Justice Institute of British Columbia POLICE ACADEMY 4180 West 4th Avenue, Vancouver, British Columbia, V&R 4J5 ISSUES OF INTEREST VOLUME NO. 24 Written by John K. Post September 1986 TABLE OF CONTENTS INDEPENDENCE OF THE PROVINCIAL JUDICIARY••••••••••••••••••••••••••• Valente v. The Queen, 23 c.c.c. (3d) 193, Supreme Court of Canada. 1 THEFT OF CONFIDENTIAL INFOKHA.TIOH • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Regina v. Offley, Alberta Court of Appeal, April 1986, No. 8503-9075-A. 6 RIGHT TO COUNSEL WITHOUT DELAY - TIME FOR BREATH TESTS IUJNNING OUT • Regina v. Frebowski, County Court of Westminster, No. X016236, New Westminster Registry. 8 ARREST OF PASSENGER IN CAR FILLED WITH MAR.IHUANA SMOKE UNREASONABLE SEARCH; ARBITRARY DETENTION; AND INFRINGEMENT OF RIGHT ro COUNSEL • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 10 Regina v. Guberman, 23 C.C.C. (3d) 406, Manitoba Court of Appeal. THE REASONS WHY B.c.•s COMPULSORY BLOOD TEST LAW WAS UNCONSTITlJTIONAL •••••••••••••••••••••••••••••••••••••••• °' • • • • • • • • • • 13 SUSPECT SWALLOWING - JUSTIFICATION OF DETENTION OBTAINING AND ADMISSIBILITY OF EVIDENCE ••••••••••••••••••••••••••• • Regina v. Duman, 23 c.c.c. (3d) 366, Alberta Court of Appeal. 17 Regina v. Chatham and Regina v. Ketola, 23 c.c.c. (3d) 434, British Columbia Supreme Court. Regina v. Constantinescu, County Court of Yale, Vernon Registry No. 15231, May 1986. - ii Page DOES THE NEW PROSTITUTION LAW OFFEND THE FREEDOM OF SPEECH AND THE FREEDOM OF ASSOCIATION? ••••••••••••••••••••••••••••••••••• Regina v. McLean and Regina v. Tremayne, Supreme Court of British Columbia, Vancouver Registry No. CC860492 and CC 860563, May 1986. 19 ..... 22 FRAUD - FORGERY AND POSSESSION OF STOLEN PROPERTY BY CASHING STOLEN CANADA SAVINGS BONDS ••••••••••••••••••••••••••••••• Regina v. Fraser, County Court of Westminster, New Westminster, B. C., No. X015445, May 1986. 23 FORGERY - BELIEVING TO HAVE AUTHORIZATION TO ENDORSE A CHEQUE Regina v. Borland, County Court of Cariboo, Fort St. John, No. 2272, April 1986. MEANING OF "OTHER FRAUDULENT MEANS• ••••••••••••••••••••••••••••••• Regina v. Bruton, County Court of Westminster, No. 15324. Chilliwack, B.C., January 1986. 25 DO UNTR.UE STATEMENTS OF FACTS IN AN INFOKHATION UPON WHICH A SEARCH WARRANT IS ISSUED, RENDER SUBSEQUENT SEAR.CH AND SEIZURE UNREASONABLE? •••••••••••••••••••••••••••••••• • 27 LEGAL :KN'IFE .AS A WEAPON • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • • • • • 30 I • • • • • • • • • • • • • • • • • • • Regina v. Sismey, County Court of Yale, July 1984, Penticton 73/84. POSSESSION OF A WEAPON FOR A PURPOSE DANGEROUS TO THE PUBLIC PEACE - SUFFICIENCY OF EVIDEHCE RE INTENT TO USE Regina v. Bellamy, County Court of Yale, Vernon, B. C., Registry No. 13930, October 1985. POLICE ATrENDING TO NOISE COMPLAINT - FOUND MAR.IHUAHA BY MEANS OF SKAR.CB OF APARTMENT - ADIISSIBILITY OF EVIDENCE Regina v. Cain, County Court of Vancouver, Vancouver Registry No. CC851770, February 1986. ....... 32 TAKING OF BLOOD SAMPLE WITHOUT STATUTORY ADTllORITY ADMISSIBILITY OF ANALYSIS EVIDENCE TO SUPPORT CRIMINAL NEGLIGENT DRIVING CA.USING DEATH••••••••••••••••••••••••••••••••••• Regina v. John, B. c. Court of Appeal, Vancouver Registry CA002573, May 1986. 34 - iii - Page WAIVING OF A CONSTITUTIONAL RIGHT BY INTOXICATED MURDER SUSPECT - •AWARENESS OF CONSEQDEHCES" TEST••••••••••••••••••• Clarkson v. The Queen, Supreme Court of Canada, April 1986. ROADSIDE SOBRIETY TEST - RIGHT TO COUNSEL •••••••••••••••••••• Regina v. Pinkowski, County Court of Vancouver, Vancouver Registry No. CC851966, May 1986. 38 41 LEGAL TID-BITS Issue of "Voluntariness" re the Making of a Compulsory Declaration . . . • . . • • . • • • • • • • • . . . . • • • • • . . • • . • . • • • • • • • . • • • • • • • . 42 Burden on Accused to Prove Infringement of Right or Freedom ••• 43 Executing Search Warrant While no one is at Home •••••••••••••• 43 Unreasonable Search by Tavern Manager of a Customer ••••••••••• 44 Youths Escaping from "Open Custody" ••••••••••••••••••••••••••• 45 Self crimination - Admissibility of Statement ••••••••••••••••• 45 Enforcing a Repealed Regulation - Lawful Performance of Duty •• 46 Possession of a Stolen Car - Presumption of Knowledge Admissibility of Refusal to Take a Polygraph Test •••••••••• 47 Routine Vehicle Check - Arbitrary Detention ••••••••••••••••••• 48 Right to Counsel and Right to be Informed upon "Roadside Demand" 49 Possession of Prohibited Weapon ••••••••••••••••••••••••••••••• 50 Equality Before and Under the Law ••••••••••••••••••••••••••••• 50 Is a Spouse who is a Competent Witness also Compellable? ...... 