IN SERVICE: 10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers in Canada.

"#$%!&'()(*+!,-./01(2!
324!567-'89096)!:90-'(2.!
!

!

Photo: Harry De Jong

Canadian Police and
Peace Officers’ 37th
Annual Memorial Service
Le 37e service commémoratif
des policiers et agents
de la paix canadiens

;/6<2=>!;9?)9019'!"@>!"#$%!2)!$A##!?0!
5B+(1()(-6!C2'D!ʹ!E-)2'=!;)2<(/0!
(6!F11-)*7-'<>!&,!

September 28, 2014
Parliament Hill
Ottawa, Ontario
Le 28 septembre 2014
Colline du Parlement
Ottawa (Ontario)

TM

!
324!567-'89096)!?2')(8(?26)*!)-!7-'0!/?!-6!G9)9'26*!H2=!2)!$"A##!6--6I!
!
J-'!7/')+9'!(67-'02)(-6!82..!K#%L@MNLM""M!O3-82.!M"P#Q!-'!R-!)-!
+))?ASS444I090-'(2.'(11-6I8-0S!
!
T-*)!FR968(9*A!
F11-)*7-'<!C-.(89!U9?2')096)!!
!326R.9=!E,:C!U9)28+096)!
!

For more on the
2014
British Columbia
Law Enforcement
Memorial
see pages 32-34.

“They are our heroes. We shall not forget them.”
Inscription on Canadian Police and Peace Officer Memorial—Parliament Buildings Ottawa, Ontario.

Be Smart & Stay Safe

Volume 14 Issue 4

Volume 14 Issue 4 - July/August 2014

Highlights In This Issue

Unless otherwise noted all articles are authored by
Mike Novakowski, MA, LLM. The articles contained
herein are provided for information purposes only
and are not to be construed as legal or other
professional advice. The opinions expressed herein
are not necessarily the opinions of the Justice
Institute of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to this
newsletter.

Conference: Radicalization Of Terrorists

4

Security Guard Private Actor: Charter Did Not
Apply To search

6

s. 489(2) CC Does Not Require Unrelate Purpose

10

Documents In Possession Used As Circumstantial
Evidence: Not Inadmissible Hearsay

11

All Circumstances To Be Considered In Reasonable
Grounds Determination

12

Reasonable Suspicion: Each Circumstance Not To Be
Considered Separately

15

911 Entry Justified: Cursory Search Justified In
Circumstances

18

Officer Safety Rendered Detention & Search Lawful

19

This course will equip participants with the basic skills
required and the best practices to follow associated
with the recruitment and handling of informants and
a g e n t s . I t i n c l u d e s p r e p a ra t i o n o f j u d i c i a l
authorizations utilizing informant / agent information,
policy and how to effectively report on information
derived from these assets.

Marihuana Odour Sufficient To Justify Arrest

22

September	
 16-19,	
 2014

Penile Swab Unreasonable As An Incident To Arrest

24

Terms Of Contract Negated Privacy Interest In
Package

27

Incidental Pat-Down Reasonable, But Search Of Flash
Drive Not

29

Upcoming Events

Human	
 Source	
 Management

JIBC	
 Police	
 Academy	
 Advanced	
 Training
www.jibc.ca/course/POLADV715

BCACP/CACP
2015	
 Police	
 Leadership	
 Conference

April	
 12-14,	
 2015
“Leading	
 with	
 Vision	
 and	
 Values”

National	
 Library	
 of	
 Canada	
 
Cataloguing	
 in	
 Publication	
 
Data
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

This is Canada's largest police leadership
conference providing an opportunity for delegates
to hear leadership topics discussed by worldrenowned speakers. Click here

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

BCLEDN	
 Conference see
page
4
November	
 5,	
 2014
“Radicalization	
 of	
 Terrorists”	
 

Graduate Certificates
Intelligence Analysis
or
Tactical Criminal Analysis
www.jibc.ca

see
page
40

Volume 14 Issue 4 - July/August 2014
rid of negative thoughts; the #1 food for your brain;
how to improve your reading skills; how to sharpen
your memory; how to outwit Alzheimer's; the 3 things
every brain must have; and more.

QP 376 S63 2011 D1991

WHATʼS	
 NEW	
 FOR	
 POLICE	
 IN	
 
THE	
 LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of its
most recent acquisitions which may be of interest to
police.

The 5 languages of appreciation in the
workplace: empowering organizations by
encouraging people.
Gary D. Chapman, Paul E. White.
Chicago, IL: Northfield Pub., c2012.
HF 5549.5 M63 C438 2012
Be more than a bystander [videorecording]: break the
silence on violence against women.
Vancouver, BC: Ending Violence Association of BC,
c2014.
1 videodisc (20 min.) : sd., col. ; 4 3/4 in. (DVD).

Produced by the Ending Violence Association of BC
and the BC Lions Football Club. Looks at violence
against women through the lens of an initiative
between the Ending Violence Association of BC and the
BC Lions Football Club. It examines what gender
violence is, why people should get involved and what
being "more than a bystander" means.

HV 6250.4 W65 B4 2014 D1974

Becoming a strategic leader: your role in your
organization's enduring success.
Richard L. Hughes, Katherine Colarelli Beatty, David
L. Dinwoodie.
San Francisco, CA: Jossey-Bass, c2014.
HD 57.7 H84 2014
Brain boosting secrets [videorecording]: 16 things you
must know about your brain.
Terry Small.
Surrey, BC: Terry Small, c2011.
1 videodisc (96 min.) : sd., col.; 4 3/4 in. (DVD).

Terry Small shares his plan to boost your brain power,
improve your thinking, and optimize your brain and
body health for the rest of your life. He covers the
following: how to eat right and think right; how to get

Brain power: improve your mind as you age.
Michael J. Gelb and Kelly Howell; foreword by Tony
Buzan.
Novato, CA: New World Library, c2012.
BF 724.55 C63 G45 2012
Leaders eat last: why some teams pull together
and others don't.
Simon Sinek.
New York, NY: Portfolio/Penguin, c2014.
HD 57.7 S548 2014
Leading change.
John P. Kotter.
Boston, MA: Harvard Business Review Press, c2012.
HD 58.8 K65 2012
Leading with questions: how leaders find the
right solutions by knowing what to ask.
Michael J. Marquardt.
San Francisco, CA : Jossey-Bass, c2014.
HD 57.7 M392 2014
Power over stress: 35 quick prescriptions for
mastering the stress in your life.
Kenford Nedd.
Toronto, ON: QP Press, 2003.
RA 785 N42 2003
The practical coach 2 [videorecording].
Seattle, WA: Media Partners Corp., c2014.
1 videodisc (ca. 25 min.) : sd., col. ; 4 3/4 in. (DVD) + 1 CDROM.

DVD also contains the leader's guide (PDF format;
requires a computer that has a DVD drive and Adobe
Acrobat Reader software), previews, and contact
information; CD-ROM also contains the leader's guide.
Takes managers step-by-step through the three most
critical times for performance intervention. Covers the
following: coaching on personal habits and hygiene;
avoiding employee's defensive sidetracks; and positive
ways to reward and encourage peak performance

HF 5549 P73 2014 D1971

PAGE 3

Volume 14 Issue 2 - March/April 2014

BCLEDN

> p re s e n t s

B C L a w E n f o r c e m e n t D i ve r s i t y N e t wo r k

Nov. 5th, 2014 from 9am to 4pm @ The Justice Institute of BC
Registration from 8am to 8:45am • Pre-register at www.bcledn.org
$175 (before or on Sept 30) and $225 (after September 30)

Keynote Speakers

Attendance Restricted to Law Enforcement Personnel Only

Dr. Martin Bouchard

Dr. Lorne L. Dawson

Mubin Shaikh

Insp. Steve Corcoran

Associate Professor of

Chair of the Department

Coming from a

Operations Officer for

Criminology & Director of

of Sociology and Legal

background of having

the E Division National

the International Cyber

Studies at the University

been a Muslim extremist in

Security Enforcement

Crime Research Centre

of Waterloo and Professor

earlier years to becoming

Team (INSET) and active

(SFU) and Associate

in the Department of

an undercover operative

member of the National

Director of Research of

Sociology and Legal

in several high profile

Security Program for

TSAS. Bouchard will present

Studies and Department

classified cases. Shaikh

over 11 years. Corcoran

on the role of social

of Religious Studies.

will provide an extremely

brings a local and

networks connected to

Dawson will discuss the

unique perspective

front-line perspective on

illegal markets, organized

process of radicalization

on radicalization and

homegrown terrorism and

crime & more specifically,

in homegrown terrorists

recruitment as it relates to

radicalization.

terrorism.

groups.

society today.

The BC LEDN is a sub-committee of the British Columbia Association of Chiefs of Police with representation from the following participating agencies.

PAGE 29

Volume 14 Issue 4 - July/August 2014

1;%<=>*1?=0@=A7

!"#$!!%&'("$)*+#,
LEGALLY SPEAKING:

Court of Quebec

!"#

!"#$%&'()#'%*+,-.'-/+0#)*1)&1

The judge found the stop lawful under
230
Drug Business
Quebec’s Highway Safety Code because
791
of the viewed seat belt violation.
23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+
“In the drug business, loyalty and
However, the judge ruled that the police
4#5
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+
integrity are important. At every violated the accused’s rights by arresting him.
9'4
%9+ /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+the
$).-+
officer had the requisite subjective
step along the way. Wholesalers. Although
belief and enough grounds
for an ASD demand,
@0,"$:9#56+3'$+5$A05#4$3'$0$,05#
6&)*#-1+#$-+)"#$%&'()#'%*<+
Brokers. Retailers. Street dealers. there were insufficient grounds that the accused was
(##$80/#$BB$=3)$6"#$0'5>#)5?
Everyone has their 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+
role. And everyone gets their due, impaired and therefore not enough grounds for a
breathalyzer test. Nevertheless, the judge admitted
their full due. No one gets short-changed. And no one the breathalyzer evidence
#$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+
C?$D11$3,,980'65$3=$0$*#"+,1#$0)#$
under s. 24(2). The judge
rejected
the
accused’s
argument that the
gets
cut
out.
Sometimes,
however,
loyalty
and
%99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'##-1>+)*1+
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presumption of identity under s. 258(1)(c) of the
integrity
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%99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+
were reasonable grounds
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judge found the absence
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Disloyalty has its price. And sometimes that price is inquiry but, once an accused complied with the
@"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+
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)"#$%&'()#'%*<+
under s. 258(1)(c) as someone whose rights have not
'36$#'/0/#$6"#$)+/"6$63$,39'
742 at paras. 1-3.
been violated. The certificate
of analysis was
3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()#'%*+'9+7)#'79'-1+
admissible, the presumption
of identity
M"0)6#)
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a conviction of over 80mg% followed.
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LACK	
 OF	
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%9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+
Quebec Superior Court
RENDER	
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IDENTITY	
 INAPPLICABLE
The accused appealed arguing that the
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Police officers observed a vehicle late
rejected. Recognizing that the relevant s.
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!"#$"#%&&#'()#*'+,#KLLM+GHH!+
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at night being driven by
someone not
24(2) factors were analyzed, the appeal judge
wearing a seat belt. They decided to
KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+
FAG$D1A#)60Q
accorded considerable $deference
to the trial judge's

stop the vehicle, which was moving
quickly as if the driver was trying to
f l e e . A f t e r losing sight of the vehicle, the police
officers spotted it parked diagonally across a parking
spot. When an officer spoke to the accused about
not wearing his seat belt, he was somewhat
aggressive. The officer noted a strong odour of
alcohol on his breath. The accused did not answer
routine questions, appeared to be “stoned,” fumbled
as he took out his papers, his movements were slow
and his were eyes glassy. He was arrested and given
a breathalyzer demand. He subsequently provided
two breath samples of 141mg% and 142mg%.

decision and concluded
was reasonable. He also
$ itF,G$R'60)+3Q
opined that the presumption of identity still applied
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even in the absence of$ reasonable
grounds for the
breath demand.

www.10-8.ca

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PAGE 5
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Volume 14 Issue 4 - July/August 2014

!"#$%&'()*+$,*-,./#+()(0

•! "#$!%&!&'()!*+!,-'.'/0!1%()!%1!"#$!%&!&'()!*+!&)1&!213456278298!$$8
•! '+!"#$!:!6;(0<!%&!&'()!*+!&)1&=!&>)/!"#$!%&!&'()!*+!,-'.'/0!:6;(0<!2134562782,378!$$8
67)&(28(9'7%7.*

67)&(28(6&51

/0(12(3(42/'5

s. 258(1)(c) Criminal Code

)*

!!!"#$%&"'(

Section 258(1)(c) establishes a presumption of
identity and relieves the Crown from having to prove
that the accused’s blood alcohol content (BAC) at the
time of the offence was the same as at the time of
testing. Using the presumption of identity, the
accused’s BAC at the time of the breathalyzer test is
presumed to be the same as their BAC at the time of
the alleged offence provided the breath samples
were taken in compliance with the provisions of s.
254(3). Absent this presumption, the Crown is
required to prove that the results represent the BAC
at the time of the offence, likely through expert
evidence.
Following the Supreme Court of Canada decision R.
v. Rilling, [1976] 2 S.C.R. 183 (even though decided
prior to the Charter), the Quebec Court of Appeal
stated:

The logical outcome of admitting the
breathalyzer evidence is the application of the
presumption of identity.
To find otherwise would indirectly undermine
the still-applicable principles in Rilling and
considerably reduce the effect of the judgment
rendered under subsection 24(2) of the
Charter. [paras. 49-51]

In this case, the accused’s motion to exclude the
Certificate of Analysis under s. 24(2) was dismissed.
Since he complied with the breathalyzer demand
and the evidence was ruled admissible, the absence
of reasonable grounds did not render the
presumption of identity inapplicable.
The accused’s appeal was dismissed.
Complete case available at www.canlii.org

[T]he lack of reasonable and probable grounds
to believe that an individual's ability to drive is
impaired by alcohol does not mean that the
incriminating certificate of analysis is
inadmissible if the driver complies with the
breathalyzer demand. In other words, it is not
necessary to prove reasonable and probable
grounds for the presumptions in the Code to
apply. [para. 42]

SECURITY	
 GUARD	
 PRIVATE	
 
ACTOR:	
 CHARTER	
 DID	
 NOT	
 
APPLY	
 TO	
 SEARCH
R. v. Jacobs, 2014 ABCA 172

If breath samples are obtained without reasonable
grounds for the demand, the evidence may be
excluded under s. 24(2) of the Charter. However, if
the samples are ruled admissible under s. 24(2), the
presumption of identity continues to apply:
In my opinion, the trial judge was correct in
saying that when a motion to exclude evidence
is dismissed, [translation] “the accused is in the
same situation as an accused who has not
invoked the Charter, and Rilling applies. The

+,-./01&1233.01)

certificate of analysis is admissible
in evidence,
4(567.8019$$&
and the presumptions apply”.

