POLICE ACADEMY

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

IN SERVICE:10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers across British Columbia.
While questioning the men one of them produced
a handgun and opened fire.

IN MEMORIAL
On April 20, 2006 40-year-old
Abbotsford Police Department
Constable John Goyer passed
away after a lengthy and
courageous
battle
with
Amyotrophic Lateral Sclerosis
(ALS), also known as Lou Gehrig's disease,
brought on by an on duty fight arresting a
suspect.
In September, 2001 Constable
Goyer, along with his partner,
attended to a threatening
report. The suspect in the
incident refused to be taken
into custody and it was during
the resulting violent physical confrontation that
Constable Goyer became injured. He underwent
several medical tests and it was soon learned
that his progressing weakness was brought on by
ALS.
Medical professionals and a Worksafe
adjudicator concluded Constable
Goyer’s ALS was caused as a
direct result of the fight and his
employment as a police officer.
Cst. Goyer had served as a police
officer for eight years.

BC

***
On May 5, 2006 37-year-old
Windsor
Police
Service
Constable John Atkinson was
shot
and
killed
while
questioning two suspicious men
he observed at a convenience
store in a residential area.

Volume 6 Issue 3
May/June 2006

Despite
being
wounded,
Constable Atkinson was able to
return fire as the suspects
fled. Two 18-year-old men were
arrested a short time later.
Constable Atkinson had served with the Windsor
Police for 15 years. He is survived by his wife
and two young children.

***
On May 14, 2006 41-year-old
Sault
Ste.
Marie
Police
Service Senior Constable Don
Doucet was killed in an
automobile accident. Constable
Doucet was a passenger in
police cruiser when it collided with a van. Both
officers and the driver of the van were taken to
the hospital by ambulance. Constable Doucet was
critically injured and succumbed to his injuries
shortly after the collision. The police officer
who was driving the cruiser was treated for nonlife-threatening injuries.
The driver of the van was charged
with impaired driving causing
death, impaired driving causing
bodily harm, and driving with a
blood alcohol content exceeding
80mg%.
Constable Doucet was a 12-year veteran and was
currently assigned to Patrol Services. He is
survived by his wife and two daughters.
The preceding information was provided by the
Abbotsford Police and the Officer Down Memorial
Page: available at www.odmp.org/Canada

Be Smart and Stay Safe

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR

HIGHLIGHTS IN THIS ISSUE
Pg.
6

Marihuana Smell & Odd Behaviour Provide
Reasonable Grounds
Questioning Can Be The Start Of A Search

7

Judge Need Not Check Common Sense At
Door

10

Only Directing Mind Needs Reasonable
Grounds

12

Severed Head Admissible Despite Earlier
Exclusion

13

Observations Confirming Information Provide
Reasonable Grounds

17

Cops Top Justice System, But Not By Much

18

Evidence Flowing From Tainted Detention
Inadmissible

19

Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes
only and are not to be construed as legal or other
professional advice. Nor are the opinions expressed
necessarily the opinions of the Justice Institute of British
Columbia. “In Service: 10-8” welcomes your comments
on or contributions to this newsletter. If you would like to
be added to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.bc.ca
National Library
Publication Data

of

Canada

Cataloguing

in

Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8

“Thanks for all you do. It is
greatly
appreciated
by
many!”—Police
Constable,
British Columbia

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

“I have just been forwarded a copy of…In
Service: 10-8 and found it very interesting and
"readable”… Thank you for your commitment to
keeping us informed!”—Police Constable, RCMP
British Columbia

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

“I've just recently read the "In Service: 10-8"
newsletter and found it to be of interest. I
would like to be added onto your electronic
distribution list, if possible. I am [a] Security
Manager…and retired member of the RCMP. I
find that some of the articles most certainly
apply and will assist our Security Team, where
applicable.”—Security
Manager,
British
Columbia

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

“I would be grateful if you could add me to your
publication list. I am the new legal training coordinator for the [department],…and your hard
work makes…my job much easier. Thanks…”—
Police Constable, British Columbia

”I

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.

2

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

miss getting the newsletter since I
graduated from the JI in January 2004. I go
on-line occasionally and read it but I would like
to get it at work... The rest of my squad would
like to read it also and I can make copies of it
there. Thanks very much, it is a very
informative read and a good way to stay up
to date.”—Police Constable, British Columbia

www.10-8.ca

All past editions of this
newsletter are now available
online by clicking on to:

www.10-8.ca
Volume 6 Issue 3
May/June 2006

‘IN SERVICE’ LEGAL ROAD
TEST
The “In Service” Legal
Road Test is a simple
multiple choice quiz
designed to challenge
your understanding of the law. Each question is
based on a case featured in this issue. In this
issue, two of the questions are based on
statistical information. See page 17 for the
answers.
1. Who is most likely to wear a seat belt?
(a) a 54-year-old woman in Saskatchewan
driving a minivan downtown;
(b) a 32-year-old man in Alberta travelling in
the back seat of a SUV in the country;
(c) a 23-year-old woman in Quebec travelling
in the front passenger seat of a pickup
downtown; or
(d) a 73-year-old man from the Northwest
Territories driving a passenger car in the
country.
2. Questioning a detainee can sometimes be the
beginning of a search for the purposes of s.8
of the Charter.
(a) true
(b) false
3. When a fellow police officer relies on the
direction of a colleague to conduct a search,
the searching officer must independently
have
reasonable
grounds
(subjective/
objective analysis)
(a) true
(b) false
4. Which of the following justice system
personnel do Canadians trust the most?
(a) Judges
(b) Lawyers
(c) Police
(d) Politicians (law makers)

Volume 6 Issue 3
May/June 2006

SEARCH WARRANT
TIME FRAMES:
IN or IN AND OUT?
Anyone who has seen a
search warrant has
noticed that there will
be
a
time
frame
outlined on its face.
This period is inserted
by
a
justice
and
requires the police to take some action within
these parameters. But what action must be
taken? Are the police required to be in and out
within that time? Or are the police required to
just enter in that time and can they carry the
search over past the end time listed? Although
there is not a lot of case law on this matter,
there are a few cases that can provide some
guidance for officers and, perhaps, clear up
some of the debate.
In R. v. Cardinal, 2003 BCSC 158, the police
obtained a telewarrant to enter the accused’s
residence between 5:15 pm and 8:00 pm the
same day. At 7:14 pm officers entered the house
and remained inside until 11:00 pm. During a voir
dire in the Supreme Court of British Columbia on
a charge of possessing cocaine for the purpose
of trafficking, the accused argued the police
failed to comply with the warrant by staying in
the house until 11:00 pm, three hours past the
8:00 pm expiry. This, he argued, violated his
right under s.8 of the Charter to be secure
against unreasonable search or seizure. Justice
Chamberlist, however, ruled that only entry need
be gained between the times specified on the
warrant. There was no requirement that the
search be completed between those times.
In R. v. Woodall, [1991] O.J. No. 3563 (OntCJ),
the police obtained a search warrant to enter
the accused’s residence between 6:00 pm and
9:00 pm. Police moved in at 8:48 pm and saw
many items. The house was secured and it took a
considerable length of time to carry out the

www.10-8.ca

3

seizure of more than 200 items. The seizures
were not concluded until two days later. In the
Ontario Court of Justice the accused argued the
search warrant became invalid after 9:00 pm.
Judge Higgins, however, disagreed:
In the peculiar circumstances of this case and
without ruling that in all situations only entry
is required by a specified hour to prevent a
search warrant from lapsing, I find that the
search warrant first obtained on August
7th…did not lapse at 9:00 p.m that night, and
that it remained operative and cloaking all
activity conducted until the police finally left
the premises with the thus lawfully seized
articles on August the 9th. [para. 61]

