POLICE ACADEMY

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

NO NEGLIGENCE IN CUFFS
SECURED TOO TIGHT
Forster v. Cineplex Odeon Corp. et al.,
2001 BCSC 229

Two police officers responded to a
call at a Cineplex Odeon Movie
Theatre where ushers had forcefully
evicted the plaintiff from the
premises. As a result of this
incident, the plaintiff sued the theatre alleging he was
assaulted by the staff when evicted and the police for
securing a set of handcuffs too tight. Officers
attended and arrested the plaintiff, handcuffed him,
and placed him in the rear of a police car in order to
remove the plaintiff from the scene to calm him down.
The officer stated the plaintiff was “ranting and
exhibiting behaviour that was most bizarre”. The
plaintiff was driven from the theatre but later
returned and reunited with his girlfriend and children
who were at the theatre.
During the drive with the officer it had become
apparent that the handcuffs on the plaintiff were too
tight; a hand was turning blue. The Court found that
the plaintiff had resisted being arrested and struggled
while being handcuffed and that the handcuffs could
not be easily double locked to avoid tightening. The
handcuffs were either secured too tightly or tightened
during the struggle. The transporting officer stopped
to loosen the handcuffs but found that his key was not
compatible because the handcuffs on the plaintiff
belonged to the second officer involved in the arrest.
The officer returned to the scene, obtained the other
officer’s key, and released the plaintiff. The elapsed
time during the transport of the plaintiff was 20
minutes.
The plaintiff alleged that the defendant officer was
grossly negligent in permitting the handcuffs to
become too tight and for using handcuffs that any
handcuff key would not release (the officer’s
handcuffs were older than the current issue; this
explained why the keys were not interchangeable). In

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dismissing the plaintiff’s action against the officer,
Lowry J. held, at para. 22:
[I]t is my view, that no case of negligence, let alone gross
negligence, has been made out in any event. Given that
[the plaintiff] struggled to the extent he did in resisting
the handcuffs being secured, he cannot be heard to
complain that they were placed on his wrists too tightly
or that they were not double-locked to prevent them
becoming tighter as he continued to struggle. And it
simply cannot be said that [the defendant officer] was
negligent because he did not decide to exchange the
older handcuffs he was issued for newer handcuffs that
had a universal key. It has not been established the
decision was his to make.

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

RECOGNIZING AN APPARENT
MENTAL DISORDER
Part 5 of 6
Mr. Richard Dolman
The following notes are from an Internet website under
development at the Justice Institute of BC to assist
police to handle a psychiatric crisis and to promote
wider understanding of mental illness. The project was
initiated by the BC Association of Chiefs of Police
Mental Health Committee, and is supported by a multiagency group. Funding is from the Ministry of Health
Services and the Justice Institute. Comments and
suggestions to the author are welcome at:
almond@direct.ca
Police need to make two key decisions when intervening
under sec.28(1) of the Mental Health Act. Does the
subject appear to have a mental disorder? Is the
person’s behaviour likely to endanger themselves or
others? If both answers are yes, police may apprehend
and transport subject to hospital.
However, the degree of apparent mental disorder must
be more than eccentricity or odd ideas. It must cause
serious impairment of the subject’s ability to react
appropriately to their environment, or to associate with
others. A suicide attempt, violence or psychosis are
examples. Here are some further points and a list of

examples.
Q: Police are not trained as psychiatrists. How can
they recognize a psychiatric mental disorder?
Officers should not attempt an exact diagnosis of any
specific mental disorder. They do need to recognize
abnormal behaviour or symptoms that indicate serious
mental impairment and the need for psychiatric
treatment. At the least, they can rely on instinct and
on police experience to recognize behaviour well
beyond the normal range. Examples of such indicators
are listed below. One or more of these symptoms are
typical in a broad range of psychiatric disorders.
Q: What is the psychiatric group of disorders? This
group
includes
schizophrenia,
bipolar
(manicdepressive) disorder, severe forms of depression, and
severe anxiety disorders. These – and a few others can generate disabling or crisis episodes which respond
to treatment with anti-psychotic medications. Police
may encounter untreated cases in this group, cases
made worse by non-compliance with medications, or by
intoxication. The group does not include a “single
diagnosis” of certain brain conditions like Fetal Alcohol
Syndrome, developmental disorders, or addiction, nor
mild cases of neurosis by themselves, but can include a
“dual diagnosis” – with co-existing psychiatric disorder.
Q: What are the implications for police conduct?
Human behaviour becomes more complex and more
difficult to predict when it’s a mixture of normal
rationality with symptoms of a mental disorder. People
in psychiatric crisis often have distorted perceptions,
slow communication, and magnified fears, yet retain
some rationality. The key for effective police conduct
is to look for and work with that rationality, while being
patient about the heavy static. When police approach,
the person probably needs to feel non-threatened as
well as getting offers of help. Police can encourage
cooperation by treating the subject with normal
respect
and
extra
consideration,
introducing
themselves, speaking slowly in a firm but friendly
manner.
Command or force may be the only way to apprehend a
dangerous or violent subject who is also psychotic. But
even then, for legal and humanitarian reasons, police
are in a preventive role - protecting people from harm
and restoring peace. This includes protection from
self-harm as well as protecting others from harm.

