ISSUES

OF
INTEREST
VOLUME M>. 13

--

Written by John M· Post
September

1

983

ISSUES OF DITEKEST
VOLUME !I>. 13
Written by John H. Post
Septeaber 1983 ·

TABLE OF OONTEHTS

Page
VARB'IHG I • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

1

FKAUDULENTLY USDlG A QUIDIT CARD BEYORD
THE ~DIT LIMITS. IS 'JHIS OBTA.DlIHG CREDIT,
GOODS AllD !l>REY BY FRA.UD? • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

2

Re Hanes and The Queen. 69 C.C.C.(2d) 420
Ontario High Court of Justice
CBAltTER. OF RIGHTS AllD n.EEOOMS
EXTRADITION LAWS - R.IGHT OF A CITIZEN

TO REMAIR IN <:AHADA • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

3

The Matter of the Extradition Act and in the
Matter of Gunther Voss - B. C. Supreme Court.
Vancouver May 1983. Registry No. CC821424.

CKEATING A DISTURBANCE
DISTUKBDlG PERSONS IR A WELLING BOUSE
Regina v. Woniandy - Saskatchewan Court of
Queen's Bench August 1982 (No. 19)

......................

4

IMPATIENT QJSTOHER. DIUVIRG OFF WITHOUT PAilNG
FOR GASOLIRE - TllKFT? •••••••••••••••••••••••••••••••••••••••
Regina v. Badger Saskatchewan Court of Queen's Bench
October 1982

5

ATI'EKPTED 'lHKFT

DESCRIPTION OF ITEMS ACCUSED IRTERDED 'l'O STEAL • • • • • • • • • • • • • •
Between Attorney General of B.C. (Petitioner) and
His Honour Judge Cronin, Provincial Court Judge
and Henry McBryan

6

- ii -

Page

PERSONATION - GIVING FICfITIOUS RAHE TO POLICE
TO AVOm EXECUTION OF WARRANT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

7

Regina v. Northrup 41 N.B.R. (2d) 610
Nova Scotia Court of Appeal

INJURING A DOG
POLICE DOG INJURED BY A FLEEING SOSPKC'r
Regina v. Barr 1 c.c.c. (3d) 47
Provincial Court of Alberta

......................

PROVING A PREVIOUS OOHVICTON
CERTIFIED KXTRACf OF ll>TOll VEHICLE RECORDS
TO PROVE PREVIOUS au.MIHAL - DRIVING OFFENCE
Regina v. Williams County Court of Vancouver Island
Duncan Registry No. 05878

8

.................

10

................

11

CHAllTEll OF KIGBTS & FREEDOMS
IDENTIFICATION OF auMIHALS ACr RETUKH OF RECORDS TO ACQUITrKD PKllSON • • • • • • • • • • • • • • • • • • • • • • • •
LaPlante v. Attorney General of Quebec 31 C.R.(3) 94.
Quebec Superior Court

13

.............................

14

DlllVIRG WHILE DRIVEll'S LICENCE SUSPENDED
llOTOll VFJIICLE ACr - DEFENCE OF LACK OF IMTENT
Regina v. Jack
B. C. Supreme Court.
No. CR 83023 Kelowna Registry

HYPNOSIS AS .AH IliVESTIGATIVE AID

CBAllTEll OF RIGHTS ARD FREEDOMS
llIGBT TO COUNSEL - WARHIRG • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Nelson 3 C.C.C. (3d) 147
Manitoba Court of Queen's Bench

OPINION EVIDEN'CE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Regina v. Bell County Court of Vancouver Island,
Duncan Registry 06555

17

18

- iii -

Page

CB.AllTER OF RIGHTS
SELF atIHIHATION - CROSS EXAKlliATION ON TESTIMONY
GIVEN JIJRING A VOIR DIRE ••••••••••••••••••••••••••••••:•••••••
Regina v. Jewitt 3 c.c.c. {3d) 191
County Court Vancouver, B. C.

20

l.EFUSAL - RIGHT m <X>UNSEL
- CB.AllTER OF RIGHTS ARD FREEDOMS
R. v. Stowe County Court of Vancouver No. CC821358
Vancouver Registry July 22, 1983

21

..............................

CllARTER OF RIGHTS ARD PKEEDOMS ••••••••••••••••••••••••••••••••
Regina v. Trudeau and Tait, Vancouver County Court,
Vancouver Registry c.c. 821730, April 1983
ALLOWING VICIOUS DOGS TO BE AT I.AR.GE
CRIHINAL IEGLIGENCK CAUSING BODILY HARM
Regina v. Manfred and Vera Mayerhofer,
County Court of Yale, Kelowna No. CR 81/82 - May 1983

22

.......................

24

CllAllTER OF RIGHTS ARD FREEDOMS
SEARCH WITHOUT WARRANT - UNREASONABLE SEARCH
- EXCLUSION OF EVIDENCE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Phillips {alias Ward) - The County Court
of Vancouver No. C.C. 830603 August 1983

26

CHARTER OF RIGHTS ARD FREEDOMS
UNREASONABLE SEARCH - EXCLUSION OF EVIDENCE
Regina v. Rex, County Court of Vancouver,
Vancouver Registry C830263
July 1983
TID-BIT
RECENT POSSESSION & THE QI.ARTER

...................

28

...••.....••....•....•...••••••

31

-

1 -

WARNIHGI

Decisions made by the courts of a province regardless of their level,
are not binding on courts of another province.
However, when a
decision is to be made in regards to an issue where no precedent
exists within the province, then indistinguishable rulings by courts
of other provinces are influential, particularly when made by a Court
of superior jurisdiction.
Decisions by the Supreme Court of Canada
are, of course, binding on all Courts in Canada.
This system of law making by our judiciary is known as stare decisis.
It simply means that once a Court has created a principle (for
instance to be applied to a certain set of facts) it must consistently
apply to all future cases where the circumstances or the law are not
distinguishable.
Our judges are ethically obligated to strive for a
consistent and equitable application of the law regardless where in
our nation one is being judged.
For this reason rulings made by
Courts in other provinces are pursuasi ve and ought to be followed
unless a judge disagrees quite strongly with the correctness of these
decisions.
When a decision on an issue has been made, then, of course, it is a
binding precedent on all the Courts in that province, inferior to the
one in which the decision was made.
This explanation is placed in this Volume as it contains synopses and
explanations of reasons for judgment made by courts in provinces other
than British Columbia.
Most of those cases are selected because to
the best of the author's knowledge, no binding precedent exists on
that issue in B. C.