In Pars Oriental Rug v. Canada, [1988] B.C.J. No.
3055 (BCSC), Customs officers obtained a
search warrant under the Customs Act to search
a business between 9:30 am and 6:00 pm.
Officers entered at about 10:00 am and began
to seize rugs imported into Canada. Some were
seized before 6:00 pm while others after. The
judge found the entry and search were
restricted to the times specified in the warrant
and that the entire execution process must be
completed within the times indicated. Therefore,
after 6:00 pm the warrant was of no force or
effect.
The Attorney General then made application in
British Columbia Supreme Court arguing that
only entry was required between the times
specified and that once inside the time
constraint disappeared and the authorities could
take as much time as reasonably necessary to do
the search and make the seizures. Justice Wood,
in chambers, did not agree. The wording in the
warrant was ambiguous. It read:
THIS is, therefore, to authorize and require
you between the hours of 9:30 am. July 29th,
1988 to 6:00 p.m… July 29th, 1988 to enter
into the said premises and to search for the
said things and to seize same, if found.

Justice Wood stated:

4

The starting point of this inquiry must
necessarily be the language of the warrant
itself. Mr. Justice Paris found that language
ambiguous. I agree. If as suggested, the time
period described therein was intended only to
set the limits within which entry into the
premises may be effected and the search
begun, it would have been reasonable, not to
mention grammatically preferable, to place the
phrase "between the hours of 9:30 a.m. July
29th, 1988 to 6:00 pm. July 29th, 1988"
immediately after the word "premises."
Worded the way it is, that clause of the
warrant
clearly
lends
itself
to
the
construction that not only the time of entry
but also the authorized search and resulting
seizures if any, are restricted to the time
frame described. [emphasis added, para. 6]

The application was dismissed, while in another
application, [1998] B.C.J. No. 3054 (BCSC), the
rugs seized after 6:00 pm were ordered
returned.
The present wording of a British Columbia
Criminal Code search warrant is consistent with
Justice Wood’s analysis that the time frame be
grammatically
located
after
the
word
“premises” in order that entry is only required
within the time frame mentioned. British
Columbia search warrant wording reads:

However, entering too early or staying too late
after the search is effectively completed can
pose serious problems.
In R. v. L.S.U. (1999) Docket:X051691 (BCSC),
the police obtained a search warrant to enter
the accused’s residence between 2:30 pm and
8:30 pm. However, the police entered at 2:18 pm,
12 minutes before the time specified on the
warrant, but did not seize anything until 2:34 pm.
During a voir dire in the Supreme Court of
British Columbia Justice Stromberg-Stein found

www.10-8.ca

Volume 6 Issue 3
May/June 2006

In R. v. Moran, 21 O.A.C. 257 (OntCA), the police
were investigating a murder and applied for a
warrant to search the accused’s premises. At
9:30 am police found a knife in a shed. Prior to
warrant expiry at 9:00 pm, two police officers
hid in the attic of the shed to watch and see if
the accused would return and approach the
knife. At 08:27 am the following morning the
accused returned, looked up into the attic, and
the officers fled. The trial judge ruled a
“trespass occurred substantially after any right
of access to the premises afforded by the
search warrant had expired and was…without
legal justification,” violating s.8 of the Charter.
In determining whether the trial judge properly
admitted the evidence on appeal to the Ontario
Court of Appeal, Justice Martin stated:
The privilege or right of the police to be on
the [accused’s] premises terminated on the
expiry of the warrant and they became
trespassers at common law by remaining on the
[accused’s] land after the search had been
completed. No request to leave was necessary
at common law.

From the preceding case law, depending on the
wording of the search warrant, it appears that
only entry need be gained within the scope of
the time frame outlined on the face of the
warrant. Any search may extend beyond the time
frame provided it is reasonably necessary for
the completion of the search. For example, the
area to be searched is large or the removal of
items will take a considerable amount of time. If
the items listed in the warrant are located, the
search is completed and there would be no
further practical reason to remain at the
location. Under these circumstances it may not
be reasonable for the police to stay on the
premises.

Volume 6 Issue 3
May/June 2006

DID YOU KNOW…
…that Transport Canada
recently released its
report,
Surveys
of
Seatbelt Use in Canada1.
The 2006 report showing
seatbelt usage for 2004-2005 shows that
seatbelt usage has risen in Canada by about 3%
since the last survey taken in 2002-2003. Other
highlights of the survey include:
• Front seat occupants (90.8%) are more likely
to wear seatbelts than back seat occupants
(84.9%)
• People 50 years of age and older (92.1%) are
more likely to wear seatbelts than people
aged 25 to 49 (91.8%) and people less than 25
years of age (87.0%)
• Females (93.9%) are more likely to wear
seatbelts than males (89.9%)
• Urban vehicle occupants (91.1%) are more
likely to wear a seatbelt than rural vehicle
occupants (86.9%)
• Drivers of passenger cars, minivans, and SUVs
(91.9%) are more likely to wear seat belts
than pickup trucks (84.8%)
Of all provinces and territories in Canada, people
in Saskatchewan wear their seatbelts most often
while people in the Northwest Territories buckle
up the least. Results across all regions (except
Nunavut) are as follows:
Seatbelt Usage By Region
% Seat Belt Use

the search unreasonable. Because police entered
before the time specified in the warrant, the
search was in effect warrantless and therefore
prima facie unreasonable. There were no exigent
circumstances, no safety concerns, and the
search could not otherwise be justified.

95%

94%
92%

92%

92%

90%

91%

89%
87%

86%

85%

83%

81%

82%

80%

75%

75%
70%
BC

AB

SK

MB

ON

QC

NB

NS

PEI

NL

YT

NWT

Province/Territory

1

Transport Canada’s Surveys of Seat Belt Use in Canada 2004-2005, Fact Sheet
TP 2436 E, RS-2006-01E, February 2006

www.10-8.ca

5

MARIHUANA SMELL & ODD
BEHAVIOUR PROVIDE
REASONABLE GROUNDS
R. v. Luu & Tran, 2006 BCCA 73
After responding to a parking
complaint, a police officer went
to a basement suite door to ask
the owner of the vehicle to move
it. A female voice said “Who’s
there?” and the officer told her he was a
member of the police department and asked her
to open the door. The two accused, a male and
female, opened the door, stepped onto the
landing, and closed the door behind them. While
discussing the vehicle, the officer noted a smell
of marihuana. He asked the female for
identification and she appeared nervous.
She went back into the suite while the male
closed the door behind her enough that the
officer could not see inside. The officer then
smelled an overwhelming odour of bulk
marihuana. The male then said something
Vietnamese to the female. The officer grabbed
the male by the arm and advised him he was
under arrest. The male pulled backwards and
they both stumbled into the suite. After a
violent struggle the male was handcuffed. The
female was also arrested and they were both
seated on the couch.
The officer quickly searched the suite to ensure
no one else was present. In the computer room
he saw a large garbage bag and small plastic bags
containing marihuana. He called for assistance
and read the accused their right to counsel
about 20 minutes after entry. They both asked
to call a lawyer but an opportunity was not
provided because the officer could not afford
them privacy. While waiting for a wagon, the
officer asked the male where he lived. A search
warrant was subsequently obtained and 25 lbs of
marihuana bagged in ½ lb quantities was seized.