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November 2001

Q: What to do when a crisis call looks like a false
alarm? Usually, a psychiatric crisis is obvious in the
subject’s behavior or conversation, but some patients
may not be willing or able to talk. Some “experienced”
patients are able to mask symptoms temporarily. If
police suspect a disorder is hidden, a few minutes of
quiet conversation may tell. The Mental Health Act
states collateral information (e.g. from family, partner
or friends) is sufficient for police to decide that there
appears to be a mental disorder and likely
endangerment.
Typical indicators of psychiatric mental disorders
(one or more of the following):
• COLLATERAL
MEDICAL
INFORMATION:
Information received from informed sources about
psychiatric symptoms or about previous history of
psychiatric mental disorder diagnosis, treatment or
hospitalization - usually reported by family, partner
or friends. (Receiving this information is a high
priority, after immediate safety issues.)
• PSYCHOSIS: Poor contact with reality; unaware or
not reacting appropriately to surroundings or to
others; generally irrational, bizarre behavior;
hallucinations; delusions; belief in possessing special
powers.
• DISTURBED MOOD: Manic (rapid, pressured speech;
elated mood; extremely energetic); deeply depressed
(sad, crying, distressed, hopeless); flat mood (fixed
expression, no emotions, no joy); severe anxiety
(fear,
panic);
sustained
and
unjustified
suspiciousness;
frequent
irritability,
anger,
aggressiveness; feeling isolated or alienated.
• DISTURBED THINKING: Irrational or disordered
thought
and
speech;
disorganized;
poor
concentration, easily and severely distracted;
confused about people, time, place; incoherent;
impaired insight or judgment; poor problem-solving
ability.
• DISTURBED BEHAVIOR: Disrupted occupational or
social relationships; poor coping: out of synch with
daily realities & routines; bizarre appearance,
behavior, or speech (well outside the normal range);
inappropriate laughter; neglected personal health and
hygiene.

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EVIDENCE ADMISSIBLE:
STREET CHECK SUPPORTED BY
ARTICULABLE CAUSE
R. v. Tammie, 2001 BCSC 366
The accused was charged with
murder. During the voire dire to
determine the admissibility of
evidence, the Court examined the
conduct of the officer during a
street check of the accused before the body of the
victim had been discovered. A uniformed police officer
checked the accused, who was walking alone on a
sidewalk, at 3:47 am. The accused was one block from
the Newton Inn on King George Highway, which was the
location where the murder victim was subsequently
located. The officer testified he stopped the accused
because of a “rash” of break and enters in the area
late at night and he just wanted to “verify him”. The
officer exited his vehicle, approached the accused, and
asked for his name, date of birth, address, and
telephone number. The accused responded to the
questions of the officer and the encounter only lasted
for about two minutes. The officer returned to his
vehicle and queried the accused on CPIC. As a result of
the enquiry, the officer learned the accused was on
probation, subject to a curfew and a prohibition against
knives. The officer again approached the accused,
initiated a general conversation about the probation
order, and searched the accused. Nothing was found
and the officer noted no signs of intoxication. The
accused also told the officer that he had come from
the Newton Inn (where the body of the victim was
subsequently located).
The accused argued that the officer failed to provide
the accused with his right to counsel during the first
encounter. It was also argued his statement that he
had just come from the Newton Inn and the officer’s
observation of his sobriety during the second
encounter were inadmissible because the officer
detained the accused and had failed to provide his s.10
Charter warning and the pocket search infringed his
s.8 Charter right to be secure from unreasonable
search and seizure. Respecting the first encounter, the
Court (in finding the accused was not detained and thus
s.10 Charter was not triggered) acknowledged that the
police are entitled to ask questions of a person
although the person is free not to answer. In