The accused and her companion
approached a security checkpoint at
the entrance to a summer
exhibition. A security guard asked if
he could search the accused’s purse.
The accused consented by placing her purse on the
table in front of him. Inside, the security guard
observed a closed cigarette package. When he asked
about its contents, the accused’s voice quivered, her
hands shook and she pulled the cigarette package
away. The security guard took it back and opened
the package. In it he found a white powder which
appeared to him to be “some form of illicit drug.”

PAGE 6

Volume 14 Issue 4 - July/August 2014
The security guard called over a police officer to
show her what he had discovered. The officer pulled
the drugs out of the cigarette package, immediately
arrested the accused, searched her purse and found
three bundles of cash. Laboratory analysis later
confirmed the contents as being 13 individually
wrapped packages of soft cocaine weighing 2.4
grams, and 14 individually wrapped packages of
hard or crack cocaine weighing 2.3 grams.

Alberta Provincial Court

State Actor?
The Alberta Court of Appeal agreed with the trial
judge that the security guard was acting in a private
capacity and not as a state agent. Here, the police
officer had not been involved in the search until the
drugs were discovered. Although the officer’s
presence at the time of the search raised the
possibility that police influenced how the security
guard conducted the search, mere possibility of
influence was insufficient to prove actual influence:
[T]there is no evidence before us to suggest that the
police exercised influence over whether or how to
conduct [the security guard’s] search. There was
evidence before the trial judge that it was
Northlands’ policy to search some entrants to
Capital EX for weapons or drugs that would pose a
risk to the safety or health of other patrons. While
police officers were contracted to assist in
implementing that policy, Northlands required no
authority or instruction from the police to search
entrants to Northlands’ premises. [The security
guard] testified that he decided to search the
[accused] and her companion because they were
carrying what he considered to be “very large”
purses ... . On the evidence before us, the
unavoidable conclusion is that the [accused’s] purse
would have been searched in the manner it was
searched, irrespective of police presence. We are
not swayed from this conclusion by [the security
guard’s] reliance on his past police training and
experience in conducting the search. Indeed, it
would have made sense for Northlands to retain
someone with that professional background to
promote security checkpoint searches that are both
effective and efficient. [para. 33]

The Crown argued that the security guard
was not acting as an agent of the state
when he searched the accused’s purse and
therefore the search was not subject to
Charter scrutiny. The accused, to the contrary,
submitted that the security guard, as an experienced
former police officer, was acting as an agent of the
state, essentially working as an extension of the
authority conferred upon the police officer, who
had been assigned to work with the security guards
and was present throughout.
The judge ruled that the security guard was acting in
a private capacity and therefore his actions were not
subject to s. 8 Charter scrutiny. The judge, relying on
expert drug evidence, then convicted the accused of
possessing cocaine for the purpose of trafficking and
two counts of failing to comply with release
conditions.

Alberta Court of Appeal
Th e a c c u s e d a p p e a l e d h e r
convictions arguing, among other
things, that the trial judge erred in
finding that the Charter did not
apply to the search that led to the discovery of the
cocaine. In her view, the security guard was acting
as an agent of the police, being implicitly authorized
or requested by police to search entrants. The
security guard was a former police officer who relied
on his police training, the police had been hired as
extra security at the event and were present at the
site, and an officer was positioned close to the
security guard at the checkpoint.

This ground of appeal was dismissed. A new trial
was ordered, however, on the basis that the trial
judge erred in admitting the opinion evidence of
trafficking.
Complete case available at www.albertacourts.ab.ca

PAGE 7

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Volume 14 Issue 4 - July/August 2014

	
 JUDGE	
 NEED	
 NOT	
 ENTERTAIN	
 
IMPLAUSIBLE	
 CONJECTURE
R. v. Polley, 2014 NSCA 71
A van seen driven erratically left the
highway, rolled over several times
and ended up in a ditch. Witnesses
described seeing two male occupants,
one driving the van and the other
seated in the right front passenger seat. One man
(the accused’s brother-in-law) was observed get out
of the front passenger seat while the accused (the
van owner and a prohibited driver) was found lying
on the ground about 60 feet from the vehicle,
apparently knocked out but still alive. Both men
emitted a strong smell of alcohol. The accused was
charged with over 80mg%, impaired driving, driving
while disqualified and dangerous driving.

Justice Saunders, speaking for the Court of Appeal,
rejected this alternative theory as “implausible
conjecture”:
Respectfully, such an hypothesis cannot be
seriously advanced. There is nothing in this
record to offer even the remotest support for the
[accused’s] fanciful suggestions. To embark upon
such idle speculation would constitute legal
error. A reasonable doubt based upon an
inference unsupported by facts is a
misapplication of the law. [para. 18]

She continued:

Nova Scotia Provincial Court
At trial the accused did not testify nor call
any evidence. His brother-in-law said he
could not recall who was driving the van
at the time of the crash. Witnesses
identified the brother-in-law as the man they saw
seated in and getting out of the right front passenger
seat, using the passenger side door. Police
photographs taken later showed what was described
as a seatbelt rash on the brother-in-law’s right
shoulder and several cuts to his right arm and hand.
The judge convicted the accused of impaired
driving, dangerous driving, and driving while
disqualified. He was sentenced to five years in
prison.

Nova Scotia Court of Appeal
The accused argued, in part, that
the judge was wrong to conclude
that his brother-in-law was the
passenger and deduce that he was
the driver. He suggested that his brother-in-law
could have been driving but ended up in the
passenger seat due to the forces of physics The
accused claimed that when the van rolled over he
could have been ejected from the passenger seat and
thrown through the windshield.

PAGE 8

[T]he Crown was able to establish a strong
circumstantial case based upon the following
facts. The van and the scene of the crash were
littered with cans and bottles which had once (or
still) contained alcohol. Both men had a strong
smell of alcohol on their breath suggesting that
each had been drinking before or at the time of
the crash. The [accused] was found lying
shirtless and unconscious in the woods some 60
feet away from where the van came to rest. His
brother-in-law ... was seen seated in the right
front passenger seat and getting out of the van
using that passenger side door. He was wearing
a bloodied white t-shirt and had many
lacerations to his right arm and hand, which he
could not explain. Photographs taken by the
police showed blood on the inside of the right
front passenger door and armrest. Such
evidence, when taken together, would certainly
be enough to lead [the trial judge] to the
perfectly rational and logical conclusion that the
[accused] was driving the van when it left the
highway and that he was drunk at the time.
It was not the trial judge’s responsibility to
reconstruct how this mishap occurred or explain
the occupants’ kinesics during the crash with
scientific certainty. His obligation was to decide
whether the Crown had proved all essential
elements of the offences charged, beyond a
reasonable doubt. He did exactly that. He stated
and applied the law correctly. He did not
misconstrue or ignore material evidence. He
made strong findings of fact. He drew
reasonable inferences from those facts. He
carefully reviewed the important evidence and
provided clear and cogent reasons to explain the
basis for his conclusions. [paras. 23-24]

Volume 14 Issue 4 - July/August 2014
The judge made sound factual findings and
inferences, properly applied the law to the evidence
and his analysis and conclusions were fully
supported. The accused’s appeal against conviction
was dismissed.
Complete case available at www.canlii.org

DUAL	
 PURPOSE	
 STOP	
 LAWFUL:	
 
DRIVING	
 OFFENCE	
 WITNESSED
R. v. Hugh, 2014 BCSC 1426
Marihuana Enforcement Team officers
carried out an investigation and
obtained search warrants for a leased
commercial property as well as a
residence. Part of the grounds for the
search warrant involved a uniform officer executing
a traffic stop at the request of investigators doing
covert surveillance. The uniformed officer was told
over the radio that the occupant of a vehicle had
been driving poorly and was making lane changes
without signalling. He did not know the specific
lane changes or the location of them. The uniformed
officer was able catch up to a black BMW,
confirmed with investigators that it was the correct
vehicle and that it had made lane changes without
signalling. He activated his emergency lights and the
BMW pulled over. After being told that he was being
stopped for making lane changes without signalling,
the accused (driver) told the officer that he had
answered a call on his cell phone while driving. He
was issued a ticket for driving with an electronic
device. The request for the traffic stop was not
disclosed in the ITO. As a result of the investigation
and search warrants, the accused was charged with
production of marihuana and two counts of
possessing marihuana for the purposes of trafficking.

The accused argued that the dual‑purpose traffic
stop required "a legitimate concern for public safety
authorized by traffic legislation," but there was no
danger to the public. In his view, the traffic stop was
unlawful and the information derived from it should
have been excised from the ITO. The Crown, on the
other hand, submitted that as long as the traffic
offence was legitimately witnessed, the dominant
purpose for the stop (such as identifying the driver)
was irrelevant.
Justice Schultes agreed with the Crown. The
investigator saw a lane change in violation of British
Columbia’s Motor Vehicle Act (MVA) and relayed this
to the uniformed officer. Changing lanes without
signalling under s. 151(c) MVA does not require that
the public be endangered. This was not the same as
a stop being a mere ruse or saying the offence did
not occur. The fact a ticket was issued for a different
offence also did not render the stop unlawful. The
officer, after speaking to the accused, exercised
“independent judgment by looking into the causes
of the violation of which he had been informed, and
not acting as a mere tool of the drug investigators.”
There was no Charter breach with regard to the stop.
The judge did, however, note the police were less
than candid in leaving the impression that the
vehicle was stopped for a purpose entirely unrelated
to the investigation. The search warrant was upheld
and the evidence was admissible even though there
were other problems with it.
Complete case available at www.courts.gov.bc.ca

BY THE BOOK:
British	
 Columbiaʼs	
 Motor Vehicle Act

British Columbia Supreme Court
The search warrant affiant and member of
the covert surveillance team testified the
plan was to complete a dual‑purpose
traffic stop to identify the accused if “a
moving motor vehicle violation was observed”. He
testified he saw the accused make a left turn and a
lane change without signalling, at which point the
uniformed officer conducted the stop.

Signals on Turning
s. 151 (c) A driver who is driving a vehicle on a
laned roadway
...
(c) must not drive it from one lane to another without first
signalling his or her intention to do so by hand and arm or
approved mechanical device ... .

PAGE 9

Volume 14 Issue 4 - July/August 2014

s.	
 489(2)	
 CC	
 DOES	
 NOT	
 REQUIRE	
 
UNRELATED	
 PURPOSE
R. v. R.M.J.T., 2014 MBCA 36
During an investigation into sexual
offence allegations, the police
approached the accused’s wife (and
complainant’s mother) and requested
her consent for the seizure of the
accused’s computer. The wife agreed and officers
attended the family home, were shown the
computer and seized it. Police subsequently
obtained a warrant to search the computer (and
other items seized) and found fragments of sexually
explicit emails in nature on the computer. The
accused was subsequently charged with sexual
assault, sexual interference, voyeurism (surreptitious
recording), making child pornography, possessing
child pornography, extortion and inviting sexual
touching.

BY THE BOOK:
Seizure	
 without	
 warrant: Criminal Code
s. 489(2) Every peace officer, and every public
officer who has been appointed or designated
to administer or enforce any federal or
provincial law and whose duties include the
enforcement of this or any other Act of
Parliament, who is lawfully present in a place pursuant to a
warrant or otherwise in the execution of duties may, without
a warrant, seize any thing that the officer believes on
reasonable grounds
(a) has been obtained by the commission of an offence
against this or any other Act of Parliament;
(b) has been used in the commission of an offence against
this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this
or any other Act of Parliament.