6

At trial in British Columbia Provincial Court on
charges of marihuana possession for the purpose
of trafficking the judge found the warrantless
arrests lawful. In his view, the officer had the
requisite subjective belief and objective
grounds. Further, the initial warrantless search
was also lawful. The officer did not deliberately
enter the suite, but rather it occurred during
the struggle. The additional search of the suite
was justified to ensure officer safety. Seeing
the marihuana in the computer room was
therefore lawful.
The judge found the officer’s delay in reading
the accused their rights was justified since the
officer was alone and maintaining control of the
situation until assistance arrived. The further 10
minute delay from the time the accused were
read their rights and removed from the scene
was also reasonable. The evidence was admissible
and the accused were convicted.
Both accused appealed to the British Columbia
Court of Appeal arguing the trial judge erred in
finding their ss. 8, 9, and 10(b) Charter rights
were not violated. They argued their arrests and
the subsequent search were unlawful and that
their right to counsel had been breached.
The British Columbia Court of Appeal dismissed
the accused’s ss.8 and 9 Charter arguments. The
officer believed he had reasonable grounds to
make an arrest and those grounds were
objectively justified. The smell of marihuana may
provide reasonable grounds to make an arrest
depending on the circumstances. Justice Smith
stated:
I am not persuaded that the trial judge made
any error in this reasoning.
Ms. Luu’s
demeanour and Mr. Tran’s sudden shift from
English to a language foreign to [the officer]
were relevant circumstances. An objective
observer in the shoes of [the officer] might
have attributed Ms. Luu’s nervousness to his
sudden presence at the door in the dark, as
her counsel suggests.
However, such an
observer might also have reasonably concluded,
considering the smell of marihuana and the odd

www.10-8.ca

Volume 6 Issue 3
May/June 2006

behaviour of the [accused] in joining him in
such close quarters on the landing and in
closing the door behind them, that her
apparent nervousness arose from a fear that
she was in danger of being implicated in
criminal activity.
If so, the objective
observer, unable to see what was inside the
suite, might well be alarmed by the sudden
shift of the [accused] Tran from English to a
language the observer did not understand.
While it might have been open to the trial
judge to draw innocent inferences from these
matters, the drawing of factual inferences
from the evidence was within his exclusive
province. His inferences were grounded in the
evidence and I would reject the submission
that he erred in concluding there were
objectively reasonable grounds for the
arrests. [para. 23]

Nor was the arrest of the female unlawful
because it was made inside a private dwelling
without a warrant. The suite was entered
because of the struggle, not deliberately,
forcibly, or for the purpose of arresting the
female. Since there were reasonable grounds for
the arrest the accused were not arbitrarily
detained. The cursory search that followed for
officer safety was also justified.
The delay, however, in providing access to
counsel was a s.10 Charter breach along with
questioning following arrest. Justice Smith
explained:
In my view, the trial judge erred in rejecting
this submission on the basis that the delay at
the scene was very short and was not
unreasonable in the circumstances. In R. v.
Strachan, [1988] 2 S.C.R. 980, Dickson C.J.C.
observed…that once police have the arrest
scene under control, there is no reason not to
allow the person arrested to telephone a
lawyer and that the denial of the s. 10(b) right
to counsel begins at that point. Chief Justice
Lamer, speaking for the court in R. v.
Manninen, [1987] 1 S.C.R. 1233…stated that,
where a telephone is available, it is the duty of
the police to offer the use of it to facilitate
contact with counsel, at least in the absence
of urgency. There was no urgency here and

Volume 6 Issue 3
May/June 2006

there were telephones available to be used in
the residence where the [accused] were
arrested.
Moreover, that [the officer]
believed he could not offer the [accused]
privacy is no answer to his failure to do his
duty. In R. v. Bui, 2005 BCCA 482, this Court
upheld the decision of a trial judge that the
failure to give the [accused] in that case the
option of contacting counsel without privacy
amounted to an infringement of their s. 10(b)
rights.
As well, [the officer] questioning of Mr. Tran
at the scene, after he had advised Mr. Tran of
his right to counsel, was a second infringement
of the s. 10(b) right. [para. 30-31]

Despite these violations, the evidence was
admitted under s.24(2) and the appeal was
dismissed.
Complete case available at www.courts.gov.bc.ca

QUESTIONING CAN BE THE
START OF A SEARCH
R. v. Rutten, 2006 SKCA 17
After observing a vehicle driven
with a burnt out headlight the
police followed it to a car wash,
pulled in behind it, and the
driver got out. The accused
admitted to having a couple of beer after work
and said there was no open liquor in the truck.
The officer asked if he could take a look inside
and was told to go ahead. An open bottle of beer
was seen in the console and removed. The officer
then asked if there were any drugs in the truck,
even though he had no reasonable grounds to
believe such.
The officer asked if he could take a look. The
accused paused, then reached into the back seat
of the truck, removing a Bick’s pickle jar and
handed it to the officer. There was marihuana,
rolling papers, and scissors inside. The accused
was arrested for possession of a controlled
substance, but was not read his rights.

www.10-8.ca

7

The officer saw a shaving kit bag on the floor,
picked it up and asked the accused if he could
take a look in it. The accused said “No”, grabbed
the bag from the officer and put it back in the
truck. The officer put the accused in the police
car, advised him of his right to counsel and gave
the police warning. He wanted to speak to a
lawyer but was told he could do so at the police
detachment. The shaving bag was examined and
found to contain cocaine. The vehicle was seized
and a search warrant was obtained the next day.
The shaving bag was found to hold 43.5 grms of
cocaine and other evidence.
At trial in the Saskatchewan Court of Queen’s
Bench, the judge found the accused’s rights
under s.8 of the Charter had not been breached.
In her view, the police had the authority to
arrest the accused under the Alcohol and Gaming
Regulation Act and could search incident to that
arrest. Furthermore, the judge also found the
accused consented to the search.
The accused appealed to the Saskatchewan
Court of Appeal arguing, in part, that the search
was for drugs while the right to arrest arose in
relation to open alcohol and therefore was not
valid as an incident to arrest. He also submitted
that the consent was not valid. Although he
conceded the police could investigate him for
the alcohol offence, the accused suggested he
was also arbitrarily detained once the police
shifted their focus to drugs.

Search Incident To Arrest
Justice Smith, writing the Court’s judgment,
agreed with the accused. Once the officer asked
whether there were any drugs in the truck a
search for drugs began. However, questioning
the accused about the presence of drugs was not
justified as a search incidental to an arrest for
an alcohol offence. Justice Smith stated:
With respect, I am of the view that the
learned trial judge erred in concluding that
the inquiry as to the presence of drugs in the
vehicle fell within authority of the police to
search the vehicle incidental to the earlier

