference, and cannot be
sustained. We are satisfied that the actions
of the security guard in acquiring possession
of the drugs are not subject to Charter
scrutiny. [para.18]

However, the action of the security guard in
handing over the pill bottle and its contents to
the police constituted a seizure under s.8 of the
Charter. In other words, although the Charter
was not engaged when the guard received the
pills, it was triggered when the guard gave the
pills to the police since at the time of transfer
the accused continued to have a reasonable
expectation of privacy in them. The Court stated:
…the [accused’s] voluntary surrender of the
pills did not convey ownership to the security
guard entitling the police to rely on the guard’s
transferral to them. Hence, although the
security guard was not an agent of the police,
and her acquisition of the pills did not
constitute a seizure, nonetheless in our view,
the “transfer of control” of the bottle and

Volume 3 Issue 6
November/December 2003

contents did constitute a seizure by the police
within the meaning of s.8 of the Charter. [para.
41]

Effect of Admission of Evidence?
Having found a breach, the Alberta Court of
Appeal examined whether the evidence should be
excluded under s.24(2). In this case, the court
concluded that the evidence should be admitted.
The pills were real, non-conscriptive evidence
existing prior to and independent of the Charter
violation; its admission would not render the trial
unfair. The breach was not serious and the police
obtained the pills in good faith. The exclusion of
the evidence, not its inclusion, would “diminish the
reputation of the justice system”.

Common Law Exclusion?
In a recent Supreme Court of Canada decision, R.
v. Buhay, 2003 SCC 30, it was hinted that

evidence could be excluded under a judge’s
common law discretion to suppress even where a
private citizen’s actions did not attract Charter
protection. In this case however, the appeal court
concluded that the “analysis of the common law
exclusion would inevitably reach the same
conclusion as the s.24(2) analysis” rendering the
evidence admissible.

The appeal was allowed and a new trial was
ordered.
Complete case available at www.albertacourts.ab.ca

CHARTER BREACH MUST BE
MORE THAN TENUOS TO
WARRANT EXCLUSION

R. v. Pettit and Pranic, 2003 BCCA 522
Police obtained a drug warrant
under the Controlled Drugs and
Substances Act to search a
home that was unoccupied when
police arrived. A marihuana grow operation was
found in the basement. A copy of the search
warrant was placed on the kitchen table. Near the

11

end of the search both accused returned to the
home and were promptly arrested at the door
before they entered the house. The accused Petit
demanded to see the warrant and to call a lawyer.
He was handcuffed and placed in the rear of the
police car. An officer retrieved the warrant from
inside the house and held it against the Plexiglas
safety shield in the police car and showed it to
Petit.
The police ignored Pranic’s request to see the
warrant and neither accused was provided the
opportunity to contact counsel until at the police
office. The warrant was put in Petit’s effects and
was placed on the counter for him to take upon
his release. However, for reasons uncertain, he
did not take it. It was subsequently delivered to
him at his residence a couple hours later. Both
accused were charged with producing marihuana.
At their trial, the judge concluded that, although
the search warrant had been properly issued on
the basis of an anonymous tip, personal police
observations at the address, and Hydro
consumption records, the accused’s rights under
s.8 and s.10(b) of the Charter were violated. In
his view, the police did not properly “produce” the
warrant as required by s.29(1) of the Criminal
Code, which reads:
s.29(1) Criminal Code
It is the duty of every one who executes a process or
warrant to have with him, where it is feasible to do so,
and produce it when requested to do so.

The trial judge found that the accused Petit had
not been given “the opportunity to properly
consider, inspect or use the document.”
He
stated:
A warrant to search is a complex document with
large, small and extra tiny commercial print and
spaces for typed or script inserts. Only close
examination could disclose whether it was
authorized by a justice of the peace, whether
the search was taking place at the authorized
place, whether the search was commenced
within the authorized time frame and whether

Volume 3 Issue 6
November/December 2003

the search was being conducted by authorized
peace officers, among other things.

The accused Pranic’s s.8 right was also violated
because the police altogether ignored her request
to see the warrant.
The s.10 breach arose, according to the trial
judge, because the accused were not provided
access to counsel at the scene. The house had
been secured, there were telephones inside the
home, and the police also had access to cellular
telephones. The two cooperative, non-violent
arrestees could have been afforded a secure
private telephone, either in the house or while
locked in the police car. As a result, the trial
judge excluded the evidence under s.24(2) of the
Charter and the accused were acquitted.
The Crown appealed to the British Columbia Court
of Appeal. In its ruling, the appeal court justices
unanimously granted the appeal and ordered a new
trial. Without addressing whether the police
breached the provisions of s.29(1) of the Criminal
Code, the court examined the s.24(2) decision of
the trial judge. For evidence to be excluded
under s.24(2), the evidence must have been
obtained in a manner that violated the rights of
the applicant seeking exclusion. Generally, the
evidence must flow from the breach (a causal
link) or be temporally connected. In this case,
there was no relationship between the police
conduct resulting in the Charter breach and the
evidence, and the temporal connection was
tenuous at best. Unlike a Charter violation that
occurs at the outset of police activity such that
it could be characterized as intimately connected
with a search, the search here was virtually
complete before the s.29 Criminal Code default.
Justice Donald stated:
With respect, I do not see how the [accused]
can fit themselves within the two aspects of
the purpose for s. 29(1) [to allow the occupant
of the searched premises to know: (1) why the
search is being carried out, so as to enable the
occupant to properly assess his or her legal
position; and (2) that there is, at least, a colour
of authority for the search and that forcible

12

resistance is improper]. When they returned
home the search, which had been lawfully
conducted, was over and they were placed under
arrest. I think it is unrealistic in those
circumstances to speak of the respondents'
assessing their legal position in relation to the
search. Forcible resistance was out of the
question not only because it would have been
after discovery of the grow operation but also
the respondents were under police restraint.
… I cannot find a sufficient connection
between the failure to produce the warrant
properly and the obtaining of the evidence.
There is no real temporal link because the
default came after the evidence was lawfully
obtained. Nor can there be any causal link
because of the sequence of events…
While it was necessary for the trial judge to
consider the breaches of s. 8 and s. 10(b)
together in deciding the exclusion issue under
s. 24(2)…, my view is that the s. 10(b) breach
added nothing to the linkage between the
violations and the obtaining of the evidence.
The delay in providing the opportunity to
contact counsel occurred after the search and
so seeking advice as to the legality of the
search would have served no immediate
purpose. When the whole of the relationship
between the breaches and the evidence is
examined it falls well short of establishing
that the evidence was obtained in a matter
that infringed rights under the Charter. [para.
19-21, references omitted, emphasis added]

Justice Esson agreed with the disposition of the
appeal by Justice Donald, but felt it necessary to
express his reservations in obiter dicta about the
correctness of the trial judge’s decision on the
s.29(1) Criminal Code issue. In his view, the
accused’s request to “see” the warrant was
construed by the officer as a “request or demand
to be shown the warrant”, and not necessarily a
request “to be given an opportunity to read the
warrant more closely to satisfy the obligation
under s.29(1).” (emphasis added)
Complete case available at www.courts.gov.bc.ca

Volume 3 Issue 6
November/December 2003

ACCUSED MUST PROVE
EXISTENCE OF CURFEW NOTE
R. v. Gus, 2003 BCPC 0349
The accused, who was the
subject of a probation order not
to be out of his residence
between 11 pm and 7 am unless
he was in possession of written permission from
his conditional sentence supervisor or probation
officer and to produce it to a peace officer on
demand, was checked by police walking on a city
street at 2:55 am. One of his arguments at trial
in British Columbia Provincial Court was that the
Crown needed to prove that he did not have
written permission to be outside his residence
during his curfew. Justice Rodgers rejected this
submission. In the judge’s view, if the accused
sought to use the exception contained in the
probation order the onus was on him to prove the
exception existed. In other words, the accused
was required to prove the existence of written
permission to be outside his residence.
Complete case available at www.provincialcourt.bc.ca

POLICE MUST CHOOSE WORDS
CAREFULLY
R. v. Leclair, 2003 MBPC 10037
The accused was stopped by
police and after blowing a fail
into a roadside screening device
was read his s.10(b) Charter
rights.
The
accused
acknowledged understanding and replied, “Sure”,
when asked if he would like to call duty counsel or
another lawyer. The accused was then
transported to the police station where he was
placed in an interview room. A police officer
pointed out the Legal Aid duty counsel telephone
number on the wall and dialed the number. As
well, the officer provided a telephone book and
told the accused that when he was done speaking
with a lawyer he was to bang on the door and the

13

breath test would then be taken. The officer left
the room and closed the door for privacy.

finding a s.10(b) Charter breach, the judge
stated:

After approximately 20-25 minutes the accused
banged on the door and the officer was told that
the line was busy despite several attempts. The
officer himself dialed the number and also
received a busy signal. The accused was then told
that he would have to provide a breath sample
whether he spoke to a lawyer or not and that it
was in his best interest to do so. He was also
advised that if he refused, he would be charged
with refusal which carries the maximum penalty.
The accused made no further attempts to speak
to a lawyer and he blew into the breathalyzer and
failed.

Let me indicate that I do not want, in any way,
to leave the impression that I find that the
Police were acting in some oppressive or
underhanded fashion. This is a situation where
the Police have to choose their words carefully.
The fact of the matter is that there is no
maximum penalty that exists for refusing to
provide a breath sample and that in certain
circumstances an Accused is entitled to refuse
to provide a breath sample. [para. 27]

At his trial in Manitoba Provincial Court the
accused argued that his right to counsel was
violated because his waiver was invalid. He
submitted that his waiver was not based on an
informed decision because the police told him it
would be in his best interest to blow, that he had
to do it regardless of whether he spoke to a
lawyer, and that a refusal would carry the
maximum penalty. The Crown contended that the
accused was provided a reasonable opportunity to
access counsel but was not reasonably diligent and
subsequently waived his right.
Justice Chartier agreed with the accused. A
proper waiver of the right to counsel requires
that an accused be properly informed of their
right to counsel, that they are aware of their
jeopardy, and that they appreciate the
consequences of deciding for or against speaking
with a lawyer. In this case, the waiver was invalid.
Although the accused was properly informed of
his right to counsel he was not aware of the
jeopardy he was facing. The police told him that
“either way he had to blow or he’d be charged
with refusal, which carries the maximum penalty”.
In the judge’s view, “a reasonable person would be
left, as a result of this comment, with the
impression that it would be in his/her best
interest to provide the breath samples.” In

Volume 3 Issue 6
November/December 2003

Since the certificate of breath analysis was
conscripted evidence, it was excluded under
s.24(2) of the Charter because its admission
would bring the administration of justice into
disrepute.
Complete case available at www.canlii.org

DOMINANT PURPOSE NEVER
CHANGED: PRESUMPTIVE CARE
& CONTROL ESTABLISHED
R. v. Schnell, 2003 SKCA 96
The accused left a friend’s
house after consuming 9 to 10 ½
ounces of wine and drove to the
farm
of
her
estranged
boyfriend. After being told by
the ex-boyfriend that he did not want to see her,
she turned up the window of her car, started the
motor to stay warm, and passed out. Her former
boyfriend called police and the officer arrived to
find the accused asleep in the driver’s seat with
her head leaning against the driver’s window, her
feet by the pedals, the engine running, the
transmission in park, and the door locked. The
emergency break was not engaged. The officer
woke the accused and she subsequently provided
breath samples over the legal limit.
At trial in Saskatchewan Provincial Court the
accused was convicted of care and control while
over 80mg%. Relying on the presumption found in
s.258(1)(a) of the Criminal Code, the trial judge

14

found that the accused never relinquished care
and control of the vehicle; her intent was not to
wait at the former boyfriend’s farm, but to move
the vehicle as soon as she could. The “vehicle
could have easily been put into gear, deliberately
or inadvertently, by simply shifting the lever on
the steering column…”, the judge said.
The accused appealed to the Saskatchewan Court
of Queen’s Bench and her conviction was
overturned. In the appeal judge’s view the
element of dangerousness required for care and
control to warrant a conviction was not
established beyond a reasonable doubt. The
Crown then appealed to the Saskatchewan Court
of Appeal.
In restoring the conviction, the Saskatchewan
Court of Appeal concluded that the accused did
not rebut he presumption found in s.258(1)(a) of
the Criminal Code. This section creates a
presumption that where it is proved that a person
occupied the driver’s seat of a vehicle they shall
be deemed to have care and control, unless they
establish that they did not occupy the seat for
the purpose of setting the vehicle in motion.
Justice Tallis, for the unanimous appeal court,
stated:
In this case the evidence demonstrated that
[the accused’s] dominant or controlling purpose
before the critical overlap period [2 hours
before the first breath sample and the time
the officer arrived on the scene] was to
eventually set the vehicle in motion. She
passed out either before or during the critical
overlap period. She took no action that shows a
change in her dominant or controlling purpose
before she passed out….Since there was no
action demonstrative of a change in the
dominant purpose, the Crown was entitled to
rely on the presumption to establish “care and
control”.

The appeal was allowed and the conviction was
restored.
Complete case available at www.canlii.org

TWO-YEAR JAIL TERM FOR 25
YEAR OLD DOMESTIC ASSAULT
NOT UNFIT
R. v. W.J.T., 2003 NSCA 108
The accused was convicted
during a jury trial of assaulting
his wife in 1978. He punched her
during an argument, rupturing
her spleen, which had to be surgically removed
and left her with a permanent impairment. His
relationship with his family was described by the
sentencing judge as one “with a high degree of
brutality”. In sentencing him to a two-year
sentence, the judge did not consider the passage
of time as a mitigating factor because the
accused scared his wife into not coming forward
sooner. She was under his domination and control
and the fear still reigned over her even when she
left the home. It was not until she was
approached by police that she told what
happened. Three aggravating sentencing factors
were identified by the judge:
•
•

•

the force of the blow resulted in permanent
injury;
the victim was his spouse—she was isolated
and subjected to his unrestrained violence;
and
after striking his wife his concern was not
for her recovery, but was for himself and
that she not reveal how she was injured.

The accused appealed his sentence to the Nova
Scotia Court of Appeal arguing that the sentence
was erroneous (outside the normal range for
crimes of this nature). In dismissing the appeal,
the Court was not satisfied that the trial judge
failed to appreciate or apply proper sentencing
principles. He considered the circumstances of
both the offence and the offender as well as the
mitigating and aggravating factors. The sentence
was not unreasonable, unfit, or manifestly
excessive.
Complete case available at www.canlii.org

Volume 3 Issue 6
November/December 2003

15

COMMUNITY
POLICING…STARTING INSIDE
THE DEPARTMENT
Dr. Kevin Gilmartin, PhD
John J. (Jack) Harris, MEd
Police
administrators
continue to face increasing
social,
financial
and
organization pressures to
re-evaluate the police role
in the community and make
a
commitment
to
community policing. Law
enforcement agencies that
are seen as social forces interacting and in
partnership with the community stand in stark
contrast to law enforcement agencies that are
seen as free standing, isolated enforcers of social
order. Community partnerships are better able
to define problems and areas of need, than are
law enforcement agencies working alone and
reactively viewing the community through patrol
car windows.
Police administrators, who typically agree with
the philosophy of community policing, continue to
reassess organizational roles in terms of
partnership and community based problem solving.
The "partnership," however, is often easier to see
and accept by people at the top of an
organization, than by line-level personnel. Law
enforcement executives often find themselves
making a commitment to community policing and a
community partnerships with little buy-in or even
active resistance from other department
members.

Resistance From Within
Despite the fact that many officers believe in
community policing, it can be a hard sell to line
personnel. Administrators often interpret this
resistance as, "officers just fighting change".
While this may be partially accurate, there is
another aspect that is often overlooked. When it

Volume 3 Issue 6
November/December 2003

comes to solving community problems, law
enforcement executives are quick to admit their
organization alone doesn't know what is best for
the community. With this in mind, line personnel
are encouraged to establish a "partnership with
the community" by becoming problem solvers,
being less authoritarian and by using more
creative, proactive, innovative and non-traditional
methods. At the same time however, traditional
authoritarian-based, paramilitary management
practices are unchanged and remain a deep
tradition
within
many
law
enforcement
organizations. So deep in fact, many supervisors
and managers don't even realize they are still
using them.
With this glaring inconsistency,
officers often ask, "If this stuff is so good for
and more effective with the community, why isn't
it good for us?"

Starting Inside The Department
For community policing to become a reality,
organizations must adopt a philosophy and
implement management practices that are
consistent for the entire community - both inside
and outside of the department. "Problem solving
starts at home" is not just a cliché; it
underscores the importance of community,
partnership and collaborative problem solving
inside the department.
If community policing is to become more than a
passing buzzword, police executives must accept
the fact that "problem solving starts at home."
Police administrators must initiate changes in how
they conduct business internally, at the same
time they are asking their officers to change the
way they conduct business on the street. Within
any law enforcement agency, there are ample
opportunities to apply community policing,
partnership and problem solving techniques to
internal issues.
It is not unusual to see line personnel develop a
cynical view of community policing and adopt a
"let's wait and see how long this will last, this
time around" attitude. For the law enforcement

16

profession to change from reactive responders to
proactive problem solvers, administrators must
model the desired behaviours and ensure that
needed skills are taught and developed.
Managing law enforcement organizations from a
strictly autocratic chain-of-command perspective
will yield exactly what that management style is
designed to produce - a unified, organized and
reactive force that responds to the direction of
the rank structure; reacting and obeying orders
as defined by a higher authority. While, to some,
this might sound appealing, this management
approach can produce intense feelings of
resistance, victimization and passive sabotage to
organizational change. It also produces rigidity,
stifles creativity, forces decision making upwards,
and discourages self-initiated problem solving - all
the things that community policing hopes to
change.

The Need For Balance
The nature of police work requires law
enforcement professionals to respond to many
tactical
situations
with
military-like
accountability and direction. Situationally, this
approach is necessary for the effective delivery
of police services. However, when this is the
prevalent or the only management style, line
personnel see themselves at the lower end of the
continuum of authority - a continuum that denotes
the degree of importance within the agency. An
expectation of passive and competent obedience,
while a trait valued in military operations, can be
disastrous when trying to solicit input and
involvement from line personnel in collaborative
problem solving efforts. If department members
are to see themselves as partners in the joint
venture of community problem solving, they must
also see themselves as stakeholders - social
equals in defining and solving internal department
problems - in their own department.
"Situational Leadership" (Blanchard & Hersey)
emphasizes the importance of management
flexibility and the use of management styles that

Volume 3 Issue 6
November/December 2003

are consistent with the situational demands being
addressed. Police administrators must create an
atmosphere where situational leadership becomes
the norm and where "Situational Followership" is
cultivated - that is where employees can
understand and distinguish between situations
where strict compliance is required and where
team building, collaborative problem solving skills
are appropriate.
Decisions based solely on an authoritarian
management system might yield structured
compliance but not creative contributions and
solutions, a trait necessary for community policing
to be successful. The belief that, "the brass
wants us to listen to the community and see what
their problems are, yet they won't listen to what
our problems at the department are," is not just
grumbling from a few isolated malcontents, it is
the reality for many officers.
For police
administrators, the task of making department
members stakeholders is predicated on the belief
that all members of the department have a
contribution to make to department problem
solving and service delivery, beyond just
respectful compliance to orders and directives.

The Need For Change
Can police administrators initiate significant
changes
in
law
enforcement/community
interaction
without
precipitating
major
malcontentism or invalidating a very necessary
chain-of-command protocol? The answer is yes . .
. if police administrators are willing to re-evaluate
and redefine their management practices and
executive roles as they relate to the department
decision making and input processes.
For officers to believe they are stakeholders in
their department and for community policing to
become a reality, police managers will more likely
have to make greater changes than will line
personnel. In an authority-driven organization,
problem definition and proposed solutions are
usually
judged
by
whom
make
the
recommendations, rather than the accuracy of

17

the definition or the effectiveness of the
solutions.
Situations where there are high demands and low
control cause major emotional distress for those
involved. Law enforcement personnel who have a
heavy emotional investment in the job and little
or no control over factors affecting that job will
become the most distressed. They often express
their distress with passive resistance and
sabotage, knowing that open dissention can bring
sanctions for insubordination.
To create an atmosphere of cooperation and
reduce the sense of victimization, people either
have to reduce their level of emotional
investment in the organization or believe they
have a meaningful degree of control or input into
their job roles.
Talk about empowering
department
members,
partnerships
and
collaborative problem solving usually occurs in the
context of working with the community outside
the department. However, these concepts are
often mere "buzzwords" or are simply ignored
when they are applied to the community inside
the department. Line personnel are quick to see
the discrepancy and realize that, despite what is
being said, they have very little power in terms of
their role in department problem solving.
Collaborative problem solving and teamwork does
not require police managers to relinquish their
power or status.
Unfortunately, internal
collaborative problem solving, partnership and
empowerment are often seen as a threat to
management's authority, status and position.
Police managers have real power and authority
within the organization.
Creating internal
partnerships requires managers to accept the
fact that, collaborative, department stakeholders
can better define and solve internal problems.
Managers must learn to situationally give up some
of their authority-based decision making.
Participative decision making has to and can
effectively co-exist in a police agency with chainof -command decision making.