*****

- 2

FliUDUI.ENTLY USING A atEDIT CARD BEYOND 'DIE atEDIT LIHITS.
IS THIS OBTAINING CREDIT,, GOODS AND HONEY BY FRADD?
Re Hanes and The Queen. 69 C.C.C.(2d) 420
Ontario High Court of Justice
The accused, who had a credit line of $3,000 on a credit card, went on
a financial binge and spent nearly $26,000 for goods and services in
California. She was charged with having defrauded the credit company
of money. She agreed that her actions were with the intent to defraud
the credit company but argued that although that company is located in
Ontario the offence was committed outside the jurisdiction of the
Ontario Courts.
Secondly, she argued that she obtained credit by
fraud but that the credit company was not deprived of any money as was
alleged.
The defence had argued that the credit company had been deprived of
credit and the Court agreed that the charge against the accused would
also have been good if it had alleged fraudulent obtaining of credit.
After having heard that funds were transferred to the financial institutions where the California merchants had deposited the credit slips
the accused signed, the Court said:
"Such payment of course , is not made in banknotes
or coins, but is, I presume, made by the transfer
of funds between the financial institutions using
their instr\,lDlents for effecting such transfers. In
my judgment, such payments constitute the payment
of money within the meaning of section 338."
In respect to the Court's jurisdiction, the Justice had plenty of law
to refer to.
It is widely accepted that where a person is charged
with having committed acts at a location outside the Court's geographical jurisdiction, then i f the harmful consequences are within
that jurisdiction the person can be tried by that Court.
In this case the credit company locate within the Court's jurisdiction
was the victim of the accused's acts in that it was called upon and
did make payments to the merchants.
The accused had been committed for trial upon a preliminary hearing.
These arguments were raised in the High Court of Justice in an attempt
to have that committal quashed.
Application to quash committal for
was dismissed.

*****

trial

J.-

CHAR.TER O.F RIGHTS AND .FREEDOMS
EXTRADITION LAWS - RIGHT OF A CITIZEN TO KEHA.IR IN CABADA
The Matter of the Extradition Act and in the Matter of Gunther Voss B. C. Supreme Court. Vancouver May 1983. Registry No. CC821424.
Voss is
The State of Michigan, U.S.A. was seeking Voss' extradition.
a Canadian citizen who allegedly committed fraud in Michigan.
Voss
claimed that section 6( 1) of the Charter supersedes anything the
Extradition Act stipulates.
The section guarantees Voss that he,
being a citizen of Canada, "has the right to enter, remain in and
leave Canada". No doubt, the Extradition Act places some limitations
on the assurance of remaining at least.
The Court brought section 1 of the Charter into the dispute.
This
section in essence says that the Courts must not go too far afield on
these rights and freedoms, at least not on this side of the Pearly
Gates.
The entrenched enactment states that the rights and freedoms
are guaranteed but "only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society".
Such a society may . well be heaven compared to those with different
philosophies about governing, but it can only afford so much legal
luxery. Therefore, the Court had to decide whether the provisions in
the Extradition Act which were straining Voss' rights, were reasonable
limitations on his right to stay home.
The Court weighed Voss'
Court:

argument

and found

it wanting.

"Were it otherwise, a Canadian could commit any
crime with impunity as long as he committed it in
somebody else's country" and
"Being subject to extradition, then, is a reasonable limitation of the citizen's right to remain in
Canada".

**** *

Said the

- 4 -

CREATING A DISTURBANCE
DISTURBING PERSONS IN A DWELLING HOUSE

Regina v. Woniandy - Saskatchewan Court of Queen's Bench
(No. 19)

August 1982

The accused had a problem with her 14 year old son about where he was
to spend the evening.
The accused "was under the influence of
alcohol" at the time.
The boy sought refuge at his grandparents'
place. The accused followed her son there and a scolding and argument
resulted in the boy receiving a bloody nose.
Two hours later the accused came around again to retrieve her son.
She banged on the door, screamed and shouted.
The occupants of the
house were genuinly afraid of the accused and phoned the police. The
accused was arrested and tried for creating a disturbance (section
17l(l)(a)(i) of the Criminal Code). The trial judge found that there
was indeed a disturbance but because the only people disturbed were in
a dwelling house he acquitted the accused.
The Justice of the Queen's Bench (Saskatchewan counterpart of the
Supreme Court in B.C.) held:
1.
2.
3.
4.

The offence cannot be committed by a person in a dwelling house;
The offence can be committed near a public place;
The offence can only be committed i f there is a disturbance
caused in the four ways the section stipulates; and
It does not matter i f the persons disturbed are in a private or
public place.

Therefore the trial judge had erred in law.
Crown's appeal allowed.
Accused convicted.

**** *

- 5

IMPATIENT CUSTOMER DRIVING OFF WITHOUT PAYING FOR GASOLIRE
THKFT?

Regina v. Badger Saskatchewan Court of Queen's Bench October 1982

The accused told the service station attendant to "fill it up". The
attendant put the nozzle in the tank and set it so it filled the gas
tank of the accused's car automatically.
When the tank was full the
attendant was busy with other matters and although he heard the
accused honk his horn several times , he did not go out until he was
finished with whatever he was doing only to find that the accused had
left and that $17.50 of fuel had been transferred
The attendant's version of what happened and that of the accused
jibed. When questioned the accused said he was in a hurry to attent
"a feast" and as there appeared little interest on the part of the
attendant to complete the transaction he had left.
The accused was
acquitted on a charge of theft and the Crown appealed.
The trial judge had held that the accused in the circumstances became,
in fact, the legitimate owner of the gasoline when it was pumped in
his car.
"Once appropriated it may well be that the property in the
gasoline passes to the purchaser, leaving the vendor with a contractual right to receive the purchasing price" had the trial judge said.
The appeal court Justice did not disagree with this opinion.
Crown's Appeal dismissed
Acquittal upheld
Comment:
This is a case that dangles in between theft and "theft by
trick".
The latter includes fraud and false pretences.
The basic
distinction between these two is that in the case of theft the owner
did not wish to part with the property where in theft by trick he
does.
The owner, in the case of fraud or false pretences is simply
tricked by some misrepresentation in ability or intent to pay to part
with his property.
The way the trial judge had reasoned it seems not unlikely that he
would have convicted the accused i f a charge of false pretence had
been preferred.

*****

6

AlTEMPTED THEFT

DESCRIPTION OF ITEMS ACCUSED IRTIOO>KD TO STEAL
Between Attorney General of B.C. petitioner and
Cronin, Provincial Court Judge and Henry McBryan

His

Honour

Judge

McBryan was charged that he "did attempt to steal something from a
motor vehicle bearing B. C. Licence II
"
Defence objected
to proceed on that charge claiming that- it -contained insufficient
details of what he was to meet.
Apparently the accused did not say
why he did break into the car but it was inferred that he did so to
steal something from its content or a part of the car. The Provincial
Court Judge was persuaded and refused to proceed.
The Crown applied to the Supreme Court for an order directing Judge
Cronin to proceed with the trial (an order of mandamus).
The Supreme Court Justice held that the Crown is not obliged to allege
specifically what it was the accused tried to steal.
Provincial Judge ordered to proceed.