Manitoba Court of Queen’s Bench
The judge found the seizures of the
computer by police did not infringe the
accused’s s. 8 Charter rights. As for the
computer, he noted that the mother did
not have the authority to consent to the computer’s
seizure. However, the mother lawfully consented to
the police entry to her home and the warrantless
seizure of the computer was then justified under s.
489(2) of the Criminal Code. The judge also ruled
that, even if there was a s. 8 breach, the evidence
was admissible under s. 24(2). The accused was
convicted of several sex-related offences.

Manitoba Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions arguing, among other
things, that the computer seizure
was not authorized under s. 489(2)
and therefore breached of s. 8.
He contended the application of s. 489(2) to the
seizure of the computer was unconstitutional for
three reasons:

1. The police entered his house specifically to
seize his computer. He suggested that the
seizing officer must be engaged in a lawful
activity for a purpose unrelated to the seizure.
2. The police entered his home unlawfully. The
mother could not consent to police entering
and searching for the computer prior to
seizing it.
3. The reasonable grounds requirements of s.
489(2) were not satisfied. There was no
evidence that the police officers subjectively
believed that the computer had been used in
the commission of an offence or would afford
evidence in respect of the commission of an
offence, nor did police say they were relying
on s. 489(2).
The Crown submitted that the trial judge
appropriately applied the legislation and noted the
police obtained a warrant before searching the
computer’s contents (where the expectation of
privacy was notably high).

PAGE 10

Volume 14 Issue 4 - July/August 2014

(Un)related Purpose?
In rejecting the accused’s first argument, Justice
Cameron, speaking for the Court of Appeal,
reviewed the case law and made the following
observations about s. 489(2):
•
•

•

•

Its purpose is the preservation of evidence.
It is a self-contained provision that does not
require the seizing officer to meet all of the
requirements of the plain view doctrine.
Unlike the plain view doctrine, it is not
necessary for the evidence seized to have
been discovered in the course of a search in
an unrelated investigation.
The place of seizure alone (whether a private
home or public place) does not render the
provision unconstitutional. The issue is
whether the police were lawfully present, not
simply the place where the seizure took place.

(Un)lawful Entry?
The accused maintained that the mother was not
able in law to consent to the police entering the
family home to seize his computer. The issue though,
as the Court of Appeal noted, was not whether the
mother could consent to the police searching the
contents of the computer (where the accused had a
very high expectation of privacy in the information it
contained), but whether she could consent to the
police entry into the family residence where the
computer was located. Justice Cameron found the
police entry authorized. The mother was the
accused’s wife and lived in the home. She had the
authority to provide consent to enter the area where
the computer was located (a shared area of the
home) and, as found by the trial judge, provided
informed consent.

Reasonable Grounds?
For an officer to have reasonable grounds, “there
must be a subjectively held belief by the police as
well as a readily ascertainable objective belief.” In
this case, neither officer testified as to their
subjective belief nor that they were relying on s. 489
(2) to justify the seizure. But the Court of Appeal
found this did not matter. First, a trial judge can infer
subjective belief as to the existence of reasonable

grounds where the police officer does not
specifically testify to such a belief as long as such an
inference was supported by the evidence. Here,
there was sufficient evidence on which the trial
judge could infer that the officers subjectively
believed there were reasonable grounds that the
computer was used in the commission of an offence
and/or that it would afford evidence of an
offence. Second, s. 489(2) can apply even when a
police officer testifies that a seizure was founded on
a different basis (such as consent). ”Jurisprudence
has demonstrated that a seizure made under
mistaken authority is not necessarily fatal where
authority otherwise exists,” said Justice Cameron.
“The officers met the requisite conditions to seize
the computer pursuant to s. 489(2) of the Code. The
fact that they did not state that they were relying on
that section is not fatal. Also not fatal is the fact that
they were relying on different authority, that being
the consent of the mother, to seize.” The seizure of
the computer was lawful under s. 489(2) and the
accused’s appeal was dismissed.
Complete case available at www.canlii.org

DOCUMENTS	
 IN	
 POSSESSION	
 
USED	
 AS	
 CIRCUMSTANTIAL	
 
EVIDENCE:	
 NOT	
 INADMISSIBLE	
 
HEARSAY
R. v. Black, 2014 BCCA 192
The police executed a warrant to
search for electricity theft and
discovered a marihuana grow
operation in an outbuilding on a
rural property. The outbuilding was
dedicated solely to the grow operation and the
accused was seen to manipulate the lock as she
exited it on the morning the warrant was executed.
An unsigned and undated one-page handwritten
note was found in a grow room in the outbuilding
addressed to someone named “Chrissy,” containing
what appeared to be a “to-do” list of tasks related to
the grow operation. The note directed "Chrissy" to
move upstairs plants and set something, as well as
report that “Gary never did finish the fan, I will do
this morn.” The accused was charged with drug
offences.

PAGE 11

Volume 14 Issue 4 - July/August 2014

British Columbia Provincial Court
The judge concluded that “Chrissy” was
the accused and inferred from the list of
tasks that she was involved in the
production of marihuana at the grow
operation. Based on the circumstantial evidence she
was convicted of producing marihuana and
possessing it for the purpose of trafficking.

British Columbia Court of Appeal
The accused claimed, among
other things, that the note was
inadmissible hearsay and the trial
judge erred in relying on its
contents as evidence that she was involved in the
grow operation. The Crown, on the other hand,
suggested the note was not being tendered for the
truth of its contents. Instead, it was a document
found in the accused’s possession and was
admissible as circumstantial evidence of her
association with the outbuilding and her
involvement with the grow operation.

Documents in Possession Rule
The long-standing and well-established “documents
in possession rule provides that the contents of a
document found in possession of the accused may
be used as circumstantial evidence of the accused’s
involvement in the transactions to which the
documents relate.” The Court of Appeal found the
content of the note relating to the grow operation
was circumstantial evidence of the accused’s
involvement in the transactions to which they
related. The accused was found by the trial judge to
be “Chrissy”. Justine Levin went on to state:
The inference of the [accused’s] involvement in
the grow operation does not derive from whether
it is true that the upstairs short plants should be
moved downstairs or that she “knew how to set”
something and should “just keep on hitting the
set button”. It is derived from the location of the
Note in the outbuilding, containing a list of tasks
to do in relation to the grow operation which
occupied the whole of the outbuilding, to which
the [accused] was one of a few people who had
access and to whom the Note was addressed.
[para. 39]

The note was admissible under the documents in
possession rule as circumstantial evidence and was
not relied upon by the trial judge as the truth of its
contents (inadmissible hearsay inferences). The
accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

ALL	
 CIRCUMSTANCES	
 TO	
 BE	
 
CONSIDERED	
 IN	
 REASONABLE	
 
GROUNDS	
 DETERMINATION
R. v. Brown, 2014 ONCA 525
Police received information from a
reliable confidential source that a
known drug trafficker would be
receiving a quantity of drugs from his
supplier, whose street name was
“Dee”. This transaction was expected to take place
after midnight on a specified date. The police had
previously videotaped Dee when he was sitting on a
bench with the known drug trafficker. At 1:18 am
police saw a silver Nissan Sentra drive past and park
a block away from the drug trafficker’s residence. An
officer drove towards the vehicle at 30-35 km/h with
his high beams on in an attempt to identify the
occupants. He believed that Dee was seated in the
driver’s seat of the Nissan and the drug trafficker was
beside him in the passenger seat. Police approached
the vehicle with guns drawn and arrested the
accused. He was found in possession of 28.9 grams
of powder cocaine and 13 grams of crack cocaine.

Ontario Superior Court of Justice
The officer said his identification of the
accused was based mostly on the fact that
he was a black male with his hair in a
ponytail on the top of his head - the same
way Dee's hair was styled in the video recorded
earlier. He also relied on "the face in general”,
saying his initial focus was on the driver and he was
only able to glance quickly at the passenger.
Although the person on the passenger side of the
vehicle resembled the known drug trafficker, it
turned out not to be him.
The accused adduced evidence from two witnesses
(an articling student and a forensic engineer

PAGE 12

Volume 14 Issue 4 - July/August 2014

“[I]n determining whether the grounds for arrest were objectively reasonable, the trial judge
was entitled to consider... all the surrounding circumstances.”
i. the information received from a reliable
informant that a drug dealer would be
receiving drugs from his supplier (the
[accused], who was known to the arresting
officer) in the early morning hours of the
day in question;
ii. the observation of a vehicle parked on a
street near the dealer’s home at 1:18 a.m.
on the day in question;
iii. the officer’s observations of the [accused] in
the company of the drug dealer on two
previous occasions, the last of which was
two and one-half months earlier, and his
review prior to the arrest of a video taken of
the [accused] on that occasion; and
iv. the [accused’s] distinctive hairstyle, which
consisted of a ponytail flipped up at the
back and worn at the top of his head.
These circumstances provided important context
to the officer’s identification of the [accused] as
he drove past the parked car with the highbeams
of his truck on. [reference omitted, para. 4]

specializing in accident reconstruction) who
conducted drive-by simulations replicating the
circumstances of the night in question. Both testified
that when they drove past the Nissan Sentra with
their high beams on they could not identify any of
the occupants’ facial features. In the accused’s view,
if the officer was unable to make out the accused’s
facial features, he could not have identified him and
could not have had reasonable grounds to support
his belief that the accused was in the vehicle, selling
or intending to sell drugs. Since the arresting officer
could not have had reasonable grounds for the
arrest, the accused opined that the drug evidence
should be excluded under s. 24(2) of the Charter.
The judge concluded that the constellation of
circumstances relied upon by the arresting officer
objectively amounted to reasonable and probable
grounds, even considering the testimony of the
defence witnesses. In addition, the judge found that
even if the arrest was unlawful, the admission of the
evidence would not bring the administration of
justice into disrepute. The accused was convicted of
possession for the purpose of trafficking and
sentenced to 13 months in jail.

Ontario Court of Appeal

As for reconciling the officer’s evidence with the
testimony of the defence witnesses that it was
impossible to make out the facial features of the
occupants of the vehicle as they drove past in their
simulations, the Court of Appeal upheld the trial
judge’s understanding of the evidence:

Th e a c c u s e d a p p e a l e d h i s
conviction arguing that the trial
judge erred in finding there were
objectively reasonable grounds for
his arrest. He also claimed that the evidence
obtained from the search of his person and vehicle
ought to have been excluded under s. 24(2). The
Court of Appeal, however, rejected the accused’s
submissions, stating:
First, in determining whether the grounds for
arrest were objectively reasonable, the trial
judge was entitled to consider, as he did, all the
surrounding circumstances. Those circumstances
included:

A careful reading of the officer’s evidence
indicates that the most important factor in his
identification of the [accused] was his
distinctively placed ponytail, a feature with
which the officer was familiar, based on his
earlier observations. The [accused’s] hair had
been cut and the ponytail removed when the
defence witnesses performed their simulations.
As well, the officer did not say he observed any
specific features, but said he recognized the face
“in general”.
In our view, the trial judge’s acceptance of the
officer’s evidence was not inconsistent with his
acceptance of the evidence of the defence
witnesses who said they were unable to observe
facial features. [paras. 5-6]

PAGE 13

Volume 14 Issue 4 - July/August 2014
Since both the subjective and objective requirements
of reasonable grounds were satisfied, the accused’s
appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

Editor’s note: Additional case facts taken from R. v.
Brown, [2012] O.J. No. 3605 (OntCA)

SPECULATION	
 ABOUT	
 OFFICERʼS	
 
MOTIVES	
 IMPROPER
R. v. Brodeur, 2014 NBCA 44
A member of a roving traffic unit with
a police service dog was patrolling
the Trans-Canada Highway. While
sitting in an unmarked vehicle in a
110 km/h posted zone, he captured
three radar readings: 120 km/h, 125 km/h and 130
km/h. He believed a black vehicle driven by the
accused and passing other vehicles was travelling at
the 130 km/h speed. The officer pursued the accused
vehicle for about 1.5 km before turning on his
flashing police lights and pulling him over. The
officer approached the passenger side, smelled
perfume and saw an open bottle of Axe perfume in
plain view in the vehicle’s console. As the smell of
perfume dissipated the officer could then smell raw
marihuana and arrested the accused. He searched
the vehicle incident to arrest and discovered 14
pounds of marihuana in ziplock bags, which were
not vacuumed sealed. The police service dog was
never deployed during the stop. The accused was
charged with possessing marihuana for the purpose
of trafficking.

accused said he was not speeding and believed the
officer stopped the wrong vehicle. The judge
accepted much of the accused’s evidence and
rejected the officer’s. Although he found the officer
stopped the right vehicle travelling at 130 km/h, the
judge found the officer was deliberately misleading
the court. As well, the judge used the officer’s
training, experience and resources as a basis for
determining his motives and truthfulness. The judge
found the officer’s mission was to stop and catch
drug traffickers. The judge found the accused was
arbitrarily detained under s. 9 of the Charter,
excluded the evidence under s. 24(2) and entered a
not guilty verdict.