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addressing the second encounter and finding no
violation of the accused’s rights, Mackenzie J. stated,
at para. 21-24:
I find [the officer] had articulable cause to detain [the
accused] the second time. [The officer] had learned from
C.P.I.C. that [the accused] was on probation, subject to a
curfew and was not to possess knives. The brief search
can be justified as a reasonable search for safety
reasons…
… [The officer] had articulable cause to detain [the
accused] on the basis of the information from C.P.I.C.
[The accused] was doubtless in breach of his curfew
which added to the objective basis for articulable cause
for the detention. The condition on [the accused’s]
probation order requiring him not to possess knives
objectively justified [the officer’s] subjective belief in a
reason to briefly detain [the accused] - to check for
knives in breach of the probation order.
[The accused] apparently volunteered the explanation
that he had just come from the Newton Inn, a well known
pub, a couple of blocks away. An unwarned but
volunteered statement is not obtained in violation of s.
10(b)….
In all the circumstances, including the fact it was 3:47
a.m. in an area of frequent breakings and enterings and
the fact [the accused] was on probation subject to the
two stated conditions, I cannot find the failure to
provide [the accused] his s. 10(b) Charter warning
renders
inadmissible
[the
accused’s]
apparently
volunteered statement that he had just come from the
Newton Inn. That statement and [the officer’s] brief
evidence about [the accused’s] state of sobriety is
admissible in evidence. (references omitted)

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

USE OF POLICE DOG
NECESSARY & PROPORTIONATE
Mohamed v. Vancouver (City) Police
Department, 2001 BCCA 290
The plaintiff appealed a dismissal of
his lawsuit against the police for
injuries he suffered after being
apprehended by a police dog. A
police canine officer received
information that three men were involved in a robbery
at a roadway intersection and attended the area
shortly after receiving the information. The officer
observed three men fitting the description walking in
the area. The officer stopped his vehicle and got out

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along with his dog. The three men were walking away
from the officer and the officer called “stop police”.
One of the men stopped, and after a second call of
“stop police” a second man stopped. The third man ran
into a lane and the officer, after instructing the two
men who stopped to lie down, set his police dog on the
third man, who was the plaintiff. The police dog caught
the plaintiff within a short distance as he was
attempting to jump a small retaining wall. In the
process, the plaintiff fell over the wall and broke his
leg. The officer radioed for assistance while he was
with the two men who had initially stopped. When back
up arrived the officer ran looking for his dog, found
the dog, and called the dog off. The plaintiff was
arrested and an 18” blade was found at the base of the
wall.
The plaintiff alleged that the officer used excessive
force, which was neither necessary nor reasonable in
the circumstances, in setting the dog after him and
was also negligent in failing to follow his dog
immediately upon deployment. The plaintiff further
contended that because the plaintiff suffered
“grievous bodily harm” as a result of the dog’s use, the
officer failed to comply with s.25(3) of the Code. The
trial Court found that the plaintiff saw and heard the
officer before the dog was released, a point the
Appeal Court deemed critical to the analysis. The
Appeal Court also found there was no evidence that the
officer “intended to cause death or grievous bodily
harm by releasing [the dog], or that he knew such
consequences were “likely” to ensue”. The officer’s use
of the dog in these circumstances were justified and
the force used was “necessary and proportionate in the
circumstances”.
Complete case available at www.courts.gov.bc.ca.