Volume 3 Issue 6
November/December 2003

Being a stakeholder means having a real say and
an investment in the process. For community
policing to become a reality, law enforcement
executives must create an internal atmosphere of
"problem solving begins at home."
Better
interpersonal, problem solving and group dynamic
skills (including, team building, conflict and anger
management,
mediation
techniques
and
communication skills) must become a requirement
for all law enforcement personnel, regardless of
rank. Until police administrators are willing to
create an atmosphere of internal partnership,
community policing will remain just a trendy
buzzword.
While
tactical
decisions
require
tactical
compliance, organizational input on less exigent
matters
must
be
solicited
and
valued.
Partnerships based only on rank and status will
yield at best compliance, not genuine buy-in or
creative investment. Group processes that value
input and permit open, candid discussion can exist
side-by-side with the traditional paramilitary
command
structure
without
compromising
organizational functioning or discipline.
This
does, however, require higher-ranking personnel
to redefine the manner in which they manage and
interact with their employees. Rigid, rank- or
status-driven decisions produce reactivity. Open,
respectful group processes can enhance the
quality of police service and increase the sense of
ownership by line personnel in the mission.

Making It Work
Commanders, who are comfortable with and
benefit most (in the short-term) from rankdriven, reactive compliance, may see this change
as a threat to their authority. In the long-term,
however, these changes and a real sense of
internal partnership will result in an overall
improvement in department effectiveness and will
make an administrator's tasks easier to complete.
A workforce committed to the organization's
long-term goals is far superior to a workforce of
enthusiastic obedience by newer members,
passive compliance by mid-career personnel and

18

open cynical negativity by veterans who gave up
years ago on the idea of being stakeholders or
that their input would be valued.
Teaching police managers to interact with nonmanagers in group discussions on a equal level and
without personalizing criticism can be a difficult
task. Creating cross-functional teams that run
parallel to the command structure is an important
challenge for police executives who really want
community policing to be an integral part of the
department. A commitment to "problem solving
starts at home" has to become a reality before
community policing can become a meaningful part
of a department's culture.
Law
enforcement
executives
who
make
"Community
Policing…Starting
Inside
the
Department" a management reality can expect to
see positive internal and external changes. On
the other hand, law enforcement executives who
continue with business as usual inside the
department while espousing the value of
community policing outside the department, can
look forward to continued internal resistance and
misunderstanding and will not realize the full
benefits of community policing.
Editor’s note: “In Service: 10-8” would like to
thank Dr. Kevin Gilmartin of Gilmartin, Harris, and
Associates for permission in reprinting this
article. This and many other excellent articles are
available
at
the
website
of
www.gilmartinharris.com. Dr. Gilmartin will be a
keynote speaker at the Police leadership 2004
Conference.

Note-able Quote
It is one thing to have the time in a trial over
several days to reconstruct and examine the events
which took place…. It is another to be a policeman in
the middle of an emergency charged with a duty to
take action and with precious little time to minutely
dissect the significance of the events, or to reflect
calmly upon the decisions to be taken—Ontario
Superior Court Justice Power7
7

Chartier v. Greaves, [2001] O.J. No. 634 (OntSCJ)

Volume 3 Issue 6
November/December 2003

COUNSELLOR MUST INTEND
OFFENCE BE ACTUALLY
COMMITTED
R. v. Janeteas,
(2003) Docket: C33474 (OntCA)
The accused met a woman, who
was having serious marital
difficulties, and her mother
during a business transaction and
soon learned that the women
wanted the husband harmed or even killed. To
obtain some hard evidence to take to the
husband, who was a doctor, the accused actively
encouraged the woman and her mother on the
telephone to have the woman’s husband harmed or
killed and that he was willing to make the
necessary arrangements as they wished. The
accused tape recorded these conversations and
met with the doctor to warn him. The doctor paid
the accused $35,000 in cash. The accused was
subsequently arrested and charged with
counselling murder not committed and two counts
of counselling unlawfully causing bodily harm not
committed.
At his trial, the accused testified that he never
intended that any harm come to the doctor,
rather he simply wanted to record the women’s
plans so he could obtain some hard evidence to
take to the husband. The woman denied telling
the accused that she wanted her husband killed
and reported the accused’s activities to police.
The accused was convicted by a judge and jury
and received an 18-month conditional sentence.
He appealed to the Ontario Court of Appeal
arguing that the trial judge improperly instructed
the jury on the necessary mens rea by telling
them that the only intent required was that the
accused spoke the words with the intent that his
advice or counselling be accepted.
The question on appeal was whether the mental
state of the counsellor was irrelevant as to
whether the offence was (or was not) to be
committed. Crown argued that the only necessary

19

mental element is that the accused intended to
speak the words constituting the counselling while
the accused argued that in addition, the Crown
must prove the accused intended the counselled
crime to occur.
Comparing the inchoate crime of counselling to
that of attempts (which requires an intent to
commit the desired offence) and conspiracy
(which requires an intent to commit the offence
that forms the subject matter of the
agreement), the Ontario Court of Appeal ruled
that the requisite mental element of counselling
requires that the counsellor actually intend the
offence be committed. This level of intent was
not properly conveyed to the jury nor was there
evidence to support it. Therefore the conviction
was quashed and acquittals were entered.
Complete case available at www.ontariocourts.on.ca

NO KNOCK ENTRY VIOLATES
CHARTER: EVIDENCE EXCLUDED
R. v. Lau, 2003 BCCA 337

A police officer received an
anonymous Crime Stoppers tip of
a possible residential marihuana
grow operation involving two
Asian males in their 30’s. The tip reported that
an odour of marihuana could be smelled coming
from the home from time to time, the venetian
blinds were closed, and there were two vehicles
associated to the house. Following a number of
visits to the house, the officer noted all but one
small window was covered by venetian or vertical
blinds. This small window had the blinds raised
about 18” and had condensation on the bottom
half. The officer also smelled growing, bulk
marihuana on one or two occasions. A search
warrant under s.11 of the Controlled Drugs and
Substances Act was obtained.
Prior to executing the warrant, a briefing was
held to discuss the entry. Despite not knowing
whether there were or were not weapons present,
it was decided a battering ram would be used to

Volume 3 Issue 6
November/December 2003

surprise the occupants and gain quick control in an
effort to ensure the safety of all involved, both
the police and the occupants. The police entered
the home by battering ram without knocking and
announcing their presence and had their guns
drawn. The accused was found seated in the living
room watching television. A two-stage marihuana
production operation consisting of 252 plants was
located.
At his trial, the British Columbia Supreme Court
justice found the police violated the accused’s
rights under s.8 of the Charter. Following
precedent, in the judge’s view, the use of the
battering ram was unreasonable in the
circumstances.
However, he admitted the
evidence under s.24(2) of the Charter. The
accused appealed to the British Columbia Court of
Appeal arguing that the trial judge erred in
failing to exclude the evidence.
The British Columbia Court of Appeal agreed.
Section 14 of the Controlled Drugs and
Substances Act “permits the police to enter a
home with a certain degree of force, without
announcing their presence, if the circumstances
make it necessary for them to do so.” A knock
and announce waiver requires a significant
likelihood of danger to the police or loss of
evidence if they do announce their presence.
General experience of danger is not enough by
itself to justify a no knock entry. In this case,
there was no evidence that the police made any
enquiries to determine the level of danger at the
premises they searched. Instead, the police were
acting under a blanket policy that was contrary to
legislation. Justice Ryan, for the unanimous appeal
court, wrote:
It is important to acknowledge that the
motivation behind the police policy in this case
is not open to debate. That it is necessary to
ensure the safety of the police and of the
occupants of a home when the police
undertake operations to enforce the laws of
this country is beyond question. But good
motives do not permit the police to formulate
policies which are contrary to legislative

20

requirements. The difficulty in this case is
that s. 12 of the Controlled Drugs and
Substances Act does not permit the
formulation of a blanket policy for searches
under s. 11 of the Act. By s. 12 Parliament has
required that the use of force be as is
necessary in the circumstances. Therefore,
each case must be considered independently.
The officers in this case did not advert to this
requirement.
Rather, they based their
decision to enter the premises in the manner
that they did on a policy which, contrary to
the Act, requires surprise entries with respect
to every marijuana grow operation (unless the
police know children or old people are present)
without regard to the circumstances which
prevail in the situation at hand. Good faith
cannot be founded on a policy which is made
contrary to the dictates of the legislation.
[para. 39]

The method of entry was obtrusive and the
accused’s privacy interest in his dwelling was high.
The breach was serious, flagrant, and not
committed in good faith. The evidence was
excluded under s.24(2) of the Charter and the
conviction was set aside and an acquittal was
entered.
Complete case available at www.courts.gov.bc.ca

POLICY BASED NO KNOCK
ENTRY BREACHES COMMON
LAW RULE
R. v. Schedel & Schedel, 2003 BCCA 364
A police officer detected a
marihuana grow operation at a
home. He could smell growing
marihuana, heard fans running,
and saw coverings on the basement windows. The
officer informed a BC Hydro technician who
conducted an investigation. He subsequently told
the officer that a theft of electricity was
occurring at the residence. The officer applied
for and was granted a Criminal Code search
warrant, which included an order allowing the
technician to assist in the dismantling of the

Volume 3 Issue 6
November/December 2003

electrical diversion. There was no reference to
drug offences nor did the police have any
information about who might be in the house, who
it belonged to, or who occupied it.
A team of eight officers was assembled and the
warrant was executed when police entered the
home using a battering ram on the closed front
door; the back door was open. No prior police
warning was given and the officers entered with
their guns drawn. After entry, police announced
themselves and that they had a search warrant.
The accused and two visitors were arrested for
possession and production of a controlled
substance, handcuffed, and ordered to lie on the
floor. A marihuana grow operation and a quantity
of harvested marihuana was found in the
basement. All four persons were transported to
the police station, strip searched, booked into
cells, and later released. The visitors were never
charged but the two accused were charged with
production of marihuana, possession of marihuana,
and fraudulent consumption of electricity.
At their trial, the judge concluded that there
were several Charter breaches including a s.8
Charter violation protecting residents of
dwellings from unreasonable search and seizure.
This was the most serious violation and occurred
when police failed to knock and announce at the
time of their entry. The police had a policy and
practice of entering without notice or
announcement; arguing it was the safest method
of entry for both the police and the occupants
and because weapons had been occasionally found
at marihuana production operations in the past.
The police testified that unannounced entry
creates the necessary surprise to ensure safety
and does not allow the occupants any choice but
to comply with the level of force presented.
Unless there was evidence of the presence of
children or elderly people, the approach taken by
the police was to breach the door. In the trial
judge’s view there was no information specific to
the premises that warranted the discarding of
the knock and notice rule. However, he found that

21

the breaches were not sufficiently serious to
warrant exclusion of the evidence. The police at
the time were operating under an established
policy that had not yet been ruled illegal. In any
event, the grow operation would have been
discovered whether they announced themselves
or not. Thus, the accused were convicted.
On appeal to the British Columbia Court of
Appeal, the evidence was excluded. In this case,
“the police had no knowledge of who occupied the
house and no information of any specific risk.”
Generally, when a house is to be searched, the
police must first make a formal demand to open
the door before an entitlement to enter or use
force arises. This demand can be discarded,
however, if rapid action is necessary to prevent
the loss or destruction of evidence, or if
circumstances demonstrate a real threat of
violent behaviour. It is not within the unfettered
discretion of the police to deviate from the knock
and announce rule. Where the police depart from
the requirement to comply with this common law
rule, they must establish why they used the force
they did or enter without first announcing before
they entered. It will not be sufficient to justify
their manner of entry by what they find after
they enter by using an ex post facto analysis. The
police must have a real concern and identify
specific circumstances upon which to base that
concern before they enter without first knocking
and announcing.
The policy relied upon in this case to use
unjustified force was an abuse of the common law
and Charter rights of the accused and seemed “to
run contrary to common sense as well as the clear
letter of the law.” The court ruled that “the
means by which the search was carried out were
so clearly unreasonable, and the Charter breach
so serious, that the evidence must be excluded.”
Complete case available at www.courts.gov.bc.ca

Note-able Quote
Be wise in the way you act toward outsiders; make
the most of every opportunity—Colossians 4:5

Volume 3 Issue 6
November/December 2003

CANADIAN ‘AMERICA DAY’
RECEIVES FIRST READING
On September 16, 2003 Bill S22, an Act respecting America
Day received first reading in
Canada’s Senate. The Act, if
passed,
will
recognize
th
September 11
of each year
under the name of “America
Day”. The preamble to this proposed Act reads:
WHEREAS the surprise attack on innocent lives from
all corners of the globe and representing all religions,
in New York City on September 11, 2001, changed the
history of the United States, Canada and the world;
AND WHEREAS Canadians lives were among those lost:
AND WHEREAS it is essential to ensure that history
does not repeat itself;
AND WHEREAS it is fitting to commemorate
September 11 as a day of remembrance and reflection,
on which to consider our common values and
differences…

ENTRY INTO TRAILER
CONSENTUAL: POLICE
OBSERVATIONS LAWFUL
R. v. Pedden, 2003 BCCA 498
A victim, known to have a
problem with alcohol abuse,
reported to a city police officer
that she had been sexually
assaulted in the accused’s trailer. She was
referred to the RCMP, who had jurisdiction in the
area, and a full statement was obtained where it
became apparent that the victim did not know
exactly what had happened. She said that after
meeting a man named “Brian” at a pub the
previous day, he picked her up and took her to his
trailer. They ate ribs and drank alcohol. She
remembered being straddled, having the accused
attempt to pour alcohol down her throat, and
having clear tape placed over her mouth. There is

22

a long gap in her memory and then she recalls
waking up at home only wearing her outer clothing.
She did not think she had been sexually assaulted
because she had no injuries nor did she feel any
pain. She would not go to the hospital for an
examination but felt that something had
happened to her because of the strange gap in
her memory.
A uniformed officer attended the accused’s
trailer to see if a “Brian” lived there and to get
his side of the story. The officer was not there
to conduct a search and testified that he did not
know if there was an assault or whether someone
was partying, passed out, and then forgot where
they were. The officer knew the accused’s full
name because he queried the licence plate of the
vehicle parked at the trailer. The accused was
home when police arrived.
Outside the trailer, the accused told the officer
that he remembered the victim. He acknowledged
meeting her at the pub and drinking together.
The officer told the accused that she had come
to the police with a story and that he wanted to
ask a few questions. The accused said sure and
agreed to allow the officer to step inside the
trailer to discuss the matter. The officer asked
to talk inside because he did not want to let
others in the trailer park overhear the
conversation.
Standing just inside the door, the officer was
able to see inside the trailer. The accused
admitted the complainant had been at the trailer,
and said she had became drunk and upset,
urinated in her pants, and then vomited. He says
he drove her home and did not see her again. The
officer informed the accused that the
complainant had lost some personal items. The
accused said she left nothing at the trailer and
invited the officer to look around. The officer
declined, however he could see some rib bones in
an ashtray on the kitchen table and a video
camera mounted on a tripod in the living room.
The officer then left.

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November/December 2003

Unsure of whether he in fact had a crime, the
officer intended to re-interview the complainant.
While at the detachment, the officer learned
that another officer had an open sexual assault
investigation file in the accused’s name resulting
from an anonymous tip to Crime Stoppers. The tip
reported that the accused was picking up women,
drugging them, and videotaping sexual assaults
against them. Based on this information, the
police applied for and obtained a search warrant
to search the accused’s trailer. The warrant was
executed and videotapes and other physical
evidence were located. Two other victims were
identified and the accused was convicted in
British Columbia Provincial Court of sexual assault
causing bodily harm, sexual assault x 2, unlawful
confinement x 3, administering a stupefying or
overpowering drug to commit an indictable
offence x 3, assault with a weapon, and uttering
threats.
The accused appealed his convictions to the
British Columbia Court of Appeal arguing that the
police violated his Charter rights and that the
evidence, including the videotapes depicting the
sexual assaults, was inadmissible. He suggested,
among other arguments, that the officer should
have advised him of his Charter rights under
s.10(b) when he attended the trailer to speak to
him and that the warrantless entry at this time
breached the accused’s right under s.8 of the
Charter to be secure against unreasonable search
and seizure.
The British Columbia Court of Appeal rejected
these grounds of appeal. Section 10(b) only arises
on arrest or detention. Since the officer neither
arrested or detained the accused when he
attended the trailer to question him there was no
need to provide s.10(b) rights. Moreover, the
officer was not there to conduct a search. He was
there to talk to the accused and determine what
had happened. He did not trick his way inside,
rather he was demonstrating concern for the
accused’s privacy in suggesting they talk inside
the trailer. The officer had no reason to believe
there might be any evidence inside the trailer.

23

The presence of the rib bones only had the
potential of circumstantially confirming the
complainant had been there, a fact admitted by
the accused. The accused had consented to the
officer’s entry and had also invited him to look
around. Thus, there was no illegal or unreasonable
search. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

ROADSIDE ‘FAIL’ READING
CONSIDERED IN ASSESSING
ACCUSED’s CREDIBILITY
R. v. Fox, 2003 SKCA 79
After stopping the accused at
about 3:30 am for driving a
truck without licence plates, the
officer noted an odour of liquor
on his breath. No other indicia of alcohol
consumption were observed. The accused failed a
roadside screening device, was arrested, and a
demand for breath samples was made. Two breath
tests were taken resulting in readings of 130mg%.
At his trial in Saskatchewan Provincial Court the
accused testified he consumed a maximum of six
cans of beer between 10:30 pm and 1:30 am. An
expert in human absorption and elimination of
alcohol provided an opinion that the accused’s
blood alcohol level at the time of driving, based on
his weight, alcohol elimination and absorption
rates, and drinking pattern, would only be 60mg%.
Furthermore, the expert testified that at the
time of the first test his reading should have
been about 53mg%. Although the trial judge
accepted this evidence as rebutting the
presumption of the breathalyzer’s accuracy, he
ultimately rejected it and concluded that on the
whole of the evidence, including the fail on the
roadside screening device, that the accused was
guilty.
The accused appealed to the Saskatchewan Court
of Queen’s Bench which ordered a new trial. The
appeal judge agreed that uncorroborated
evidence of low alcohol consumption by itself can

Volume 3 Issue 6
November/December 2003

rebut the presumption of accuracy, but the trial
judge’s reliance on the roadside screening device
warranted a new trial. The Crown appealed this
judgment to the Saskatchewan Court of Appeal.
Section 258 of the Criminal Code creates two
presumptions:
•
•

the presumption of identity; and
the presumption of accuracy.

The Presumption of Identity
The presumption of identity concerns the blood
alcohol content at the time of driving. Provided
the preconditions of s.258(1)(c) of the Criminal
Code are met, the accused’s blood alcohol content
at the time the samples are taken is presumed to
be the same as when the accused was driving. A
person can challenge this presumption while still
accepting readings as accurate, such as through
late or bolus consumption of alcohol. Thus, a
challenge to this presumption accepts the reading
at the time of test, but argues that the reading
does not properly reflect the blood alcohol level
at the time of driving. Once the presumption of
identity is rebutted, the Crown is required to
prove blood alcohol level at the time of driving by
other means, usually by calling an expert to
interpret the breathalyzer reading back to the
time of driving.

The Presumption of Accuracy
Section 25(1) of the Interpretation Act, applied
to s.258(1)(g) of the Criminal Code, provides that
the facts recorded in the certificate of analysis
are, in the absence of any evidence to the
contrary, deemed to be established. A challenge
to this presumption disputes the reading at the
time of test. In this case, the accused argues
that the 130mg% reading is incorrect because he
did not consume enough alcohol to justify that
level on the breathalyser. Thus, he challenges the
presumption of accuracy, not the presumption of
identity. However, once the presumption of
accuracy is rebutted, the evidentiary aspect
remains. In other words, “once an accused

24

successfully rebuts the presumption of accuracy,
the certificate is no longer deemed to establish
the blood alcohol content at the time of
testing…but the certificate remains part of the
evidence, and it is some evidence of the facts
contained therein.”