8

discovery of one open bottle of beer in the
driver’s console. It is clear from the
transcript that the question to the [accused]
related only to the presence of drugs in the
vehicle. Nothing in what had happened to that
point gave the police reasonable and probable
grounds to believe that drugs were present in
the vehicle. The officer’s question was not an
inquiry about the presence of other open
alcohol. Nor did the officers make such an
inquiry at any point. Neither was it an inquiry
about the sobriety of the [accused]. The
officers testified that nothing in the
[accused’s] manner of driving, nor in his
responses when talking to him, nor in his
physical appearance gave rise to any concerns
that he was impaired. Indeed, the officers
did not pose any further questions relating to
the presence of alcohol or relating to the
[accused’s] sobriety. He was not asked to
perform any sobriety tests.
While it is true that the police had statutory
authority to arrest the [accused] in relation to
the offence of having an open bottle of beer in
his vehicle, they did not do so and in reality
had no reason to do so. The [accused] was
known to them as a resident and businessman
in the village where the detention occurred.
There were, as I have said, no concerns about
his sobriety. The officers had no concerns
about their own safety or the safety of others
on the highway. The offence in question was
punishable by a fine. As for searching for
further evidence on the offence in question,
the police had already noted an open case of
beer in the truck box. There was only one
occupant of the vehicle, the [accused], who
showed no symptoms of impairment, and it was
unreasonable to expect that there would be
other open alcohol in the vehicle. In my
respectful view, these facts are open to no
other reasonable interpretation than that the
police
were
launching
an
unrelated
investigation, possibly based on unverified
rumour, but in any case not supported by
reasonable and probable grounds, of a possible
offence under the Controlled Drugs and
Substances Act. [paras. 24-25]

And further:

www.10-8.ca

Volume 6 Issue 3
May/June 2006

[T]here is both a subjective and an objective
aspect to the question of the purpose of the
search said to be incidental to arrest. In the
case at bar, the question posed to the
[accused] was whether there were any drugs in
the truck. When asked why he posed that
question, [the officer’s] response, on evidencein-chief, was:
It’s just part of our general inquiries in
vehicle stops to ask if there’s drugs or
alcohol in the truck or if people have
been drinking or…
The courts have, on a number of occasions,
made it clear that an investigation or inquiry
into the possible possession of contraband is
not permissible as part of “general inquiries in
vehicle stops,” absent other grounds for the
inquiry…[The officer] conceded that he had no
grounds to believe that there were drugs in
the truck…
The [Crown] argues that the police were
entitled to search for more open alcohol in the
vehicle and, in doing so, they would inevitably
have found the drugs. I am of the view that
this rationale cannot justify the search as one
incident to the arrest. The evidence is that
this was not the subjective purpose of the
officers. [The officer] admitted on crossexamination that, at the time he asked if
there were drugs in the vehicle, and then if he
could search the vehicle, he did not believe
that he had reasonable and probable grounds
to search the vehicle. It is impossible to
conclude that this officer’s subjective reason
for searching the vehicle was incidental to an
arrest for an open bottle of beer in the
driver’s console.
Even if, contrary to the evidence, the
subjective purpose of the questioning and
ensuing search had been in relation to the
presence of alcohol in the vehicle, it is not
obvious that a search limited in scope to that
purpose would have disclosed the drugs which
were concealed in a Bick’s pickle jar and in a
shaving kit, both unlikely places to conceal
open bottles of alcohol. [paras. 28-31, ]

Volume 6 Issue 3
May/June 2006

Consent
As for valid consent to search, the Court found
the requirement that a person be aware of their
right to refuse a search was not met. Justice
Smith held:
It is my respectful view that the trial judge
failed to consider the requirements for valid
consent and the onus of proof on the Crown in
this respect. The police in this case did not
make even minimal efforts to ensure that the
[accused] was aware of his constitutionally
protected right to refuse a search for drugs.
Application of the proper test leads to the
conclusion that the consent obtained was not
valid and cannot be relied upon to render
lawful or reasonable the search for drugs
undertaken by the police in the absence of
reasonable and probable grounds to believe
that drugs were present in the truck. [para.
44]

Arbitrary Detention
The Court, however, rejected the accused’s
submission that he had been arbitrarily
detained when the police made their unlawful
enquiry about drugs:
In the present case, neither the initial
detention to speak to the driver about a
malfunctioning headlight, nor the subsequent
detention in relation to the open beer in the
vehicle was arbitrary. Thus, it was not
necessary to rely upon s. 1 of the Charter to
justify the detention and no inquiry into the
limits of s. 1 justification was required.
Mellenthin and Ladouceur (Sask. C.A.) are
therefore not on point. While I have held that
these reasons for detention did not authorize
a search for contraband drugs, it is my view
that it does not follow that the [accused] was
arbitrarily detained in these circumstances.
Indeed, that was not the finding in Mellenthin,
which concluded that the random stop could
not in itself justify a search for drugs, but did
not address the question of whether the
[accused’s] s. 9 rights were also infringed in
the circumstances of that case. Ladouceur, on
the other hand, is a finding that the initial
stop, for purposes going beyond highway
safety concerns, was unlawful.

www.10-8.ca

9

In the instant case, the detention of the
[accused] was justified, initially pursuant to
The Highway Traffic Act and subsequently
pursuant to The Alcohol and Gaming
Regulations Act, 1997. The [accused’s]
argument turns on the fact that in the course
of the admittedly lawful detention the police
embarked on an unlawful inquiry. I agree that
they did, and have found that that constituted
an unreasonable search. However, it does not
follow that once the police embarked on an
inquiry about drugs the detention in relation to
the mechanical unfitness of the vehicle and
alcohol present in the vehicle became
arbitrary. The [accused’s] argument would
lead to the conclusion that once the police misstepped, by embarking on an inquiry not
justified by the purposes of the detention,
they automatically lost all the legitimate
authority they had to detain the [accused] on
the original grounds, or to pursue the inquiries
in relation to those grounds. I cannot agree
with this analysis. The police were still
entitled, had they wished to do so, to make
further inquiries concerning the presence of
alcohol or concerning the mechanical fitness of
the vehicle. The point in the present case is
not that the detention of the [accused] was
arbitrary; it is that the search for drugs was
unreasonable. I find no error in the conclusion
of the learned trial judge that the [accused]
was lawfully detained. [paras. 58-59]

The evidence was excluded under s.24(2), the
conviction set aside, and an acquittal was
entered.
Complete case available at www.canlii.org

JUDGE NEED NOT CHECK
COMMON SENSE AT DOOR
R. v. Mowry, 2006 NBCA 18
Acting on source information the
police attended a remote and
uninhabited area of Crown land
where they found 175 marihuana
plants growing in a clearing. The
officers left and returned a few months later.
The plants had grown a few feet, were dry, and

10

their leaves were yellow. The following day the
police returned and conducted surveillance. The
accused and two others arrived and were
videotaped for about 12 minutes. In the video
tape the accused could be seen moving around
the plants and bending over at the waist,
however his hands were not in view. The other
two men were seen involved in activities such as
pruning, carrying a water bucket, or holding a
hose.
At trial in New Brunswick Provincial Court the
accused was convicted of marihuana production.
“Produce” in the Controlled Drugs and
Substances Act means to obtain a substance by
cultivating, which includes any act designed to
help raise plants, such as the preparation and use
of the soil, the removal of weeds from the
vicinity of the plants, and pruning. An appeal to
the New Brunswick Court of Queen’s Bench was
dismissed.
The accused appealed further to the New
Brunswick Court of Appeal arguing that the trial
judge’s verdict was unreasonable because the
video did not show what he was doing with his
hands—he was not seen touching the plants or
handling any watering equipment. Chief Justice
Drapeau, writing the unanimous opinion,
dismissed the appeal. He stated:
The trial judge was not required to check her
common sense at the courtroom door. A
contextual commonsensical appreciation of
what [the accused] is shown doing on the
videotape leads inescapably to the conclusion
that he was engaged in cultivating the cannabis
(marihuana) plants that are the subject of the
underlying charge and the impugned conviction.
It is obvious from the video that [the men]
were operating as a team, each doing his part
to help the plants’ growth. The trial judge
properly assessed [the accused’s] actions in
the context provided by the evidence as a
whole, including the actions of his two
plantation co-workers. [para. 14]