NO-KNOCK SEARCH
UNREASONABLE, BUT
EVIDENCE ADMITTED
R. v. Lau, 2001 BCSC 346
Police drug squad members made an
unannounced and “violent entry”, as
described by the judge, when they
executed a search warrant by
breaking down the accused’s door
with a battering ram, entering with their guns drawn,
and forcing the accused to the floor; subsequently

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November 2001

handcuffing him. In the basement police found a 252
plant marihuana grow operation. Police stated that they
sought to surprise and gain quick control over the
occupants by the no-knock tactic which was claimed to
be safer for the police and anyone found inside. The
prevailing drug squad policy at the time also reflected
this view. Two veteran police officer’s, testifying at
the trial, suggested that “the execution of search
warrants is one of the most dangerous of activities for
police officers”. The court found that “second guessing
the police officers in the conduct of these inherently
dangerous operations is inappropriate” and “it would be
absurd to hold that police officers must annually
monitor the numbers of suspects keeping weapons at
grow operations before they can justify a policy
formulated to meet genuine concerns about protecting
the lives and safety of both searchers and home
occupants”. In admitting the evidence, the Court held:
The warrant to search [the accused’s] home was lawfully
obtained. The unannounced battering down of the door
was an inherently unreasonable beginning to the ensuing
search, but having regard to the purpose for which the
police chose not to announce their presence before
breaching the door, admitting the evidence discovered
during the search will not bring the administration of
justice into disrepute. (emphasis added)

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

CONSENT SEARCH INVALID:
POLICE TRICK OCCUPANT
R. v. Adams (2001) Docket:C34243
(OntCA)
Police attended a rooming house and
purportedly obtained the consent of
the superintendent of the building,
who shared a laundry facility with
the accused, to enter the laundry
room where the accused was ultimately arrested. A
subsequent search of the accused resulted in the
discovery of a controlled drug that led to the charges
before the Court. At issue was the entry of the police
into the laundry room to arrest the accused. If the
entry to arrest was unlawful, the resultant search
incidental to the arrest would be unreasonable as the
arrest forms the foundation for such a search. The
unanimous Court rejected the Crown’s submission that
the application of R. v. Feeney [1997] 2 S.C.R. 13, which
generally prohibited warrantless entry into a dwelling

4

to affect an arrest, is restricted to a suspect’s
dwelling and held the rule applies equally to the
dwelling of a third party. Secondly, the accused
disputed the superintendent’s consent to enter because
the police tricked the superintendent by stating their
purpose in entering was to investigate a noise complaint
when their real purpose was to arrest the accused.
Although not prohibiting third party permission, the
Court held the consent of the third party (the
superintendent of the rooming house) in this case was
not properly informed because of the trick. Thus, the
entry and search were unreasonable and the evidence
was excluded.
Complete case available at www.ontariocourts.on.ca.

ODOUR & OTHER
CIRCUMSTANCES JUSTIFIES
ARREST
R. v. Schulz, 2001 BCCA 601
Local police received a fax from an
outside agency requesting they
inform the accused that Crown
Counsel was not pursuing criminal
charges for possession of marihuana against the
accused (resulting from an earlier arrest) and that he
was entitled to the return of his $4000 seized by
police. No phone number was provided. A police officer
attended the address specified in the fax and knocked
on the door. A voice from within the premises stated
“come-in” and the officer opened the door and
observed the accused seated at the table. The accused
immediately got up and closed the door behind the
officer. The officer detected the odour of burning
marihuana from within the residence, advised the
accused of this, and that the residence would be
searched as a result. The officer arrested the accused
for possession of a controlled substance and advised
the accused of his right to counsel. The officer called
for back-up and a second officer arrived to assist. The
back-up officer entered the residence to “ensure that
no other persons were present in the premises and to
preserve any evidence”. The investigating officer then
left the residence with the accused in custody and
returned to the police office where he conducted
investigative follow-up.
The back-up officer sat outside the accused’s
residence in his police vehicle, but because of heavy
rain beating on the vehicle roof, traffic, and other

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November 2001

noise, went back into the accused’s residence and
stood in the front room for approximately 30
minutes until the investigating officer arrived with a
search warrant. As a result of the search, a quantity
of marihuana and psilocybin was seized. At trial, the
judge found the odour of the marihuana along with
the other circumstances amounted to reasonable
grounds justifying the arrest. With respect to the
searches by the back-up officer, the first entry was
justified as incidental to arrest while the second was
unreasonable because it was made out of convenience
and was therefore a trespass. The accused appealed
to the BCCA arguing, among other grounds, the
arrest was unlawful because there were insufficient
grounds upon which to base the arrest, the incidental
search was thus unreasonable, and the evidence
should have been excluded. In finding sufficient
grounds for arrest, Donald J.A. for a unanimous
Court of Appeal:
The odour that the officer detected, together with the
behaviour of the appellant in quickly moving to exclude
the officer once the appellant saw who was at the door,
combined to provide a sufficient basis for the belief
founding the arrest.
While it may be an available inference, as was argued,
that the appellant was merely trying to exercise his right
to privacy when he saw who was at the door the officer
was entitled to draw the other inference that the
appellant was attempting to conceal that he was smoking
marihuana.
We were given an extensive canvass of the cases about
the question of the sufficiency of odour of marihuana as
a basis for an arrest or for a search warrant. I think,
however, that while the circumstances of each case
differ it cannot be said … that odour alone will never be
enough.