Rebutting the Presumption of Accuracy
After reviewing much jurisprudence in this area
Justice Jackson, delivering the judgment of the
Saskatchewan Court of Appeal, ruled that
evidence of low alcohol consumption by itself
could be capable of rebutting the presumption of
accuracy. It is not necessary to establish by
direct
evidence
breathalyzer
malfunction,
operator error, or contamination.

The Roadside Screening Device Reading
Because the roadside test is compelled and there
generally is no right to counsel before providing
the sample, the readings cannot be used to decide
whether the accused is over 80mg%. However,
the judge was permitted to use the roadside
screening result to test the credibility of the
accused that he only consumed six beer. Justice
Jackson wrote:
The roadside screening test is not being used,
on its own, to convict the accused. It is,
instead, some evidence which the court can
consider to test the accused’s statement that
he or she had little to drink and to test the
inference which flows from that statement
that the breathalyzer was not working
properly.
The Criminal Code does not preclude the use
of the roadside test in this manner. Parliament
permits the police officer to obtain this
evidence to confirm suspicion that the driver
may be over .08. While the accused has no
option but to provide the sample, it is difficult
to see where there may be an abuse of
authority in the way such abuse may arise
when a confession is obtained. This is not
compelled action by means of a state official
against an individual as one would see with
respect to a confession. In this case,

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November/December 2003

Parliament has made the decision that
individuals must provide a roadside breath
sample.
Once having obtained the result of the test, it
forms part of the officer’s reasonable and
probable grounds to demand samples of the
accused’s breath. The procedure in this
jurisdiction is that the arresting officer
details all of the evidence from the initial
contact with the accused until a demand is
made, for the purposes of laying the
foundation for his or her reasonable and
probable grounds to have made the demand.
Thus, the evidence is before the court as part
of the record.
Until the accused takes the stand and swears
that he or she consumed little or no alcohol,
the Crown does not know what the accused’s
defence will be. In a system which requires
full Crown disclosure and no defence
disclosure, it is not unreasonable for the
Crown, at that point in the trial, to ask the
court to consider the evidence of the roadside
screening device to weigh the accused’s
credibility….[para. 79-82]

Here, there was no evidence the roadside
screening device was malfunctioning. The officer
was trained in its operation and the device was
calibrated to register a fail with a reading of
100mg% or greater. Justice Jackson concluded
that the trial judge did not err in rejecting the
accused’s testimony based on the whole of the
evidence, including the strength of the
certificate and the roadside “fail” reading. The
appeal was allowed, the order granting a new trial
was set aside, and the conviction was restored.
Complete case available at www.canlii.org

WARRANTLESS PLAIN VIEW
SEIZURE LAWFUL
R. v. Gibson, 2003 BCSC 1572
A citizen called police to report
that an unoccupied neighbouring
house had its front door wide
open, its lights on, and marihuana

25

plants could be seen inside the house through the
open doorway. The police attended and found the
front door broken open, lights on, footprints in
the fresh snow leading up to the front door and
around the perimeter of the house, but no
marihuana plants could be seen. With firearms
drawn, the officers entered the house to search
for any suspects who may have broken into the
house. They smelled marihuana and found a grow
operation in one of the rooms. No one was found
in the house nor were there any signs anyone had
been recently living there. A car drove into the
driveway and after admitting ownership of the
room and the plants, the accused was arrested.
The marihuana plants were then seized without a
warrant.

•

“the police officer discovered the evidence
inadvertently while in the course of
exercising a lawful police power or performing
a lawful police duty;

•

“the evidence was in plain view in the sense
that it was detected through the unaided use
of the police officer’s senses; and

•

“it must have been immediately apparent to
the police officer that the evidence was
probably connected with criminal activity.

During the voir dire to determine the
admissibility of the evidence the accused
conceded that the initial police entry and
preliminary search was lawful, but argued that
the police could not lawfully seize the plants and
grow equipment without a warrant. In his
submission the initial search could only provide
grounds to support a search warrant application,
but could not replace the warrant requirement
for a lawful seizure. Thus, the police violated his
s.8 Charter right to be secure against
unreasonable search and seizure. On the other
hand, the Crown submitted that the seizure was
reasonable under both the common law plain view
doctrine as well as incidental to arrest.

Complete case available at www.bccourts.bc.ca

Justice Halfyard rejected the incidental to
arrest submission because the arrest was
effected outside the residence and he was “not
prepared to say that the room inside the house
[fell] within the purview of “[the accused’s]
immediate surroundings.” However, the plain view
doctrine was applicable. The plain view doctrine
requires the following essential ingredients:
•

“the police officer had lawful, prior
justification for his or her intrusion into or
presence at the place where the evidence was
found;

Volume 3 Issue 6
November/December 2003

In this case all of the elements were established.
The accused failed to establish a Charter
violation and his application for exclusion was
dismissed.

HYDRO INSPECTION ON
PROPERTY DOES NOT REQUIRE
WARRANT
R. v. Benham, 2003 BCCA 241
After two blown power pole
transformers
outside
the
accused’s residence, an employee
of B.C. Hydro’s Security Division
attended the pole to determine what caused the
problem by checking the wires running to the
residence. He discovered an excessive amount of
electricity being used, likely the cause of the two
transformer failures. He re-attended two days
later with a colleague to check the meter on the
outside of the residence. At this time an
electrical bypass was discovered. The police drug
unit was notified and a Criminal Code search
warrant to investigate the theft of electricity
was obtained. While executing the warrant the
police discovered a grow operation and
subsequently obtained a second warrant to search
the premises under the Controlled Drugs and
Substances Act. Police seized 506 marihuana
plants and 130 cuttings worth an estimated
$170,000 if sold by the pound and $425,000 if
sold by the gram.

26

At his trial, the accused challenged the
constitutional validity of the British Columbia
Hydro and Power Authority Electric Tariff which
gives B.C. Hydro employees access to its
equipment (meters and other apparatus) on the
premises of its customers. The trial judge ruled
against the accused and he was convicted of
possession of marihuana for the purpose of
trafficking, cultivation of marihuana, and theft of
electricity from B.C Hydro. The accused was
sentenced to a nine month conditional sentence,
was ordered to pay restitution in the sum of
$8,511.03 to B.C. Hydro, and his grow equipment
was forfeited.
The accused appealed to the British Columbia
Court of Appeal arguing, in part, that the entry of
the B.C. Hydro employees under the regulation
violated his s.8 Charter right to be secure against
unreasonable search and seizure. The regulation
reads:
The Authority’s agents and employees shall have, at all
reasonable times, free access to the equipment
supplied with electricity and to the Authority’s meters
and apparatus and the wires leading therefrom on the
customer’s premises to ascertain the quantity or
method of use of service.

One of the accused’s submissions contended that
when Hydro employees use the regulation to
gather evidence for a criminal theft of electricity
prosecution,
it
should
be
rendered
unconstitutional because it does not contain prior
(pre-search) judicial authorization. He asserts
that the second visit by Hydro employees onto
the property was to investigate a theft of
electricity and breached his s.8 Charter rights.
The information from this visit could therefore
not be used to obtain the Criminal Code search
warrant. Since this warrant was invalid, the
discovery of the grow operation was tainted and
the subsequent drug warrant was also invalid. In
the accused’s view, all of the evidence was
inadmissible and he should have been acquitted.
The Crown suggested that the regulation allowing
access by B.C. Hydro employees did not breach
s.8.

Volume 3 Issue 6
November/December 2003

Justice Low, writing the unanimous judgment,
rejected the accused argument. He stated:
The relationship between B.C. Hydro and its
customers is contractual. The terms of the
contract are dictated by statute and
regulation. When a person signs up for
electrical service to his home, as the [accused]
did, he or she agrees to be bound by the terms
of the contract. It is apparent that equipment
of the supplier of the service must be on the
premises of the consumer. It would be
commercially unrealistic for the supplier to be
denied access to that equipment. The Tariff
regulation under attack provides for access
“at all reasonable times” for meter reading and
to ensure that the customer is using the
service properly. In addition to the possibility
of theft, there are obvious safety issues that
B.C. Hydro must address. Under s. 38 of the
Utilities Commission Act …B.C. Hydro is under
a duty to provide a service to the public that
is “adequate, safe, efficient, just and
reasonable”. [para. 18]

Although the excessive amount of electricity
being consumed at the accused’s residence caused
the employee to suspect that there was a
marihuana grow operation at the residence, B.C.
Hydro still had a legitimate commercial interest
and safety concern in investigating the anomaly
that appeared to be a theft of electricity. The
search in this case was conducted by a B.C. Hydro
employee in accordance with a regulatory scheme
involving minimal intrusion. The employee
examined equipment owned by B.C. Hydro situated
outside the residence in plain view, the
information obtained was neither intimate nor
private, and customers have imputed the right of
Hydro to enter to check equipment. Thus, there is
a low expectation of privacy when B.C. Hydro
employees enter onto their customer’s property
to check equipment.
Investigating the theft of electricity, although a
criminal offence, does not take the activities of
B.C. Hydro employees outside the properly
circumscribed regulatory context into a context
with purely law enforcement objectives. Provided

27

Hydro limits their entry to inspect equipment
they own and investigate matters relevant to
their commodity, the absence of pre-search
authorization does not render the regulation
unconstitutional. The appeal was dismissed.
Complete case available at www.bccourts.bc.ca

HIGHWAY SAFETY REAL
FACTOR IN STOPPING CAR
R. v. Coates,
(2003) Docket: C35204 (OntCA)
Two Ontario police task force
members investigating a rash of
violent robberies were patrolling
the area where the robberies
had occurred, looking for suspicious vehicles or
individuals. At 2 am. they noticed a Quebec plated
vehicle near a commercial area where tourists
would not be expected. While the car was stopped
at a red light, one of the officers observed that
the driver and passenger were not speaking to
one another and did not appear to “belong
together”. The passenger looked very nervous and
was not wearing his seat belt. Both occupants also
avoided eye contact, staring out the front
windshield.
When the light turned green, the police followed
and the car made an abrupt lane change near an
intersection as if to avoid police contact. The
police continued to follow and stopped beside the
car at a red light. Once again, despite the efforts
of the police to make eye contact, the passenger
stared straight ahead and refused to look over or
acknowledge the police. When the light turned
green, the car remained stationary for several
seconds before it turned left. The police
activated the emergency equipment and stopped
the car.
A black sock-like object was thrown from the
front passenger window. One of the officer’s
nudged the object with his foot and several silver
bullets fell out, forming the belief there was a
strong possibility there was a firearm in the car.

Volume 3 Issue 6
November/December 2003

However, as a safety precaution the police
decided to act as if they were unaware of the
bullets.
The accused, who was the driver, was asked for
his licence, ownership papers, and insurance and
told he was being stopped because his passenger
was not wearing a seatbelt. When asked where he
was going, the accused replied “McDonald’s”. The
officer did not believe him because they had just
passed a McDonald’s. An officer shone his
flashlight into the car and noted power cords of
the type associated with radar detectors and
binoculars under the passenger seat. The officer
asked if there was a radar detector in the car
and for the passenger to step out of the car. A
balaclava and an unfolded city map were observed
on the back seat when the passenger door was
opened.
The passenger was escorted back to the police
car, pat-down searched, and placed in the back
seat for officer safety concerns. The accused
was then arrested for having, or being about to
commit, an indictable offence. He was searched
and five .38 calibre bullets, a small tape recorder,
papers, and a large quantity of cash were found in
his waistband. He was re-arrested, but neither he
nor his passenger were given their right to
counsel. A quick interior search of the car
revealed two full-face balaclavas, a radar
detector in the glove box, a roll of duct tape in
the armrest, and the open city map. In the trunk,
the police found a gym bag, panels for a
bulletproof vest, a camouflage jacket, and a video
camera. A follow up search warrant was obtained
and the police subsequently recovered a .38
calibre
handgun
containing
hollow
point
ammunition under the back seat along with other
items from the car.
At the accused’s trial the judge accepted the
officer’s evidence that the unrestrained
passenger was not a pretext for the pullover, but
was a real factor in stopping the car. The police
had an articulable cause in the circumstances to
stop the car and there was no s.9 Charter breach.
The accused was convicted of carrying

28

ammunition without lawful excuse in a careless
manner and possession of a restricted firearm
under the Criminal Code.
The accused appealed his conviction to the
Ontario Court of Appeal arguing, among other
grounds, that the police did not have an
articulable cause to stop the car and therefore
he was arbitrarily detained under s.9 of the
Charter. The search and seizure that followed
was therefore unreasonable and the evidence
should have been excluded.

The Stop
A stop will not be arbitrary and thus comport
with the requirements of s.9 if the police have an
articulable cause to justify the detention. In
referencing previous case law on articulable
cause, Justice Weiler for the unanimous court
wrote:
[A]rticulable cause is "a constellation of
objectively discernible facts which give the
detaining officer reasonable cause to suspect
that the detainee is implicated in the activity
under investigation." In ascertaining whether
articulable cause exists the court must have
regard to the facts and circumstances as a
whole, rather than isolating each in turn and
must be satisfied that there are bona fide
clearly expressed and factually objective
reasons justifying not only the detention of
the suspect but also the extent and nature of
the investigation. [para. 3]

In this case the police provided two clearly
expressed specific factors as grounds justifying
the stop under s.216(1) of Ontario’s Highway
Traffic Act; the seatbelt infraction and the
abrupt lane change (which the officer associated
with the possibility of an impaired driver). The
trial judge concluded that these factors were not
used as a pretext for the stop and it was not
unreasonable for him to conclude that highway
safety was one of the real reasons for the stop.
As well, the police had an articulable cause to
briefly detain the accused for investigative
reasons other than highway safety matters.
Justice Weiler stated:

Volume 3 Issue 6
November/December 2003

In the context of the investigation of the
recent robberies, the time of night, the area
of the stop, and the other observations
demonstrating that the [accused] and his
passenger were acting suspiciously and
evasively, the police had articulable cause to
detain the [accused] for brief investigative
purposes. [The officer] had an objective
factual basis that gave rise to his suspicion
and this basis rose above the level of a mere
hunch. The existence of other lawful police
purposes such as investigation of other
criminal activity and intelligence gathering, in
addition to highway safety concerns, does not
taint the lawfulness of the stop [para.26,
references omitted]

The appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

PLAYING N-A-M-E GAME
RESULTS IN CONVICTION
R. v. Hyde, 2003 BCSC 368
Occasionally, it takes a full
reading of an entire case to get a
clear picture of what exactly has
transpired in court. This is one
such case. The full Supreme Court of British
Columbia excerpt as reported is provided for your
reading pleasure:
[1] THE COURT: This is an appeal from a
deemed conviction for speeding against a
municipal sign under the Motor Vehicle
Act, s. 146(7).
[2] The circumstances of the conviction are
unusual. The matter was set for trial and
then adjourned to May 28th, 2003. It
came before a Justice of the Peace in
traffic court in Port Coquitlam. The
transcript of the proceedings in court at
the time the matter was scheduled to
proceed reads as follows:
THE COURT: David Hyde.
UNIDENTIFIED SPEAKER: Yeah, I'm here in
relation to that matter, sir.
THE COURT: Thank you.

29

[3] Other matters were then spoken to. The
transcript continues:
THE COURT: David Hyde. Are you ready to
proceed, Mr. Hyde?
UNIDENTIFIED SPEAKER: I am the -- I am
the -- I'm here concerning that matter
and I am THE COURT: Are you David Hyde?
UNIDENTIFIED SPEAKER: I am the secured
party, sir.
THE COURT: Are you David Hyde or not?
UNIDENTIFIED SPEAKER: But I don't know
what name you've got written up there.
THE COURT: Well, I've got David Hyde. If
you're not David Hyde, you can leave the
court area. You are David Hyde?
UNIDENTIFIED SPEAKER: I can't answer
that without seeing the words you have
written there.
THE COURT: Okay, then just move. Okay, you
can move now. I'm going to declare that
the charge is not disputed because Mr.
Hyde is not present. So you're free to
go. Okay?
UNIDENTIFIED SPEAKER: Well, sir, I'd like
to read what I have to say.
THE COURT: Well, no. All I want to know is if
you're David Hyde.
UNIDENTIFIED SPEAKER: If -- if it is the
same name as the sheet outside, no, I'm
not that man.
THE COURT: That's not what I'm asking. I'm
asking if you are David Hyde. Are you
David Hyde or not?
UNIDENTIFIED SPEAKER: I am the secured
party and I am the creditor –
THE COURT: Okay, I'm going to take that as
a no. You're free to go. Officer, would
you escort this gentleman, who does not
want to admit his identity, out of the
courtroom. I'm going to treat it as not
disputed due to the non-appearance of Mr.
Hyde.
[4] Mr. Hyde informed me today that on the
court docket his name was spelled in
capital letters. He identified himself
today as David, spelled capital D, lower
case a-v-i-d, capital J, lower case o-h-n,
capital E, lower case d-w-i-n, capital H,
lower case y-d-e.

Volume 3 Issue 6
November/December 2003

[5] It is Mr. Hyde's position that he has
registered as a trade name the name
DAVID JOHN EDWIN HYDE in capital
letters. He takes the position that the
effect of so doing is to create an identity
other than himself, which is DAVID
JOHN EDWARD HYDE, all in capital
letters. He has registered this trade
name, and a number of other permutations
and combinations of his name, with the
Secretary of State for Canada and
Secretary of State for Foreign Affairs
and International Trade for Canada. He is
of the view that, because the judge was
reading from a name in capital letters
when he read out the name David Hyde, he
was not reading the name of the person
David Hyde. He concludes from that that
he was not required to answer that name
because his name was not called.
[6] He takes one further position on this
application, and that is that when the
judge endorsed the court record, he
endorsed "No one responded to the call
for David Hyde. One disputant did step
up, but would not not agree that he is
David Hyde." Mr. Hyde today submits
that the court record, by use of a double
negative, has confirmed the positive; that
is, that the disputant that stepped up did
agree that he was David Hyde.
[7] The official record of the court
proceedings is the transcript from which I
quoted earlier. That transcript clearly
indicates that the appellant's name David
Hyde was called out in open court at the
time that the case, which had been
adjourned from another day, was
scheduled to proceed. That is the regular
procedure of the court. Mr. Hyde takes a
technical position that is without merit.
It is clear that his name was called. I am
satisfied that he was present and would
not answer.
[8] In all of the circumstances, I am satisfied
the Justice of the Peace was fully
justified in treating the traffic ticket as
not disputed and entering a deemed
conviction. Accordingly, I am going to
dismiss Mr. Hyde's appeal. (EXCERPT
CONCLUDED)

30

’GIVE ME THE FIVE YEARS &
SHUT UP!’
R. v. Galt, 2003 BCPC 0160
Once in a while an accused wants
to go to jail. Read this exchange
that occurred in British Columbia
Provincial Court between Justice
Angelomatis and an accused who pleads for 5
years in prison.
[1] THE COURT: There is an unusual fact
pattern in this case and that is that Mr.
Galt committed a robbery which he
brandished a cloth over part of his hand,
pretending there was a gun. What is
unusual about this matter is that he
subsequently turned himself in to the
police.
[2] There, however, in the background of Mr.
Galt is a great deal of self-pity and a
great deal of under-reporting and a great
deal of minimizing what he has done. I am
concerned about some of his past crimes,
but I am not sentencing him for those
past crimes. The incidents he mentions
with respect to the sexual assaults, what
he tells the probation officer and what he
tells the psychiatrists are evidently at
odds with the police reports. I do not
know which is correct and, as I say, I am
not punishing him for those crimes.
[3] However, reports by his collateral
associates, namely stepsisters, sisters and
family, show that he has had a continuing
history in the past of being a bully and
being oppressive and belligerent and
aggressive and violent towards people.
[4] I am troubled by one of the things that is
in the pre-sentence report, but again, I
am not sentencing because of this. On
page 11 on the faxed report, he says that
he was coerced by - and he says it is not
the Hell's Angels - but he was coerced by
persons to commit a crime. He says that
he owed his captors $1800 for uncut
cocaine worth, in his opinion, $3,000. That
cocaine had been seized by the Vancouver
Police. So I take it that that cocaine was
cocaine that he would have possessed,

Volume 3 Issue 6
November/December 2003

whether for his own use or for
trafficking. But he goes on to say, "During
those two days, I made over 15 grand for
them and this was the last job." What I
take from that - and I am not sentencing
for it - is he has done other robberies,
other crimes in that two-day period that
he is not being called to account for. If he
truly was repented and he truly was
remorseful, I would have thought he would
have made a clean breast of it all.
[5] He has, in here, made a statement that he
wishes to reconnect with society and to
get some treatment and, to his credit, he
understands and acknowledges that the
only place he is going to get this is in the
federal system.
[6] The Crown has indicated that they want
three years. I would have given him more,
regardless of the fact he turned himself
in, but I am going to acquiesce in what, in
effect, is a joint submission. Mr. Flerlage
feels it should be at the lesser end of
federal time, i.e. two years, two-and-ahalf years. Three years is what the Crown
asked for, three years is what I am going
to give him. I feel that a sentence of five
to six years would have been eminently
justified.
[7] However, I take some solace in the fact
that he is only 34 years old. I see there is
present, in the gallery, acquaintances or
relatives, so he does have some support
system. I also feel that he has the
background, I would think, to reconnect.
He has evidently First Nation roots. He is
not proud of them or, if he is proud, he
has not acknowledged them and does not
seek help from the First Nations. The
First Nations are now in a voyage of
discovery, in that their historical
oppression has been recognized, the
government gives them money, there are
programs where First Nations persons can
avail them of it, and Mr. Galt clearly is not
someone who has his own inner resources
to find redemption or to be reformed and
rehabilitated on his own resources. He
should use whatever resources he can
find.