The conviction was upheld.
Complete case available at www.canlii.org

www.10-8.ca

Volume 6 Issue 3
May/June 2006

REASONABLE FORCE OK TO
ENSURE DETAINEE NOT
ARMED
R. v. Gillies, 2006 BCPC 0053
A police officer patrolling in his
police car saw the accused
walking in an extremely high
prostitution and drug offence
area. As the car approached, the accused took a
180 degree turn and began to walk away. The
officer pulled up beside the accused and said,
“Hey buddy, how you doin? What’s your name?”
through an open window. The officer saw a silver
object protruding from the accused’s closed fist.
Believing it to be the handle of a knife, the
officer ordered the accused several times to
drop it. He refused and the officer took him to
the ground with a leg sweep. A shiny object and
plastic container dropped from the accused’s
hand.
The accused failed to show his hands despite
instructions by the officer. He was struck twice
and then handcuffed. The accused was arrested
for possession of a dangerous weapon. The
officer examined the dropped items, a chrome
lighter and a plastic container with cocaine in it.
The accused was re-arrested for possession of
cocaine for the purpose of trafficking and read
his Charter rights.
The accused applied to have the evidence
excluded in British Columbia Provincial Court
arguing he was detained by police without
reasonable grounds and that his rights under ss.
8, 9, and 10 of the Charter were violated.
Judge A. Rounthwaite first reviewed
applicable case law, noting the following:

the

1. police officers may briefly detain
individuals whom they have reasonable
grounds to suspect are connected to a
particular crime, if the detention is
reasonably
necessary
when
viewed
objectively, as well as subjectively;

Volume 6 Issue 3
May/June 2006

2.

police officers may engage in a protective
pat down search of detained individuals
where they believe on reasonable grounds
that their safety or the safety of others is
at risk.; and

3.

where there are reasonable grounds for
arrest,
viewed
subjectively
and
objectively, officers may arrest and
conduct a search incidental to arrest in
order to obtain evidence, to prevent
escape, or for safety. [para. 6]

She then went on to hold the entire encounter
lawful:
I found [the officer] was entitled to “check”
[the accused] by approaching him and engaging
in conversation, although [the accused] was not
obliged to answer questions.
Upon seeing what he reasonably thought was
the handle of a knife held in [the accused’s]
closed fist, after midnight, in a neighbourhood
with a high incidence of prostitution and drug
trafficking, [the officer] had reasonable
grounds, viewed subjectively and objectively,
to suspect he was committing the offence of
possession of a dangerous weapon and to
detain him for investigation of that offence.
I accepted the officer’s evidence that he was
vulnerable to a man with a knife as he sat at
the open window of a car, and found he had
reasonable grounds to believe his safety was
at risk. For his own protection, [the officer]
was entitled to instruct [the accused] to drop
the knife and show his hands, a form of
protective search less intrusive than a pat
down. When [the accused] failed to show his
hands, the officer was entitled to use
reasonable force to ensure he was not armed
with a weapon. On the evidence in the voir
dire, [the officer] did not use more force than
was necessary for this purpose.
Although counsel approached this as an
investigative detention case, I found on the
evidence that the officer also had reasonable
grounds, viewed subjectively and objectively,
to arrest [the accused] for possession of a
dangerous weapon once he formed the belief
that [the accused] was in possession of a

www.10-8.ca

11

knife. On the evidence, [the officer] did not
just suspect [the accused] possessed a knife,
he believed it, and his belief was reasonable.
He was therefore entitled not just to detain
[the accused] for investigation, but to arrest
him for possession of a dangerous weapon.
Instructing [the accused] to show his hands
and using force to ensure he was not armed
were therefore also justified as part of the
arrest and search for weapons incidental to
arrest.

attention. The other female was arrested on an
outstanding warrant and the vehicle was
searched. The constable found rolling papers, a
knife, and scissors which had marihuana residue.
He then arrested the female and the accused
for possession of a controlled substance. At the
police station the police found two bags of
cocaine in the infant’s diaper. The accused was
charged with possessing cocaine for the purpose
of trafficking.

I found [the officer] advised [the accused] of
his Charter rights under s. 10 (a) and (b) as
soon as practicable. [paras. 7-11]

At trial in Saskatchewan Provincial Court the
judge restricted the Crown from calling evidence
from the officers directing the stop. He then
ruled the constable intended to stop and search
the vehicle before he pulled it over. In his view,
the instruction given to the constable to stop
the vehicle was, by itself, insufficient to provide
reasonable grounds. The constable was not
entitled to simply accept the directing officer’s
opinion without satisfying himself about the
facts. So, even though the constable
subjectively believed he had reasonable grounds,
the trial judge ruled he did not have the
necessary objective foundation. As a result, the
evidence was excluded under s.24(2) and the
accused was acquitted.

Since there were no Charter breaches the
evidence was admissible.
Complete case available at www.provincialcourt.bc.ca

ONLY DIRECTING MIND
NEEDS REASONABLE
GROUNDS
R. v. Hall, 2006 SKCA 19
Two police officers reviewed
summaries
of
wiretap
conversations obtained during a
long-term and ongoing cocaine
trafficking investigation. The information
indicated that on a particular date the accused
and another female would be driving a particular
vehicle on a particular highway transporting
cocaine. One of the officers told a constable
where the vehicle would be going, who was in it,
that it would contain cocaine, and provided a
vehicle description. However, the officer did not
tell the constable what had been said in the
wiretaps because she did not want to
compromise the ongoing investigation.
The constable saw the vehicle speeding, the
passenger not seat belted, and an infant child
being moved from the front to the back seat.
The constable stopped the vehicle, asked for the
accused’s driver’s licence and told her she was
being detained for driving without due care and

12

The Crown appealed to the Saskatchewan Court
of Appeal arguing the trial judge erred. Justice
Gerwing, writing the unanimous appeal court
judgment,
concluded
the
trial
judge
misunderstood the law by limiting the evidence
the Crown wished to deduce from the officers.
In
Justice
Gerwing’s
opinion,
“the
misunderstanding related to whether or not the
constable effecting the search had to have all of
the details which would provide reasonable and
probable grounds for the search or whether he
was entitled to rely on instructions from
superior officers who did have full information.”
Justice Gerwing noted that the trial judge
believed it was necessary for the constable
himself to have sufficient information to
conclude reasonable grounds existed. However,
the Supreme Court of Canada in R. v. Debot,

www.10-8.ca

Volume 6 Issue 3
May/June 2006

[1989] 2 S.C.R. 1140, had previously ruled that
the officer directing the search is the one who
requires the reasonable grounds while the
officer conducting the search can assume the
officer ordering it had the necessary grounds to
do so. Justice Gerwing stated:
Based on Debot, the conclusions of the judge
about reasonable and probable cause must be
discounted. That is, he did not understand
that it was not necessary for [the constable]
to have full information to have such
reasonable and probable grounds. He declined
to hear the evidence which would show that
the appropriate officers did have such
information. [para. 23]

And further:
A search of the authorities does not provide
much enlightenment on the nature of the
precision required for the order to be given
by the officer with information to the one
who is to effect the search. This is not
surprising since, given the exigencies that
normally exist, shorthand instructions may be
appropriate, and, indeed, normal. It is
frequently stated that all of the information
must be considered to determine if there has
been a Charter breach. [para. 26]

Since the trial judge did not give the Crown an
opportunity to lead testimony related to this
issue a new trial was ordered. A new trial would
allow the issues to be fully analyzed in light of
all relevant probative evidence.
Complete case available at www.canlii.org