New Brunswick Court of Appeal
The Crown appealed by arguing
that the trial judge erroneously
grounded some of his critical
factual conclusions on speculation
and conjecture, including findings on the officer’s
motives and truthfulness based on his training,
equipment, resources and duties. Justice Bell,
delivering the Court of Appeal’s decision, agreed.
Even though the officer was assigned to a traffic unit
patrolling the only major arterial highway and was
trained in the use of his radar unit, his Pipeline
training and the presence of a police dog caused the
trial judge to speculate about the officer’s purpose
for the stop:

New Brunswick Court of Queen’s Bench
The officer, a 23 year police veteran with
previous experience in a drug section,
testified that, based upon his experience
and training, perfume is used to
camouflage marihuana odour and the perfume smell
was an indication to him that the vehicle might be
carrying contraband drugs. He had taken “Pipeline”
training, which teaches police officers about signs
and indicators of other offences that might be taking
place while performing a routine traffic stop. The

PAGE 14

In my view, speculating about [the officer’s]
motives for stopping [the accused’s] vehicle
based upon equipment, resources available and
direction of traffic is tantamount to questioning
the motives or credibility of a police officer
accused of excessive force because he happens
to carry a baton or a revolver and is trained in its
use. The approach adopted by the trial judge
appears to advance the notion that Charter
violations will be easier to prove when the
arresting officer testifying is highly trained and
has significant resources available to him or her,
the presumption being that the police officer
would use that knowledge and equipment for an
improper purpose. The converse, of course, is
that where police officers are poorly trained and
have limited resources available, the court will
be less inclined to be skeptical of their motives

Volume 14 Issue 4 - July/August 2014
and less inclined to find a Charter breach. I need
make no comment on the legitimacy of such an
approach.

Saskatchewan Provincial Court

A proper inference contains two essential elements:
(1) it must be rational and (2) it must be based on the
evidence. Here, the trial judge’s conclusion about
the officer’s motives and truthfulness, among other
findings, was neither rational nor based on the
evidence. As a result of these legal errors, the
Crown’s appeal was allowed, the accused’s acquittal
was set aside and a new trial was ordered.
Complete case available at www.canlii.org

REASONABLE	
 SUSPICION:	
 EACH	
 
CIRCUMSTANCE	
 NOT	
 TO	
 BE	
 
CONSIDERED	
 SEPARATELY
R. v. Yates, 2014 SKCA 52
At about 1:20 am an officer heard a
motor vehicle create a very loud
noise while passing by the police
station. He searched for and found
the suspect vehicle, then followed it.
The vehicle intermittently travelled at speeds of 70 to
80 km/h in a 50 km/h zone and also made a very
abrupt move from the left lane in which it was
traveling into the right lane and then abruptly move
back into the left lane for no apparent reason. The
officer pulled the vehicle over to investigate the
traffic concerns. When the officer attended at the
driver side window, he told the accused why he had
been stopped and asked him to produce his driver’s
licence. At this time, the officer detected the odour
of alcohol from the vehicle through its open
window. He saw that the accused’s eyes were
“somewhat bloodshot” and glossy. Based on these
observations, the officer suspected the accused had
alcohol in his body and, at 1:27 am, asked him to
step out of his vehicle and gave an ASD demand.
The accused complied and a “fail” reading
registered. The accused was arrested for impaired
driving, advised of his right to counsel, a breath
demand was made, and he was transported to the
police station. After he spoke to a lawyer two breath
samples in excess of 80 mg% were obtained and the
accused was charged accordingly.

The judge accepted the officer’s
observations as evidence but concluded
that the reasonable suspicion standard for
demanding an ASD sample had not been
met. In her view, the officer did not consider the
source of the alcohol odour prior to making the ASD
demand. Therefore, the officer did not have
reasonable grounds to suspect that the accused had
alcohol or a drug in his body at the time of the
demand. Thus the requirements of s. 254(2) Criminal
Code had not been met. The judge found violations
of ss. 8 and s. 9 of the Charter and the results of the
ASD test and Intoxilyzer readings were excluded.
The accused was acquitted.

Saskatchewan Court of Queen’s Bench
A Crown appeal was unsuccessful. The
appeal judge found the Crown bore the
burden of adducing evidence to support
the objective reasonableness of the
officer’s suspicion. Here, there were insufficient facts
to infer that the accused was the source of the odour
as opposed to his vehicle. “Only if the accused was
alone in the vehicle could such an inference be
drawn,” said the appeal judge. Since the Crown
failed to lead evidence on the number of persons in
the vehicle, the smell of alcohol could not form part
of the objective component of the police officer’s
reasonable suspicion to make the demand. As a
result, the findings of ss. 8 and 9 Charter breaches
were sustained and the accused’s acquittal upheld.

Saskatchewan Court of Appeal
The Crown appealed again
arguing, in part, that the police
officer did not breach the
accused’s ss. 8 and 9 rights. In
the Crown’s opinion, the appeal court judge
misinterpreted the standard of “reasonable grounds
to suspect” and misapplied the standard to the
relevant facts.
Justice Klebuc first reviewed the evidentiary burdens
in this case. An accused carries the burden of
proving a breach of their Charter rights. A

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Volume 14 Issue 4 - July/August 2014
warrantless search or seizure is presumed to be
unreasonable. Thus, an accused can establish a s. 8
Charter violation by demonstrating that a warrantless
search or seizure took place. Then, the onus shifts to
the Crown to show that the search or seizure was
reasonable. An ASD demand under s. 254(2)(b) is a
warrantless search and will only be reasonable if it is
authorized by law, if the law itself is reasonable, and
if the manner in which the search was carried out is
reasonable.

BY THE BOOK:
Breath	
 Demands: Criminal Code
254(2)

If a peace officer has reasonable

grounds to suspect that a person has alcohol
or a drug in their body … the peace officer
may, by demand, require the person to ... (b)
to provide forthwith a sample of breath that, in

Reasonable Grounds to Suspect

the peace officer’s opinion, will enable a proper analysis to

The Crown suggested that the lower court applied
the higher evidentiary burden of “reasonable
grounds to believe” to an ASD demand, rather than
the lower standard of “reasonable grounds to
suspect” that the driver had alcohol in his or her
body. The accused, on the other hand, contended
that the smell of alcohol flowing out of the window
of his vehicle, his “somewhat bloodshot” and glossy
eyes, his violation of the speed limit, and his erratic
driving did not, collectively, amount to a
“reasonable suspicion” that he had alcohol in his
body.
Justice Klebuc found the authority of a police officer
to demand a driver provide a breath sample for
analysis into an ASD under s. 254(2)(b) on the basis
of “reasonable grounds to suspect” was less onerous
than the standard of “reasonable grounds to believe”
required under s. 254(3) to demand a breath sample
for the purpose of determining whether the driver’s
ability to operate a motor vehicle was impaired by
alcohol. He found a valid demand under s. 254(2)(b)
required:

be made by means of an approved screening device and, if
necessary, to accompany the peace officer for that purpose.

... ... ...
254(3)

If a peace officer has reasonable grounds to

believe that a person is committing, or at any time within
the preceding three hours has committed, an offense under
section 253 as a result of the consumption of alcohol, the
peace officer may, by demand made as soon as practicable,
require the person (a) to provide, as soon as practicable, (i)
samples of breath that, in a qualified technician’s opinion,
will enable a proper analysis to be made to determine the
concentration, if any, of alcohol in the person’s blood ... .
[emphasis added]

driver has alcohol in his or her body is
reasonable.”
He continued:

• “the police officer must subjectively (or
honestly) suspect the detained driver has
alcohol in his or her body; and
• the police officer’s subjective suspicion must
be based on a constellation of objectively
verifiable circumstances, which collectively
indicate that the suspicion that the detained

Consequently, the constellation of circumstances
need not be sufficient to prove the detained
person actually has alcohol in his or her body.
N o r s h o u l d e a ch c i rc u m s t a n c e i n t h e
constellation be separated, analysed and
evaluated apart from the constellation. Rather,
the adequacy of a police officer’s suspicion is to
be assessed under the de novo analysis called
for in R. v. MacKenzie using this test: would a
reasonable person, standing in the shoes of the
investigating police officer and aware of all of
the objectively verifiable evidence, reasonably
suspect the driver had alcohol in his or her

“It is an error in law to dissect the constellation of circumstances and individually test each
circumstance or the absence of other circumstances.”
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Volume 14 Issue 4 - July/August 2014
body? The reviewing court is not to consider
whether the investigating officer’s suspicion was
accurate or whether other inferences could be
drawn from the constellation of circumstances,
or to consider whether the investigating officer
could have taken further steps to confirm or
dispel a prima facie reasonably held suspicion
that alcohol was present in the driver’s body. It is
an error in law to dissect the constellation of
circumstances and individually test each
circumstance or the absence of other
circumstances. [para. 34]

And further:

Justice Klebuc concluded that the lower courts
erroneously required the Crown to prove the higher
standard of reasonable belief as opposed to the
lower standard of reasonable suspicion. It was not
necessary for the Crown to establish that the
accused probably had alcohol in his body. The
proper standard of reasonable suspicion only
required that the Crown prove a reasonable
suspicion that a driver possibly had alcohol in his or
her body. Thus, the Crown did not have to eliminate
other possible sources for the alcohol odour coming
from the accused’s vehicle. Furthermore, the full
constellation of circumstances leading the officer to
form his suspicion that the accused had alcohol in
his body must be considered:
In my respectful view, the requirement that an
investigating officer must have direct proof of a
driver having alcohol in his or her body in order
to found a reasonable suspicion that the driver
has alcohol in his or her body is inconsistent
with the prescribed standard and the
requirements of s. 254(2)(b). ...[T]he applicable
evidentiary standard only requires the
investigating officer to have a reasonable
suspicion that a driver has alcohol in his or her
body, based on a constellation of objective
events. The constellation of necessity may
include factors capable of an innocent or
innocuous explanation. ... “[F]actors that give
rise to a reasonable suspicion may also support
completely innocent explanations. This is
acceptable, as the reasonable suspicion standard
addresses the possibility of uncovering
criminality, and not a probability of doing
so.” [reference omitted, para. 38]

There is no onus on the Crown to adduce
evidence to support or disprove the alternative
scenarios of the defence as to the possible
source of the odour of beverage alcohol. The
Crown need only prove that the inferences
drawn by the investigating officer are rational
and reliable on the basis of the evidence it has
adduced and that, on the whole of it, the facts
known to the investigating officer and inferences
of fact drawn by the investigating officer
reasonably support a suspicion that the accused
had alcohol in his or her body.
By holding the Crown to dispel speculation that
other persons were in the vehicle or to
definitively show that the [accused] was the
source (or was the probable source) of the odour
of beverage alcohol, the trial court and the
appeal court mistakenly elevated the evidentiary
and persuasive burden imposed on the Crown
and held the Crown to establish the validity of
the s. 254(2)(b) demand on a standard greater
than “reasonable suspicion.” [paras. 45-46]

Applying the law to the facts in this case, the Court
of Appeal found that “a reasonable person standing
in the shoes of the officer and aware of the entire
aforementioned objective factors, would reasonably
suspect that the [accused] had alcohol in his body.”
The accused was the driver, he drove at speeds
significantly greater than the posted speed limit,
drove in an erratic manner, made excessive noise
while passing the police station at approximately
1:00 am, an odour of alcohol beverage emanated
from the driver’s door window, his eyes were
“somewhat bloodshot” and glossy, and he stopped
his vehicle in a safe manner. “The possibility of
another person or source for the odour did not
undermine the rational inference that the odour
might have been coming from the accused. “Given
the officer had smelled the odour of beverage
alcohol flowing out of the vehicle’s open window,
the officer could rationally infer that the [accused]
was the source of the odour,” said Justice Klebuc.
“Moreover, nothing in the evidence before the trial
court eliminated the [accused] as a possible source
of the odour.”

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Volume 14 Issue 4 - July/August 2014
The s. 254(2)(b) demand and resulting ASD test did
not amount to an unreasonable search or seizure nor
was there an arbitrary detention. The accused’s
acquittal was set aside and a new trial was ordered.

A Different View

present who may have needed help. In the basement
police saw evidence of drug dealing, including
cocaine, scales, cash and debt lists. The police then
obtained a search warrant and found a large quantity
of cocaine and cash. The accused was charged with
drug offences.

Justice Jackson, in dissent, concluded
there were no errors made by the trial
judge in finding ss. 8 and 9 breaches.
“Having regard for the officer’s agreement
that the smell of alcohol was not coming from the
breath or body of the accused, the totality of the
circumstances could only amount to a ‘mere
suspicion’ that [the accused] had alcohol in his body
at the time the demand was made,” she said. Since a
new trial had been ordered by the majority, she
found it unnecessary to address the trial judge’s
decision to exclude the evidence under s. 24(2).

Ontario Superior Court

Complete case available at www.canlii.org

Ontario Court of Appeal

The officer testified that he did not know
exactly who was who regarding the 911
call or whether there wasn’t another
person there who had been involved in
the reported fighting. The judge rejected the
accused’s challenge to the warrantless search. He
found no s. 8 Charter breach and, even if there was
a violation, would have nonetheless admitted the
cocaine and money under s. 24(2). Convictions
followed.