**** *

- 7

PERSONATION
GIVING FICTITIOUS KAME TO POLICE TO AVOID EXECUTION OF WARRANT
Regina v. Northrup 41 N.B.R. (2d) 610
Nova Scotia Court of Appeal

The accused was arrested for the commission of an offence and gave
police a fictitious name.
He knew there were Canada wide warrants
outstanding for his arrest and he wanted to avoid those documents from
being executed.
When police checked his fingerprints the next day they discovered the
accused's true identity.
Consequently, the accused was convicted
under section 361(a) of the Criminal Code which states that:
"Every one who fraudulently personates any person,
living or dead, with the intent to gain advantage
for himself or another person, is guilty of an
indictable offence".
The accused appealed the conviction.
Firstly the name used by the accused was randomly selected. There may
well be a person by that name, living or dead, but that was meaningless to the accused or the circumstances.
Section 361 refers to a "person" and that is either a natural or a
legal person (corporate entity). A person is therefore a real person,
not a fictitious one. If, for instance, Joe Blotch is entitled to a
benefit and someone else presents himself as Joe Blotch to reap those
benefits, then that person committed the fraudulent personation the
section speaks of. In this case the accused's efforts were in pseudonymity and not in personation. Furthermore, section 361 is under Part
VIII of the Criminal Code which addresses itself to "fraudulent transactions relating to contracts".
This implies that the personation
must be fraudulent and for the purpose of gaining proprietary rights
or avoid contractual obligations or liabilities.
Appeal allowed.
Acquittal ordered.

*****

- 8 -

IRJURING A DOG
POLICE DOG INJURED BY A FLEEING SUSPECT
Regina v. Barr 1 C.C.C. (3d) 47
Provincial Court of Alberta
In the early morning hours police saw two men fleeing from the rear of
a building. As commands to stop were of no avail the first constable
on the scene sent his dog after the accused. After the accused failed
to stop when told "stop, police", the command "take him" was given to
the dog. The accused who carried a 2.5 ft. crowbar turned and struck
the dog on the shoulder and when the animal backed off and yelped he
struck it again. Although the dog continued to limp after the accused
it cowered away every time the accused raised the crow bar. Another
dog arrived at the scene. The accused attempted to strike it too but
missed. The dog grabbed the accused by the arm, the crow bar dropped
and the accused was apprehended.
Subsequent to these events it was discovered that the building the
accused was seen coming from had been broken into. The other man who
had been apprehended also, implicated the accused, and pleaded guilty
to "break and enter". (The dog had recovered from flesh wounds in the
shoulder area).
The accused maintained that he was high on alcohol and valium at the
time.
All he could remember he told the Court when being tried for
injuring an animal, was that he was bitten by a dog and that he had
swung at it to stop it from hurting him.
The charge against the accused was under section 40l(a) of the
Criminal Code which prohibits the injuring, killing, maiming, wounding
or poisoning of dogs, birds or animals that are not cattle and which
are kept for a lawful purpose.
Section 386(2) provides that no one
can be convicted of the above offence where he proves that he acted
with legal justification or excuse and with colour of right.
The
accused claimed that the force used by police via the dogs was excessive and that he was at least justified in defending himself as he
did.
In addition, the accused raised the defence of self defence.
The
Court immediately rejected that suggestion and held that sections 34
to 37 speak of defending oneself from an "assailant". This implies
that your assailant must be a person.

- 9 -

The Court also rejected a submission by the Crown that a policeman and
his dog should be seen as one unit; and that the dog was assisting the
officer.
Although the proposal was attractive, it simply had no
countenance in law.
The dog was the "property" of the City which
employed the officer (a mischief charge would be possible) and it was
a weapon of the policeman the same as his gun or any other weapon. It
then follows that i f the dog attacks or apprehends a suspect in a
manner that is excessive in the circumstances then the officer is
criminally liable.
If, however, the application of force is lawful
and it is not excessive, then when the suspect injures the dog in
warding off the attack, or making good his escape, then section 386(2)
C. C. contains nothing that is of comfort to him.
In other words the
police dog is protected by section 40l(a) C.C. only if its master acts
in accordance to law.
To determine i f the officer so acted i t had to be found that he had
the power to arrest the accused in the circumstances and that the
force used to effect that lawful arrest was not excessive.
The desire on the part of police to speak to someone they find in
certain circumstances does by itself not justify the making of an
arrest unless the circumstances which give rise to that desire, amount
to more than suspicion, and in fact add up to the reasonable and
probable grounds prerequisite to a lawful arrest.
In this case there were ample grounds to justify the arrest
The dog, "very large and with big teeth" was sent to fetch the
accused.
It was like the cat plays with the mouse: "You won't get
away from me, one swipe of my paw and I' 11 have you". The question is
whether the running away from a scene such as this justified the big
teeth, the biting etc.
Could the constable not have overtaken the
accused himself?
The Provincial Court Judge replied that the accused should have
thought of the large dog and the big teeth before he ran. He knew the
officer and the dog were there; he turned when the command to attack
was given and delivered the blow for which he was put on trial.
He
knew the risk and he exposed himself to all the things that he now
claims amount to excessive force.
In short, the force used with a
trained dog which does not chew after stopping the suspect and will
release his charge when there is no resistance is simply not excessive
in the circumstances as they presented themselves
Accused convicted.

*****

10 -

PROVING A PREVIOUS CONVICTON
CERTIFIED EXTRACT OF MOTOR VEHICLE RECORDS TO PROVE PREVIOUS CR.IMIHAL
DRIVING OFFENCE
Regina v. Williams County Court of Vancouver Island Duncan Registry
No. 05878
The accused was convicted of a drinking/driving offence and the Crown
sought a greater penalty due to a previous conviction the accused did
not admit to.
To prove the previous conviction the Crown tendered a
certified extract issued under section 75 of the B. C. Motor Vehicle
Act instead of using provisions under the Criminal Code (sections 740
and 594) for this purpose.
The trial judge refused to accept the
extract and sentenced the accused as though this was his first
offence. The Crown appealed.
The County Court Judge held firstly that the extract is proof of its
content and not merely proof that a record exists. Then on the issue
whether the extract is only such proof in cases where provincial
offences are tried the Court reviewed a number of cases and drew the
attention to section 37 of the Canada Evidence Act which states that
in proceedings involving Federal law the laws of evidence in the
province in which the proceedings take place apply.
Just because
there are alternate means (Criminal Code provisions) to prove the
previous conviction, that does not mean that methods provided by
provincial law do not apply.
Appeal allowed.
Referred back
Sentencing.