SEVERED HEAD ADMISSIBLE
DESPITE EARLIER EXCLUSION
R. v. Savojipour,
(2006) Docket:C34438 (OntCA)
The accused told police he
buried the head and arms of a
murder victim in a ravine. The
Crown
wished
to
present
evidence that the injuries to

Volume 6 Issue 3
May/June 2006

the head were consistent with a hammer owned
by the accused. During a voir dire in the Ontario
Superior Court of Justice, however, the judge
ruled the statement by the accused was
inadmissible on Charter grounds. Since the
inadmissible statement led the police to find the
head and arms (derivative evidence), they too
were not admissible because they would not have
been discovered but for the inadmissible
statement. The admission of the found body
parts would therefore render the trial unfair.
Thus, the discovery of the head or its condition
could not be used in court.
The defence, however, made reference to the
inadmissible statements. The Crown objected
and stated if further reference was made they
would seek a new ruling on admissibility. When
defence counsel suggested to the forensic
pathologist that he took oral swabs the judge
directed defence counsel to continue questioning
without an answer to the question. Crown
objected, suggesting they had been prejudiced
because the jury would now know the head had
been located and examined. From this, the jury
would then infer that the Crown had concealed
material evidence.
Furthermore, the accused was expected to
testify the victim had been struck on the head
by two intruders and the jury might wonder why
the Crown had not had the head tested. Or the
jury might think the Crown could not rebut the
accused’s testimony. The trial judge accepted
that the defence counsel’s mistake was
inadvertent, but refused to cure his mistake by
a simple jury instruction. Rather, he reversed his
earlier ruling excluding evidence about the head
and the accused was subsequently convicted of
first degree murder.
The accused appealed to the Ontario Court of
Appeal arguing, in part, that the trial judge
erred in his ruling. The Court of Appeal,
however, upheld the conviction. In ruling that
the trial judge did not err, the Court held:

www.10-8.ca

13

First, he was in the best position to assess the
impact of the error in the atmosphere of the
trial. In our view, the conduct of the defence
gave rise to a material change in circumstances
that justified a reversal of the earlier ruling…
The evidence that had initially been excluded
in order to preserve the fairness of the trial
was now admitted to restore the fairness of
the trial process. There was clearly a risk
that the jury might be misled or presented
with a distorted picture. The argument that
the “sins” of defence counsel were improperly
visited upon the client is not valid. Absent a
finding of ineffective assistance of counsel,
which is not suggested here, the client is fixed
with the steps taken in furtherance of his
defence.
Second, we do not propose to second guess the
trial judge in concluding that the perception
that the Crown was suppressing relevant
evidence could not be cured through judicial
instruction.
The new ruling made it possible for the jury to
know that the [accused] had led the police to
the location of the head, a matter of some
importance to the defence as it did not want
the jury to think that the [accused] had
hidden the head and thus prevented the
victim’s family from holding a proper burial.
Furthermore, the [accused] in his testimony
stated that when he returned to his
apartment he saw the hammer in his apartment
and that there was blood on it. This left the
possibility that the assailants had used the
hammer while the [accused] was absent from
the apartment. The matter was clearly and
fairly dealt with by the trial judge in his
charge. Overall, trial fairness was restored
and the [accused] was not prejudiced by the
admission of the head of the victim into
evidence. [reference omitted, paras. 15-17]

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

Note-able Quote
Correction does much, but encouragement does
more—Goethe

14

PRESENCE OF NON-POLICE
PERSONNEL DURING SEARCH
NOT UNREASONABLE
R. v. Tran, 2006 BCPC 0054
After police entered a residence
with a search warrant and
confirmed the existence of a
marihuana grow operation, a
hydro inspector, two by-law officers, and the
fire department were called to the site to deal
with safety issues. The grow operation was
sophisticated. Wiring was exposed throughout
the house, vents had been cut in the walls and
ceiling, and rooms had been converted into
nutrient and electrical areas. These personnel
were allowed to examine the premises without
direct supervision. The hydro inspector located
a by-pass and a non-occupancy notice was posted
by a bylaw officer because the residence was
unsafe.
During a voir dire in British Columbia Provincial
Court on charges of electricity theft and
cultivation, the accused argued, among other
grounds, that the manner of the search was
unreasonable because non-police personnel were
allowed into the residence without explicit
authorization. Judge Hoy, however, disagreed.
“In my view the officers concerns for safety,
not only for themselves, but as well the
residence and the neighbourhood, are well
founded,” he said.
In coming to his conclusion Judge Hoy reviewed
ss.11(6), 11(8), and 12 of the Controlled Drugs
and Substances Act (CDSA). Section 11(6), in
part, allows police executing a warrant to seize
items not mentioned in the warrant if they have
reasonable grounds to believe the things are
offence related property or will afford evidence
of a CDSA offence. Section 11(8) allows for the
seizure of items if there are reasonable grounds
to believe they were used in the commission of
an offence or will afford evidence of an offence.
Section 12 allows the police to enlist the

www.10-8.ca

Volume 6 Issue 3
May/June 2006

necessary assistance to exercise the powers
described in s.11. In holding the accused’s rights
not breached, Judge Hoy stated:
…In order to carry out their duties the
police, through s. 12 (a), are given the legal
authority to enlist the help of others for the
purpose of collecting evidence, not only for
offence related property but as well evidence
for other potential charges other than that
contained in the CDSA. For the hydro
representative the evidence gathered was
relevant not only to the CDSA charge but as
well the Criminal Code offence of theft of
electricity. In either instance the hydro
representative had not stepped beyond the
bounds authorized by legislation whether it
be his discovery of the electrical bypass or
his making an assessment of the evidence as
discovered by the police for the purposes of
determining
the
excess
electrical
consumption.
Furthermore, the ambit of the assistance
provided also includes safety considerations.
The police are entitled to ensure that their
work is conducted in as safe a manner as
possible. Having secured the residence there
are, in this instance, obvious dangers in the
collection of evidence given the extensive
electrical alterations, structural changes
from the venting system and the presence of
abundant quantities of plant nutrient
chemicals. It was a prudent step to enlist the
help of a hydro representative, the fire
department and the by law enforcement
officers to ensure a safe environment in the
collection of evidence. The police cannot
reasonably be expected to have the expertise
of electricians or firemen. They do not
possess
the
knowledge or
necessary
equipment to address any potential electrical,
fire, chemical or structural hazards.
It is noted the police did not directly
supervise these individuals who were enlisted
to assist them. In spite of this I do not find
that the search was thus rendered
unreasonable. It was not as if there was a
complete void of control over their conduct.
The residence was very crowded with 5
officers involved in the search. It is

Volume 6 Issue 3
May/June 2006

reasonable to state there would be some
measure of scrutiny as they would have
crossed paths with the police in the course of
rendering assistance. [paras. 21-23]

The evidence was admissible.
Complete case available at www. provincialcourts.bc.ca

HOUR LONG INVESTIGATIVE
DETENTION NOT
UNECESSARILY LENGTHY
R. v. Dao, 2006 BCPC 0051
A police officer, who had been
involved in about 200-300 drug
investigations, saw a man
resembling the broadcasted
description of a theft suspect.
The man, who looked like a drug user, entered an
alley way where prostitution and drug use were
common. He approached a vehicle stopped in the
alley and spoke to the accused through the
driver’s window. When the men saw the police
car they looked surprised. As a result of the
location, what he saw, and the surprised
expressions, the officer suspected the accused
was engaged in a drug transaction. The officer
called for backup as he watched the men speak
briefly, go to the truck, remove an oil container,
and then go to the hood of the car. The officer
believed they were now putting on a show for
police.
Once back up arrived the police spoke to the two
men. After about an hour the police confirmed
the name of the man seen with the accused. He
had initially provided a false name and his
girlfriend brought identification to the scene,
which was fake. Eventually, police determined
there were two outstanding warrants for the
man’s arrest. The arrested man then told police
he had met the accused to buy $20 worth of
crack cocaine and that he had been buying from
him for the past four months. The officer then
arrested the accused for possession for the
purpose of trafficking, and advised him of his

www.10-8.ca

15

Charter rights. The accused and his vehicle were

suspicion that a person is engaged in drug
trafficking in an area where drug offences
are common justifies [the accused’s]
detention. [references omitted, para. 7]

searched and drugs and money found.