31

[8] THE DEFENDANT: Christ, give me the five
years and shut up!
[9] THE COURT: Yeah, well, you know, if that
is what you want to hear, that is what you
want to hear. You are indicating you have
not seen the path, you have not seen the
light, and you are not going to unless you
start -[10]THE DEFENDANT: Well, you haven't even
listened to a f.... thing that was said here
today.
[11]THE COURT: I have read it all, and I do
not think you have read it and you have
not understood it very well.
[12]THE DEFENDANT: I read both.
[13]THE COURT: Okay. And in there, you seem
to be blaming everybody but yourself.
[14]THE DEFENDANT: You haven't read
nothin'. You're f.... daft.
[15]THE COURT: Okay. Okay, good. I will leave
it. He has expressed himself. Three years.
[16]THE DEFENDANT: F.... goof!
[17]THE COURT: See, I should have given him
four!
[18]I will find hardship. There is no way he is
going to pay the victim surcharge.
[19]Maybe I should torture him more with
reasons for judgment. Do you want to
bring him back?! (EXCERPT CONCLUDED)

‘10-8’ GOES PRIME TIME
“10-8” can now be seen Sunday
at 8 pm. (PST) on ABC. Of
course, we are not referring to
a television version of the “In
Service: 10-8” newsletter,
but a new fall police drama
series by the same name, “10-8”. This series takes
place in the Los Angeles County Sheriff’s
Department and explores the relationship
between Sheriff’s rookies and their training
officers. For more information, check out
www.ABC.com.

Note-able Quote
Character is much easier kept than recovered—

Thomas Paine

Volume 3 Issue 6
November/December 2003

CONSENT SEARCH OBTAINED
FOLLOWING TRAFFIC STOP
R. v Sewell, 2003 SKCA 52
A Saskatchewan police officer
stopped a British Columbia
license plated vehicle on the
TransCanada highway to issue a
warning ticket after the driver failed to slow as
he entered a reduced speed zone. When asking
the accused for his drivers licence and vehicle
registration, the officer noted his eyes were red
and that he was slow to react to the questions.
When asked where he was coming from and going
to, the accused replied he was travelling from
Toronto to British Columbia. Concerned about his
sobriety and with safety, the officer asked the
accused to come back to the police car. The
accused was placed in the rear of the police car,
but could not exit unless the officer allowed him
to do so. A computer check was conducted and
CPIC reported a conviction for theft while PIRS
indicated he was a suspect in a marihuana
cultivation.
After giving the accused a warning ticket, the
officer told him he was done with the traffic
stop, that he was free to go, and his documents
were returned. However, the officer acquired a
new suspicion that the accused may be
transporting or in possession of illegal
contraband. The officer told the accused he
would like to discuss his trip. He advised him he
did not have to say anything, that if he did talk it
could be used as evidence, and also of his rights
to a lawyer and legal aid. The accused was
nervous and shaking. The officer discussed
contraband and smuggling on the highway. The
officer asked if there were any weapons, tobacco,
alcohol, drugs or money in the vehicle. The
accused replied no, but his carotid was pulsing
very hard.
The officer admitted at trial that he asked all
these questions with a view in obtaining consent
to search the vehicle. The officer asked the

32

accused if he minded him looking through his
truck, a Ford Escape. He replied, “Yeah, I guess
you can go through it.” The accused was assured
that he could stop the search at any time. Both
left the police car and the officer again told the
accused he could withdraw his consent at anytime
without consequence. After entering his vehicle
to put away the documents, the accused unlocked
and opened the back door. Smelling a strong
odour of raw marihuana, the officer took hold of
a duffle bag tucked in amongst other luggage and
pulled the bag closer. At this point the accused
informed the officer he was withdrawing his
consent. He was arrested for possession of
marihuana, advised of his right to counsel and
given the police caution. The accused was
searched and $2,280 in cash was found in his
pocket. In the duffle bag, police located 3 kgs. of
marihuana.

bag and was asked to stop searching and the
second phase (post arrest) where the officer
searched the duffel bag, the vehicle, and the
accused subsequent to the arrest.

The Pre-Arrest Search
The Saskatchewan Court of Appeal found it
unnecessary to decide whether the detention was
arbitrary under the Charter because “it is not the
existence of “arbitrariness” that ultimately
determines whether the consent was voluntary
and thus valid”. Even if the detention was
arbitrary, it is still possible to give valid consent.
Adopting the Wills8 test (an Ontario Court of
Appeal decision) for informed consent, the court
noted that the Crown must prove, on a balance of
probabilities, that:
i. there was a consent, express or implied;
ii. the giver of the consent had the authority
to give the consent in question;
iii. the consent was voluntary…and was not
the product of police oppression, coercion
or other external conduct which negated
the freedom to choose whether or not to
allow the police to pursue the course of
conduct requested;
iv. the giver of the consent was aware of the
nature of the police conduct to which he
or she was being asked to consent;
v. the giver of the consent was aware of his
or her right to refuse to permit the police
to engage in the conduct requested, and
vi. the giver of the consent was aware of the
potential consequences of giving the
consent. [para. 17, references omitted]

At trial the accused was convicted of possession
of cannabis marihuana for the purpose of
trafficking under the Controlled Drugs and
Substances Act, but appealed to the
Saskatchewan Court of Appeal. Although he
conceded the initial stop and detention for
speeding under Saskatchewan’s Highway Traffic
Act was lawful, he argued that the continued
detention in the back of the police car once the
traffic matter was concluded was arbitrary under
s.9 of the Charter, which in turn played a
determinative role in the s.8 Charter breach for
which he was seeking a remedy.
He submitted that the initial search was
involuntary and compelled by the physical
detention in the rear of the police car and the
imminent possibility of further police sanction.
The Crown contended however, that the initial
search was conducted with informed consent and
once the accused revoked that consent, the
officer had the authority to arrest the accused
and continue a search incidental to arrest. For
the purposes of its decision, the Court examined
the search question in two phases; the first phase
(pre-arrest) consisted of the search up to the
point where the officer reached for the duffle

Volume 3 Issue 6
November/December 2003

In this case, the Court had no problem holding
that conditions i, ii, or iv were met. As for
condition v, the Court stated:
The officer told the [accused] twice that he
could stop the search at any time. Indeed, at a
critical point, the [accused] asserted his right
to stop the search. Obviously, he always new
he had the right to refuse his consent to
search. [para. 20]

8

R. v. Willis (1992) 70 C.C.C. (3d) 529.

33

And for condition vi:
The evidence also leaves no doubt about the
presence of requirement (vi). Before obtaining
the [accused’s] consent, the officer took
considerable pains to alert the [accused] to
the potential consequences that could befall
him should some contraband be found in his
vehicle as a result of a search. The [accused]
characterizes those efforts not as a drawing
to the [accused’s] attention the potential
consequences that could befall him, but as a
form of compulsion that vitiates the consent
he gave the officer. It is my view that there is
no good reason whatever not to accept the
officer's reasons and explanation for his
describing to the [accused] what has happened
in the past to persons he found transporting
contraband. It was the officer's way of
outlining the potential consequences of the
[accused’s] giving his consent to a search. In
other words, the officer was endeavouring to
comply with requirement (vi). I, therefore,
have no difficulty in finding the Crown
satisfied the onus placed on it respecting
requirement (vi). [para. 21]

This left condition iii; was the consent voluntary?
The type of police oppression or coercion to
vitiate the voluntary nature of consent requires
more that the sense of oppression and compulsion
even experienced and sophisticated persons will
feel when stopped by the police. It requires
oppression or coercion procured by intimidating
conduct or by threats of force and must be more
than the oppression or coercion inherent in every
detention by police. Justice Bayda held:
In the present case, the arbitrary detention
(if that is what it was) of the [accused] in the
backseat of the police car is a factor to
consider in deciding whether there was
oppression or coercion …but it is only one
factor. By far, the most important factors are
whether there was any "intimidating conduct"
or "force or threats of force" by the police
officer and whether that conduct or force or
those threats of force procured the consent.
The evidence in the present case reveals no
such conduct, force or threats of force. In
the light of that, the only conclusion one can

Volume 3 Issue 6
November/December 2003

draw is that the consent given by the
[accused] in the backseat of the car was
"voluntary…."
Another important factor to consider is the
nature of the consent. It was revocable and,
thus, had a continuous quality. There was not a
one-shot feature to it. Because it could be
withdrawn at any time, there was, in a sense, a
fresh consent every moment or every few
seconds from the time it was first given until
it was eventually withdrawn. Given that quality,
the force, such as it was, of the [accused’s]
contention that the consent was given in the
context of an arbitrary detention while in the
backseat of the police car, was considerably
reduced, if not entirely dissipated, by his
failure to withdraw the consent after he left
the police car and before the search began.
The [accused] was then not under any
detention, arbitrary or otherwise, as the
officer earlier told him he was "free to go."
But he remained and allowed his consent to
continue, and actively assisted the officer in
the search by opening some bags. Moreover,
the fact that at one point in the search the
[accused] withdrew his consent is strong
evidence that he was not under the influence
of any sort of threat, intimidation or coercion.
[paras. 27-28, references omitted]

The Arrest
The Saskatchewan Court of Appeal then went on
to consider the legality of the arrest. Having
found the search up until the point the accused
withdrew his consent lawful, the court found the
odour of marihuana sufficient to warrant the
arrest of the accused as a person found
committing a criminal offence under s.495(1)(b)
of the Criminal Code, which reads:
s.495(1)(b) Criminal Code
A peace officer may arrest without warrant…(b) a
person whom he finds committing a criminal offence.

Justice Bayda wrote:
It is clause 495(1)(b) that governs in this case.
The [accused] at the time of his arrest was
committing
an
offence
(consisting
of
possession of marijuana) and the officer found

34

detention. As for the contention that the
[accused] was denied his right to retain and
instruct counsel, it is apparent from the
officer's testimony that he did, indeed, advise
the [accused] of that right while both were in
the police car immediately after the officer
had concluded dealing with the Highway
Traffic matters. The [accused] at no time
asserted this right. This contention comes to
naught.

him to be committing that offence. This is,
therefore, not a case of the officer needing
the "reasonable grounds" contemplated by
clause 495(1)(a).
The question arises whether it is fair to
conclude that the officer had, for the
purposes of s. 495(1)(b), "found" the [accused]
committing the offence at the time of the
arrest given that the officer had only smelled
the marijuana but had not seen it. In my
respectful view, it is fair to so conclude. In
order for a person to know or believe that
there is marijuana in the immediate vicinity, he
or she would have to rely on one or more of his
or her five senses. (Admittedly, one cannot
"hear" marijuana, but one can "hear" someone
telling one of the presence of marijuana.)
Normally it is the sense of sight alone, often
the sense of sight coupled with the sense of
smell, and at times the sense of smell alone
that alerts one to the presence of marijuana.
If, through experience, a person's sense of
smell for marijuana is as highly developed as
his sense of sight for marijuana, it undermines
logic to discount or discard the knowledge
acquired through his sense of smell but accept
the knowledge acquired through his sense of
sight. Knowledge is knowledge, whether
acquired through one sense, more than one
sense, or all the senses. In the present case, it
is fair and reasonable to infer from the
officer's testimony-testimony that was not
disputed-that he had knowledge of the
presence of marijuana in the vehicle, as a
result of his smelling the marijuana in
question, without having seen it.
The [accused] raised the question whether the
officer's presence at the back of the
[accused’s] vehicle where he could smell the
marijuana should be adjudged an unlawful
presence given that it occurred only because
of "a non-consensual search" brought about by
coercion, an arbitrary detention and a denial
of the [accused’s] right to retain and instruct
counsel. The short answer to the question is
that the search was not a "non-consensual
search" for the reasons I have outlined and
the officer's presence was, therefore, not
unlawful. In those reasons I specifically dealt
with the issues of coercion and arbitrary

Volume 3 Issue 6
November/December 2003

Even if I were to find that the officer's
presence at the back of the vehicle was
unlawful for the reasons contended by the
[accused], I would be hard pressed to find
that the officer lacked authority to arrest the
[accused] for an offence he found him
committing. By way of analogy, I offer this set
of circumstances. A police officer unlawfully
enters a dwelling house. That unlawfulness is
rooted in a breach of one of the occupant's
Charter rights. He finds the occupant pointing
a gun at another person who is strapped to a
chair in a distraught state. Is the officer
precluded from arresting that occupant for
committing
the
offence
of
forcible
confinement on the ground that he, the
officer, unlawfully entered the dwelling house?
I would find it very odd, indeed, if a breach of
the occupant's Charter right brought about
such a result. [paras. 35-38]

Post Arrest Search
Since the arrest was lawful, the officer was
entitled to search the contents of the vehicle and
the person of the accused as an incident to the
arrest. Furthermore, the police had reasonable
and probable grounds to continue the search9.
The accused’s s.8 Charter right was not violated
and therefore it was unnecessary to consider
exclusion under s.24(2). However, the appeal was
allowed on other procedural grounds.
Complete case available at www.canlii.org

9

In compliance with the earlier Saskatchewan Court of Appeal search case R. v.

(D.)I.D. (1987), 60 Sask. R. 72 (C.A.).

35

DID YOU KNOW…
…that Los Angeles Police Department employees
may receive a $500 bonus if they refer an
officer for lateral transfer to the department
and that officer is subsequently hired. (The Beat,
Volume XLIX No.8, August 2003)

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR
The “In Service: 10-8”
newsletter would like to
share
some
of
our
readers’ comments about
the
publication.
We
appreciate the kind words
we have received and look forward to future
editions:

***************

“Could you please e-mail [the newsletter] to me at
the Police Station so that I can print it and put it
out for the other members to read it. I read a
few articles and they are very interesting and
relevant.” Police Constable, New Brunswick

***************

“I look forward to each new issue you put out
however sometimes at work it gets hoarded by
someone. This way I can read it at home at my
leisure.” Police Constable, British Columbia

***************

“We here at the…Criminal Intelligence Section
have had the opportunity to see some issues of
your publication. We would very much appreciate
it if we could be added to your distribution list.”
Police Sergeant, British Columbia

***************

“I am a “fan” of your “In Service: 10-8
Newsletter” and look forward to reading them as
they come into our Training office.” Police

Constable, British Columbia

***************

“The newsletter is greatly appreciated.” Police

“I am an instructor…[and one] of my cadets sent
me a copy of your monthly newsletter and to put
it mildly I was very impressed.” Police Corporal,

RCMP Saskatchewan

***************

“Just reading through your latest newsletter...you
do one hell of a good job - keep it up, and thanks.”
Canadian Fisheries Officer

***************

“I was just back at my home agency…and came
across a couple issues of your publication. Two
things, this is an excellent publication. I have
been off the road now for a number of years and
I may be heading back there in the not so distant
future.
I haven't been able to read the
publications from cover to cover yet but you bet
I will and I feel confident they will bring me up to
speed on what to do and not to do when I get
back in uniform. Thanks!” Police Officer, British
Columbia

***************

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for the “In Service 10-8 material…[they are]
terrific articles…” Police Constable, RCMP

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Keep up the excellent work.” Inspector, RCMP
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your news letter. I print it off faithfully to
supply our shift NCO’s and place a copy on our
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appreciated!” Police Corporal, New Brunswick

Constable, RCMP British Columbia

Volume 3 Issue 6
November/December 2003

36

CLASS 93 GRADUATES
The Police Academy is pleased to
announce the successful graduation
of recruit Class 93 as qualified
municipal constables on November
14, 2003.
ABBOTSFORD
Cst. Atousa Arjangpour
Cst. Katie Asplin
Cst. Derek Baker
Cst. Chris Brown-John
Cst. Karen Twardy
DELTA
Cst. Chris Anzulovich
Cst. Ray Basran
Cst. David Ogilvy
NEW WESTMINSTER
Cst. Rochelle Desranleau
Cst. David Dorazio
PORT MOODY
Cst. Brad Sheridan
VICTORIA
Cst. Wayne Cox
Cst. Theresa Tuttle

VANCOUVER
Cst. Daniel Ballinger
Cst. Mark Bouchey
Cst. Russell Brown
Cst. Rebecca Chandler
Cst. Darren Edwards
Cst. Kairns Graham
Cst. Natasha Holdal
Cst. Shane Kolb
Cst. Todd Lefebvre
Cst. Trever Lowe
Cst. Eugene Lum
Cst. Michael MacPherson
Cst. Bruno Raffele
Cst. Erin Riste
Cst. Sukhvinder Sunger
Cst. Drew Turner
Cst. Sean Ward

Congratulations to Cst. David Ogilvy
(Delta), who was the recipient of the
British Columbia Association of
Chiefs of Police Shield of Merit for
best all around recruit performance
in basic training. Cst. Natasha Holdal (Vancouver)
received the Abbotsford Police Association Oliver
Thomson Trophy for outstanding physical fitness.
Cst. Rebecca Chandler (Vancouver) and Cst. David
Ogilvy (Delta) received the Vancouver Police Union
Excellence in Academics award for best academic
test results in all disciplines. Cst. Derek Baker
(Abbotsford) received the British Columbia
Federation of Police Officers Valedictorian award
for being selected by his peers to represent his
class at the graduation ceremony. Cst. Trever Lowe
(Vancouver) was the recipient of the Abbotsford
Police Recruit Marksmanship award for highest
qualification score during Block 3 training. RCMP
Chief Superintendent Stu Cameron, OIC Human
Resources, was the keynote speaker at the
ceremony.

Volume 3 Issue 6
November/December 2003

PATROLS ON THE WILD SIDE:
WHERE FACTS ARE OFTEN
FUNNIER THAN FICTION
collected by Constable Ian Barraclough
The Curse of the Mummy
When Bill Sokolik buzzed a
stranger into the Edmontonbased
Jehovah’s
Witness
Kingdom Hall last September,
the first thing through the
door of the church was a 24
inch long Samurai sword. An
apparition straight out of Curse of the Mummy
followed. Anthony Alan Burton, the man who then
entered to terrorize and rob the Jehovah's
Witness church had lengths of hospital gauze
wrapped over the top of his head. His face was
covered with silicone caulking putty and he had
smeared pink foundation makeup over the putty.
To add to the effect, his eyes were obscured by a
large pair of glasses.
"I am the evil that you have read about," the 42year-old Burton yelled out to the terrified
worshippers in the hall that Tuesday night. "This
is the face of evil." When Burton burst into the
hall, children and women began screaming. Burton
ignored their screams and instructed some of the
men to collect cash and credit cards. To add
emphasis to his words, Burton slashed a chair
seven times with his sword, then grabbed a
churchgoer and put the blade to the man's neck
before releasing him.
At the back of the church, a woman pulled a
cellphone from her pocket and dialled 911. Police
arrived within five minutes. Pistol in hand, the
first officer through the door of the church was
Rick Franchuk, a self-described "constable-forlife." Franchuk yelled out to Burton to drop the
sword. Burton instead tried to grab a woman but
missed. He grabbed another woman by the shirt
but let go when a churchgoer seized his arm. "I
don't want to," he yelled when Franchuk

37

demanded again that he drop the sword. "Shoot
me! Shoot me!"

force to the RAF liaison office, it was revealed
that the traffic cops had had a lucky escape.