**** *

to

Provincial

Court

for

- 11 -

Dll.IVING WHILE Dll.IVER'S LICENCE SUSPENDED
KOTOlt VEHICLE ACT -

Regina v. Jack

DEFENCE OP' LACK OP' nmnrt'

B. C. Supreme Court.

No. CR 83023 Kelowna Registry

The accused was convicted of impaired driving and his driver's licence
was automatically suspended by the B. C. Superintendent of Motor
Vehicles.
Prior to reinstatement the accused was found driving and
charged under section 94.1 of the Motor Vehicle Act, as it then was in
June of 1982
The Crown did not adduce any evidence at trial to show that the
accused had any knowledgtt that his licence was suspended.
This
caused the Provincial Court Judge to dismiss the information.
The
Crown appealed the dismissal by stated case.
The Court observed that the section under which the accused was
charged and the way Section 94 M. V.A. reads now (since September of
1982) is, for the purposes of the question raised here (is mens rea a
prerequisite to conviction?), essentially the same in conten~ The reason why the Provincial Court Judge dismissed the information
last Af ril is in all likelihood the decision the B. C. Court of
Appeal made the month before when it, by reference, was asked i f
section 94(3) M.V.A. was constitutionally kosher.
The subsection
states (and stated under the old section) that the offence of driving
while under suspension is an offence of "absolute liability".
This
means that knowledge on the part of the accused is not an essential
ingredient to the offence, and all the Crown has to prove is that the
licence was suspended and that the accused drove.
This the Court of
Appeal held is contrary to section 7 of the Charter of Rights and
subsection (3) was invalidated.
However, a Nova Scotia case of driving while under suspension reached
the Supreme Court of Canada recently2. The Motor Vehicle Act of that
Province does not identify the liability category. If the Court holds
or the law dictates that an offence is a mens rea of fence it has to be
proven that there was intent on the part ofthe accused, which of
course includes knowledge.
It can also declare it to be a strict
liability offence (as most offences under provincial statutes are)
which means that when the Crown proved that the driver's licence was
suspended when the accused drove his car, the accused would be
convicted unless he shows "mistake of fact" (a mistaken belief in a
set of facts that if they had existed would render the accused
innocent).
1 B. C. Court of Appeal CA #821013. See page 22 of Volume 11 of this
publication.
2 R. v. MacDougall (1983) 1 C.C.C. (3d) 65

12 -

The Supreme Court of Canada held that driving while under suspensio~
is an offence concerning the public welfare and held that it therefore
is an offence of strict liability.
The B. c. Court of Appeal held that absolute liability for this
offence is contrary to the Charter of Rights and it invalidated the
subsection that made it so. That means that section 94 M.V.A. is now
like the section in the Nova Scotia Motor Vehicle Act where the Courts
must identify the liability catagory for the offence. In view of what
the Supreme Court of Canada ruled, the B. c. "Driving while under
suspension" offence is a strict liability offence also, held this B.
C. Supreme Court Justice. Therefore the Provincial Court Judge erred
in law when he held that knowledge of the suspension had to be proved
to convict.
Crown's appeal allowed.
Case referred back to Provincial Court.

*****

- 13 -

CHARTER. OF RIGHTS & FREEDOMS
IDENTIFICATION OF auKINALS N.:f. RETURN OF RECORDS TO ACQUITTED PERSON
LaPlante v. Attorney General of Quebec 31 C.R.(3) 94.
Quebec Superior Court
LaPlante was acquitted of a criminal charge and applied to the Supreme
Courts to have all records turned over to him that pertained to his
identification.
The Superior Court granted the order holding that the very title of
the Identification of Criminals Act reveals parliament's intent.
It
is to identify criminal and not innocent persons. To leave LaPlante's
records with police would be contrary to the spirit of the Charter of
Rights, said the Court.

*****

- 14 -

HYPNOSIS AS AN INVESTIGATIVE AID

To use hypnosis to refresh the memory of persons who have likely
valuable information stored somewhere in that human memory bank is
something many personnel in the criminal justice system find somewhat
questionable.
It is like bringing some sort of witch craft into the
traditional and conservative Anglo-Canadian jurisprudence.
Common
sense tells us that this sort of sorcery-like methods are not acceptable in our Courts. Closer examination produces reasons that support
these first-blush opinions.
A witness who testifies to what was
previously remembered by him through hypnosis is likely telling what
was suggested to him and cannot vouch for the truth of his evidence.
At one time he could not remember but after someone fooled around with
his mind while it was in a state susceptible to suggestions, he
recalls the minutest details.
It seems unlikely that even i f such
"hypnotically developed testimony" is admitted in evidence the judge
of the facts will lend much credence to it.
If the witness was the
victim of a crime that created trauma, anxiety and mental stress, it
could well be that the failure to remember is nature's way of making
that person cope with that trauma.
Inasmuch as unconsciousness is a
natural anesthetic for physical pain, so is repression of memory a
psychological anesthetic for mental agony. If hypnosis can make that
person remember, recalling the details may cause the memory to be
tainted with the anxiety the event caused.
A bad Canadian experience with a person questioned while in an
hypnotic state3 caused our highest Court to say that there was not a
greater trespass on and invasion of privacy than to gain unconsented
access to that which is the utmost of privacy of any individual, the
mind. Of course, Horvath was a suspect and not a witness. The highly
skilled interrogator who received the Court's praise, had inadvertently caused the semi-hypnotic state by his psychological superiority
over the 17 year old Horvath.
This has caused a misguided belief that any investigator who is a
trained police hypnotist will be rendered ineligible to question
suspects. It is thought that his credibility will suffer as his skill
will cause inadvertent or possibly advertent hypnotic states of mind
on the part of the suspect.