During a voir dire in British Columbia Provincial
Court the accused argued his rights under ss.8,
9, and 10 of the Charter were violated and the
evidence should be excluded under s.24(2).
In summarizing the leading case law about
investigative detentions and searching incidental
to arrest, Judge A. Rounthwaite explained:
While the defence must establish a Charter
violation on the balance of probabilities, the
Crown must prove a warrantless search
reasonable. The leading cases on investigative
detention
and
search
incidental
to
arrest…establish the following:
•

Police
officers
may
briefly
detain
individuals whom they have reasonable
grounds to suspect are connected to a
particular crime, if the detention is
reasonably
necessary
when
viewed
objectively, as well as subjectively;

•

Investigative detentions must be brief, and
police officers must tell detainees the
reason for their detention.

•

Where there are reasonable grounds for
arrest, viewed subjectively and objectively,
officers may arrest and conduct a search
incidental to arrest in order to obtain
evidence, to prevent escape, or for safety.
[references omitted, para. 3]

The judge found the officer was justified in
detaining the accused and that its duration —an
hour—was not unnecessarily long. The length of
the detention was driven by the detainees’
conduct. Judge Rounthwaite stated:
I find at this point [the officer] had
reasonable grounds, viewed subjectively and
objectively, to suspect [the accused] was
committing the offences of trafficking and
possession for the purpose of trafficking in
drugs. Applying the law…he was therefore
entitled to briefly detain [the accused] for
investigation. Undertaking the broader
inquiry…, I consider that a reasonably based

16

And further:
[The accused] was not handcuffed or searched
during the detention, nor did he make an
incriminating statement.
This detention was not brief, but applying the
decision of the BC Court of Appeal in R. v.
Greaves, where a 40 minute detention was
found reasonable and justifiable because the
detainee’s
conduct
obstructed
the
investigation, I accept the Crown’s submission
that its length was warranted by the officers’
need
to
investigate
the
inconsistent
information the detainees provided to police.
[paras. 13-14]

As for the accused’s arrest it was also lawful and
the searches conducted incidental thereto were
reasonable:
Having considered the law on arrest
enunciated… I find [the accused’s companion’s]
statement that he was there to buy cocaine
from [the accused], combined with [the
officer’s] earlier observations and the conduct
of the men during the investigation, gave [the
officer]
reasonable
grounds,
viewed
subjectively and objectively, to arrest [the
accused] for possession for the purpose of
trafficking.
Although
[the
accused’s
companion] had lied about his name, this
explanation for his presence was far more
credible, and far more consistent with the
officer’s other observations, than the unlikely
story that he was there to help [the accused]
fix his car. [references omitted, para. 17]

Even if the accused’s right under s.10(a) (as
conceded by the Crown) was breached because
he was not informed of the reason for the
detention and assuming his s.10(b) right was also
violated because police failed to advise him of
his right to counsel, the evidence was
nonetheless admissible. Judge Routhwaite ruled:

www.10-8.ca

Volume 6 Issue 3
May/June 2006

Would admission of the evidence bring the
administration of justice into disrepute? The
evidence was non-conscriptive and its
admission would not affect the fairness of
the trial. While “good faith cannot be claimed
if a Charter violation is committed on the
basis of a police officer’s unreasonable error”
…I do not consider the violation serious.
During the detention [the accused] was not
handcuffed; questioning was limited to his
name and relationship with [his companion];
and he made no incriminating statement. [The
accused] was told the reason for his arrest at
the conclusion of the investigative detention;
his right to counsel was explained; and he was
given a reasonable opportunity to consult
counsel. The charges are serious and
exclusion of the evidence would lead to
dismissal. In this case I believe exclusion of
the evidence would bring the administration
of justice into disrepute. Accordingly, I
refuse the application to exclude evidence.
[para. 23]

The evidence was admissible.
Complete case available at www. provincialcourts.bc.ca

‘IN SERVICE’ LEGAL ROAD
TEST ANSWERS
1. (a) a 54 year old woman in Saskatchewan
driving a minivan downtown —see Transport
Canada’s recently released report, Surveys of
Seatbelt Use in Canada (at p. 5 of this
publication).
Each
discernible
marker
associated to a person in this example (age,
gender, region, location in the vehicle, vehicle
type, and locale) suggests they are more likely
to be wearing a seatbelt.
2. (a) true—see R. v. Rutten (at p. 7 of this
publication). In this case, the court concluded
that asking whether there were any drugs in
the truck began a search, but such questioning
was not justified as a search incidental to an
arrest for an alcohol offence.
3. (b) false—see R. v. Hall (at p. 12 of this
publication). In this case the court concluded

Volume 6 Issue 3
May/June 2006

that the officer directing the search is the
one who requires the reasonable grounds while
the officer conducting the search can assume
the officer ordering it had the necessary
grounds to do so. It is not necessary for the
searching officer to have all of the details
which would provide reasonable and probable
grounds for the search.
4. (c) Police—see Leger Marketing report
entitled “Profession Barometer”, (at p. 19 of
this publication).

OBSERVATIONS CONFIRMING
INFORMATION PROVIDE
REASONABLE GROUNDS
R. v. Murphy,
(2006) Docket:C42133 (OntCA)
A
confidential
informant
provided information to the
police describing a male, where
and when he would be going to
a specific location, and that he would be carrying
cocaine while armed. Police set up surveillance at
the identified location and observed a male
matching the generic description given, heading
towards the described location within the
specific time frame provided. As the male ran
across the street, he appeared to reach into his
shirt and hold something in his pants, which the
experienced officers believed was a gun. The
accused was arrested and searched incidental to
arrest. Police found a handgun tucked in the
accused’s pants as well as cocaine.
At trial in the Ontario Superior Court of Justice
the judge treated the confidential information
as equivalent to information from an anonymous
and unproven source. However, she concluded
that the information provided by the informant
along with the police observations of the accused
prior to his arrest provided the requisite
reasonable grounds. The search that followed
was pursuant to that arrest and was
constitutional.

www.10-8.ca

17

Complete case available at www.ontariocourts.ca

90%

88%

88%
Trust Rating

In dismissing the accused’s appeal, the Ontario
Court of Appeal found, in part, that the trial
judge did not err in concluding there were
reasonable grounds to make the arrest. This was
not a case where police surveillance did not
confirm any material parts of the informant’s
tip. Rather, the police observations of the
accused as “he ran across the street provided
significant confirmation of the informant’s
statement that the [accused] was armed.” The
informant’s information, along with the officers’
observations
confirming
that
information
justified the arrest.

86%
84%
82%

83%
81%

80%

79%

80%

2004

2003

78%
76%
74%
2006

2005

The police were trusted most in Atlantic Canada
(89%), but least in Ontario (78%).