With respect to the searches by the back-up officer
the BCCA found the initial search to be incidental to
arrest. However, the second search made out of
convenience resulted in no evidence to be excluded.
The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca.

Note-able Quote
“It is not to be expected that a police officer is to be
subjected to physical assaults in the execution of his
duty for the protection of the public at large. Nor is it
any part of the duty of policemen to adopt discretion in
place of valour in the discharge of their duties in the
many hazardous circumstances in which they have to act.

5

In my view it is of the utmost importance that this
Court express its deep disapproval of the conduct of
people in assaulting police officers, and it is our duty and
responsibility to protect the police who carry on their
function for the protection of all of us1." OntCA Justice
Jessup

DOG BITE OF FLEEING YOUTH
REASONABLE
R. v. M. & M., 2000 BCPC 185
A police canine officer received a
call for assistance just past
midnight where two suspicious males
had been observed by other
officers who were on special
assignment in the area on another matter. The canine
officer joined these two officers in their vehicle when
two males were observed emerging from a lane. The
canine officer left the vehicle with his dog and when he
was about half a block from the two males the officer
called out; “Vancouver police, stop or I will send my
dog, don’t move.” One of the males ran towards a school
grounds and the officer gave the command “take him”.
The dog apprehended the youth by biting onto his arm,
and pulled the youth to the ground. The officer called
to the youth, “show me your hands”. When the youth
complied, the dog released. The injured sustained by
the youth were “more extensive” than the officer
believed the youth had suffered. The accused argued
that the sending of the dog after the youth amounted
to excessive force and violated the youths
constitutionally protected right to security of the
person (s.7 Charter) because there were possibly a
dozen police officers in the area (on the unrelated
matter) which prevented the youth from fleeing. The
trial judge however, was satisfied the officer was not
aware of the positions of the other officers and found
the force used to be reasonable:
Section 25 of the Code provides some protection to
police officers in taking reasonable steps in effecting an
arrest of an individual suspected of having committed a
criminal offence. Section 25 (1) provides that a police
officer is justified, if he acts on reasonable grounds in
doing what he is authorized to do as long as the officer
uses as much force as is necessary for that purpose. It
must follow that one such purpose exists when a police
officer effects an arrest. I believe that a police officer

1

R. v. MacKay [1970] O.J. No. 920 (QL) (Ont.C.A.)

Volume 1 Issue 12
November 2001

has the protection provided in this subsection provided
his action is reasonable. [The canine officer], in my view,
made an honest determination that this youth was fleeing
the scene to avoid being arrested and under these
circumstances his action of releasing the police dog was
not excessive.

The accused were convicted of break and enter.
Complete case available at www.provincialcourt.bc.ca.

POLICE POSE AS LAWYER:
TRICK NOT UNFAIR
R. v. Caster, 2001 BCCA 633
The accused appealed his murder
conviction arguing the police ruse in
posing as the accused’s lawyer to
elicit information from a witness
was so egregious that it was an
abuse of process and violated the accused’s right to
make full answer and defence (rights protected by s.7
and s.11(d) of the Charter). Two undercover police
officers went to the home of an uncooperative witness
and introduced themselves as associates of the
accused from jail. The witness invited the officers into
his bedroom where the officers told the witness that
the accused was concerned he may testify against him
and sought assurances he would not testify for the
Crown. The officers told the witness that the
accused’s lawyer provided a list of questions and
wanted the answers recorded on tape. The witness
expressed concern that the undercover officers were
police. To dissuade suspicion, the officers reiterated
they were there on behalf of the accused’s lawyer and
pointed to a third undercover officer, posing as the
lawyer, who was standing outside the witnesses
apartment building (a visual prop to enhance the
credibility of the two undercover officers).
The witness asked to speak to the lawyer (the third
police officer standing outside the apartment) but was
informed by the undercover officers that there was no
reason to do that. The witness testified the officers
looked like criminals and were intimidating. After
speaking to the witness, the officers left and returned
within ten minutes to arrest the witness for being an
accessory after the fact (the witness had held the
accused’s backpack which contained a handgun, possibly
the murder weapon). Following the arrest, police
obtained a cautioned statement from the witness under
oath. The accused contended that the “prosecution of
the appellant contravened the community's sense of