911	
 ENTRY:	
 CURSORY	
 SEARCH	
 
JUSTIFIED	
 IN	
 CIRCUMSTANCES

The accused again challenged the
warrantless search of his home.
Although he agreed that the police
R. v. Depace, 2014 ONCA 519
could forcibly enter his home in
response to the 911 call, he argued they were not
A grandmother called 911 after
entitled to go to the basement where they saw the
receiving a call from her 11 year old
drug evidence in plain view. In his view, the exigent
grandson that his parents were
circumstances permitting entry ended once the
fighting. The police attended and,
police found the mother and child safe and
after they knocked and identified
unharmed, and all three occupants of the home
themselves, saw the kitchen light turned off and
were accounted for. He
heard a dog barking. But
further submitted that the
no one answered the “[I]n the context of a 911 emergency call, the
police could have assured
door. The police checked
themselves there was no
police do not need to take the word of the
their records on the
one else present by asking
home’s occupant. They occupant that everything is alright. They are
the occupants. The police
had the accused’s name
entitled to satisfy themselves. The extent of had heard no noise or
and photograph as well as
anything else to suggest
information that he was what they may need to do will depend on the
that there might be
associated with the Hell’s
particular circumstances.”
someone else present.
Angels. After 25 minutes
the police forcibly entered the home. They saw the
The Court of Appeal rejected the accused’s
accused, who appeared to be drunk, as well as a
submissions. “The fact that the occupants denied
woman and boy on the main floor of the house,
entry to the police for 25 minutes made the 911
which was relatively small and open. An officer
situation much more acute and suspicious,” said the
decided to check both upstairs and downstairs for
Court. It continued:
officer safety and to make sure there was no one else

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Volume 14 Issue 4 - July/August 2014
As the Supreme Court said in R. v. Godoy ..., in
the context of a 911 emergency call, the police
do not need to take the word of the occupant
that everything is alright. They are entitled to
satisfy themselves. The extent of what they may
need to do will depend on the particular
circumstances. In this case, the grandmother did
not know who might be in the house as she was
called by her grandson. [In] Godoy, the court
stated the applicable principle as follows:
“While there is no question that one’s privacy at
home is a value to be preserved and promoted,
privacy cannot trump the safety of all members
of the house-hold.”

warrants, the accused (who had not yet been
approached or spoken to directly) became fidgety. A
second officer sitting in the police car radioed that
she could see the accused doing something behind
his back.
The officer speaking to the youths had safety
concerns because he was dealing with a group of
five young people. He told the accused he was
going to search him. The accused was handcuffed
and searched, in a cursory fashion, for weapons. The
officer found a baton in the small of the accused’s
back and a bag of cocaine. He was arrested for
possessing a weapon dangerous to the public peace
and possessing a controlled substance. Back at the
police detachment further drugs were found in his
possession.

In this case, the search was undertaken for two
legitimate purposes: to ensure no one else was
there either injured or frightened on the one
hand, or threatening on the other. The search
itself was cursory and non-invasive. [paras. 8-9]

British Columbia Provincial Court

Since there was no s. 8 breach, s. 24(2) was not
triggered and the evidence was admissible.
Complete case available at www.ontariocourts.on.ca

OFFICER	
 SAFETY	
 RENDERED	
 
DETENTION	
 &	
 SEARCH	
 LAWFUL
R. v. B.S., 2014 BCCA 257
At about 2:30 am two police officers
were on patrol in a marked police car
when they came across a group of
five young people (appearing under
the age of 19) walking down the road
in a residential area. One of the officers believed
they may have been intoxicated based on their
“buoyancy” and “body language”, which exhibited
some swaying as they walked. He decided to stop
and check to see if they were okay and to ensure
there was no threat of property damage, which, in
his experience, commonly occurred when young
people were intoxicated. The officer pulled his car
ahead of the group, got out and started talking to
them. The officer could smell liquor coming from
someone in the group. One of the youths tried to
walk away but was called back. He was exhibiting
symptoms of intoxication but denied drinking. As the
officer began to speak individually to the youths,
asking for identification and about outstanding

The accused testified that he believed he
was not free to leave once the officer
stopped the group. Although he was not
told directly that he could not leave, he
assumed he could not leave when the other youth
was called back. Another youth, however, testified
that she believed the group was free to leave. The
officer said he stopped the group under the Liquor
Control and Licensing Act and as a preventive
measure to talk to them and make sure they were
not so intoxicated that they were a danger to
themselves or to others’ property. He said he had no
intention of detaining the young people, believed
they were free to refuse to speak to him or to
produce their identification and were free to walk
away.
The accused argued his rights under ss. 8 and 9 of
the Charter had been breached. He submitted that
he had been arbitrarily detained when the officer
first approached the group. The subsequent search
and seizure of the drugs and baton were therefore
unlawful. Further, he contended that his rights under
s. 10(b) of the Charter and s. 25(2) of the Youth
Criminal Justice Act (YCJA) were violated because he
was not advised of his right to counsel immediately
upon his detention. In his view, the evidence should
have been excluded under s. 24(2).

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Volume 14 Issue 4 - July/August 2014
Although describing this case as a close call, the
judge concluded that the accused was not detained
when first stopped but was detained when the officer
began to question him. By that time though, the
officer had legitimate concerns for officer safety
which justified the search. Thus, the accused had not
been arbitrarily detained nor subject to an
unreasonable search. The safety concern also
entitled the officer to search the accused before
advising him of his rights under s. 10. Since there
were no Charter breaches, the evidence was
admitted. Even if there was a breach, the judge
would have admitted the evidence under s. 24(2).
The accused was convicted of three counts of
possessing a controlled substance for the purpose of
trafficking (cocaine, ecstasy, and LSD) and carrying a
concealed weapon.

British Columbia Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
convictions arguing that the trial
judge erred in finding no Charter
breaches nor a violation of the
YCJA. In his view, he was arbitrarily detained as
soon as the officer approached and stopped the
group, even before he was spoken to. He claimed he
reasonably believed that the direction for the other
youth to come back applied to him as well. The
Crown, on the other hand, argued that the trial judge
did not err in finding the accused was not detained
until his furtive gestures attracted attention and
raised concerns for officer safety, leading to the
search and the discovery of the baton and drugs.

BY THE BOOK:
Right	
 to	
 Counsel: Youth Criminal Justice Act
Arresting officer to advise young person of
right to counsel
s. 25(2) Every young person who is arrested or
detained shall, on being arrested or detained,
be advised without delay by the arresting
officer or the officer in charge, as the case may be, of the
right to retain and instruct counsel, and be given an
opportunity to obtain counsel.

the position of the suspect to conclude that he or she
is not free to go, and must comply with the
directions of the police,” said Justice Neilson for the
Court of Appeal. The factors considered in deciding
whether an interaction with police amounts to a
psychological detention include the circumstances
of the encounter, the nature of the police conduct
and the particular characteristics or circumstances of
the individual.
The Court of Appeal agreed this was a close call but
found the trial judge did not err in finding the
accused was not detained until questioned by
police:
•

Detention
Just because a person is delayed or kept waiting by
police does not necessarily mean they are
psychologically detained. “Whether there has been
a detention is determined by an objective test:
having regard to the entire interaction, would the
actions of the police cause a reasonable person in

Circumstances of the encounter. The
appearance and behaviour of the group
justified reasonable police inquiries. The officer
believed the group wandering down the street
at 2:30 am was under the legal drinking age
and, based on his experience, exhibited a
degree of exuberance and some mobility
characteristics that he associated with
intoxication and potential property damage.
This impression was confirmed when he
smelled alcohol on approaching the group, and
observed signs of impairment in one of the
youth.

“Whether there has been a detention is determined by an objective test: having regard to
the entire interaction, would the actions of the police cause a reasonable person in the
position of the suspect to conclude that he or she is not free to go, and must comply with
the directions of the police.”
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Volume 14 Issue 4 - July/August 2014
•

Nature of the police conduct. The officer had
no intention of detaining the group, believed
they were free to refuse to speak to him or
produce their identification and were free to
walk away. His tone was conversational, and he
had no physical contact with any of the young
people before his dealings with the accused.
He said he expected that once he finished
talking with each of them, he would be on his
way. Asking the young people for identification
and about outstanding warrants provided some
support for a conclusion the officer’s inquiries
were directed at investigation rather than
prevention but there was no evidence of the
responses he received. Nor was there evidence
that the police followed up with computer
checks, or other action to further these
inquiries. Instead, all but the accused were
permitted to leave.
Although the officer called back one of the
group members as he walked away, another
youth testified she believed they were free to
leave. After greeting the young people generally,
the officer dealt with each of them individually
and sequentially. He had not yet approached
the accused or communicated with him directly
before he attracted police attention through his
own actions - becoming “fidgety” with his
hands behind his back. It was open to the trial
judge to find that the accused was not the
subject of “focussed suspicion” amounting to a
detention but rather someone who was
“delayed” or “kept waiting” while the officer
dealt with the others in the group.

• Characteristics of the accused. The accused’s
age and relative sophistication did not
undermine the trial judge’s finding.
The trial judge made no error in finding that the
accused was not detained until the officer
approached him directly and told him he was going
to search him. “At that point there were legitimate
concerns for officer safety,” said Justice Neilson.
“The youths were unfamiliar to [the officer], he did
not know what the [accused] was doing behind his
back, and he was concerned the [accused] might
have a weapon. The justifiable concern for officer
safety rendered the [accused’s] detention and search

lawful, and precluded a finding that his rights under
s. 8 and s. 9 of the Charter had been violated.”

Right to Counsel
As for the alleged s. 10 breach, the “safety concern
also justified a postponement of the officers’
obligation to advise the [accused] of his rights under
s. 10 of the Charter.” Similarly, s. 25(2) YCJA was not
violated.
The Court of Appeal also agreed with the trial judge
that, had the accused’s rights been infringed, the
admission of the evidence would not have brought
the administration of justice into disrepute.
The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

TOTALITY	
 OF	
 CIRCUMSTANCES	
 
INFORMS	
 REASONABLE	
 
GROUNDS	
 ANALYSIS
R. v. Slippery, 2014 SKCA 23
The accused had a few alcoholic
drinks after work. When driving
home he noticed his vehicle was
swerving so he pulled it over into a
ditch on the side of the road. Police
were called by other drivers and, shortly after 1:00
am, they arrived. The accused appeared to be asleep
inside the car. The officer had difficultly arousing
him and getting documentation from him. He
smelled strongly of liquor, had glossy eyes, slurred
his speech, was slow in answering questions, and
stumbled backward, leaning against his car. Breath
samples were demanded and the accused was
charged with care and control over the legal limit.

Saskatchewan Provincial Court
The judge found the police officer had
reasonable grounds to believe the
accused had care and control of a motor
vehicle while over the legal limit. He
stated the test for determining whether reasonable
and probable grounds existed was “whether, on the
whole of the evidence adduced, a reasonable

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Volume 14 Issue 4 - July/August 2014

“The emphasis on considering the totality of the circumstances exists to avoid
concentrating on individual pieces of evidence which are offered to establish the existence
of reasonable and probable grounds. One indicium of impairment may not amount to
reasonable and probable grounds on its own. One must consider all of the circumstances to
assess whether the officer had reasonable and probable grounds to make the demand.”
probable grounds. One indicium of impairment
may not amount to reasonable and probable
grounds on its own. One must consider all of
the circumstances to assess whether the officer
had reasonable and probable grounds to make
the demand. [references omitted, paras. 21-22]

person, standing in the shoes of the officer, would
have believed that the individual’s ability to operate
a ... motor vehicle was impaired.” The certificate of
analysis was admitted and the accused was
convicted of over 80 mg%.

Saskatchewan Court of Appeal
Th e a c c u s e d a p p e a l e d h i s
conviction arguing, among other
things, that the trial judge erred by
considering irrelevant facts in
assessing whether reasonable grounds existed and in
concluding that such grounds were objectively
justified. He submitted that the trial judge referred to
facts that were not known to the officer when he
made the breath demand, such his own testimony
that he parked his car because he had been drinking
earlier and might have been impaired when he was
driving, and his falling to sleep between the two
breath samples. Justice Whitmore, delivering the
unanimous judgment, found the judge applied the
correct legal test:
In assessing whether there are reasonable and
probable grounds, the Court must look at the
facts known to the officer which were available
to the officer at the time he or she formed the
requisite belief. The events which came to light
subsequently to the formation of the officer’s
belief are not relevant in determining whether
the police officer had reasonable and probable
grounds for his belief at the time he formed the
belief. Although the totality of the evidence must
be considered, this does not include postdemand conduct. The totality of the evidence is
that which is available to the police officer at the
time he held the belief.
The emphasis on considering the totality of the
circumstances exists to avoid concentrating on
individual pieces of evidence which are offered
to establish the existence of reasonable and

In Justice Whitmore’s view, the trial judge did not
consider facts not know to the officer as factors in
assessing whether the officer had reasonable
grounds to make the demand.
As for the objective grounds, the Court of Appeal
concluded the officer had “ample and compelling
reasons to believe the [accused] was impaired.” “In
assessing whether the officer’s belief was reasonable
a court must measure the facts as the police officer
honestly understood them to be,” said Justice
Whitmore. “The lawfulness of an arrest must be
judged on the circumstances that were apparent to
the officer at the time, even if those circumstances
turn out to be inaccurate.”
The accused’s appeal was dismissed.
Complete case available at www.canlii.org

MARIHUANA	
 ODOUR	
 SUFFICIENT	
 
TO	
 JUSTIFY	
 ARREST
R. v. MacCannell, 2014 BCCA 254
A police officer stopped the accused
after observing his truck speeding
along a highway. The officer
approached the driver’s side and
spoke to the accused through an
open window. He obtained a driver’s licence and
other documents and began to walk back to his
police car. As he walked past the rear door, he
smelled an overwhelming odour of vegetative
marihuana coming from the accused’s truck. The
officer immediately returned to the driver’s door,

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Volume 14 Issue 4 - July/August 2014
told the accused he could smell an “overpowering
smell of marihuana” coming from inside the truck
and arrested him. The vehicle was then searched and
a cardboard box containing 50 starter marihuana
plants was found behind the driver’s seat. The officer
also found a Mason jar and baggie both containing
marihuana on the passenger side and four pounds of
dried marihuana in the truck’s canopy area. At the
police station a further 34 pounds of marihuana,
cannabis resin and $4,000 in cash was located.

grounds to arrest based on the odour alone. The
accused was convicted of possessing marihuana for
the purpose of trafficking.