3 Horvath v. The Queen 3 W.W.R. 1979 1. Supreme Court of Canada.
also page 22 of Volume 7 of this publication.

See

- 15 -

It is also questioned, what police investigators are doing probing
the human mind.
Physical as well as psychological reactions are
possible.
They are not trained to make a prognosis nor · are they
competent to render any form of treatment when reactions occur. The
liability for lasting consequences could be enormous.
These and many other sincere observations have caused an apparently
valid resistance to this new concept in forensic science.
If not
resistance, then at least there is a sphere of suspicion about this
practice that seems so out of character with and so "hocus-pocus" in
our stuffy juristics.
These are all good reasons to be cautious but not necessarily to be
cynical or even skeptical.
The history of hypnotically developed
testimony is very recent in Canada but not so in the United States and
practically all are related to witnesses and not accused persons. In
Canada there are in essence two recorded cases. The first was R. v.
K4 and the second R. v. Zubot5.
In R. v. K. the Court would not allow the testimony which was
developed by hypnosis.
The Court thought it too risky as (1) the
police may have influenced the witness; (2) hypnosis does not guarantee that a witness speaks the truth; (3) it is an uncontrolled science
etc.
In the second case the Crown did much better and a land mark decision
was made by the Justice of this superior Court.
It was argued that
nothing guarantees that the truth is spoken by witnesses. Their minds
have been contaminated by the media, by what they heard from others,
and suggestions by police or by other persons influential on the
witness, however veil, have an effect.
Therefore, argued the Crown,
the hypnosis is no more than refreshing the mind like reading notes
made when the mind still remembered the details.
In any event the
Alberta Queen's Bench held in regards to testimony developed under
hypnosis the question is not one of admissibility but credibiity.
In the United States, a lot more cases involving hypnosis have been
decided on over the last 20 years. It seems that that nation's judiciary is also proceeding in this new field with the greatest of
caution.
Their experience includes hypnosis of the accused.
In the
early part of this century the Court refused to even recognize hypnotism as a science. Fifty years later when an accused, in his defence
testified as to what he remembered since being hypnotised, the evidence was admitted.
4 R. v. K. (Juvenile).
(1979 10 C.R. (3d) 235 Manitoba Provincial
Court
5 R. v. Zubot Alberta Queen's Bench, Not Yet Reported

16 -

In respect to witnesses the U. S. Courts have allowed not only evi~
dence developed by hypnosis but also hypnotically adduced evidence.
The latter means that the witness testified while in a hypnotic state.
Although many legal and other questions have to be answered yet in
regards to hypnosis as part of the forensic sciences, that should not
mean that we should shy away from it.
Firstly, it does not seem
advisable to practice the · 'art' on a suspect regardless whether he
consents.
Although there are circumstances where this may be
appropriate and could result in the evidence obtained thereby to be
admissible. However, in probably 99% of such cases the defence should
experiment with hypnotic developed or adduced evidence.
Hypnotic developed evidence of a witness requires many safeguards and
where the witness is the victim of the crime alleged, extra caution
is required.
In all circumstances, it should probably be used as a last resort;
only in cases where essential details are expected to be locked in or
repressed by the mind of a witness.
To avoid the inevitable submission that the hypnotist gave post
hypnotic suggestions to the witness he (the hypnotist) should be as
ignorant of the details of the crime as possible.
Then there are all the policies that should be in place to avoid civil
liabilities.
The argument that a trained police hypnotist is less credible when
questioning suspects under normal circumstances because an inadvertent
hypnotic state of mind may accrue, seems invalid.
It. seems that an
inadvertent hypnotic state of mind is more likely to result when the
interrogator is not a trained hypnotist.
Another matter to be remembered is that "subsequent facts" will
inevitably strengthen the credibility of the witness.
For instance,
where a witness cannot remember a location where certain items were
seen, and with hypnosis the location is discovered and the items
are found. In many cases what is discovered by hypnosis corroborates
other testimony of the witness
It seems that the police must not shy away from using this method in
their fact finding missions.
However, we mus.t be very aware of the
limitations of using hypnosis and of evidentiary and other legal
complexities

*****

- 17 -

CllARTER OF RIGHTS AND FREEDOHS
RIGHT TO COUNSEL - WARNING
Regina v. Nelson 3 C.C.C. (3d) 147
Manitoba Court of Queen's Bench
Police attended at the scene of a shooting where the accused made some
incriminating statements.
He was arrested for attempted murder and
told that he could call a lawyer if he wished when they got to a telephone.
After having been at the police station for three hours the
accused was informed that the victim had died and that he was now
charged with murder. He was also told:
"I must also advise you that
you can call a lawyer to instruct and receive advice from".
When
asked i f he understood, the accused said:
"Yup, yup" upon which the
questioning immediately began.
This resulted in a confession the
admissibility of which was opposed by defence counsel for non compliance with the Charter of Rights.
The Justice of the Queen's Bench allowed in evidence the statements
the accused made at the scene, but ruled the confession made after
being charged with murder inadmissible. This he did on the following
grounds:
1.

The wording used to inform the accused of his rights was inadequate to convey to him the rights he had under section 10 of the
Charter;

2.

When the rights have been given, particularly to an uneducated
person, then the authorities must wait for a waiver to that right
before they question the accused (he either says "Yes" and be
given a phone or says "No" which is the equivalent to a waiver of
the rights);

3.

"Yup, yup" was, in the circumstances, inadequate
accused understood what his right was; and

4.

A fair minded member of society, if he viewed the circumstances
would consider the administration of justice to have been brought
into disrepute if the statement was allowed in evidence on the
basis that the accused knew his rights and had a reasonable
opportunity to exercise them.
Statement ruled inadmissible

* ****

to

show the

18 -

OPINION EVIDENCE
Regina v. Bell
06555

County Court of Vancouver Island

Duncan Registry

". • • I formed the opinion that not only was he
impaired, he was, in fact, drunk at the time I was
speaking with him".
This is what a 15 year police veteran, who figured he had dealt with
at least one thousand impaired drivers, testified to during the
accused's trial for impaired driving.
This testimony was the only
evidence in the case that had impressed the Provincial Court Judge.
The other Crown evidence was of little or no value and the Judge had
said that he would have no hesitation to acquit the accused if it was
not for the officer's opinion evidence of the accused's condition at
the "incident scene".
The accused, when arguing his appeal, reminded the County Court Judge
of reasons for judgment handed down in December of 1982 by the Supreme
Court of Canada in the case of Gratt v. The Queen. The case predominantly dealt with 'opinion evidence' and responded to a complaint that
Courts are inclined to let such evidence by police officers overwhelm
that of other witnesses.
The Supreme Court said in response:
"... the fact that a police witness has seen more
impaired drivers than a non-police witness is not a
reason in itself to prefer the evidence of the
police officer" and
"Trial judges should bear in mind that this is
non-expert opinion evidence and that the opinion of
police officers is not entitled to preference just
because they may have extensive experience with
impaired drivers".
It is always believed that frequency of exposure to impaired and
intoxicated persons leads to a level of expertise that makes a police
officer eventually an expert who is allowed to give opinion evidence.
The Supreme Court of Canada reminded that there are two exceptions to
the hearsay rule that permit the admission of opinion evidence; expert
testimony and "compendious statements of facts". The latter is really
an expression which is a short and accepted statement of a combination
of facts.