6

decency and fair play and thus undermined the
integrity of the judicial process” and the “investigative
technique [the lawyer ruse] used to obtain evidence
from [the witness] constituted a serious abuse of state
power, warranting judicial intervention by way of a stay
of proceedings to protect the solicitor/client
relationship essential to the administration of the
adversary system of justice…”. The BCCA disagreed
and dismissed this ground of appeal, at para.32:
I acknowledge the impersonation of defence counsel by a
police officer may in some circumstances detract from
the credibility of the defence bar, affect their ability to
deal with witnesses, and thereby cause the adversary
system to suffer. But I am not persuaded the appellant
has established this to be one of those "clearest of
cases" where the police conduct disentitles the Crown to
a conviction.

The second ground of appeal, alleging the police
conduct prevented the accused from making full
answer and defence to the charge, was also dismissed.
The Court found the “trial judge preserved basic
procedural fairness for the [accused], while at the
same time ensuring that the community's interest in
the truth was satisfied”. It must be noted that at the
time when the police posed as the lawyer in this case,
there was no offence. Since this case, the Legal
Profession Act has been changed to prohibit this
conduct:
s.15(4)(a) Legal Profession Act
A person must not falsely represent himself, herself or
any other person as being (a) a lawyer, …
Complete case available at www.courts.gov.bc.ca.

PUBLIC INTEREST BROADER
THAN s.495(2) FACTORS
Collins v. Brantford Police Services Board,
(2001) Docket:C34623 (OntCA)
The plaintiff, who was arrested
twice, sued the police and was
awarded damages. The Brantford
Police Services Board appealed the
lower courts findings with respect
to the first arrest and the Ontario Court of Appeal
allowed the appeal. Police arrested the plaintiff for
assault 3 hours after he had sprayed the 71-year-old
victim with a water hose. There was a history of
discord between the plaintiff and his neighbours and

Volume 1 Issue 12
November 2001

the victim feared for her safety. At trial, the court
found the arrest was unlawful because the police did
not comply with s.495(2) of the Criminal Code. The trial
judge found he could not “conclude that the arrests
were necessary to prevent the continuation or
repetition of the offences or the commission of
another offence”. A Divisional Court dismissed an
appeal. On further appeal, the OCA examined the
proper interpretation of s.495 of the Code and the
protection against arbitrary detention under s.9 of the
Charter. The Court found the police had the requisite
reasonable grounds to believe the accused had
committed an indictable offence. Assault, being a
hybrid offence, is an indictable offence for the
purposes of arrest because it could be prosecuted by
indictment. The second question was whether the
limitations on arrest in s.495(2) made the arrest
unlawful because the police failed to comply with them.
The Court held the person arrested has the burden of
proving the arrest was unlawful by satisfying the Court
the police failed to comply with s.495(2):
Thus, in the words of s.495(2), it was for the [person
arrested] to establish that [the arresting officer] believed
on reasonable grounds that the public interest, having
regard to all the circumstances, could be satisfied without
arresting him.

In this case, the plaintiff failed to meet this burden.
Furthermore, the factors listed in s.495(2) are not an
exhaustive list of what is to be considered by the
officer:
The decision mot to make a warrantless arrest for a hybrid
offence must be made in the public interest having regard
to all the circumstances. The factors enumerated in
s.495(2)(d) are only some, albeit the most important, of
the factors to which the officer’s attention is expressly
directed. The overriding consideration remains the public
interest.

Complete case available at www.ontariocourts.on.ca.