British Columbia Court of Appeal

The accused appealed his conviction
suggesting that his arrest was
unlawful and the search of his
vehicle incidental to that arrest was
unreasonable. First, he suggested that under s. 495
(1)(a) a peace officer may only arrest for an
British Columbia Provincial Court
indictable offence. Since the officer could not
determine the quantity of marihuana, he could not
Although the officer testified he could not
have reasonable grounds to
estimate the quantity of
“An officer may only arrest believe the accused possessed
marihuana from smell
more than 30 grams of it
alone, he said that the
an individual for an offence ( m a k i n g i t i n d i c t a b l e ) ;
overwhelming odour of vegetative
under [s. 495(1)(b)] where possession of 30 grams or less
marihuana was the only basis for his
is a summary only offence.
the officer personally
conclusion that he had reasonable
Second, if the arrest was made
grounds for the arrest. The officer found
witnesses facts or events
under s. 495(1)(b), odour alone
the smell so overpowering that he
was insufficient to constitute
that can support an
formed the opinion “there was
reasonable grounds. Third, the
marihuana actually present in the objectively reasonable belief
officer failed to consider other
pickup, not the remnants of smells from that the suspect is presently
possible explanations of the
marihuana being there at some time
presence of marihuana such as
committing an offence.”
previously.” The judge noted the
a medical access authorization.
officer’s extensive experience involving
marihuana investigations and ability to distinguish
Arrest & Reasonable Grounds
between the distinctive smells of “burnt”, “growing
or vegetative” and “dried” marihuana.
Justice Garson, speaking for the Court of Appeal,
The judge concluded that the smell of vegetative
marihuana, without any other factors, was sufficient
for the officer to form the necessary reasonable
grounds to arrest the accused for possession of
marihuana under s. 495(1)(b) of the Criminal Code.
The judge also held that the existence of other
possible explanations for the smell of marihuana did
not mean that the officer could not have reasonable

Officer’s Experience
The officer testified he had come into contact with
individuals possessing marihuana approximately
1,000 times, had been involved in hundreds of
vehicle stops involving the presence of marihuana
and had been involved in 12−15 investigations of
marihuana production or grow-op offences.

rejected the accused’s arguments. He found the
arrest was lawful under s. 495(1)(b) which “permits
an officer to arrest an individual who is committing a
criminal offence either summary conviction or
indictable.”
“An officer may only arrest an individual for an
offence under ss. [495(1)] (b) where the officer
personally witnesses facts or events that can support
an objectively reasonable belief that the suspect is
presently committing an offence,” said Justice
Garson. He continued:

PAGE 23

[A]n arrest for possession of marihuana in the
circumstances of ... this case is based on ss. (b)
not ss. (a). As the Crown argues in this case,
ss. (b) provides for the arrest of an individual
whom the arresting officer “finds committing any
offence”, whether summary or indictable. The

Volume 14 Issue 4 - July/August 2014

BY THE BOOK:

the odour could have been left over from earlier use
of the vehicle to transport marihuana:
[The reasonable grounds] standard does not
require an officer to satisfy him or herself that
there is evidence of proof beyond a reasonable
doubt or even a prima facie case. All that the
officer must have is an objectively reasonable
basis for believing the suspect is presently in
possession of marihuana, without necessarily
ruling out potentially innocent inferences,
defences or lawful excuses. [para. 45]

Warrantless	
 Arrest: Criminal Code

s. 495 (1) A peace officer may arrest without
warrant
(a) a person who has committed an indictable
offence or who, on reasonable grounds, he
believes has committed or is about to commit an indictable
offence;
(b) a person whom he finds committing a criminal offence;

The arrest was lawful and the search incidental to
arrest did not breach s. 8 of the Charter. The
accused’s appeal was dismissed.

or
(c) a person in respect of whom he has reasonable grounds
to believe that a warrant of arrest or committal, in any form
set out in Part XXVIII in relation thereto, is in force within
the territorial jurisdiction in which the person is found.

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

PENILE	
 SWAB	
 UNREASONABLE	
 
AS	
 AN	
 INCIDENT	
 TO	
 ARREST
R. v. Saeed, 2014 ABCA 238

significance of the arrest being under ss. (b) is
that proof of the offence of possession does not
depend on the amount of marihuana being
greater than 30 grams. [The accused’s] argument
that the officer could not have known or have
had reasonable grounds to believe he was in
possession of more than 30 grams is irrelevant.
[para. 33]

The Court of Appeal found that the odour of
marihuana alone, in this case, was sufficient to
ground a credible belief that an offence was being
committed. The officer had a subjective belief that
the accused was in possession of marihuana. This
belief was also objectively reasonable. “Standing in
the shoes of the officer, with his extensive
experience, objectively he could easily have held a
credibly based belief that [the accused] was in
possession of vegetative marihuana,” said Justice
Garson.

Alternate Explanations
The Court of Appeal also rejected the accused’s
submission that the officer was required to consider
and rule out other potential innocent explanations
for possession of the marihuana such as an
authorization to possess for medical needs or that

The accused was arrested at 6:05 am
for sexual assault after police
received a complaint from a 15 year
old girl. He was taken to the police
station, but released sometime
between 7:00 am and 7:30 am only to be re-arrested
again at 8:35 am. He was placed in a “dry cell”,
handcuffed to a steel pipe and seated on the floor
with his hands behind his back. Police took
photographs of him as well as a penile swab. He
wiped his own penis with the swab and then turned
it over to the police. A subsequent DNA analysis of
the swab showed DNA matching the complainant.

Alberta Court of Queen’s Bench
The accused wanted the DNA report
resulting from the penile swab excluded
as evidence. The judge ruled that police
conduct fell within definition of a strip
search (R. v. Golden, 2001 SCC 83). She found the
police took appropriate steps to ensure that the
procedure was carried out in a reasonable fashion.
Nevertheless, the judge concluded there were no
exigent circumstances justifying the search. None of
the police officers testified about a concern that the

PAGE 24

Volume 14 Issue 4 - July/August 2014
We conclude, however, that the Supreme Court’s
decision in R v Stillman... governs the
disposition of this appeal; it cannot be
distinguished on the basis that some of the
seized material there was obtained from within
the body, namely the dental impressions,
whereas here the seized material was obtained
from the surface of the body, from on the penis.
The relevant question is not whether the seizure
occurs from the surface of or from within any
part of the body, but whether the nature of the
area from which material is taken is such that the
search and resulting seizure may infringe upon
the person’s bodily dignity in such a way as to
constitute the ultimate affront to human dignity.
A typical person would judge an affront to their
dignity of a greater nature through the taking of a
penile swab than a dental impression,
notwithstanding the internal nature of the latter
search and seizure.

DNA evidence could be lost or degraded. The judge
ruled the Crown had not established that obtaining
the swab was lawful as a search incident to arrest.
The Crown therefore did not overcome the
presumptive warrant requirement and the
warrantless search breached the accused’s s. 8
Charter rights. But she found the evidence
admissible under s. 24(2) of anyway. The accused
was convicted of sexual assault causing bodily harm
and sexual interference.

Alberta Court of Appeal
The accused submitted, in
part, that the trial judge erred
in admitting the results of the
penile swab as evidence. The
Crown, on the other hand, argued that there was no
s. 8 Charter violation in taking the penile swab as a
search and seizure incident to arrest.

In Canadian society, people generally identify
themselves with their bodies. Non-consensual
interferences with the body are experienced as a
violation of human dignity. That is particularly so
where the genital area is the subject of the
search, although this principle is not limited to
genital searches. [paras. 55-56]

A majority of the Court of Appeal found the penile
swab in this case was not a proper exercise of the
police power to search as an incident to the
accused’s re-arrest:
Generally, it is our view that in the absence of a
recognized exception to the presumptive
requirement for prior judicial authorization to
permit a search of this intimate sort to occur, the
absence of that prior authorization means that
there was a breach of the right of the [accused]
to be free of unreasonable search and seizure.
Those exceptions include situations where an
accused consents to the search and seizure,
where it is truly incidental to arrest in the sense
it flows from a valid concern for officer safety or
evidence preservation, or in situations of
exigency. This last category deserves particular
comment because its qualities and limitations
dictate that it will rarely arise. [para. 50]

And further:
In sum, unless a statute otherwise provides, a
warrant is required for any intimate search and
seizure for bodily samples from the person,
absent consent, absent evidence which
establishes that the time required to apply for a
warrant could result in the bodily samples
sought significantly deteriorating or disappearing
before a search and seizure under warrant could
be undertaken or absent evidence of extreme
exigency. Such a search cannot be justified,
without warrant, simply on the basis of being
incidental to arrest, without more. [para. 62]

The majority found the character of the penile swab
more intrusive than a strip search and more akin to
obtaining bodily samples from a suspect (as in R. v.
Stillman, [1997] 1 SCR 607). Justices Watson and
Bielby stated:

Thus, the warrantless search and seizure (penile
swab) was unreasonable under s. 8. However, the
majority would not exclude the evidence under s.
24(2), the accused’s appeal was dismissed and his
convictions were upheld.

“Non-consensual interferences with the body are experienced as a violation of human
dignity. That is particularly so where the genital area is the subject of the search ...”
PAGE 25

Volume 14 Issue 4 - July/August 2014

“[U]nless a statute otherwise provides, a warrant is required for any intimate search and
seizure for bodily samples from the person, absent consent, absent evidence which
establishes that the time required to apply for a warrant could result in the bodily samples
sought significantly deteriorating or disappearing before a search and seizure under warrant
could be undertaken or absent evidence of extreme exigency.”
DNA evidence disappeared forever. Again it
must be emphasized that this is potential DNA
evidence of the complainant located on the
[accused’s] body surface and not the [accused’s]
own DNA. The latter situation is governed by R v
Stillman. In my view, a telewarrant was not
required as a precondition for the police to have
conducted the penile swab in question. [para.
36]

A Second Opinion
Justice MacDonald disagreed with the
majority. He concluded that there was no
s. 8 breach because, even in the absence
of exigency, the search and seizure was
proper as an incident to arrest. First, the arrest was
lawful. Second, the search was related to the reasons
for the arrest. The arrest was for sexual assault and
the search was to determine whether the
complainant’s DNA was on the accused. Finally, the
search was executed reasonably. The police wanted
to preserve the evidence and did so in a respectful
manner. The accused himself took the sample and
handed it back to the officer.
Furthermore, the officer had reasonable and
probable grounds to justify the strip search as
required by Golden. The search was conducted at
the police station and therefore exigent
circumstances were not required. Golden only
requires exigent circumstances if the strip search is
conducted in the field. “In my opinion, there was no
need for the police to have obtained a warrant in
order to conduct the penile swab as they had ample
authority to do so pursuant to the common-law
power of search incident to arrest, given the facts of
this case i.e., a sexual assault that had occurred
mere hours before and the need to preserve
important evidence,” said Justice MacDonald.
Justice MacDonald also found the Supreme Court of
Canada decision in Stillman distinguishable. In that
case, the police took samples of the accused‘s own
bodily substances which would not deteriorate over
time. In this case, the accused was being swabbed
for the DNA of another person (the complainant)
which would deteriorate over time:
It would be an affront to one’s sense of justice
for the police in this case to be required to stand
idly by while highly relevant but time sensitive

Justice MacDonald found the trial judge erred in
finding a s. 8 breach and the evidence was
admissible. He too dismissed the accused’s appeal.
Complete case available at www.albertacourts.ab.ca

INFORMANTS	
 MAY	
 CROSSCORROBORATE	
 EACH	
 OTHER
R. v. Evans, 2014 MBCA 44
Based on information from five
informants, four of which were firsttimers, the police obtained a search
warrant under s. 487(1)(b) of the
Criminal Code. When police
executed the warrant at the accused’s premises their
seizure included 19 STEN submachine guns,
magazines and ammunition. As a result the accused
was charged with possessing stolen property,
unlawful possession of various weapons and making
a false firearms possession acquisition licence.