Franchuk held his fire. Burton finally dropped his
sword but still wouldn't surrender. "That's okay.
I have more knives and weapons," he said. Burton
finally surrendered and police found a medievalstyle mace in the pocket of his knee-length
overcoat. Fastened to his leg with electrical tape
was a 30-cm kitchen knife.
During his sentencing hearing, Burton's lawyer
produced reports from three psychiatrists and
one psychologist which described how his client
had been clinically depressed at the time of his
madcap robbery attempt. Burton had run out of
his medication several days earlier. (Edited and
excerpted from an article in The Edmonton
Journal)

The tactical onboard computer of the Tornado
not only detected and jammed what it believe was
"hostile" radar equipment, but then automatically
armed and zeroed in an air-to-ground missile
ready to “neutralize” the perceived threat.
Luckily the Dutch pilot was alerted to the missile
status and was able to override the automatic
protection system before the missile launched.
Lothian & Border Police Department have declined
to comment, although it is understood that
traffic cops in the vicinity will be more careful in
future when pointing their radar guns.
Edited and excerpted from an article from the
Berwickshire Gazette

Radar Gun almost Vaporizes Two Traffic
Cops
Two traffic patrol officers in
the United Kingdom got more
than they bargained for last
month while trying out a stateof-the-art radar gun. The
traffic cops were on patrol
checking for speeding motorists on the A1
motorway in Northern England using a brand new
hand-held radar device.
While trapping unwary motorists on the
Edinburgh to London highway, the radar gun
suddenly malfunctioned.
As one of the unnamed officers used the device
to check the speed of an approaching vehicle, he
was shocked to find that his target had
registered a speed in excess of 400 miles per
hour! The £8,000 radar gun then seized up and
could not be reset by the bemused policemen.
The radar had in fact latched on to a NATO
Tornado Strike aircraft approaching them from
the North Sea. The fighter plane was taking part
in a simulated low-flying exercise over Southern
Scotland. After an official investigation by the
Chief Constable of the Lothian & Borders Police

Volume 3 Issue 6
November/December 2003

Smuggling your service pistol over the
border, not such a good idea.
A
Detroit
police
officer
accidentally shot himself in the
leg when he tried to hide his gun
after his car was pulled over by
Canada Customs while crossing
from the United States. Michael
Allen, 22, was heading to Windsor in the early
hours when a customs officer at the Ambassador
Bridge directed the off-duty Detroit policeman
to take his car to an inspection area.
After parking the car, Officer Allen is believed
to have pulled his service Glock pistol from a leg
holster in an attempt to hide it under the car's
front seat. While attempting to conceal his pistol
the trigger was pulled discharging a .40 calibre
bullet which immediately went through a bone in
his leg.
Officer Allen was rushed to hospital where he
underwent an eight-hour operation to save his leg.
The Detroit cop is facing numerous charges under
the Criminal Code and the Customs Act, although
none have yet been filed. Windsor police said he
should have simply checked his gun in and picked
it up on the way back.

38

Edited and excerpted
www.Canada.com

from

an

article

at

From Police Blotters
(1)

In Tennessee in September, Thomas
McGouey, apparently set on committing
suicide, painted a bull's-eye on his body
before arranging a standoff in which he
pointed a gun at police officers so they would
kill him in self-defence. McGouey's scheme
failed because Knox County sheriff's
deputies, who fired 28 shots at him, missed
with their first 27 rounds, and only managed
to graze his shoulder with the last shot fired.
(Knoxville News-Sentinel).

(2)

Wayne Leonard Hoffman, 45, was arrested
for impaired driving at a gas station in
Minnetonka, Minnesota where he was
"attempting to add air to his vehicle's tires
using a vacuum cleaner" (Lakeshore Weekly
News).

(3)

Two Wyoming men were feuding over a
parking space at a K-Mart when one drove
alongside the other and spit at him through
his open window. According to the police
occurrence report, "As the victim saw the
projected body fluid travelling through the
air, he dropped his jaw in shock, and the
phlegm landed square in his mouth where he
swallowed it in a gag reflex." (Jackson Hole
News & Guide).

(4)

NYPD officers Paul Damore and Farrell
Conroy were briefly suspended without pay
for their conduct in the 45th Precinct station
house in the Bronx, when they got into a
fistfight over which one would get drive their
patrol car. (NYPD News).

Note-able Quote
Whatever your grade or position, if you know how
and when to speak, and when to remain silent,
your chances of real success are proportionately
increased—Ralph C. Smedley

Volume 3 Issue 6
November/December 2003

FULL OFFENCE REQUIRES
OVERLAP OF ACTUS REUS &

MENS REA

R. v. Williams, 2003 SCC 41
The accused and the complainant
had a relationship with each
other that included sexual
intercourse.
During
the
relationship the accused took a
medical test and discovered he was HIV positive.
Although he was told of his duty to disclose his
status to his sexual partners, he did not tell the
complainant. Five days later, the complainant took
an HIV test for unknown reasons and tested
negative. She told the accused of the negative
test and the relationship continued for another
year.
After 18 months the relationship
terminated. Over two years later the complainant
took a second test after she became concerned
she was displaying HIV symptoms. This time she
tested positive.
The accused was charged with aggravated assault,
criminal negligence causing bodily harm, and
common nuisance. At his trial, the accused
conceded that he infected the complainant and
that she would have never consented to sex had
she known he was HIV infected. However, HIV
has an incubation period and it was quite possible
that even when the complainant tested negative
the first time, she may have already contracted
the virus from the accused.
The judge convicted him of aggravated assault
and common nuisance, but acquitted him of
criminal negligence causing bodily harm. On
appeal, his conviction for aggravated assault was
allowed and a conviction for attempted
aggravated assault was substituted by the
majority of the Newfoundland Court of Appeal.
The Crown further appealed to the Supreme
Court of Canada arguing that the accused should
have been convicted of aggravated assault, not
simply an attempt.

39

Aggravated Assault
The offence of aggravated assault reads:
s.268(1) Criminal Code
Every one commits an aggravated assault who wounds,
maims, disfigures or endangers the life of the
complainant.

Criminal offences require the coexistence of an
actus reus and a mens rea. The mens rea for
aggravated assault requires:
• the same mens rea required for assault;
o intent to apply force intentionally; or
o intent to apply force recklessly; or
o being wilfully blind to the fact that the
victim does not consent; and
• objective foresight of the risk of bodily
harm.
The actus reus of aggravated assault requires:
• proof of physical contact inflicted by the
accused on the complainant,
• the absence of valid consent. In this case,
although the complainant consented to sexual
intercourse, she never consented to sexual
intercourse with an HIV positive partner.
Without the accused disclosing his HIV
status, properly informed consent was not
given. When a person intentionally, recklessly,
or through willful blindness places a partner
at significant risk, the consent to sexual
intercourse is vitiated; and
• one of the aggravating consequences
(wounding,
maiming,
disfiguring,
or
endangering the life).
To obtain a conviction for aggravated assault in
this case, the prosecution would have to prove
that the mens rea (knowledge of the accused’s
HIV status) coincided with the actus reus
(endangerment to life of the complainant). In
other words, the accused’s knowledge of his HIV
status must overlap with when he infected the
complainant. If he infected the complainant
before he was aware of his HIV status, there was
endangerment but no intent. If the complainant
had already been infected before the accused

Volume 3 Issue 6
November/December 2003

was aware of his status, there was intent, but a
reasonable doubt concerning endangerment. In
this case, it was unclear whether the victim
contracted the virus before or after the accused
became aware of his status and there was
insufficient evidence to prove that further
exposure to unprotected sex between infected
partners increases risk. Thus, without proof as to
the actual timing of the victim’s infection, there
was no way of knowing whether the mensa rea and
actus reus coexisted.
An attempted crime, on the other hand, requires
the intent to commit the complete crime (mens
rea), but an incomplete actus reus (provided
sufficient steps beyond mere preparation have
occurred).
The
Court
compared
these
circumstances to a gunman firing a bullet into a
sleeping figure when in fact the intended victim is
already dead from natural causes. In this case, the
Crown was able to prove the mens rea for the
period after the accused became aware of his HIV
status. After this time he continued to engage in
sexual intercourse knowing that he was HIV
positive. However, the Crown failed to prove
endangerment at the time the accused was aware
of his status. Since the accused “took more than
preparatory steps”, the actus reus for attempt
had been satisfied. The accused’s conviction for
attempted aggravated assault and common
nuisance was affirmed and the Crown’s appeal was
dismissed.
Complete case available at www.scc-csc.gc.ca

POLICE ACTING AS BOTH
TRAFFIC WITNESS &
PROSECUTOR CHALLENGED
R. v. Cooper et al, 2003 BCCA 547
Justice Hall of the British
Columbia Court of Appeal has
granted leave to appeal in a case
in which several persons are
appealing
their
traffic
convictions by arguing that it is unconstitutional

40

for a police officer to act as both a witness and
the prosecutor at trial. The Supreme Court of
British Columbia had earlier dismissed their
appeal after ruling that the practice of the police
acting as both a witness and the prosecutor, along
with the applicable provisions of ss.64 and 65 of
the Offence Act, had in some way violated the
right to a fair trial protected under s.11(d) of the
Charter, but was saved by s.1 (justifiability
analysis). Stay tuned!

distracted. It is also possible that the vehicle
may be encountering mechanical problems or
the driver is overcompensating because his or
her faculties are impaired by alcohol or drugs.
Whatever the cause, public safety could be at
risk. Indeed, if officers fail to investigate a
vehicle when they notice it travelling
significantly slower than normal on the
highway, and if shortly thereafter the vehicle
is involved in an accident, the officers might
be seen as having been derelict in their duties.

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

Travelling on a highway at 30 kilometers below
the speed limit amounts to a substantial
reduction in speed. I am satisfied that this
noticeably reduced speed on the highway,
particularly at night, was sufficient for the
officers to have had a genuine concern for
road safety. [para. 7-8]

SLOW DRIVING WARRANTS
DETENTION
R. v. Kalinowsky, 2003 SKQB 435
The police stopped the accused
after he was observed driving
70km/h in a 100 km/h zone.
While being asked for his licence
and registration an officer
detected an odour of alcohol and the roadside
screening device demand was given. At trial in
Saskatchewan Provinical Court the accused was
convicted of impaired driving, but appealed to the
Saskatchewan Court of Queens Bench arguing
that he was arbitrarily detained under s.9 of the
Charter even though the issue wasn’t raised at
trial. The accused conceded that s.40(8) of
Saskatchewan’s Highway Traffic Act authorizes
the police to stop vehicles associated with the
lawful execution of their duties but submitted he
could not be stopped because he was not in
contravention of any rules of the road. In fact, he
was driving slower than the posted speed limit.
Nevertheless, Justice Pritchard ruled that the
police were justified in stopping the vehicle:
…I am satisfied that the officers had lawful
authority to detain [the accused] as they did.
They stopped him because he was travelling 30
kilometers less than the posted speed limit.
Even though travelling at this reduced rate of
speed is not an offence, it implicitly gives rise
to a concern about road safety. A driver
operating a vehicle at such speed may be tired,
ill, have night vision problems or simply be

Volume 3 Issue 6
November/December 2003

The appeal was dismissed.
Complete case available at www.canlii.org

LOWERING SPEED BRACKET
DISCRETIONARY
R. v. Scott, 2003 NBQB 380
Although the accused was
charged and convicted with
speeding 25 km/h or less over
the speed limit contrary to
s.140(1.1)(a) of New Brunswick’s Motor Vehicle
Act, the police officer’s radar evidence was that
he was travelling 28 km/h over the limit. The
accused appealed to the New Brunswick Court of
Queens Bench arguing, in part, that the police
officer had no discretion in issuing a ticket for a
speed lower than what he was actually travelling.
However, Justice Turnbull disagreed stating:
The police have considerable discretion in
charging the lesser offence, which carries the
lesser penalty. The gravamen of the offence is
speeding. [The officer] testified he would not
have given a ticket in this case if he himself
had been driving over the speed limit. This is
not dereliction of duty. It is all part of police
discretion. [para. 6]
Complete case available at www.canlii.org

41

DID YOU KNOW…
…that in British Columbia pay
toilets are illegal. Section 5 of
the Public Toilet Act, a
provincial statute, creates an
offence for an owner, occupier,
or person in control of a public
place or building (such as a church, theatre,
stadium, hospital, railway car, ferry, campsite,
etc.) to have a toilet contained in a closet,
receptacle, compartment, washroom, or restroom
that is locked and requires the deposit of a coin
or payment of money for its use.

DNA WARRANT PASSES
CONSTITUTIONAL MUSTER
R. v. S.A.B., 2003 SCC 60
After learning she was pregnant,
the 14-year-old victim told her
mother that the accused, who
had been living with the family
for several months, had sexually assaulted her.
The victim had an abortion and the police seized
the fetal tissue for DNA testing. The police
obtained a DNA warrant under the provisions of
the Criminal Code and subsequently seized a DNA
sample from the accused to compare with the
fetal tissue to determine whether he was the
father. In effect, the procedure was a paternity
test. The accused was arrested and charged with
sexual assault and sexual exploitation.
At his trial, the Alberta Court of Queen’s Bench
justice found the DNA warrant provisions did not
violate s.8 of the Charter (search and seizure).
However, he did rule that the accused’s s.7
Charter protection against self-incrimination was
violated, but saved by s.1. As a result, the DNA
evidence was admissible and the accused was
convicted of the sexual assault only. On appeal to
the Alberta Court of Appeal the majority found
that neither s.8 nor s.7 of the Charter were
violated. The conviction was upheld.

Volume 3 Issue 6
November/December 2003

The accused launched a further appeal, this time
to the Supreme Court of Canada, arguing that the
Criminal Code DNA warrant provisions violated
the Charter including s.8 (search and seizure) and
s.7 (principle against self-incrimination). In the
unanimous nine member court judgment, the
Supreme Court of Canada dismissed the appeal
and ruled that the DNA warrant scheme properly
balanced an individual’s rights with those of
effective law enforcement.
DNA warrants require a system of pre-search
authorization issued only by a provincial court
judge in cases were designated offences are
committed. Furthermore, the degree in which the
warrant interferes with bodily integrity is not
particularly invasive and is relatively modest—
buccal swabs, skin prick, or plucking of hairs.
Samples are only collected for a limited forensic
purpose—comparing information to an existing
sample and no information concerning medical,
physical, or mental characteristics is revealed. In
fact, misuse of information is explicitly
prohibited under the DNA warrant scheme. In
summary, Justice Arbour, writing for the court,
held:
I can therefore conclude that, in general
terms, the DNA warrant provisions of the
Criminal Code strike an appropriate balance
between the public interest in effective
criminal law enforcement for serious offences,
and the rights of individuals to control the
release of personal information about
themselves, as well as their right to dignity
and physical integrity.

Now specifically dealing with the alleged breach
of s.8 of the Charter, the accused argued that
DNA warrants were unreasonable on the following
three grounds:
•

The legislation is not minimally intrusive. In
his view, DNA warrants should be an
investigative last resort, similar to that used
in wiretap authorizations;

•

The legislation operates only on reasonable
grounds. It was submitted that a standard

42

higher than reasonable grounds should be
adopted for searches and seizures that
violate bodily integrity and force selfconscription; and

•

The legislation always allows an ex parte
application.

Minimally Intrusive
The accused argued that DNA warrants should be
an investigative last resort, similar to that used in
wiretap authorizations. The Court dismissed this
ground of attack and stated:
I see no reason to import, as a constitutional
imperative, a similar requirement in the case
of DNA warrants. There are obvious
differences between the use of wiretaps as an
investigative tool, and recourse to a DNA
warrant. Wiretaps are sweeping in their reach.
They invariably intrude into the privacy
interests of third parties who are not
targeted by the criminal investigation. They
cast a net that is inevitably wide. By contrast,
DNA
warrants
are
target
specific.
Significantly, DNA warrants also have the
capacity to exonerate an accused early in the
investigative process. Although it would have
been open to Parliament to provide for the use
of forensic DNA analysis as a last resort
investigative technique, I can see no reason to
require, as a condition for constitutional
compliance, that it be so. Moreover, as the
Court of Appeal noted, the s. 487.05(1)
requirement of showing that the warrant is "in
the best interests of the administration of
justice" would prevent a judge from issuing a
warrant where it is unnecessary to do so.

Reasonable Grounds
Reasonable grounds is the ordinary constitutional
standard for search warrants and the degree of
intrusiveness in the proper execution of a DNA
warrant compares favourably to strip searches.
Strip searches, which are inherently humiliating
and degrading, are valid if conducted on the basis
of reasonable grounds. The Court found no reason
to adopt a standard higher than reasonable
grounds for DNA warrants.

Volume 3 Issue 6
November/December 2003

Ex Parte Applications
DNA warrants may be obtained ex parte, which
means only one party (police) need be present
when the warrant is applied for. Although the
DNA provisions allow for ex parte applications,
they do not preclude a judge from having the
other party present. The Court held:
Requiring an inter partes hearing for a search
warrant that is part of the investigative
process could unnecessarily draw out and
frustrate the criminal investigation. However,
the majority of the Court of Appeal was
correct to observe that the reference to ex
parte proceedings is not mandatory. Indeed, s.
487.05(1) does not deprive a judge of the
option of requiring a contested hearing in a
suitable case. An issuing judge may find it
advisable to require notice in order to ensure
reasonableness
and
fairness
in
the
circumstances. But, as with most investigative
techniques, the ex parte nature of the
proceedings is constitutionally acceptable as a
norm because of the risk that the suspect
would take steps to frustrate the proper
execution of the warrant.