19 -

When someone observes a number of symptoms he combines them and in a
case such as this they result in an opinion that a person is impaired
or intoxicated.
That opinion is based on a common exposure we all
have in society.
Chances are pretty good that the person is intoxicated but whether or not he is in fact, requires the opinion of an
expert.
The Supreme Court of Canada said that police opinions on
intoxication are, in most cases, admissible not because they are
experts (regardless of exposure) but because they make "a compendious!
statement of facts", something most witnesses are permitted to do in
testimony. That is what caused the Supreme Court to caution that the
testimony of one lay witness should not necessarily overwhelm the
testimony of another.
Must exposure then, not be taken in consideration when assessing the
value of ,such "compendious statement of facts"?
Said the Supreme
Court of Canada:
"The weight of the evidence is entirely a matter
for the Judge or Judge and Jury.
The value of
opinion will depend on the view the court takes in
all the circumstances" and
"If the witness lacks the relevant experience, or
is otherwise limited in his testimonial capacity,
or if the witness is not sure • • • this can be
brought out in cross examination".

Although the Gnatt judgment is very interesting and may correct a
misconception many have about police being "expert witnesses" in the
matter of intoxication, it did not assist this accused Bell.
There were no defence witnesses who gave opinions which were overwhelmed by that of the officer.
In other words there was no
conflict. The Provincial Court Judge had considered the weight of the
"compendious statement of facts" given by the experienced officer.
It, coupled with "the minor observations" given by others, convinced
him beyond a reasonable doubt that the accused's ability to drive was
impaired by alcohol.
Appeal dismissed.
Conviction upheld.

**** *
1

Comes from the word "compendium" which means a summary
synopsis of facts which is only part of a larger field
knowledge.

or
of

- 20 -

CHARTER. OF RIGHTS

SELF CRIMINATION - CROSS EXAMINATION
ON TESTIMONY GIVEN DURING A VOIR. DIRE.
Regina v. Jewitt 3 C.C.C. (3d) 191
County Court Vancouver, B. C.
The Charter of Rights states that incriminating evidence may not be
used against the witness who gave that evidence in testimony in other
proceedings safe for the purpose of proving perjury.
Innovative
counsel suggested to the County Court Judge that the Crown was not
entitled to cross-examine the accused during the main trial (before a
jury) on what he had testified to during a voir dire. He claimed the
trial and the voir dire to be separate proceedings for this purpose.
Said the Court in rejecting defence counsel's submission:
"For i f that avenue is not available then it seems
to me the accused will be permitted with impunity
to tell one story at one stage of the proceedings
and a different story at another stage of the
proceedings".

* * * * *

- 21 -

REFUSAL - KIGHT TO COUNSEL - CBAllTER. OF RIGHTS AND FREEDOMS
R. v. Stowe County Court of Vancouver No. CC821358 Vancouver Registry
July 22, 1983
The accused was brought to the police station under demand to provide
samples of breath.
In the interview room he said to the constable:
"Dial Information and get Bolton's number".
This did not mean
anything to the officer and he continued with his investigation. The
accused made four sham attempts to give samples and was then told he
had "refused to blow".
Moments later, outside the breathalyzer room
the accused said, "I' 11 go back and I' 11 blow". The answer was : "You
are too late".
The accused appealed his conviction claiming that he had not been
given the opportunity to contact counsel and secondly that his offer
to go back and blow negated his refusal.
The County Court Judge held that the offer to blow was not part of the
ongoing transactions with the breathalyzer operator and the sham
attempts.
"Sooner or later the police have the right to conclude that a reasonable and fair opportunity has
been provided and a refusal made.
I find that to
have occurred here".
The question remaining was whether the accused had been deprived of
his right to counsel. Although "Mr. Bolton" did not mean anything to
the officer, it must have been clear that in the circumstances the
accused found himself in "it is not likely he wanted to call his
dentist or his barber".
The officer should have cleared it up what
the accused wanted.
The accused was refused access to counsel.
However, did he in the circumstances have a right to counsel? Was he
by simply being under demand detained or arrested?
The officer had not arrested the accused but stated on the stand that
he had taken the accused "into custody".
And when asked in crossexamination: "But as far as you are concerned he was "detained" for a
possible charge of impaired driving?", the officer answered: "Yes".
The Court found the accused was detained and was denied his right to
counsel.
Accused Acquitted

* * ** *

- 22 -

CHARTER OF RIGHTS AND FREEDOMS
Regina v. Trudeau and Tait, Vancouver County Court, Vancouver Registry
C.C. 821730, April 1983
The Charter of Rights and Freedoms guarantees that we will not be
deprived of life, liberty or the security of the person other than in
accordance with the principles of fundamental justice.
It also
assures us to be considered innocent until we are proven guilty. The
two accused were charged with possession of a stolen car and the Crown
adduced evidence during the trial that the accused were within the
previous five years convicted of theft or possession of stolen property. Section 318 of the Criminal Code provides for the admissibility
of such evidence to assist in proving that the accused had knowledge
that the car they had in their possession was in fact stolen. On the
grounds of the above mentioned provisions of the Charter the accused
claimed that section 318 C.C. is unconstitutional.
The County Court Judge held that section 318 c.c. does not offend the
Charter in respect to the presumption of innocence. He said that the
section only provides something that may be considered by the judge of
the facts but does not remove the burden of proving what is alleged
beyond a reasonable doubt from the Crown.
However, the Court held that section 318 C.C. did not align itself
with the principles of fundamental justice. For instance, if a person
had shoplifted something less than five years ago what probative value
could such evidence have to say that it is now fair to find because of
that conviction that the accused had knowledge that the car he drove
was stolen. He thought it to be extremely difficult for instance, to
instruct a jury on what weight they could and should give to evidence
of a previous conviction to determine if he is guilty in this
instance. For these reasons the judge could not but conclude that the
application of the section would be prejudicial and unfair to an
accused. Therefore, it (section 318 C.C.) is not consistent with the
principles of fundamental justice.
Section struck down
Evidence of previous conviction not allowed
Comment:
It is not unreasonable that the section was found out of
step with the Charter or even with our principles of fairness prior to
it becoming effective. However, it seems that section 318 C.C. would
be struck down for reasons other than those given in the case. Surely
we must assume that our juries or judges when they sit alone can
fairly assess the relevance and weight of a previous conviction. If a