Manitoba Court of Queen’s Bench
The accused brought a pre-trial motion
alleging, in part, that the ITO lacked
sufficient grounds to meet s. 487
requirements. Although she found this to
be a “very close case”, the reviewing judge
dismissed the accused’s motion. After excising
erroneous information, the judge found there was
sufficient reliable information remaining such that

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Volume 14 Issue 4 - July/August 2014
the issuing justice could have granted the search
warrant. She was satisfied that the information of
two of the five informants in the ITO was sufficiently
detailed and corroborated to provide the requisite
reasonable grounds. Although first time informants,
they both saw the accused in possession of a STEN
submachine gun. The accused was ultimately
convicted by a judge and jury of manufacturing
STEN submachine guns and four other firearm
related offences.

Manitoba Court of Appeal
The accused challenged his
convictions arguing, among other
grounds, that his s. 8 Charter rights
were breached by the search of his
property. In his view, the reviewing judge erred in
concluding that there was sufficient reliable
information, after excision, to uphold the warrant.
Justice Mainella, delivering the Court of Appeal’s
opinion, disagreed. “In our view, when the
information of informants Y and K is considered in
the totality of the circumstances, the statutory preconditions to issue a search warrant for the
[accused’s] property could have been satisfied,” he
said. He further added:
There was ample evidence in the ITO that the
property of the [accused’s] son-in-law was being
used for trafficking in STEN submachine guns.
The inference that could be drawn from Y and
K’s information is that the [accused’s] property
(which was nearby to his son-in-law) was being
used to store the guns and that the [accused]
knew that, as he was seen by both informants
with STEN submachine guns and K had seen
such guns on the [accused’s] property.[para. 13]

Furthermore, the judge did not err in “considering
the effect of informants, Y and K’s, information crosscorroborating each other in assessing whether, in the
totality of the circumstances, reasonable grounds to
search the [accused’s] property existed.”
The accused’s appeal was dismissed.
Complete case available at www.canli.org

TERMS	
 OF	
 CONTRACT	
 NEGATED	
 
PRIVACY	
 INTEREST	
 IN	
 PACKAGE
R. v. Godbout, 2014 BCCA 319
A young man went to a DHL office
(courier company) in Alberta and
dropped off a child’s toy box for
delivery to the accused in British
Columbia. The man signed and was
given a copy of the waybill. On the waybill there
was a reference that the full terms of the shipping
contract could be accessed on the DHL website. The
shipping contract included a term that DHL or any
government authority could search the box without
notice. It read:
“Without notice, DHL may, at its sole discretion,
open and inspect any shipment and its contents
at any time. Customs authorities, or other
governmental authorities, may also open and
inspect any shipment and its contents at any
time.”

The man paid the shipping fee and left. The DHL
worker recognized the man from a previous
transaction. Due to his manner and presentation she
was uncomfortable with the transaction and decided
to open the box. In the box she saw a child’s toy and
two “bricks” wrapped in tape. Police were contacted
the police and an officer attended the DHL office,
met with staff and was directed to the open box. He
took the box to the Calgary airport where he
requested Canada Border Services agents to x-ray
the box. He was advised there was an object inside
likely made up of plant material consistent with
marihuana. The officer then took the package to his
office and opened the bricks. Inside each brick were
smaller baggies containing cocaine totaling 535
grams.
Alberta police sent the box to a Vancouver police
drug section to arrange a controlled delivery of the
package. The bricks were repackaged with inert
substances and a small amount of narcotics. Police
obtained a tracking warrant authorizing the
installation of a tracking device in the DHL package
and a general warrant authorizing the entry into the
residence of the location where the DHL package
was located once the alarm had been activated. An
officer, dressed as DHL staff, delivered the box to an

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Volume 14 Issue 4 - July/August 2014
apartment in British Columbia. The accused
answered, confirmed his identity and signed for the
package which was left with him. About 75 minutes
later, the package alarm went off, police entered the
apartment and the accused was arrested. A search
warrant for the apartment was then obtained. In the
apartment, police recovered the DHL package as
well as over 600 ecstasy pills in a safe, a digital
scale with white powder residue, score sheets, a stun
gun, and plastic bags, one of which contained traces
of cocaine and MDMA. They also retrieved text
messages from the accused’s cell phone that he had
attempted to delete after he was detained. The
messages appeared to refer to the delivery of the box
and arrangements to sell the cocaine.

British Columbia Provincial Court
Th e a c c u s e d c o n t e n d e d t h a t t h e
interception of the DHL box violated his
s. 8 Charter right and the evidence
obtained from the time the package was
seized in Alberta should have been excluded under
s. 24(2). The judge, however, dismissed this
argument. He found that the terms of the shipping
contract specifically authorized the initial inspection
of the package and government agents to do the
same. The judge ruled that the accused could not
have a greater expectation of privacy in the contents
of the box than the man who sent it. “I cannot
conclude that the consignee in these circumstances
has greater privacy interests than the consignor,
whose expectation of privacy, given the contractual
term, was extremely low, perhaps nonexistent given
the terms of the contract,” said the judge. “Given
these circumstances, I cannot conclude that [the
accused’s] s. 8 rights were violated when the
package was opened and turned over to the police
in Calgary as he has little or no expectation of
privacy in that package.” Furthermore, even if there
was a s. 8 breach, the judge would have admitted
the evidence under s. 24(2). The accused was
convicted of possessing controlled substances
(cocaine and MDMA) for the purpose of trafficking.

British Columbia Court of Appeal
The accused again claimed that the
opening, and search and seizure of
the package violated s. 8 and the
e v i d e n c e s h o u l d h ave b e e n
excluded. In his opinion, the trial judge erred when
he found the police had not conducted an unlawful
search and seizure when they took possession of the
box from the DHL staff. The Crown took the position
that the accused had no objectively reasonable
expectation of privacy in the contents of a package
sent to him by a third party who, by contract, had
authorized the carrier and police to inspect the
package. Since the police did not intrude on any
recognizable privacy interest of the accused, there
was no search or seizure within the meaning of s. 8.
Justice Goepel first outlined the principles
underlying s. 8 of the Charter:
Section 8 of the Charter protects the right to be
secure against unreasonable search and seizure.
To establish an infringement of s. 8, the person
raising the claim must establish that he or she
had a reasonable expectation of privacy in the
thing searched or seized. A reasonable
expectation of privacy is to be determined on the
basis of the totality of the circumstances.
The evaluation of any claim under s. 8 of the
Charter involves two distinct inquiries. The first is
whether the impugned state conduct intruded
upon an applicant’s reasonable expectation of
privacy so as to constitute a search within the
meaning of s. 8. The second is whether the state
intrusion upon the applicant’s privacy was
unreasonable. The second inquiry, namely
whether the search was reasonable or justifiable,
arises only if the first is answered in the
affirmative. [references omitted, paras. 18-19]

To be afforded protection under s. 8, any claimed
expectation of privacy must be objectively
reasonable.

“To establish an infringement of s. 8, the person raising the claim must establish that he or she had a
reasonable expectation of privacy in the thing searched or seized. A reasonable expectation of
privacy is to be determined on the basis of the totality of the circumstances.”

PAGE 28

Volume 14 Issue 4 - July/August 2014
In this case, the shipping contract authorized the
inspection of the package by the courier company as
well as government authorities. The Court of Appeal
found the specific terms of the shipping contract
“negated any objectively reasonable expectation of
privacy that either [the sender] or the [accused]
could assert.” Justice Goepel continued:
The recipient could not have a greater
expectation of privacy than the sender. The fact
that the [accused] may not have known of the
terms of shipment does not make his subjective
expectation objectively reasonable.
In the circumstances of this case there is no
support for the [accused’s] assertion of a
reasonable expectation of privacy in the package
and its contents during the period between the
delivery of the box to DHL and the controlled
delivery to the [accused]. The police did not
breach his constitutionally protected privacy
rights by taking custody, from the shipping
company, of an opened package that contained
535 grams of cocaine shipped by a third party
under a contract that expressly authorized both
the carrier and the governmental authorities to
open the package, because the [accused] had in
the circumstances no such rights. [paras. 27-28]

Since the accused’s asserted privacy interest was not
objectively reasonable, he had no reasonable
expectation of privacy and therefore there was no
search or seizure within the meaning of the Charter.
Because there was no s. 8 breach, there was no need
for a s. 24(2) analysis. The accused’s appeal was
dismissed.
Complete case available at www.courts.gov.bc.ca

INCIDENTAL	
 PAT-DOWN	
 
REASONABLE,	
 BUT	
 SEARCH	
 OF	
 
FLASH	
 DRIVE	
 NOT
R. v. Tuduce, 2014 ONCA 547
The police stopped the accused for
speeding at 10:22 am, arrested him
for driving with a suspended licence
and patted him down for safety
reasons. He was wearing a large,
puffy winter coat and the officer placed his hands in

the front pocket of the coat and pulled out a small
leather wallet, a USB key (flash drive), and a bundle
of credit cards held together with an elastic band.
The officer noticed that the cards were not in the
accused’s name, and that one of the cards was in a
small manila envelope. He was placed in the rear of
the police car and was allowed to call his mother to
pick up his vehicle. The officer returned to the SUV
to turn off the ignition and roll up the window.
While doing so, he saw two Provincial Offences Act
notices on the back seat and a dismantled cell
phone, a SIM card, and a large number of credit
card-sized manila envelopes in the front area. At that
point, the officer formed the belief that the cards
found in the accused’s pocket were stolen, and he
had sufficient grounds to make an arrest for
possession of stolen credit cards.
The officer returned to the police car, arrested the
accused for credit card offences, handcuffed him,
and took his cell phone and bundle of cards. When
he returned to the SUV to seize the items he noticed
earlier, he saw a green fabric box on the floor
behind the driver’s seat. He could see a portion of an
Ontario driver’s licence sticking out of the box,
removed it and found it was in someone else’s
name. He also saw a saran-wrapped package,
unwrapped it and found a number of small
electronic parts that could be used to take
information from the magnetic strip of credit and
debit cards. He also noticed several shopping bags
containing computer cables and a credit card
imprinter. The officer halted his search for safety
reasons; cars were passing at a high rate of speed
near where he was standing. The accused was taken
to the police station, searched and six more SIM
cards and a small electronics board were located.
His USB key was placed in his personal effects. At
3:40 pm fraud squad detectives searched the
vehicle, now stored at a towing company, and
seized the shopping bags and their contents. They
also decided to search the USB key that evening
without a warrant, relying on the power to search as
an incident to arrest and believing it could contain
credit card data. The USB key was turned over to a
police expert and a week later a forensic analysis of
the USB key was conducted. The USB key contained
photographs of a card reader and a circuit board
used in skimming devices. Text files containing

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Volume 14 Issue 4 - July/August 2014
credit or debit card numbers followed by four digit
Personal Identification Numbers and links to
websites that offered pinhole cameras and material
used in skimming devices, as well as instructions on
how to make a magnetic strip card reader, were also
found. The accused was charged with several credit
card related offences.

Ontario Superior Court of Justice
The accused argued that the various
searches breached his rights under s. 8 of
the Charter and sought exclusion of all
the evidence under s.24(2). The judge
found there were four searches and all but one of
them unreasonable:
1. Pat-down search at roadside. This warrantless
search was incidental to arrest for
“an object that may be a threat to the
safety of the police, the accused or
the public, or that may facilitate
escape or act as evidence against the
accused”. Small items that could have been
used as a weapon, such as a razor blade, could
have been located in the wallet or the stack of
credit cards. The judge held it was also
reasonable for the officer to examine the
contents of the wallet and read the names on
the credit cards while he conducted his search.
It was unrealistic to require a police officer to
refrain from examining items that he locates
during the course of a pat-down search for
weapons.
2. Roadside search of SUV. The judge
found that the officer did not have
reasonable and probable grounds to
arrest the accused for possession of
stolen credit cards based on his observation of
the disassembled cell phone, the SIM card and
the manila envelopes, which were located in
the front seat of the SUV. Since the credit card
arrest was unlawful, the search of the SUV at
the roadside and the seizure of the cell phone,
the SIM card and the manila envelopes from
the front seat area was unreasonable.

3. Search of SUV after it was towed.
Since the arrest was unlawful, this
search of the SUV incidental to arrest
was also unlawful.
4. Search of USB key. The judge also
found this search unlawful because
the police power to search as an
incident to arrest does not authorize
the warrantless search of electronic devices,
absent exigent circumstances.
Despite these Charter breaches, the judge
nonetheless admitted the evidence under s. 24(2),
convicted the accused of seven credit card related
offences and sentenced him to two years less a day
in prison followed by two years’ probation.

Ontario Court of Appeal
The accused argued, in part, that
the trial judge erred in not finding
the pat-down search, and
examination of his wallet and
credit cards breached his s. 8 rights and in failing
not to exclude all of the evidence under s. 24(2).