Judges
The trust rating for judges rose six percent
from 2005.
82%

In a March, 2006 Leger
Marketing
report
entitled
“Profession Barometer”, police
officers were the most trusted
profession in the criminal justice system2. Eighty
one percent of Canadians trusted police officers,
followed by judges (78%) and lawyers (48%).
Lawmakers (politicians) were dead last at 14%.

60%
50%
40%
30%
20%
10%
0%

78%

81%

78%

80%
78%
75%

76%

73%

74%

72%

72%
70%
68%
2006

2005

2004

2003

Judges were trusted most in Atlantic Canada
(81%), but least in the Prairies (74%).

Lawyers
Lawyers were up three percent over last year,
but continue at a level below 50% since 2003.
60%

48%

50%

14%

Politicians

Lawyers

Judges

Police

2002

Judges

Trust Rating

Trust Rating

90%
80%
70%

80%
Trust Rating

COPS TOP JUSTICE SYSTEM,
BUT NOT BY MUCH

2002

Police

48%
45%

48%

54%

44%

40%
30%
20%
10%

Profession

0%
2006

Police

2005

2004

2003

2002

Lawyers

Police officers were two percentage points lower
on the trust barometer than last year and down
seven percent from the five year high of 88% in
2002.

Lawyers were trusted most in Atlantic Canada
(52%), but least in Quebec and British Columbia
(47%).

2

The Leger Marketing Report provided trust ratings for 22 professional
occupations.

18

www.10-8.ca

Volume 6 Issue 3
May/June 2006

Politicians (Law Makers)

Trust Rating

Politicians have dropped two points and have not
been trusted by at least 20% of Canadians in the
last five years.
20%
18%
16%
14%
12%
10%
8%
6%
4%
2%
0%

18%
16%
14%

2006

2005

14%

14%

2004

2003

2002

Lawyers

Politicians are trusted most in Atlantic Canada
(26%), but least in the Quebec (10%).
Of the other 18 professions identified in the
report, firefighters ranked number one overall
with a 96% trust rating, ahead of nurses (95%),
farmers (92%), doctors (89%), teachers (88%)
and engineers (88%) rounding out the top five3.
Complete report available at www.legermarketing.com

EVIDENCE FLOWING FROM
TAINTED DETENTION
INADMISSIBLE
R. v. Chaisson, 2006 SCC 11
A police officer saw a lone
vehicle with two occupants
parked in the dark at the rear
parking lot of a closed gas
station just after midnight. Its
lights were out and it was not running. There was
a 24-hour donut shop and a closed restaurant
nearby. The officer pulled up along the
passenger side of the parked vehicle about three
feet away. The occupants did not initially see the
officer, but when they did they were shocked—
the driver threw something onto the floor.
3

The remaining occupations following teachers and engineers in order of trust
were police officers (81%), judges (78%), notaries (75%), bankers (72%), church
representatives (64%), pollsters (63%), economists (62%), senior public servants
(50%), journalists (49%), lawyers (48%), insurance brokers (46%), real estate
agents (42%), publicists (40%), unionists (38%), car salespeople (19%), and
politicians (14%).

Volume 6 Issue 3
May/June 2006

The officer asked the men what they were doing
and asked them to get out of the car. As the
passenger exited, the officer saw, in plain view, a
plastic bag containing marihuana on the floor and
a small piece of marihuana on the seat. The
accused, seated in the driver’s seat, was
arrested and placed in the back of the police car
while the passenger was also arrested and held
outside the vehicle. The officer searched the
vehicle and found two sets of scales in plain view,
more marihuana under the driver’s seat and just
over a kilogram of marihuana in the trunk. After
the search was complete—about twenty minutes
after the arrest—the accused was advised of his
right to counsel. He was taken to the police
station and searched further. In his pockets
additional drug items were found.
At
trial
in
the
Provincial
Court
of
Newfoundland4, the accused was acquitted on a
charge of possession of marihuana for the
purpose of trafficking. In the trial judge’s view
the accused’s Charter rights were violated. The
detention was arbitrary since the officer was
acting only on a hunch (a s.9 breach) and the
officer should have cautioned the vehicle’s
occupants before they were told to get out (a
s.10(b) breach). As the judge noted, “But for the
detention, the marihuana on the floor would not
have been discovered [and b]ut for the
marihuana on the floor being discovered, there
would have been no right to arrest [the
occupants].” The warrantless search was prima
facie unreasonable and infringed s.8 of the
Charter. Although, in the words of the trial
judge, the officer “served the community well by
getting such a large quantity of drugs off the
street,” the evidence was excluded under
s.24(2).
The Crown appealed to the Newfoundland Court
of Appeal5 conceding breaches of the accused’s
rights under ss. 8 and 9 of the Charter, but
arguing the trial judge’s decision to exclude the
evidence under 24(2) was in error. Justice
4
5

2004 N.J. No. 120
2005 NLCA 55

www.10-8.ca

19

Welsh, however, in authoring the unanimous
appeal court judgment, rejected the Crown’s
concessions of the Charter breaches. Although
the accused was detained when he was asked to
get out of the vehicle, Justice Welsh found the
detention not arbitrary.
In her view the police are entitled to detain
persons for investigative purposes provided they
are acting within the scope of their duties
recognized under statute or at common law
(which includes the preservation of peace,
prevention of crime, and protection of public
order) and if the detention is necessary for the
performance of the recognized duty (that there
exists reasonable grounds to detain—formerly
known as articulable cause). In holding that the
detention of the accused passed constitutional
muster, Justice Welsh stated:
…I conclude that the officer did not
arbitrarily detain [the accused] within the
meaning of section 9 of the Charter. Given the
location of the vehicle, the time of day, and
the reactions of [the accused] and the
passenger, exhibiting shock and apparently
trying to hide something, the officer had
reasonable grounds to suspect that the
occupants of the vehicle were involved in
criminal activity, and that a detention for the
purpose of questioning them was necessary.
The detention was conducted in a reasonable
manner and was very brief in duration. [para.
28]

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

20

was also conducted in a reasonable manner and
for a valid purpose incidental to the arrest.
Under s.10(b) of the Charter an arrestee is
entitled to be advised of his right to counsel
without delay (which effectively means
immediately) . In this case, the officer did not
advise the accused of his rights until some 20
minutes after arrest, which amounted to a
breach.
But, contrary to the trial judge’s
decision, Justice Welsh ruled the evidence
admissible under s.24(2). The Crown’s appeal was
allowed, the acquittal set aside, a conviction
entered, and the matter remitted back to the
trial judge for sentencing.
The accused then appealed to the Supreme
Court of Canada. The five member unanimous
court allowed the appeal. In the high Court’s
view, the trial judge was entitled to reach the
conclusion he did based on the facts as he found
them in holding the accused’s rights under ss.8,
9, and 10(b) were violated. Furthermore, the
trial judge did not err in finding that the
cumulative effect of these breaches warranted
the exclusion of evidence under s.24(2). In
holding otherwise, the Newfoundland Court of
Appeal erred in “substituting its own findings of
fact for those of the trial judge.” The acquittal
was restored.
Complete case available at www.scc-csc.gc.ca

All past editions of this
newsletter are now available
online by clicking on to:

www.10-8.ca
Note-able Quote
What counts is not necessarily the size of the
dog in the fight—it’s the size of the fight in the
dog—Dwight D. Eisenhower

www.10-8.ca

Volume 6 Issue 3
May/June 2006