- 23 -

bottle of after shave lotion was taken from the drug store at the age
of seventeen as a free birthday gift for grandpa, and at the age of
twenty-two, the perpetrator of that crime . is found in possession of
the stolen Crown jewels, the worst than can happen is for a jury to
think that he started young and small and progressed quickly in the
world of crime.
Judges in their addresses to juries do explain the
law and point out what by the rules of law is capable of being a fact,
then the jury decides whether or not it is. That includes a direction
if the aggregate of the evidentiary value of what they by law may
include in their deliberations, amounts to proof of a fact.
If the
previous conviction adduced by the Crown is frivolous in respect to
the case to be proven, surely the judge can tell the jury so as he
does with all the other evidence the jury has to consider.
It would seem more reasonable to fail this obscure and odd "presumption of guilty knowledge" on different grounds.
Even where "similar
fact" evidence is admissible the theory "he has done it before, therefore he did it again" is taboo. It is only to show similarity in the
means by which the crime was committed.
Why should in a case like
this the proof of a guilty mind be established by showing that the
accused committed the crime before?
Why is there no such provision
for all offences where knowledge and ~ ~ is a prerequisite to
conviction?
Secondly, since the section is, in a way, a presumption of guilt, it
could have been tested for excessiveness against the Charter's guarantee to be presumed innocent until proven guilty.
Courts of superior
jurisdiction have devised a test to do so.
If the fact that may be
presumed (care or control section 23); knowledge of inadequate funds
being on deposit, s. 320(4); knowledge i f serial number obliterated,
s. 332, etc.) is not a probable consequence of the facts to be proved
for the presumption to arise, then the provision in law for that
presumption is excessive.
Perhaps section 318 c.c. could have
survived i f a voir dire was ordered to be conducted i f the previous
conviction and its circumstances were reasonable facts to take into
consideration to determine if the accused on this occasion had guilty
knowledge.
In other words, to determine i f in each case it is fair
and therefore in compliance with the principles of fundamental
justice.
Recently, the presumption of "care or control" was unfairly applied.
When the case reached the B. C. Court of Appeal, *it did not invalidate the statutory provision for the presumption but simply held that
in the circumstances, it did not apply.
* * * * *
* February 1983. Toews v. The Queen CA 801099
11 of this publication.

See page 29 of Volume

- 24 -

ALLOWING VICIOUS DOGS TO BB AT I.AR.GE
CRIMINAL :NEGLIGENCE CAUSING BODILY HAKH
Regina v. Manfred and Vera Mayerhofer, County Court of Yale, Kelowna
No. CR 81/82 - May 1983

The accused jointly owned two Rottweiler dogs.
They were kept in a
very inadequate enclosure from which they .o ften escaped. Both accused
knew that the dogs were, to say the least, vicious.
Mr. Mayerhofer
had referred to the dogs as "mean bastards" and was quite proud of the
fact that one of them had killed a cow.
Mrs. Mayerhofer had made
similar claims about the dogs' propensities.
One day the dogs attacked another dog being walked by its owner, a
neighbour of the accused. The Rottweilers had escaped from their pen
by jumping up against the gate when they spotted the neighbor's dog.
The Rottweilers injured the dog badly before being called off by the
accused.
When the neighbor offered to fix the locking device on the
pen to prevent this from happening again, the gesture was rejected by
Mrs. Mayerhofer who was of the opinion that nothing needed to be done
about her dogs.
Two days later the dogs attacked an eight year old boy.
The
physician's description of the injuries is capable of causing nausea.
Among the severe injuries were torn off scalp, a torn eye lid, and a
chewed off arm; • • • "the lower part of this arm remained hanging by
mangled strands of muscle".
An hour after this

incident the dogs attacked a woman and her son
right in front of the accused's home. Severe injuries and torn flesh
right down to the bone were the results.

a consequence of these attacks the accused were charged with
criminal negligence causing bodily harm (section 204 of the Criminal
Code).

As

To be successful in a prosecution of this kind (as well as in a litigation for damages) when the animal is domesticated, there must be
proof that there was knowledge on the part of the accused that hiis
animal was predisposed "to do this particular kind of mischief". In
this case the Crown had to prove the accused knew the dogs to be
vicious. There was ample evidence for such proof, including scars on
Mr. Mayerhofer's arm, which he claimed were caused by his own dogs.

- 25 -

There must also be proof of an ommission of duty on the part of the
accused. This duty must be a duty imposed by law. A by-law to show a
duty to ensure that one's dog is not at large, is helpful.
However,
"there is a common law duty that makes a person liable for any damage
caused by keeping an animal which he knows has a propensity to do a
particular kind of mischief".
The dogs were vicious and the accused knew it; the accused were heedless and therefore reckless; they had treated the matter of the
dangerous animals they harbored as though it was not anything of
importance and, therefore had a disregard for the lives and safety of
others.
Accused convicted
The case that was apparently most helpful to the Judge was Regina v.
Petzoldt* which was decided by a County Court Judge in Ontario.
Petzoldt was an animal trainer who kept two large chimpanzees in his
basement. One day he took one of them for a walk on a leash. The 200
lbs., 5 foot high animal grabbed an 8 year old girl and bit her on the
head and shoulders doing her bodily harm which required considerable
medical attention.
Petzoldt knew the chimp was dangerous. On a previous occasion when a
police officer attended to a complaint of the ape having scratched a
child he told the officer that if he came too close the animal would
attack and possibly kill him. These and several other incidents were
sufficient proof of knowledge that the animals were vicious.
An
expert on the behaviour of these animals (a curator of a zoo) said
that the chimpanzee is a wild animal by nature.
They belong to a
category of "beasts" known as farae naturae.
The Judge noted from a
history of cases on the issue that the owner can be civilly liable
without having particular knowledge that such undomesticated animal
was dispositioned to be vicious.
In the case of a domesticated
animal, the owner must have knowledge of the propensities of the
animal before he can be held civilly liable. To be criminally liable
such knowledge on the part of the accused must be shown whether the
animal is domesticated or otherwise.
In addition, the accused's
action must be advertent and heedful.
Petzoldt was also found guilty of criminal negligence causing bodily
harm.

*****
* 11 c.c. (2d) 320.

- 26 -

CHAR.TEX. OF RIGHTS ARD mEEDOMS

SEARCH WITHOUT WARRANT - UNREASONABLE SKAllCH
- EXCLUSION OF EVIDENCE
Regina v. Phillips (alias Ward) - The County Court of Vancouver
C.C. 830603 August 1983

No.

Seven police officers attended at a private residence to search for a
party they wanted to question in regards to two armed robberies.
Police had reasonable and probable grounds for believing the suspect
was in the home but they had no such grounds for believing that he had
committed the robberies.
The Crown conceded that police had suspicions but lacked the requisite grounds to obtain a warrant for the
arrest of the suspect or for a warrant to search the place where he
made his home. The home, however, was not the suspect's abode and the
occupier inquired i f there was a warrant issued for the search.
He
was told: "You know better than to ask a stupid fucking question like
that" and the search was conducted without success.
Neither the
suspect nor any evidence connected with the robberies was found.
However, the search was not fruitless.
The accused Phillips, alias
Ward, was encountered as a house guest.
Two sets of car keys were
found on him.
These keys were for cars parked in front of the house
which displayed incorrect plates and were in fact stolen vehicles.
Phillips was charged accordingly and at trial the admissibility of the
finding of the keys and the cars became the subject of a voir dire.
Defence counsel argued that the search was so unreasonable and \llllawful that acceptance of the evidence thereby obtained would bring the
administration of justice in disrepute.
The County Court Judge said that to determine if the administration of
justice would be brought in disrepute he had to pose and answer the
following questions:
1.