SAFETY SEARCH
UNREASONABLE
R. v. Slawter, 2001 BCPC 246
Two police officers on routine
vehicle patrol in a downtown park
area at 3 o’clock in the afternoon
observed a man, among a group of
men, appear to exchange something
with another man. The officers knew the area as one

7

where drug transactions frequently occurred. The
officer testified he was “fairly confident” that he had
witnessed a drug transaction. Police stopped their car,
exited, and approached the accused. The officer said
he wanted to talk to the accused “…to get an idea of
what was going on” and to determine if the accused was
involved in a drug transaction. Because the officer
knew that many people in that area carried knives or
sharp objects, he asked the accused if he had any. The
accused replied he had a knife and the officer then
handcuffed and searched the accused for weapons.
The officer testified he handcuffed people he deals
with in the park for “officer safety” when people he is
dealing with indicate they have something when asked
about weapons or sharps. The officer further stated
he was concerned with his safety because the accused
said he had a knife. During the search, the officer
found the accused’s knife along with some cocaine. The
accused was charged and argued the cocaine should be
excluded as being the product of an unreasonable
search. The Provincial Court judge found the
circumstances did not justify the search, and
therefore the search was unreasonable and the
evidence was excluded:
In this case the officer was not dealing with the
commission of an offence, he was simply "fairly
confident" that he had seen a drug transaction and he
wanted to talk to the accused to get and idea of what
was going on. Essentially the officer decided to go fishing
for additional information. At the initial stage of his
inquiry the officer did not have sufficient grounds to
justify detaining or arresting the accused for possession
of a controlled substance or for possession for the
purpose of trafficking. At best, what the officer had
seen was suspicious behaviour by the accused. Suspicion,
however, is not a substitute for evidence. The officer,
nonetheless, had the right to speak to the accused. He
also was entitled to ensure that he could do so safely.
Assuming that the officer was only concerned about his
personal safety and that of his partner it was
appropriate to ask the accused if he had a weapon or
anything sharp with him. When the accused replied that
he had a knife the officer was then entitled to ask the
accused to turn the knife over to the officer. Taking all
possible precautions however, the officer decided to
handcuff the accused and search him to obtain the knife
rather than ask him to surrender or to disclose the
location of his knife. He obviously had detained the
accused when he placed him in handcuffs. However in
that condition the accused no longer presented any
personal safety threat to either of the officers.
The officer did not have reasonable or probable grounds
to search the accused for evidence of a possible drug

Volume 1 Issue 12
November 2001

transaction because the circumstances observed by the
officer would not legally support such a search. If the
officer's purpose in searching the accused was to
retrieve the knife the accused said he had in his
possession then he had to do so in a reasonable manner. A
reasonable search to ensure ones safety ought to be done
in a manner that aims at determining where the knife is
and then requesting that the knife be turned over to the
officer or to retrieve the knife from where he was told
it was located. If the accused had refused to tell the
officer where the knife was or if he refused to turn the
knife over to the officer, then the officer would be
called upon to determine if he could legally continue to
pursue his desire to conduct a search of the accused.
The accused, however, was under no obligation to assist
the officer and he ought not to have been searched for
anything other than the knife, if at all, at the time he
was searched in this case.
…[T]he officer in this case never did tell the accused why
he was interested in wanting to talk to him. The accused
co-operated with the officer when he was told to stop.
He also answered the police officer's questions about
[having] something sharp or having a weapon. He was
never asked to produce the knife nor was he asked where
the knife was located. He was immediately handcuffed
and searched. There was no suggestion whatsoever that
the accused physically presented any form of personal
threat to either of the police officers.
… I am satisfied that the search and seizure undertaken
by the arresting officer was an unreasonable search and
seizure that violates section eight of the Charter of
Rights and Freedoms. The circumstances surrounding the
search do not justify the actions taken by the officer.
This was a search that at least borders on being
arbitrary. The circumstances observed by the officer do
not justify the manner in which the accused was treated.
The search was not justifiable and therefore was an
unreasonable search. The officer was not operating under
any kind of emergency circumstances nor was he in a
position to arrest the accused unless he could obtain
more evidence than what he had originally observed.
The results of searches of this type obviously support
the opinion the officer had when he decided to determine
what the accused had been doing. However the officer's
actions were carried out in a manner that resulted in an
unreasonable search and seizure and one that is not
justified because of the circumstances under which it
was conducted. The seriousness of the initial stop was
minimal and the scope of the search was too broad. To
admit evidence obtained in this manner would bring more
disrepute to the administration of justice than to
exclude it. (emphasis added)

Complete case available at www.provincialcourt.bc.ca.

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