Principle Against Self Incrimination
The Supreme Court also rejected the argument
that the DNA warrants violated the principle
against self-incrimination protected in s.7 of the
Charter. Justice Arbour ruled:
The question, then, is whether the DNA
warrant provisions at issue in this case
impermissibly violate the principle against
self-incrimination, thus rendering any search
or
seizure
performed
under
them
unreasonable, contrary to s. 8. In my view, a
consideration of the principle's underlying
rationales indicates that they do not. First,
unlike cases involving testimonial compulsion,
there is no concern with unreliability. On the
contrary, one of the benefits of DNA evidence
is its high degree of reliability. The second
rationale -- protection against the abuse of
power by the state -- requires a somewhat
deeper analysis. ...the degree to which the
principle is engaged will depend in part on the
extent to which coercion was used by the

43

state in obtaining the statements; the extent
to which the relationship between the accused
and the state was adversarial at the time the
conscriptive evidence was obtained; and the
presence or absence of an increased risk of
abuses of power by the state as a result of
the compulsion....
The adversarial nature of the relationship
between the state and the individual and the
degree of coercion in the present context are
undoubtedly high. ... A person has little choice
but to comply with the request for blood, hair
or saliva made under a valid DNA search
warrant. Further, the context in which the
bodily samples are taken is obviously
adversarial, there being reasonable grounds to
believe that the target of the warrant was a
party to an offence. However, while these
factors are highly engaged, it is important to
note that under the DNA warrant provisions,
there are a number of safeguards in place to
prevent abuse of those provisions by the
state. In particular, the prior judicial
authorization,
circumscribed
by
strict
requirements of reasonable and probable
grounds and stringent limits on the potential
use of the collected DNA evidence, ensures
that the power to obtain bodily samples is not
abused. It is also important to acknowledge
that, as previously noted, the degree of
intrusion both physical and informational is
limited.
In sum, a consideration of the rationales
underlying
the
principle
against
selfincrimination suggests that this is one of those
cases...where "the factors that favour the
importance of the search for truth . . .
outweigh the factors that favour protecting
the individual against undue compulsion by the
state".
To conclude, the legislative scheme delineated
in ss. 487.04 to 487.09 is sensitive to the
various interests at play. On balance, the law
provides for a search and seizure of DNA
materials that is reasonable. In light of the
high probative value of forensic DNA analysis,
the interests of the state override those of
the individual. Forensic DNA analysis is
capable of both identifying and eliminating

Volume 3 Issue 6
November/December 2003

suspects, a feature that seriously reduces the
risk of wrongful convictions. The DNA
provisions contain procedural safeguards that
protect adequately the multiple interests of
the suspected offender. The DNA warrant
scheme therefore complies with s. 8 of the
Charter. I turn now to the final issue, the
expert's evidence. [paras.58-61, references
omitted]
Complete case available at www.scc-csc.gc.ca

TOP COURT EXAMINES
CIVILIAN ARREST
R. v. Asante-Mensah, 2003 SCC 38
The Supreme Court of Canada
recently examined the use of
force in the context of a civilian
arrest. In this case, an airport
security inspector effected the arrest of a taxi
driver under s.9 of Ontario’s Trespass to
Property Act (TPA). He was scooping fares
without a permit at Toronto’s Pearson
International Airport. The accused’s unattended
vehicle was observed parked at the curb and
inspectors watched him emerge from the
terminal. The accused was touched on the
shoulder, told he was under arrest for
trespassing, and informed he would be detained
for police arrival. He tried to enter his vehicle
but an inspector blocked his way. The accused
then shoved his car door into the inspector,
forcing him to back off. The accused entered his
vehicle and drove away. He was subsequently
charged with assault with intent to resist arrest
and escaping lawful custody.
At his trial in the Ontario Court of Justice, the
trial judge concluded that the inspector was
entitled to arrest the accused but was not
entitled to use force to effect the arrest
because s.9 of the TPA did not permit it. Nor
should such authority be inferred from the
common law for provincial misdemeanors, said the
judge. Furthermore, the judge held that citizens,
arrestees, or both could be injured unnecessarily
if such authority were read into the Act, thereby

44

making bad public policy. Since the use of force
was not authorized, “the accused was entitled to
resist an unlawful use of force designed to
continue and preserve [his lawful] arrest and
custody”. The charge of assault with intent to
resist arrest was dismissed, but the accused was
convicted of escape lawful custody for this
incident and a second similar incident that
occurred three days earlier.
The accused’s appeal to the Ontario Court of
Appeal against the escape lawful custody
convictions was dismissed. However, it allowed
the Crown’s appeal against the dismissal of the
assault with intent to resist arrest charge. In the
Court of Appeal’s view, the TPA did include the
authority to use reasonable force in effecting an
arrest. The acquittal for the assault with intent
to resist arrest charge was set aside and a
conviction was entered. The accused appealed to
the Supreme Court of Canada.
In a 9:0 decision, the Supreme Court of Canada
dismissed the appeal. Section 9 of Ontario’s TPA
does not set out the procedure for arrest. It
reads:
s.9 Trespass to Property Act
(1) A police officer, or the occupier of premises, or a
person authorized by the occupier may arrest without
warrant any person he or she believes of reasonable
and probable grounds to be on the premises in
contravention of section 2.
(2) Where the person who makes the arrest under
subsection (1) is not a police officer, he or she shall
promptly call for the assistance of a police officer and
give the person arrested into the custody of the police
officer.
(3) A police officer to whom the custody of a person is
given under subsection (2) shall be deemed to have
arrested the person for the purposes of the provisions
of the Provincial Offences Act applying to his or her
release or continued detention and bail.

The Ontario legislature has used the term
“arrest” in s.9 of the TPA as a term of art. The
common law definition of arrest, a “wellunderstood legal procedure”, is therefore
incorporated into the Act, unless otherwise

Volume 3 Issue 6
November/December 2003

modified expressly or by necessary implication.
At common law, an arrest is effected in two ways:
•

•

actual seizure or touching of a person’s body
with a view to detention; or
words of arrest followed by submission to the
process.

“Arrest implies confrontation and confrontation
creates a potential for the use of force by one
party or the other”, said the Court. In this case,
something more than just mere touching or words
of arrest were required to secure the accused’s
compliance. Moreover, “the right to use
reasonable force attaches at common law to the
institution of an arrest” and it is “the ability to
use force [that] often provides the necessary
precondition to [secure] the submission of the
person arrested.” Thus, something more than
simply touching the accused or telling him he was
under arrest was authorized in this case.
However, the Court noted that many trespasses
are trivial and are best handled my means short
of an arrest, thereby avoiding possible
prosecutions against the arrestor for assault and
civil claims for false arrest or excessive force.
Also, the Court cautioned that the same latitude
permitted to police officers who are under a duty
to act in often difficult and exigent
circumstances may not necessarily be shown to an
occupier who is under no duty to act and
instigates the confrontation with the trespasser.
In summary, the Supreme Court of Canada
concluded:
In my view, “arrest” in the context of the
[Trespass to Property Act] should be seen as a
continuing
status
initiated
by
words
accompanied
by
physical
touching
or
submission and ending with delivery to the
police, maintained as necessary with force
that is no more than reasonable in all the
circumstances.
Complete case available at www.scc-csc.gc.ca

45

‘DIAL A DOPE’ CELL PHONE
CALLS ADMISSIBLE
R. v. Nguyen & Bui, 2003 BCCA 556
While
speaking
to
a
prostitute/drug
user,
two
plainclothes
police
officers
observed a “drug car” drive by
their location. As they pulled the car over, a black
object was observed thrown from the passenger
window. The object was retrieved and found to be
a small plastic film canister containing cocaine and
heroin. As they approached the vehicle, police
noted the passenger fidgeting with something in
the pocket of the passenger door; a cell phone
was seized from this location. A second cell phone
was seized from the vehicle between the
occupants while a third phone was seized from
the driver’s belt. Both accused were arrested.
One of the officers received four phone calls
from the phone found in the passenger door
pocket. One call was a hang up and the other
three calls were orders for drugs. At the police
station, another phone call ordering drugs was
received and the voice was believed to be that of
the prostitute/drug addict police were earlier
speaking to. After receiving a call on the driver’s
cell phone ordering drugs, police agreed to meet
the caller. A meet was made and a woman arrived
at the location with $30.
At the accused’s trial, the cellular phone calls
were admitted into evidence. Also, an expert
witness testified that the accused were involved
in a “dial a dope” operation and were in possession
of drugs for the purpose of trafficking. Both
accused were convicted of possession of cocaine
and possession of heroin for the purpose of
trafficking. However, they appealed their
convictions to the British Columbia Court of
Appeal arguing, in part, that the trial judge erred
in admitting the cellular telephone conversations
because they were inadmissible hearsay.

Volume 3 Issue 6
November/December 2003

British Columbia’s top court dismissed the appeal.
In ruling that the cell phone calls were not
hearsay and could be admitted into evidence,
Justice McKenzie stated:
In my view, the conclusion that these
telephone conversations are not hearsay rests
on the circumstantial guarantee their
trustworthiness and therefore meets the
requirements of necessity and reliability of
the evidence which, of course, is also the basis
for the principal exception to the hearsay rule
enunciated by the Supreme Court of Canada in
the R. v. Khan, [1990] 25 S.C.R. 531.
It follows that in my view the evidence of the
telephone calls was properly admitted and I
would reject that ground of appeal. [para. 1718]
Complete case available at www.courts.gov.bc.ca

RCMP MUST DISCLOSE
INFORMATION ABOUT POLICE
MEMBERS
Information Commissioner of Canada v.
Commissioner of the RCMP,
2003 SCC 8
A
person
had
requested
information in connection with
litigation against a number of
RCMP officers. The RCMP
refused to disclose the records on the basis that
it was personal information as defined in Canada’s
Privacy Act. A complaint was made to Canada’s
Information Commissioner who investigated the
matter. The RCMP agreed to release only the
current postings and positions of the active
members and the last posting and position of one
retired member, but no more. The Information
Commissioner found that other job related
information was not personal information and he
ordered the records be disclosed. The RCMP
refused and the Information Commissioner took
them to Federal Court. The trial judge ruled that
only current positions of active members and the

46

last position of former employees be released.
This decision was upheld by the Federal Court of
Appeal. However, on appeal to the Supreme Court
of Canada, in a 9-0 judgment, Canada’s highest
Court ordered that the RCMP Commissioner
disclose the additional information about the
RCMP officers. In ordering the disclosure of the
requested information, Justice Gonthier held:
In my opinion, (1) the list of the RCMP members’
historical postings, their status and date; (2)
the list of ranks, and the dates they achieved
those ranks; (3) their years of service; and (4)
their anniversary dates of service, are all
elements that relate to the general
characteristics associated with the position or
functions of an RCMP member. They do not
reveal anything about their competence or
divulge any personal opinion given outside the
course of employment – rather, they provide
information relevant to understanding the
functions they perform. Put another way, the
aspects of employment described above shed
light on the general attributes of the position
and functions of an RCMP member.
Complete case available at www.scc-csc.gc.ca

DISCLOSURE NOT
ABSOLUTE: RESTRICTING
VIDEO VIEWING PROPER
R. v . Papageorgiou,
(2003) Docket:C39011 (OntCA)
The accused sought a copy of
the videotaped statement of
a sexual assault victim. He
had earlier viewed the video
with his lawyer at his lawyer’s
office. However, his lawyer had since been
discharged and the video statement was
returned to Crown. The Crown agreed to allow
the accused to view the tape at the Crown’s
office, but would not give him a copy of the
tape due to its sensitive nature. The accused
was convicted of sexual assault at trial but was
successful on appeal. The Ontario Superior

Volume 3 Issue 6
November/December 2003

Court of Justice held that the accused’s
access to the tape was too restrictive and a
stay of proceedings was entered. The Crown
appealed to the Ontario Court of Appeal.
Although the Crown has a legal duty to disclose
all relevant information to the defence, that
duty is not absolute. Unless there is privilege
attached to the information, the Crown must
not withhold information in which there would
be a reasonable possibility that non-disclosure
would impair the right of an accused to make
full answer and defence. However, the Crown
may exercise some discretion in withholding
information and the manner and timing of
disclosure.
In this case, it was the form of further
disclosure that was the issue. The Crown had
disclosed the video, which was reviewed by the
accused and his previous lawyer. But in
sensitive cases involving sexual abuse, “the
Crown’s disclosure obligations are satisfied,
and the public interest is fostered, by
providing the self-represented accused with an
opportunity to view the videotaped statement
of the complainant at the Crown’s office.”
Justice Weiler, for the unanimous court,
stated:
In our view, therefore, there was no breach of
the Crown’s disclosure obligations in this case
concerning
the
complainant’s
videotaped
statement. The statement had already been
disclosed and, when the [accused] became self
represented, the proposed additional access to
the videotape was in conformity with the
recommendations of the Advisory Committee’s
Report. The position of the Crown was
reasonable in the absence of any evidence of
prejudice to the respondent. [para. 14]

The stay of proceedings was set aside, the
conviction restored, and the matter was sent back
to the lower appeal court for further disposition.
Complete case available at www.ontariocourts.on.ca

47

ARRESTEE NEED ONLY
UNDERSTAND GENERAL
EXTENT OF JEOPARDY
R. v. Ekman, 2003 BCCA 485
The accused was arrested by
police for murder and was given
his
Charter
warning.
He
subsequently
provided
a
statement to police which was admitted as
evidence and he was convicted of attempted
murder by a jury. The Crown appealed the
attempt murder verdict arguing a new trial should
be ordered on a first degree murder charge,
while the accused submitted his conviction should
be set aside. As part of his appeal to the British
Columbia Court of Appeal, the accused contended
that the police violated his s.10(a) Charter right
in that they did not properly inform him of the
reasons for his arrest. Although the accused
conceded that the police are not required to be
precise about the potential charge and are only
required to advise an arrestee of the general
nature of their arrest, he submitted that the
police knew this was first degree murder and
should have informed him as such. In his view,
since the first degree murder charge has a
different parole eligibility period than second
degree murder, the police were required to tell
him that he was being investigated for the most
serious offence and that he could again consult
with a lawyer.
In writing the judgment for the unanimous court,
Justice Thackray concluded that, even though the
police challenged the accused in the interview
that the killing was planned and deliberate, the
officer did not necessarily know what the
ultimate charge facing the accused would be.
Moreover, s.10(a) requires the police to advise an
individual of the reason for their arrest so they
can generally understand the extent of their
jeopardy and thereby exercise their right to
counsel under s.10(b) in a meaningful way. In this

Volume 3 Issue 6
November/December 2003

case, the British Columbia Court of Appeal agreed
with the trial judge when she stated:
In this case [the accused] knew from the time
of his arrest that he was facing a charge of
murder. Whether the charge is first degree or
second degree murder, the sentence of life
imprisonment under the Criminal Code is the
same. [The accused] generally understood the
extent of his jeopardy. I conclude there has
been no violation of [the accused’s] s.10(a)
rights.

The accused’s appeal against his conviction was
dismissed, but the Crown’s appeal, based on other
arguments, was allowed. A new trial on the charge
of first degree murder was ordered.
Complete case available at www.courts.gov.bc.ca

BREACH OF THE PEACE ARREST
LAWFUL
R. v. Chasse, 2003 BCPC 101
Two police officers attended a
residence to investigate a
complaint of a domestic dispute
in progress. On arrival, a female
occupant of the home told them
that she had earlier had a verbal altercation with
the accused and that she had left the premises.
She said that they both lived at the home and
that earlier in the evening she became upset with
the accused and threw some of his property onto
the front lawn. There was no evidence of an
assault and the police left.
Less than an hour later, the police received a call
back. It was reported that the accused had
returned to the home. This time, the police could
hear a loud male voice yelling and swearing from
inside the home. An officer knocked on the door
and was asked what he wanted. He knocked again
and the accused rapidly opened the door and
stood in an aggressive posture with his fists
balled up and arms at his sides, but away from his
body. The officer caught a glimpse of the female
down the hallway but she then disappeared out of

48

sight. The accused continued to be loud, angry
and profane. Another officer attempted to enter
the home to check on the welfare of the female,
but the accused blocked the officer’s entry.
Fearing he had to control the situation, one of
the officers arrested the accused for breach of
the peace under s.31 of the Criminal Code. A
struggle ensued and when the officer stepped
back he injured his knee and lost his balance,
grabbing onto the accused. The struggle
continued and the officer was struck in the head.
The accused was subsequently restrained
following the deployment of the police baton and
other defensive tactics.
The accused was charged with two counts of
obstructing a peace officer and one count of
assaulting a peace officer. These charges require
proof that the officer was engaged in the
execution of his duty. If an officer exceeds their
powers, they do not meet this requirement. At his
trial in British Columbia Provincial Court the
accused argued the arrest was unlawful and
therefore the police were not properly engaged in
their duty. However, considering the definition of
a breach of the peace, the judge concluded that
the police believed on reasonable grounds that
the accused was committing or was about to
commit a breach of the peace. Justice Skilnick
held:
In summary, the existence of an apparent
breach of the peace was made out by the loud,
profane, angry and abusive behaviour of the
Accused in circumstances where it was
reasonable for the police officers to believe
that harm might come to [the female].

The arrest was lawful and therefore the police
officers were acting in the execution of their
duties. The accused was convicted.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
Once the game is over, the king and the pawn go
back in the same box—Italian proverb

Volume 3 Issue 6
November/December 2003

ALCOHOL ODOUR JUSTIFIES
ROADSIDE DEMAND
R. v. Tucker, 2003 MBPC 10027
The police were conducting
routine Checkstop enforcement
on a busy street near several
bars and lounges when the
accused was stopped driving. The
accused had an odour of liquor on his breath, he
admitted to consuming three beers, and said his
last drink was 15 minutes earlier. There was
nothing improper about his driving and the
accused did not display any signs of impairment.
The officer made a roadside screening device
demand and the accused failed. A breathalyzer
demand was subsequently made and readings of
100mg% and 90mg% were obtained. The accused
was charged with impaired driving and over
80mg%.
At his trial in Manitoba Provincial Court the
accused submitted that the officer had no
grounds to demand a roadside sample because
there were no signs of impairment. In rejecting
this argument, Justice Sandhu stated:
Having reasonable suspicion that the driver of a
motor vehicle has alcohol in their body is
sufficient to trigger the demand. Two police
officers testifying as to alcohol on the breath
of [the accused] constitutes a sufficient basis
of fact to justify the demand.

However, the accused was acquitted of the over
80mg% and impaired driving on other grounds.
Complete case available at www.canlii.org

NON-RECORDED CONFESSION
SUSPECT
R. v. White,
(2003) Docket:C3509 (OntCA)
The accused’s car was boxed in
by police and he was arrested on
four outstanding bank robberies.

49

His wife, who was with him, was also arrested as
an accessory after the fact. He saw her
handcuffed and taken away in a police car. A
detective searched the accused and testified he
found several syringes, including used ones, in his
socks and back pocket, but no record was made of
this discovery nor did police keep them. At the
time of his arrest the police testified the
accused made some statements.
During the transport to the police station the
detectives initiated conversation with the
accused about his heroin addiction. The
detectives then collaborated on their notes at
the station. At the police station the accused was
paraded before the desk sergeant and then taken
to an interview room where his handcuffs were
removed. He was strip searched and asked about
the robberies; he was told police had photos of
the robbery suspect who appeared to be him (but
in fact the photographs did not identify anyone
because the suspect was wearing sunglasses, a
baseball cap, and in one photo a wig). The accused
stated “I guess I’m done again. I don’t know why
people rat on me. I never hurt anybody.” No
contemporaneous notes of these statements were
made.
After the strip search a detective, who was alone
with the accused in the interview room, testified
he confessed to the four robberies, identified
himself in the surveillance photographs, and
agreed to provide an audio recorded statement.
These admissions were not recorded on tape,
rather the detective wrote the questions and
answers in his notebook. An audio taped
confession was subsequently recorded by police.
The accused’s wife, whom police had no knowledge
of her involvement, was released shortly after
the taped confession was taken.
During the trial voir dire the accused denied
committing the robberies, denied making
incriminating statements during the strip search,
and testified that the police told him that if he
did not confess his wife would go down with him,
her name would be publicized in the newspapers,

Volume 3 Issue 6
November/December 2003

she would lose her job, and Children’s Aid would
take her child.
Even though the detectives admitted at trial that
they set out to interrogate the accused without
recording equipment, the judge found the
statements voluntary and that there were no
inducements made. The accused was convicted of
bank robbery x4 and wearing a disguise. The
accused appealed to the Ontario Court of Appeal
arguing, in part, that his statements should have
been ruled involuntary and were thus inadmissible.
Justice Feldman, writing for the unanimous court,
agreed. The Ontario Court of Appeal has
previously ruled that statements will be
inherently suspect when recording facilities are
available but the police intentionally don’t use
them
(R.
v.
Moore-MacFarlane
(2001)
Docket:C31374/C30881 (OntCA)). To overcome
this suspicion when a recording is not made, a
trial judge will need to determine, by carefully
scrutinizing the circumstances surrounding the
taking of the statement, whether the Crown has
nonetheless proven voluntariness beyond a
reasonable doubt. The Court stated:
In my view, this is a case where the
voluntariness of the [accused’s] statements is
suspect. This is because the police set out
twice to interrogate the [accused] without
using the available recording equipment, and
because there is nothing in the evidence on
the voir dire which could satisfy the court of
the reliability of the account of the officers.
In those circumstances, the statements during
the strip search and the recorded confession
following the unrecorded interview with [the
detective] should not have been admitted.
[para. 25]

The appeal was allowed and the convictions were
set aside. A new trial was ordered only on one
charge.
Complete case available at www.ontariocourts.on.ca

50

OFFICER’s DISDAIN FOR
CHARTER AMOUNTS TO BAD
FAITH
R. v. Lam, 2003 BCCA 593
While patrolling a light industrial
area at 8:30 pm a police officer
queried the licence number of a
van parked in a cul-de-sac and
learned the owner was flagged “Caution Violence”
and was awaiting disposition on an outstanding
drug matter. The officer noted two people
peering over the dash, parked behind the van and
walked to the driver’s side, observing three large
black duffle bags in the back of the van. The
accused produced a valid driver’s licence but
could not produce the registration, stating it was
at home. The officer asked the accused what was
in the bags and he replied it was his clothing.
When asked to show the clothing, the accused
took the key from the ignition, unlocked and
opened the rear door, and then stood back.
The officer then asked to be shown the clothing.
The accused, who was somewhat hesitant, moved
to the closest bag and slowly unzipped it about 12
inches, then stopped. Since he could not see in
the bag, the officer again asked the accused to
open it. The accused reached in the bag and lifted
some green plastic bagging. Back up officers
arrived and the officer once again asked the
accused to show him the clothing. The accused
pulled out the green baggy, revealing some clear
plastic bags containing marihuana. The accused
and his passenger were arrested for possession
for the purpose of trafficking. A search warrant
was applied for, but refused. The following day a
second search warrant was applied for and
granted. Police subsequently found 108 lbs. of
marihuana.
At his trial in the Supreme Court of British
Columbia the officer testified he had many
experiences dealing with marihuana wrapped in
similar circumstances, but also conceded they
resembled bags that ERT gear is carried in. He

Volume 3 Issue 6
November/December 2003

also testified that if he did not get the accused’s
consent he would seize the bags anyway and make
a “no case seizure”, leaving it to the accused to
pursue a civil remedy. The judge concluded that
the police had an articulable cause to question and
detain the accused. Under the circumstances, the
officer
was
conducting
a
spontaneous
investigation and was entitled to ask the accused
to open the bags to secure his safety. The search
was justified and did not violate the accused’s s.8
Charter right. Even if there was a breach, the
trial judge said it was minimal and he would have
nonetheless admitted the evidence under s.24(2)
of the Charter. The accused appealed his
conviction to the British Columbia Court of
Appeal.
The appeal court justices unanimously agreed that
the search incidental to this investigative
detention was not undertaken with officer safety
in mind, thus making it unlawful. Justice Esson, to
which the majority agreed, stated:
There were, as the trial judge found,
circumstances faced by [the officer] which
could be said to have entitled him to “secure
his safety”. But I see no reasonable basis in
his evidence for holding that, in searching the
bags in the way he did, he was motivated by a
concern about weapons or by a concern to
“secure his safety”. He gave no evidence of
having such a motive and indeed he was frank
to say that his motive was to obtain evidence
of an offence. More to the point, the manner
of the search, i.e., persuading the suspect to
open the rear door of the van and open the
bags, is not a course consistent with a concern
to secure one’s safety. [para. 10]

Having found a breach of the accused’s s.8
Charter rights, the appeal court was, however,
divided on the issue of s.24(2) admissibility. The
majority concluded that the admission of the
evidence would bring the administration of justice
into disrepute because of the officer’s bad faith.
First, “a “no-case seizure” is an extra legal
concept that flies in the face of the Charter and
cannot be condoned.” Secondly, the officer’s
testimony reflected “a disdain for the Charter.”