Arrest & Pat-Down Search
Justice Gillese, authoring the Court of Appeal
decision, found both the arrest and pat-down lawful.
First, Section 217(2) of Ontario’s Highway Traffic Act
provides a broad discretion for an officer to arrest a
person driving with a suspended driver’s licence on
the standard of reasonable and probable grounds. In
this case, the officer had the requisite justification for
the arrest and properly exercised the power. Justice
Gillese stated:

PAGE 30

This is not a case where there was a complete
absence of justification to arrest or where the
arrest was made for an unlawful or improper
purpose. The [accused] was the sole occupant of
the SUV. He was speeding and driving with a
suspended licence. Based on his record check,
[the officer] knew that the [accused’s] licence
had been suspended for a sufficient length of
time that the [accused] would have received
notice of the suspension by mail. Had [the
officer] issued a summons and left the [accused]

Volume 14 Issue 4 - July/August 2014

“A search incident to arrest may be carried out to ensure the safety of the police and the

public, to protect evidence from destruction, or to discover evidence that can be used at trial.”
alone on the highway, it is entirely possible that
the [accused] would have gotten back into his
SUV and continued driving on the highway. [The
officer] had the power to arrest, in the
circumstances. He detained the [accused] by
placing him in the back of his cruiser but did not
handcuff the [accused], allowing him to contact
a licenced driver to pick up the vehicles. The
power to arrest was not improperly exercised.
The arrest was lawful. [para. 47]

Accordingly, the trial judge said, it was
“unrealistic” to expect the officer to have
refrained from examining those items located in
the [accused’s] coat pockets in the course of a
pat-down search for weapons.

The trial judge made these findings in the
context of a pat-down search that had been
conducted in a reasonable manner. [The officer]
patted down the [accused’s] waistband and the
pockets of his jeans. The [accused] was wearing
a large, puffy winter coat. [The officer] reached
Second, the pat-down search was also lawful. “A
into the front pockets of the coat and removed a
search incident to arrest may be carried out to
wallet, USB key and package of cards bound
ensure the safety of the police and the public, to
together by an elastic band. He
protect evidence from destruction,
or to discover evidence that can be
“[The officer] believed, and did not remove other items from
the pockets and he did not ask
used at trial,” said the Court of
in the circumstances had a
the [accused] to remove any
Appeal. “[The officer] believed, and
clothing for closer inspection.
reasonable basis for

i n t h e c i rc u m s t a n c e s h a d a
reasonable basis for believing, that
believing, that a protective
As for [the officer’s] observation
a protective pat-down search would
pat-down search would serve of the names on the cards, I do
serve the purpose of ensuring
not see how [the officer] could
the purpose of ensuring
officer safety; he was therefore
have checked the package of
cards for possible weapons
entitled to engage in such a
officer safety; he was
without looking at the cards and,
search.” The officer testified he
therefore entitled to engage in doing so, noticing the names
conducted the search for safety
recorded on them. [paras. 52-54]
reasons relating to both himself and
the accused. He was working alone on a busy
Since the pat-down search was valid, s. 24(2) did not
highway and knew that he would be placing the
apply to the evidence obtained from this search .
accused in the back of his police cruiser without
handcuffs.

Exclusion of Evidence

Furthermore, the trial judge did not err in
concluding the pat-down search did not go too far
when the officer checked the accused’s wallet and
package of cards:
[The officer] testified that he carried out the
search incident to arrest for safety reasons.
Although he did not testify directly that the same
reasoning applied to his search of the wallet and
cards, the trial judge appears to have accepted
[the officer’s] testimony as extending to the
search of the wallet and stack of credit cards.
The trial judge stated that it is possible for a
small item, such as a razor blade, to be located
in a wallet or among a stack of credit cards.

The Court of Appeal also rejected the accused’s
claim that the trial judge made an error in not
excluding the evidence obtained from the SUV and
USB key searches. Using the three part s. 24(2)
analysis regarding (i) the seriousness of the Charterinfringing conduct, (ii) the impact of the breach on
the Charter-protected interests of the accused, and
(iii) society’s interest in adjudication of the case on
its merits, Justice Gillese found the evidence
admissible. The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

PAGE 31

IssueC3 O
May/June
2014 Volume
BR
I T14ISH
LUM
ILAU M B I A
2014
B R I T- ISH
CB
O2014
L A W ELNAFW
O RECNDF EOM
MEENMTOM
R IEAMLO R I A L
R EC N
D TE M

2014 BRITISH COLUMBIA
On Sunday, September 28, 2014 law enforcement officers from across British Columbia and
On LAW
Sunday, September
28, 2014 law enforcement officers
from across British Columbia and
ENFORCEMENT
MEMORIAL
QRUWKZHVW :DVKLQJWRQ 6WDWH ZLOO PHHW DW $EERWVIRUG¶V 5RWDU\ Stadium at Exhibition Park to
Friday, September 26, 2014 to Sunday, September 28, 2014
Friday, September 26, 2014 to Sunday, September 28, 2014

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Stadium at Exhibition Park to
Friday,
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to Sunday,
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honour our fallen comrades
who
made the ultimate
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while serving
the citizens of the
honour our fallen comrades who made the ultimate sacrifice while serving the citizens of the
province of British Columbia.
On Sunday, province
Septemberof28,
2014 Columbia.
law enforcement officers from across British Columbia and northwest Washington
British
State will meet at Abbotsford’s Rotary Stadium at Exhibition Park to honour our fallen comrades who made the
On September 24, 1998, the Government of Canada officially proclaimed the last Sunday of
ultimate sacrifice
while serving24,
the1998,
citizensthe
of the
province of of
British
Columbia.
On September
Government
Canada
officially proclaimed the last Sunday of
September of every year as Police and Peace Officers' National Memorial Day. The Solicitor
September
of
every
year
as
Police
and
Peace
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National
Memorial
Day. The Solicitor
General
of Canada
stated
that
"a formal,
national
Memorial
Day gives
Canadians
anof opportunity
On
September
24,
1998,
the
Government
of
Canada
officially
proclaimed
the
last
Sunday
September
of every
General
of Canada
stated that
"a formal,for
national
Memorial Day gives Canadians an opportunity
each
year
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appreciation
the
year as Police
and
Peace
National
Memorial
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each
year
to Officers'
formally
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and
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make
the Day the
General
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Canada
stated
that
formal,
national
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gives
of Police
and
Peace Officers,
who
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tragic
sacrifice
to
keep
communities
safe."
Law
Canadians an
opportunity
each
year to
to keep
formally
express appreciation
for
ultimate,
tragic
sacrifice
communities
Enforcement
Officers
from
all over
Canada
gather insafe." Law
thededicationEnforcement
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from
over Officers'
Canada gather in
Ottawa and march to the Police
andallPeace
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Officers from
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and
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the
Police
and
Memorial Pavilion on Parliament Hill, where all Peace
fallen Officers'
Canada gather
in
Ottawa
and
march
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the
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and
Peace
Officers'
Memorial
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on Parliament
Hill, where all fallen
Officers are
remembered
and their
sacrifices honoured.
Memorial Pavilion
on Parliament
Hill, where
fallen
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are remembered
Officers
are remembered
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and their sacrifices honoured.
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British
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to the
in those
Victoria
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active
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Premier
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Monument
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to the citizens
of BC,dedicated
was unveiled
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Premier Gordon
General Richto
Coleman
and
Mr.
and
Mrs.
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representing
a
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the
annual
the citizens
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was unveiled
September
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by Premier
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General
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Memorial event.
Campbell,
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Rich
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and
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and
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representing a "Fallen Hero Family" at the annual Memorial event.
representing a "Fallen Hero Family" at the annual Memorial event.
On behalf of the British Columbia Association of Chiefs of Police (CACP), the British Columbia
Police Association and the organizing committee representing all BC Law Enforcement agencies we would like to
On behalf
of the
British
Columbia
Association
Chiefs
of Police
(CACP),
Britishour
Columbia
invite
all peace
officers
andthe
citizens
toColumbia
join us on Association
thisoflast
Sunday
in September
in the
honouring
fallen
comrades
On
behalf
of
British
of
Chiefs
of
Police
(CACP),
the
British
Columbia
Police
Association
and thefamily
organizing
committee representing all BC Law Enforcement agencies
and
supporting
their
surviving
members.
Police
Association
and
the
organizing
committee
representing
all
BC
Law
Enforcement
we would like to invite all peace officers and citizens to join us on this last Sunday in September agencies
we our
would
likecomrades
to invite and
all peace
officers
andsurviving
citizens to
join us
on this last Sunday in September
in honouring
fallen
supporting
their
family
members.
Host
Agencies
& Organizing
Committee
in honouring our fallen comrades and supporting their surviving family members.
2014
M E M OPolice
R I A LDepartment
W E E K E Nand
D OLangley
V E R VRCMP
I E W Detachment are honoured to host this year’s Memorial event
The
Abbotsford
2014
M
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O
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together with committee members representing:OBC
Sheriff
Service; Canada Border Service Agency; City of
Host Agencies
& Recreation
O rganizing
Committee:
Abbotsford
– Parks,
& Culture;
Commercial Vehicle Safety & Enforcement; Conservation Service of BC;
Agencies
& O rganizing
Committee:
Correctional Host
Service
of BC; Correctional
Service
of Canada; CP Police Service; Delta Police Department; E Division
The Abbotsford
Police
Department
Langley
RCMP
Detachment
honoured to host this
RCMP;
Police & Peace
Officers'
Memorialand
Ribbon
Society;
and Vancouver
Policeare
Department.
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Abbotsford
Police
Department
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Langley
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2014
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WEEKEND
OVERVIEW
Canada
Border
Service
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Abbotsford
±
Parks,
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Commercial
Vehicle Safety & Enforcement; Conservation Service of BC; Correctional Service of BC;
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Safety
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Conservation
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Service of BC;
Correctional
Service
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CP Police Service;
Delta Police
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E Division RCMP;
Friday,
September
26,
2014
Correctional
Service
of
Canada;
CP
Police
Service;
Delta
Police
Department;
E
Division
RCMP;
Police
&
Peace
Officers'
Memorial
Ribbon
Society;
and
Vancouver
Police
Department.
✦ 1st Annual Memorial Golf Tournament
Police & Peace Officers' Memorial Ribbon Society; and Vancouver Police Department.
• Ledgeview Golf & Country Club in Abbotsford
• Texas Scramble, best-ball format / Inter-agency competition

PAGE 36

Volume 14 Issue 3 - May/June 2014

Saturday, September 27, 2014
✦ Memorial Bike Ride
✦ Master Workout Class
• formats Zumba, Bootcamp, Yoga

✦ BC Law Enforcement Memorial Mess Dinner
• To be held at Abbotsford Centre
• Event open to law enforcement officers only

Sunday, September 28, 2014
✦ BC Law Enforcement Memorial
• Rotary Stadium, Exhibition Park, Abbotsford

✦ Memorial Reception
• Ag-Rec Building, Exhibition Park, Abbotsford

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F riday, September 26, 2014
T ee T imes Commence 11:00 am
L edgeview Golf & Country C lub
Followed by Dinner & Prizes
T exas Scramble Format (4-Person T eams)
Inter-Agency Competition for
Peace O fficers!
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PARKING
Participants may park at:
• Exhibition Park – lower lot north of Rotary Stadium (32470 Haida Drive)
• Abbotsford City Hall parking lots (Trethewey Street at Veterans Way)
• Mouat Secondary High School (32355 Mouat Drive)

TRANSPORTATION
All Law Enforcement agencies will be responsible for providing their own transportation to Abbotsford.

PARADE ORDERS
The parade will form up on Thunderbird Memorial Square on Veterans Way in Abbotsford (behind City Hall) at 1130
hrs. Colour Party and Rifle Escorts will be leading; with Pipe Bands leading each company. The senior officers
shall also be positioned in front of their respective units. Sergeant Major’s Briefing - will be held on the Sunday
morning at Abbotsford Police Headquarters (2838 Justice Way) at 1100 hrs. The Parade will STEP OFF at 1215
hrs. The Memorial Service will be conducted followed by a march past of the Review Party and surviving family
members of the fallen.
ORDER OF DRESS
Members shall wear the order of dress as established by their respective agencies. Headdress will remain ON for
the entire service.
MOTORCYCLES
Motorcycles will line up in the parking lot west of The Reach Gallery at 32388 Veterans Way, Abbotsford.
LAW ENFORCEMENT SERVICE DOGS
Service Dogs and their handlers will march behind the company of their home agency.
RECEPTION
Following the parade a reception will be held at the Air Cadet Building, Exhibition Park until 1600 hrs. Finger foods,
coffee and water will be provided. At 1600 hrs the doors of The Rancho (35110 Delair Road, Abbotsford) will be
opened.

PAGE 36

Volume 14 Issue 3 - May/June 2014

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T he front of the coin depicts a Federal
and Municipal officer standing post at the
B ritish Columbia Law Enforcement
Memorial Bastion located on the grounds
of the Provincial Legislature in V ictoria;
with the flag of B ritish Columbia in the
background.

T he back of the coin depicts officers from
Federal, Provincial and Municipal
agencies firing a rifle salute with the
Memorial Ribbon in the background. T he
phrase around the border is etched into
the Bastion.

Coins are $10 each
Net proceeds will be donated to:
B ritish Columbia Law Enforcement Memorial Foundation
&
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PAGE 37

Volume 14 Issue 1 - January/February 2014

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