Would, considering all the circumstances (including the breach of
social values, the gravity of the alleged offence, the effect of
the exclusion of the evidence on the proceedings), the actions
complained of in this case bring the administration of justice in
disrepute in the eyes of the community at large?; and

2.

Would the community at large be shocked by the actions of police
and the Court's acceptance of the fruits of their illegal
actions?

- 27 -

In answering both questions in the affirmative, the Court summed up
the lack of grounds to conduct a search. The judge said that although
no force was used "... the rights and liberties of the individuals
.w ere nevertheless seriously infringed".
He complimented police for
their good investigative work in this case and said to have the greatest respect for their difficult task, "But it must not be forgotten
that in a free society the police must work within the framework of
the law, if they themselves are to enforce that law". In conclusion
the Court held:
"Certainly in the circumstances of this case, it would be
dangerous indeed to hold that private rights of an individual to the exclusive enjoyment of his person and
property are to be subject to the invasion by police
officers whenever they can be said to be acting in the
furtherance of the enforcement of the criminal law,
although they are not armed with any authority to justify
their actions".
Evidence excluded.

*****

28 -

CHARTER OF RIGHTS ARD FREEDOMS
UNREASONABLE SEARCH - EXCLUSION OF EVIDENCE
cRegina v. Rex, County Court of Vancouver, Vancouver Registry C830263
July 1983
A police informer told a constable that the accused had handguns and
chemicals for the purpose of making explosives and that they were in
the accused's locker at a Regional College.
A search warrant was
executed in the accused's absence but nothing of the above description
was found in the locker. When the constable had time some time later
again to get back to this investigation he learned that there were
warrants outstanding for the accused in regards to charges of possession of marihuana. He attended at the house where the accused lived.
This place was described as a communal home for a number of persons.
All had a private bedroom but shared the kitchen, bathroom and living
room.
The accused and another person who resided in the house were
found in the living room. The accused was placed under arrest for the
warrants (which they did not have in their possession) and he and the
other resident were asked "... you don't mind if we have a look
around?" to which the 'other resident' answered:
"Well, I guess
not".
Nothing of importance was found in the 1iving room but police
destroyed a plant they believed to be marihuana. When this happened
the accused and the co-habitant inquired if police had a search
warrant and indicated that they wanted the search to cease. The officers responded that it was too late to withdraw the consent they were
given to search and they continued their examination of the house.
The police also found some chemicals the accused claimed to use for
"model rocketry".
These chemicals became the basis for a charge.
During the trial a voir dire was conducted to determine if the search
was reasonable and, if not, whether the chemicals thereby found could
be admitted in evidence or had to be excluded as such admission would
bring the administration of justice in disrepute.
Although police did not have to have the arrest warrants in their
possession to ef feet the arrest the reason for not having them right
there did apparently not impress the judge. It seems that he saw some
trend of indifference to following the legally prescribed procedures.
The arrest warrants were available in the municipal! ty in which the
search was conducted but the constable had claimed that he just had
been too busy to pick them up while he was assisted by officers of
that municipality.
Neither was there an explanation given why no
search warrant was obtained for the search of the house.

29 -

The Court did not hestitate to find that the ".
search of a subject's dwelling house, without a search warrant and under guise of
effecting an arrest warrant, constitutes unreasonable search".
It is lawful to search a person and the immediate surroundings when an
arrest is effected. This is provided at common law to prevent access
to weapons or the destruction of evidence.
When the officers received consent to search the most protected place
(a dwelling - a man's castle) it was perhaps alright to search
although the practice was questionable under the circumstances. However, the legality of that part of the search was academic as the
chemicals were found after the consent was withdrawn. Furthermore the
search allowed when effecting an arrest in constitutionally protected
places does not include an "... invasion of a man's . privacy by a top
to bottom search of his house ••• ".
Section 101(2) of the Criminal Code did not apply in this case
either. The section provides for the search without warrant, but only
where the situation is urgent and where there is potential danger
which makes the obtaining of a warrant impractical. If the officers
would have found contraband within plain view and considered a search
of the premises, they should have secured the place while a warrant
was obtained.
The judge concluded that unreasonable search is synonymous to illegal
search or seizure.
To decide if the unreasonable search should result in the exclusion of
the evidence thereby obtained, the Court reasoned that five factors
had to be considered:
1.

Was the impropriety trivial or technical?

2.

Did the impropriety show a disregard for the legislation or of
the apparent policy reflected therein?

3.

Was the impropriety a result of deliberate action on the part of
the police, or did it arise as a result of their ignorance of the
law or mistake in judgment?

4.

Other considerations were also included, such as the seriousness
of the offence and the significance of the evidence sought to be
excluded.

5.

Was the degree of the impropriety such a breach of social values
and such a misconduct that it would shock the community.

30

The Court concluded that the attendance at the house was not solely to
arrest the accused but predominantly to search the home and the officers knew they needed a search warrant for · that purpose. Furthermore
the search was conducted at night for which special consent is
required included in the requisite warrant.
The circumstances exposed that the procedure followed was 'convenient
expedience' to circumvent the required scrutiny by a justice of the
peace.
The crime alleged against the accused carries a penalty of 5 years and
the gravity of the offence is in the 'lower middle range'. The gravity of the impropriety in respect to the search outweighs the offence
the accused allegedly committed, the Court seems to have concluded.
The aggregate of all this caused the Court to conclude that "an ordinary right thinking citizen of the community would be shocked "by the
improprieties committed by police.
Admission of the evidence would
bring the administration of justice in disrepute.
The chemicals were ruled to be inadmissible

in evidence.

**** *

- 31

TID-BIT
RECENT POSSESSION & THE CHARTER
Ten days after a break and entry of a store the accused was found in
unexplained possession of all the goods stolen (value $6,800).
The
doctrine of recent possession (which gives the judge of the fact the
right to infer that the accused had guilty knowledge) was applied and
the accused convicted.
The accused appealed claiming that the aged doctrine is now unconstitutional in that it violates the presumption of evidence.
Not so,
responded the Nova Scotia Court of Appeal. The doctrine is simply "a
lofty way".for the jury or a judge to infer a fact when no explanation
is forthcoming where one is due under the dictum that
"There comes a time that a man is so surrounded by
inculpatory circumstances that he either explains
or stands condemned".
Russell v. R. 32 C.R. (Jd) 307

Nova Scotia Court of Appeal

*****