51

He described the law on consent as a “bowl of
Jell-O”, even though the rules for consent were
clearly laid down in 1994 by the Supreme Court of
Canada10. Fatal to this case was that the officer
failed to inform the accused he did not have to
open the bag if he did not want to.
In dissent, Justice Esson agreed with the trial
judge that the evidence should not be excluded
under s.24(2). He concluded that the reduced
expectation of privacy in a motor vehicle, the
non-conscriptive characteristic of the evidence,
and the minimal nature of the breach did not
warrant its exclusion. The majority allowed the
appeal, excluded the evidence, and entered a
verdict of not guilty.
Complete case available at www.courts.gov.bc.ca

SEARCH OF GLOVEBOX &
TRUNK INCIDENTAL TO
ARREST
R. v. Carlston, 2003 SKCA 106
A police officer, who was aware
of an earlier break and enter at
a business where a cash register
drawer had been stolen, saw the
accused’s vehicle fail to stop at a
stop sign. After activating the emergency lights,
the vehicle accelerated to about 70 km/h in a 50
km/h zone and took what the police considered
“evasive action”. After stopping the vehicle the
accused (driver) was unable to produce his
driver’s licence or registration. The officer shone
his flashlight into the vehicle and saw two
passengers and numerous items of property
including a cash register drawer and several
bottles of champagne. The accused was asked to
exit the vehicle and it was noted he was wearing a
jacket associated to an organized street gang. He
did however, deny ownership of the cash drawer
and champagne. Nevertheless, the officer
arrested the accused for possession of stolen
property.
10

R. v. Borden [1994] 3 S.C.R. 145

Volume 3 Issue 6
November/December 2003

The officer was aware of the accused’s prior
criminal record and, along with the jacket and
presence of two male passengers, was concerned
with his safety. The vehicle was searched without
a warrant and the police found stolen property in
the glove box and trunk that subsequently led to
searches of other premises around the city and
many more charges. The accused was ultimately
charged with 29 criminal counts involving break
and enter and theft.
At his trial in Saskatchewan Provincial Court, the
evidence resulting from the vehicle and other
searches was admitted and the accused was
convicted of 22 counts. He appealed to the
Saskatchewan Court of Appeal arguing, in part,
that his s.8 Charter right protecting him against
unreasonable search and seizure was violated as a
result of the search of his vehicle and that the
evidence flowing from this search should have
been excluded. The Saskatchewan Court of
Appeal dismissed this ground of appeal. Justice
Jackson, writing for the unanimous court, found
the use of the flashlight in the manner used by
the police was a justified “plain view search”. The
arrest was proper and “[t]he vehicle searches
flowed reasonably and properly from [the
officer’s] conclusion to arrest [the accused] as an
incident of arrest and his fears regarding officer
safety.”
Complete case available at www.canlii.org

FAIL READING SUPPORTS
GROUNDS FOR BREATH
DEMAND
R. v. Braun, 2003 ABQB 273
A police officer stopped the
accused at a Checkstop and
detected an odour of alcohol
from him and noted that his eyes
were red and glassy. The accused admitted to
having one rye and coke. The officer formed the
suspicion the accused had consumed alcohol and
made a roadside screening demand. A fail reading

52

resulted and the officer formed the opinion the
accused was impaired by alcohol, arrested him,
informed him of his Charter rights, and read the
breathalyzer demand. Breath samples were
subsequently obtained and the accused was
charged with impaired driving and over 80mg%.
At his trial in Alberta Provincial Court the
charges were dismissed after the judge refused
to admit the breath certificates of analysis on
the basis the police violated s.8 of the Charter.
In his view, there were no other symptoms of
impairment other than the fail reading and the
officer did not testify as to the relationship
between the roadside failure and his belief that
the accused was impaired or over 80mg%. Thus,
he did not have reasonable and probable grounds
on which to base the breathalyzer demand. The
Crown appealed to the Alberta Court of Queen’s
Bench arguing, in part, that the trial judge erred
in finding a s.8 breach.
Justice Mahoney agreed with the Crown. He first
outlined a number of principles regarding the use
of the roadside screening device (RSD)11.
•

A breathalyzer demand requires reasonable
and probable grounds that a person has
committed an offence under s.253 of the
Criminal Code;

•

An RSD may be administered on a reasonable
suspicion of alcohol in the body;

•

A properly conducted test resulting in a fail
reading will normally be enough for a
breathalyzer
demand
(reasonable
and
probable grounds);

•

A fail reading may also be considered with
other symptoms of impairment to furnish
reasonable and probable grounds;

•

If the police officer suspects the RSD will
not provide accurate results (eg. subject
drinking within last 15 minutes) then the
results will not furnish reasonable and

11

probable grounds unless the officer waits
until they feel the test results will be
accurate;
•

The police officer is under no obligation to
make inquiries from the subject if there are
circumstances that would provide inaccurate
results on the RSD; and

•

A police officer is entitled to disbelieve a
person who says there may be circumstances
that would produce an inaccurate reading (eg.
alcohol consumed shortly before driving) and
immediately require a roadside test.

Aside from the fail reading, there were other
indicia of impairment. The accused had an odour
of alcohol, his eyes were glassy and red, and he
admitted he had one drink. This lead to the
roadside demand which resulted in a fail reading,
subsequently leading to the officer’s opinion the
accused’s ability to operate a motor vehicle was
impaired. This conclusion was sufficient to explain
what the fail reading meant to the officer.
Justice Mahoney stated:
…the officer had other symptoms of
impairment
upon
which
he
could very properly have based his conclusion
that he had reasonable and probable ground
for making the demand. The officer wished to
have his suspicions confirmed by the Alco-Sur
test. After the test the officer now has, the
smell of alcohol, red and glassy eyes, an
admission by the Respondent of alcohol
consumption and a “red fail.” This…is enough
reasonable and probable grounds to make a
demand. In fact…a “fail” result on a properly
conducted authorized roadside screening test
alone will normally be sufficient grounds to
furnish the officer with reasonable and
probable grounds to demand a breath sample.
[para. 15, references omitted]

The trial judge was in error and the Crown appeal
was allowed. A new trial was ordered.
Complete case available at www.albertacourts.ab.ca

These principles were taken from the Supreme Court of Canada decision in R. v.

Bernshaw, (1994) 95 C.C.C. (3d) 193 (S.C.C.)

Volume 3 Issue 6
November/December 2003

53

SEARCH OF PERSON IN
PREMISE REQUIRES MORE
THAN MERE PRESENCE
R. v. Phan, 2003 ABQB 469
Several police officers executed
a drug search warrant on a
residence by breaching both the
front and rear doors with steel
battering rams. Two occupants, the accused and a
female, were located in the kitchen of the house
and were advised they were being detained (not
arrested) under the Controlled Drugs and
Substances Act (CDSA). They were told to lie on
their stomachs and were handcuffed. The
accused was pat frisked in the areas accessible to
his hands for officer safety and his pant pockets
were searched. Police found several small baggies
of cocaine. The accused was charged with
unlawful possession of a controlled substance
under s.4(1) of the CDSA.
During his trial in the Alberta Court of Queen’s
Bench, a voir dire was held to determine the
admissibility of the evidence. The accused argued
that his Charter rights under s.9 (arbitrary
detention), s.8 (search and seizure), and s.7
(liberty) were breached because the police did
not have reasonable grounds to search him as
required by s.11(5) of the CDSA. A police officer
testified that they could search anyone found in a
residence being searched under s.11(1) of the
CDSA. This, he said, included strip searches and
need not be restricted to officer safety. Section
11(5) of the CDSA reads:
s.11(5) Controlled Drugs and Substances Act
Where a peace officer who executes a warrant issued
under subsection ( 1) has reasonable grounds to believe
that any person found in the place set out in the
warrant has in their person any controlled substance,
precursor, property or thing set out in the warrant, the
peace officer may search the person for the controlled
substance, precursor, property or thing and seize it.

Volume 3 Issue 6
November/December 2003

This section does not confer the authority to
search anyone found in a residence being
searched pursuant to a warrant, but in fact
requires that the police have an independent
belief based on reasonable grounds that the
person found in the premises has the drug on
them.

The Detention
Queen’s Bench Justice Johnstone first examined
the detention and found it justified and lawful
under the circumstances; thus no s.9 breach was
made out. The judge stated:
Under the doctrine of investigative detention,
the police are entitled to detain individuals
even where there are insufficient grounds for
arrest provided at a minimum there be an
articulable cause, the functional equivalent of
“reasonable suspicion” or “reasonable cause to
suspect”.
It is clear that the objective standard is the
minimum standard to which the police are held.
This prevents the exercise of power in a
capricious or arbitrary manner. Applying this
objective standard to the facts in the case at
bar leads me to the conclusion that there was
a constellation of objectively discernable facts
which gave rise to reasonable suspicion, and
consequently, the officers had the authority
to detain the Accused. The most compelling of
these facts was that the Accused was found in
a well known drug house. The search of the
residence
revealed
a
notebook
with
mathematical entries. The officers had the
authority to detain the Accused in order to
investigate their suspicions that an offence
may have occurred. [paras. 17-18, references
omitted]

The Search
A search may or may not be reasonable following
an investigative detention. In some cases, a
minimal search incidental to lawful detention,
unusually consisting of a pat down or frisk, may be
reasonable provided the search is to ensure
officer safety. However, s.11(5) of the CDSA
does not confer the authority for the police to

54

search anyone found in a residence that is the
target of a search warrant. In finding a serious
breach of the accused’s Charter rights, Justice
Johnstone held:
There exist two competing values in this case.
The first is the fact that police work is by its
very nature dangerous and that ensuring the
safety of police officers is a paramount
consideration. The police in executing a search
warrant do not know what will confront them
when they enter, including the potential of
occupants with weapons. On the other hand, an
individual has the right to be free from
unreasonable search and seizure. There is a
temptation for authorities to sometime use
such a search as an opportunity to obtain
evidence of a crime. This is a temptation that is
strongly resisted by the Courts.
Individuals may be detained for investigative
purposes and a cursory search such as a frisk or
pat down as an incident to detention can be
conducted to ensure officers’ safety.
I also recognize that the police must seek to
collect evidence. I have already referenced s.
11(5) of the Act which gives police the
statutory authority to search persons found in
premises without arresting them, if they have
reasonable grounds to believe that such persons
have controlled substances on their person.
It appears that the officers, although acting in
good faith, were operating under a standard
belief that anyone found within the searched
premises could be searched. The search
warrant itself became their reasonable and
probable grounds for effecting such searches
of the person of the occupants. However, it was
insufficient to do so. Therefore, this faulty
reasoning resulted in a serious Charter breach
given the nature of the search. ... A standard
operating police practice of automatically
searching all those found within searched
premises, without more, will inevitably result in
the systemic violation of Charter rights. [paras.
24-27]

Volume 3 Issue 6
November/December 2003

Exclusion of Evidence
Having found a breach of the accused’s s.8
Charter rights, the Queen’s Bench court
considered whether the admission of the
evidence would bring the administration of justice
into disrepute. In excluding the evidence under
s.24(2) of the Charter Justice Johnstone
concluded:
Although, as I had earlier indicated, the police
officers were operating in good faith, there
was no evidence adduced in the voir dire which
would satisfy me that the peace officers
believed that such reasonable and probable
grounds existed; they simply relied on the
warrant without more. The power to search
someone found on the premises that were the
subject of a search warrant imported a
requirement pursuant to s. 11(5) that the
officers have a reasonable belief that the
person was in possession of a narcotic. The
narcotics found were real evidence, but they
could not have been discovered without the
violation of Accused’s rights. This was a
serious violation and not an isolated, situationdriven incident. It indicates a fundamental
misunderstanding of the law by the officers
and perhaps a systemic problem given their
reference to “standard” practice. [para. 29]
Complete case available at www.albertacourts.ab.ca

VOIR DIRE APPLICATION
REJECTED IN FLIR CASE
R. v. Lewis,
(2003) Docket:42062-3 (BCSC)
The police obtained a forward
looking infrared (FLIR) reading,
which is capable of detecting
heat radiating from a building,
when they flew a helicopter in the public airspace
near or above a barn. The accused sought to
enter into a voir dire concerning the admissibility
of the evidence of the FLIR, but was denied by
British Columbia Supreme Court Justice Grist.
The judge ruled that he was bound by the British
Columbia Court of Appeal decision (R. v. Hutchings

55

(1996), 111 C.C.C. 3d 215 (B.C.C.A.)) that held
there was no reasonable expectation of privacy
regarding the escape of heat from a barn because
no private, personal, or core biographical
information is at risk or obtained by the FLIR.

COP DESERVES JAIL FOR
CRIMINAL BREACH OF TRUST
CONVICTION
R. v. LeBlanc, 2003 NBCA 75
The accused, an on-duty 23-year
veteran
police
officer,
responded to a residential fire in
progress. He rummaged through
the owner’s effects and stole various items,
including $83 destined for children’s Christmas
gifts. The owner was a single mother of modest
means. During the investigation the accused
falsely implicated members of the fire
department in the theft. Ultimately, the accused
was charged with theft under $5,000 and breach
of trust under the Criminal Code, both proceeded
by indictment. A preliminary hearing was held and
he was ordered to stand trial. The accused
eventually pled guilty to the breach of trust
charge and Crown stayed the theft. In the
meantime, between his committal to stand trial
and his plea, the accused retired from the police
department and received full pension benefits.
At his sentencing hearing, the accused was given
a conditional discharge under s.730(1) of the
Criminal Code. He was placed on probation with
conditions, including restitution, community
service, and making a charitable donation in the
sum of $1000. The Crown appealed to the New
Brunswick Court of Appeal arguing that the
sentence was unfit. It submitted that the
sentence imposed was contrary to the public
interest, it was disproportionate to the gravity of
the
offence
and
accused’s
degree
of
responsibility, and the aggravating circumstances
were not considered. In the Crown’s view, a

Volume 3 Issue 6
November/December 2003

lengthy prison sentence was required in cases of
this nature.
Justice Drapeau, writing the unanimous judgment
for the New Brunswick Court of Appeal,
concluded that the conditional discharge did
nothing to denounce the crime. Rather, it
trivialized the breach of trust offence and did
nothing for deterrence. He stated:
If one unbundles the several principles that
come into play in shaping a fit sentence for
conduct by an on-duty police officer amounting
to criminal breach of trust under s. 122,
general
deterrence
and
denunciation
overshadow all others. Those principles
command more than lip service; they must
impact upon the sentencing process and help
shape its outcome.
While some question the usefulness of lengthy
custodial sentences as a deterrent for
hardened criminals, no one has voiced any
thoughtful objection to the view that such
sentences likely have a beneficial behaviourshaping impact on law enforcement personnel,
who have more than a passing acquaintance
with penal law and a keen insight into the
unpleasant reality of prison life. The available
anecdotal evidence suggests that very few
law-enforcement officers buy into the
argument routinely made by defence lawyers
and occasionally accepted by some judges that
non-custodial sentences, such as discharges
and conditional sentences, are truly punitive in
nature.
Police officers have opportunities, practically
on a daily basis, to cross the line and engage in
prohibited conduct. The public trusts them to
resist the temptation and relies upon the
courts to deal firmly with those who stray.
In my view, the conditional discharge granted
at trial is woefully inadequate as a means of
promoting respect by police officers, and
other law enforcement personnel, of their
oath of office. It is a sentence without any
deterrent value. [para. 25-28, emphasis added]

As for a fit sentence, the court recognized that
“only the most exceptional circumstances can

56

justify a discharge, absolute or conditional, for
breach of trust by a police officer in the
execution of his duties.” Here, there were no
exceptional circumstances and a substantial term
of incarceration was warranted. However, there
were some circumstances that mitigated a
lengthy sentence in this case. There was an
inordinate delay between the charge being laid
(2000) and sentencing (2003). Furthermore, the
accused fulfilled all of his probation conditions
and the Crown, the spokesperson for the public
interest, recommended a term of 1-3 months in
jail. Even though a short sentence would not have
been appropriate at the time of original
sentencing,
with
these
circumstances
a
significantly reduced duration of incarceration
was now appropriate. The appeal was allowed, the
conditional discharge was set aside, and the
accused was sentenced to 3 months in jail.
Complete case available at www.canlii.org

PLAIN VIEW OBSERVATIONS
ARISING FROM 911 CALL
SUPPORT WARRANT
R. v. Carter, 2003 BCCA 632
After responding to a 911 call
from the accused’s apartment,
police officer’s could hear
noises
from
inside
the
apartment that resembled someone handling a
firearm. The police withdrew down the hallway
and the accused exited his apartment and locked
the door. He was detained outside the apartment
building and told police that everything was all
right inside. Nonetheless, the police entered his
unit where they discovered a small marihuana
grow operation. The premise was secured and a
search warrant was obtained. The accused was
charged with production of marihuana and
possession for the purpose of trafficking.
At trial in British Columbia Provincial Court the
accused plead not guilty. During a voir dire the
trial judge found no breach of the accused’s s.8

Volume 3 Issue 6
November/December 2003

Charter right (search and seizure) and held the

evidence to be admissible. In his view, the
totality of the circumstances justified the police
entry into the apartment to verify the
information provided by the accused that
everything was all right inside. In light of the
trial judge’s finding on the voir dire the accused
changed his plea to guilty for the production of
marihuana charge, mistakenly believing he could
appeal his conviction and challenge the judge’s
evidentiary ruling on the s.8 issue. The Crown
stayed the possession for the purpose of
trafficking charge and the accused was fined
$2,000.
The accused appealed to the British Columbia
Court of Appeal arguing that the trial judge’s
ruling on the voir dire was in error and that there
was a miscarriage of justice. Under s.686(1)(a)(iii)
of the Criminal Code, an appeal court can only
entertain an appeal from a guilty plea if there are
grounds that there was a miscarriage of justice.
With regards to the voir dire, the appeal court
found the trial judge properly considered the
circumstances when he found the police entry
lawful. As for the miscarriage of justice
argument, the accused submitted that there was
a miscarriage because there were arguments
remaining after the voir dire ruling that could
have resulted in an acquittal, like attacking the
validity of the issuance of the subsequent search
warrant on the basis that the police could not use
their observations after entry to support the
warrant. In rejecting this contention. Justice
Finch, for the unanimous court, stated:
…In my view, the argument now proposed by the
[accused] is not tenable. There is no authority
holding that police officers may not testify to
what was seen by them to be in plain view on an
entry into premises consequent on a 911 call.
Their entry was made in the performance of
their duty to protect public safety and did not
depend upon establishing grounds for obtaining
a search warrant.
The argument that the police could not rely on
what they saw upon such entry in the

57

information to obtain a search warrant is
inconsistent with the provisions of s. 489(2)(ii)
of the Criminal Code. To give effect to the
[accused’s] argument on this appeal would
require a conclusion that s. 489(2) is
constitutionally invalid. No such argument has
been advanced on this appeal. No other ground
for attacking the search warrant is
suggested. In my respectful view, the
argument that the search warrant could have
been successfully attacked would be bound to
fail. The evidence obtained pursuant to the
search warrant would have been properly
admitted and a conviction entered. There was,
therefore, no prejudice to the [accused’]
defence by trial counsel's failure to advance
this new argument at trial. [para. 9-10]

The Court was not persuaded that there was a
bona fide defence and therefore no miscarriage
of justice occurred. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

DETENTION IS MORE THAN
BELIEF PERSON INVOLVED IN
OFFENCE
R. v. Priddle, 2003 BCCA 637
After their dogs entered the
bushy area of a park, the victim
and his gay partner saw a man
kick the dogs. The victim
entered the bush area and was
assaulted by the man, including being pulled to the
ground and kicked about the body resulting in
bruises and blood in his urine. The victim and his
partner drove to the nearest telephone and called
police. Two officers promptly attended the scene.
An officer went into the bush and found the
accused seated on a log. He appeared intoxicated
so the officer shook him by the shoulder to get
his attention. The officer then asked if the
accused was having any problems with people and
he replied, “Fucking faggots and their dogs”. The
accused was then brought out of the bushes and
the victim and his partner identified him as the
assailant.

Volume 3 Issue 6
November/December 2003

At trial the judge conducted a voir dire and ruled
that the accused was not detained by the police
when he made the utterance. Therefore, s.10(a)
or (b) were not engaged. In his view, the police
were merely asking some preliminary investigative
questions of a person probably responsible for
the assault. The accused was found guilty of
assault causing bodily harm. He appealed his
conviction to the British Columbia Court of Appeal
arguing, among other grounds, that the
conversation with police should not have been
admitted into evidence. The court dismissed the
appeal. Justice Low, for the unanimous court,
stated:
…[The constable] was simply making preliminary
enquiries of the [accused] to determine if he
was involved in the incident under investigation.
He took no steps to restrain the [accused] and
did not tell him that he was under restraint. He
had reason to believe that the [accused] was
involved because he fit the description given by
the two civilian witnesses, but that alone does
not amount to restraint or to a reasonable
belief on the part of the [accused] that he was
then in the control of the police officer.
It was only after the [accused] would not
provide his name that the constable arrested
him. But when the [accused] made the
incriminating utterance the officer was only
trying to get his attention, to learn who he was
and to attempt to determine if he was involved
in the incident. As the officer testified, he
did not yet have the opportunity to detain the
[accused]. Before the [accused] spoke in the
manner he did, the constable was simply
making reasonable enquiries of a person in the
right location who generally fit the description
of the person who committed the assault.
[para. 7-8]

The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
Man’s capacity for justice makes democracy
possible, but man’s inclination to injustice makes
democracy necessary—Reinhold Niebuhr

58

GROUNDS FOR SEARCH
WARRANT MUST BE TAKEN AS
A WHOLE, NOT EXAMINED
INDIVIDUALLY

found—although there were some weaknesses in
the grounds and individually each of the four main
factors were insufficient—that when taken as a
whole upon amplification during the voir dire the
warrant was valid.

R. v. Stewart, 2003 BCCA 636

For example, he recognized that an anonymous tip
by itself was insufficient to justify a search
warrant. Also, the FLIR reading was of limited
value because only a small portion of the house
was examined. The word “significant” in
describing the level of heat loss was excised from
the affidavit because of shortcomings with the
FLIR unit. Finally, the officer made an error
respecting the hydro records but concluded the
consumption was double the average and unusually
high. The trial judge found the search warrant
valid and the accused was convicted of possession
of marihuana for the purpose of trafficking.

A police officer received an
anonymous tip that there was a
marihuana grow operation at a
residence and that a male person
was occasionally seen at this
location. The officer attended the scene,
detected an odour of marihuana, and formed the
opinion that the accused’s residence was the
source of the smell. A hand held FLIR unit was
used and the officer concluded there was a
“significant” heat loss generated from the
interior of the basement. He then attended the
power company office and obtained the electrical
consumption records. However, these records
were insufficient because the officer could not
adequately compare the previous occupant’s
consumption to the current consumption because
nearly two years had passed since the current
occupant had assumed responsibility for the
hydro.
The officer applied for and was granted a search
warrant for the residence based mainly on the
following four main areas:
•
•
•
•

the anonymous tip;
the odour of marihuana from the residence;
the FLIR results showing a loss of heat from
the residence; and
the consumption of hydro greater than three
times the normal of the average residence.

As a result of the search, the police found 2.5 kg
of marihuana valued at $9,000 to $27,200
(depending on how it would be packaged), Ziploc
bags, and a scale. At trial in British Columbia
Provincial Court the accused argued that the
search contravened s.8 of the Charter and that
the evidence was inadmissible under s.24(2). The
trial judge carefully considered the evidence and

Volume 3 Issue 6
November/December 2003

The accused appealed to the British Columbia
Court of Appeal arguing, in part, that there were
insufficient grounds for the search warrant.
Thus, he contended that the warrant was invalid,
the search illegal and a violation of his s.8
Charter right, and that the evidence should have
been excluded.
When challenging the validity of a search
warrant, the onus is on the accused to
demonstrate that there was no basis for the
decision of the issuing justice to grant the
warrant. In other words, the reviewing judge does
not substitute his opinion on whether a warrant
should have been issued. Rather, a reviewing
judge should not interfere if the record that was
before the authorizing justice, amplified on
review, was sufficient that the justice could have
granted the warrant. Fraud, non-disclosure, and
misleading or new evidence are relevant, but the
issue remains whether there remains a
sufficiently reliable basis for the decision to
grant the warrant. In this case, Justice Oppal on
behalf of the court dismissed the appeal. In his
view, there was no error committed by the trial
judge:

59

…[The]…experienced trial judge, considered
each of the issues raised by the [accused] and
concluded that on the basis of the whole of
the evidence and, in particular, the evidence on
the voir dire the warrant was valid. I cannot
conclude that he either misdirected himself on
the law or that he was in error on the
evidence.
He carefully considered the
[accused’s] arguments relating to the
misleading information contained in [the
officer’s] material. However, he found that
the officer was correct in attributing the
smell of marihuana to the [accused’s]
residence. He also concluded that while the
FLIR results were misleading, particularly in
reference to the word "significant" in
describing the heat loss, that that the officer
was acting in good faith. As well, he concluded
that the word "significant" could be deleted
from the information. He also found that [the
officer] was acting in good faith when he
obtained the records from West Kootenay
Power. These are findings of fact made by the
trial judge and ought not lightly be disturbed
by this Court. Accordingly, in my view, the
trial judge was correct in coming to the
conclusion that the warrant was valid. [para.
16]
Complete case available at www.courts.gov.bc.ca

PRISONER FOUND WITH
CONCEALED WEAPON
WARRANTS CONVICTION
R. v. Kerr, 2003 ABCA 92
The accused was a prison inmate
who was charged with seconddegree murder and possession of
a weapon dangerous to the public
peace. The charges arose from
an incident in the prison’s eatery/dining area
when the accused, fearing for his safety from
other inmates, brought two homemade weapons (a
knife made from a metal spoon and an ice pick
fashioned from an oven rack) with him hidden in
his pants. The deceased attacked the accused
with a homemade knife and tried to stab him, but
missed. The accused defended himself and

Volume 3 Issue 6
November/December 2003

stabbed the deceased,
collapsed and died.

who

subsequently

At his trial the accused successfully argued that
he acted in self-defense and he was acquitted of
the murder charge. As for the dangerous
possession of a weapon charge under s.88 of the
Criminal Code, the trial judge concluded that the
weapons were possessed for the purposes of selfdefence and also found him not guilty of this
charge. In his view, the prevalence of illegally
concealed weapons in the prison entitled the
accused to do the same in order to protect
himself.
The Crown appealed to the Alberta Court of
Appeal submitting that the trial judged erred. In
dismissing the argument against the murder
acquittal, the appeal court ruled that all the
elements of self-defence had been established.
However, the acquittal on the possession of a
dangerous weapon charge was overturned. Section
88 of the Criminal Code creates a dual procedure
offence. It reads:
s.88(1) Criminal Code
Every person commits an offence who carries or
possesses a weapon, an imitation of a weapon, a
prohibited device or any ammunition or prohibited
ammunition for a purpose dangerous to the public peace
or for the purpose of committing an offence.

In order to sustain a conviction under this
section, the onus is on the Crown to prove beyond
a reasonable doubt that the accused intended to
possess the weapon for a dangerous purpose. The
onus is not on the accused to prove a lawful
purpose regarding the possession. Nor is it
sufficient that what the accused did with the
weapon was in fact dangerous, although it may be
one factor establishing its purpose. Furthermore,
in some cases, a weapon carried for a strictly
defensive purpose may not warrant a conviction. A
court must examine the circumstances ensuring
to carefully weigh all of the relevant evidence
including the nature of the weapon, how it was
acquired, the manner, time, and place of its use,
and the statements and actions of the accused.

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In this case, the court found the actions of the
accused in concealing the weapons, which is an
offence in itself under s.90 of the Code but not
relied upon by the Crown, was crucial in
determining whether the purpose of possession
was dangerous. In allowing the appeal and
substituting a conviction, Justice Berger stated:
It is trite that prisoners at the Edmonton
Institution are precluded from possessing
weapons of any kind for any purpose. A weapon
openly brandished would be immediately
confiscated and the offender charged with a
disciplinary offence under the Prisons and
Reformatories Act…In my opinion, the
dangerous purpose requirement of s. 88 is
found in s. 90 of the Criminal Code. That is
because there is an arguable distinction
between possession of a weapon for defensive
purposes, say in one's own home where
concealment is unnecessary, and possession of
a weapon in a penitentiary setting. The very
fact of concealment is sufficient to establish
the ingredients of the crime set out in s. 90.
Even if the intended purpose is self-defence,
concealment of a weapon is itself a crime and
the unlawful purpose is thereby made out. Had
it been the [accused’s] intention to deter the
apprehended attack, it was open to him to
display his weapons to the deceased in a timely
manner. The act of concealment rendered it
more likely that there would be a breach of
the peace. While concealment facilitated the
[accused’s] counter-attack, it also contributed
to an already dangerous situation of which the
[accused] was fully aware. The decision to
conceal his weapons evidences the [accused’s]
choice of reprisal over deterrence. His
unlawful purpose, one that is dangerous to the
public peace, is thereby made out. [para. 30]
Complete case available at www.albertacourts.ab.ca

Note-able Quote
Bad administration, to be sure, can destroy good
policy; but good administration can never save bad
policy—Adlai Stevenson

WHERE WE HAVE COME FROM:
CONTACT AND COVER
Sgt. Dave Schmirler

come from in policing.

With the start of a new
British
Columbia
Police
Academy recruit class, the
training of a new generation
of police officers continues.
To one seasoned instructor,
training begins with a
review of where we have

One of the major concepts in officer safety
training is founded in the concept of “contact and
cover”. This is taught early in the academy
training, and for a recent class, even before they
were transitioned from civilian attire to police
uniform. To many police officers the concept of
“contact and cover” is a staple of everyday work.
Even experienced officers make mistakes. In
making contact with violators and dealing with
subjects, we can focus on the individual and lose
track of what is going on behind us, or with the
other officers. How many of us can recite the
terrible cost to two officers that resulted in a
now accepted police tactic?
On September 14, 1984 it cost two officers their
lives. It what is called the “Grape Street Park
incident”, two officers made contact with a small
group of males in a well-known park in San Diego,
California. Both officers had less than two years
experience. The contact was centered on a liquor
violation.
Both officers had their attention
focused on a subject and during the check; one
officer attempted a pat-down of one of the adult
males. The suspect resisted and pulled out a 9mm
handgun. The suspect fatally shot one officer
several times then shot the second officer. The
second officer would die two days later. Neither
officer had time to draw their weapons.
From this, and during an era when the San Diego
PD was losing officers at an alarming rate, came

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the concept of Contact and Cover. Police train to
use contact and cover principles on all stops and
contacts. One officer does all the contact,
paperwork, radio, computer, etc., while the cover
officer simply covers the contact officer by
watching the action and surroundings from a
position of advantage.
This concept is new to our recruit officers. Some
of them young enough to speak of the North
Hollywood shootout as something they “remember
seeing”.
The San Diego officers were Kimberly Tonahill,
age 24 with 9-months service and Timothy Ruopp
with 2 years service.
Remember them.

SCREENING DEVICE FAILURE
SUPPORTS REASONABLE
GROUNDS
R. v. Girouard, 2003 NBCA 84
A police officer found the
accused in the driver’s seat of a
motor vehicle attempting to
extricate it from a ditch. He
detected the smell of alcohol on the accused’s
breath and demanded a roadside screening test.
After several failed opportunities to provide a
sample, the officer arrested the accused for
refusing to provide a sample. He was transported
to the police station where he spoke to a lawyer.
After speaking to his lawyer, the accused asked
the officer if he could provide a sample into the
screening device. The device registered a fail
reading, prompting the officer to read the
breathalyzer demand. The accused again spoke to
counsel and subsequently provided two breath
samples resulting in readings in excess of 80mg%.
At his trial the judge concluded the fail reading
on the roadside screening device provided the
officer with the requisite reasonable grounds on
which to justify the breathalyzer demand. The
certificate of breath readings was admitted and

Volume 3 Issue 6
November/December 2003

the accused was convicted of care and control
while over 80mg%. The accused’s appeal to the
New Brunswick Court of Queen’s Bench on several
grounds, was dismissed. The accused further
appealed, this time to the New Brunswick Court
of Appeal, again arguing, in part, that the
roadside sample was not provided forthwith and
that the fail result could not be used as
reasonable grounds.

Forthwith
Section 254 of the Criminal Code allows a police
officer to make a demand of a person operating
or in care and control of a vehicle, reasonably
suspected of having alcohol in their body, to
forthwith provide a breath sample into a roadside
screening device. The accused submitted that the
more than one hour delay from the demand to the
taking of the roadside sample was not forthwith.
The New Brunswick Court of Appeal unanimously
rejected this ground of appeal. The sample in this
case was not taken pursuant to the demand. The
accused had been arrested for refusal and was
provided an opportunity to speak to his lawyer. He
then requested to provide a sample, which he
failed. The sample given was offered by the
accused. It was voluntary and was not subject to
the strict requirements of the demand section.

Reasonable Grounds
The accused contended that the fail reading on
the roadside screening device could not form the
basis for reasonable grounds, absent other indicia
of impairment. After reviewing previous case law
on this very issue, the New Brunswick Court of
Appeal found that a roadside fail result may, by
itself, be sufficient to provide reasonable
grounds provided the test was properly
conducted. If, however, the officer knew of
circumstances making the results unreliable, such
as recently consumed liquor (mouth alcohol),
belching, or vomiting, the fail result will not be
sufficient to provide the necessary grounds for
the demand. In refusing to grant leave to appeal,
Justice Larlee held:

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In the case at bar, [the constable] admitted at
trial that up until the time he received a "fail"
reading on the roadside screening device, he
did not have reasonable and probable grounds
to believe that [the accused’s] ability to drive
was impaired by alcohol. [The constable] had a
reasonable suspicion of impairment based on
finding the car in the ditch and the smell of
alcohol on [the accused’s] breath. On that
basis, [the constable] had the necessary
grounds to administer the roadside screening
test. However, [the accused] did not provide
the necessary samples at that point. After
consulting with counsel, [the accused]
voluntarily provided the samples at the police
station. This fact does not eliminate the
reasonable suspicion formed by [the constable]
prior to administering the test at the roadside
early in the night. After the failed roadside
screening test, [the constable] then had
reasonable and probable grounds to make the
Breathalyzer demand…[para. 14]
Complete case available at www.canlii.org

WARRANTLESS ENTRY’s DUAL
PURPOSE DOES NOT VITIATE
SUBSEQUENT WARRANT
R. v. Waldron, 2003 BCCA 442
The police responded to the
scene of a warehouse fire after
the fire department called them.
A fire captain told a police
officer they had found a
marihuana grow operation and invited him inside.
The police officer then entered the premises to
check on the possibility of a break and
enter/arson due to the nature and location of the
fire (the front door) and located a room inside
containing marihuana plants, growing trays, lights,
and a plant feeding system. A search warrant was
subsequently obtained by another police officer,
but the information failed to disclose that the
attending officer had been told of the presence
of the grow operation before his entry to
investigate the arson. The police seized several
exhibits and incriminating documents, including

Volume 3 Issue 6
November/December 2003

four fingerprints belonging to the accused on a
scale, pesticide bottle, and two separate light
shrouds. However, the seized property was
destroyed 5 days later on the instructions of the
property office manager.
At his trial on charges of unlawfully producing
marihuana and possession for the purpose of
trafficking, the accused was convicted. The trial
judge concluded that the fire captain expressly
invited the attending officer into the premises to
assist him in carrying out his duties under the
Fire Services Act because there was evidence of
an attempted forced entry to the premises. Even
though the officer testified to having a dual
purpose, investigating the possible break in with
arson and to confirm the existence of a grow
operation, the judge ruled the entry lawful and
not unreasonable. The judge did, however, find
parts of the information to obtain the search
warrant misleading in that the information failed
to disclose the foreknowledge of the grow prior
to the initial police entry.
The accused appealed to the British Columbia
Court of Appeal arguing that the trial judge erred
in upholding the validity of the search warrant
and that the early destruction of the evidence
deprived him of the right to make full answer and
defence to the charges. In rejecting the ground
that the warrant was invalid, Chief Justice Finch
stated:
The record before the authorizing judge, as
amplified on review, shows that the authorizing
judge could have granted the order. Both the
fire department investigator and [the police
officer] were lawfully in the premises. Both
saw the grow operation in place. This direct
evidence formed the essential basis of the
information. The complaints about other
aspects of the information do not detract from
this direct evidence.
The learned trial judge found as a fact [the
police officer] entered the warehouse unit
lawfully. He entered in order to investigate a
breaking and entering, believing he would also
find a marihuana grow operation. These

63

findings of fact are not challenged. [The
police officer’s] belief that he would find
evidence of further criminal activity cannot
undo or undermine the valid basis for his
lawful entry of the premises without a search
warrant. [para. 7-8]

Early destruction of evidence
The accused’s position was that the early
destruction of the exhibits was an abuse of
process and deprived him of his right to make full
answer and defence to the charges, a right
protected under s.7 of the Charter. The British
Columbia Court of Appeal disagreed, upholding the
lower court’s ruling. The accused failed to
demonstrate any realistic possibility that access
to the destroyed property could have assisted his
defence. As the trial judge noted, even if other
fingerprints were found, it would only
demonstrate a joint enterprise. The destruction
of the evidence was an “honest blunder”. The
police did not deliberately decide to destroy the
evidence nor was its disposal due to a systemic
disregard to destroy evidence. This ground of
appeal was also dismissed.
Complete case available at www.courts.gov.bc.ca

SEASON’S GREETINGS
The staff at the Police
Academy would like to wish
our
“In-Service:10-8”
readers and their families all
the best for this holiday
season. It has been a pleasure serving British
Columbia’s police officers, and our other readers
across the country, by bringing them up-to-date
on many of the issues facing them daily as they
go about protecting and serving the citizens of
their communities. May you have a safe and
blessed Christmas and all the best in 2004.

Check out full Police Leadership
2004 Conference details starting
on page 3.
Volume 3 Issue 6
November/December 2003

POLICE LEADERSHIP
2004 CONFERENCE
“Excellence in Policing Through
Community Health,
Organizational Performance and
Personal Wellness”
Location:
The Westin Bayshore
Vancouver, British Columbia
Dates:
April 5, 6 & 7, 2004
Registration Fee:
$325
(includes reception, 2 lunches and the
banquet dinner)
Advanced seminar/increment
course additional $75

Keynote Speakers:
Dr. Kevin Gilmartin
Sir Ronnie Flanagan
Mr. Gordon Graham
LAPD Chief William J. Bratton
RCMP Comm. Giuliano Zaccardelli

Please check the Justice Institute of B.C.
website for more information and details at
www.policeleadership.org

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