51 Taking Wood from the Wild - Theft from Province of B. C. 52 Sharing Apartment Used to Store Contraband - Possession ••••••• 52 Moving Rail Switch - Criminal Negligence •••••••••••••••••••••• 53 Inexperienced officer making Suspect Aware of Right to Counsel too Late ••••••••••••••••••••••••••••••••••• 53 - 1 - INDEPENDENCE OF THE PROVINCIAL JUDICIARY Valente v. The Queen, 23 C.C.C. (3d) 193 Supreme Court of Canada Recently the independence of Ontario Justices of the Peace was tested against the Charter of Rights and Freedoms in the High Court of Justice*. That Court found that these members of the judiciary are, in view of matters ancillary to their appointment and employment, not independent within the meaning of s. 11 ( d) of the Charter which assures the right to be tried by an independent and impartial tribunal. Hence they were prohibited from presiding over trials. Mr. Valente found himself before an Ontario Provincial Court Judge in respect to the 9ffence of careless driving under the provincial Highway Traffic Act. The Judge declined jurisdiction. He reasoned that in view of his appointment and matters respecting his tenure, remuneration and pension, it should be considered by a superior court if he was too dependent on the executive branch of government (the prosecuting state) to be considered independent. The provisions of the Ontario provincial Court Act, the Public Service Act and the Public Service Superannuation Act are applicable to Ontario Provincial Court Judges and appear to make them dependent on the cabinet. For instance: 1. the salary for Provincial Court Judges is at the whim of Cabinet and not the legislature; 2. pensions are restricted or not available under certain circumstances; 3. the Judges are subject to special assignments and appointments by the Cabinet; 4. their documents, notes and papers are subject to rules by the Attorney General; 5. the Deputy Attorney General has powers somewhat akin to management rights in respect to a judge's "employment with the government"; etc. * Re Currie and Niagara Escarpment Commission, 13 c.c.c. (3d) 35. Also see Volume 19, page 3 of this publication. - 2 It seems to follow that if the executive branch of government has such controls in respect to the welfare and tenure of these judges, they do not appear to be impartial. In criminal proceedings the legal dispute is between the accused and the State. The defence reasoned that the Ontario Provincial Court system was akin to a referee being employed by one of the parties facing one another in a contest. This question of independence ended up before the Supreme Court of Canada which heard from many provincial intervenants including a judicial association. The Supreme Court of Canada dealt with the issue in the broadest way. It considered whether one single matter or all employment conditions collectively would cause the Provincial Court Judges in Ontario not to be "independent and impartial". The Court observed that independence and impartiality constitute a dual requirement and emphasized that the one is distinct from the other-.--The Courts which decided on this case before it reached the Supreme Court of Canada had applied a test known as "reasonable apprehension of bias". That test is aimed to determine impartial! ty, but does it meet the needs to test independence? The Supreme Court of Canada said: "Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" ••• connotes absence of bias, actual or perceived". In regards to the word "independent" the Court said: "... (it) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the Executive Branch of Government that rests on objective conditions or guarantees". The Supreme Court of Canada reviewed the histori~al need for impa:.:.·tiality and independence in relation to the political governing bodies. By quoting from international committee reports the Court also associated itself with opinions that impartiality and independence must include separation from corporate giants which in these modern days grow nationally and internationally. Entanglement with the political scene and with financial, corporate and business interests will contaminate the necessary attributes prerequisite to the judicial function in a free and democratic society. This test must not only be applied to the judiciary as individuals but also the "institutional relationships". That means the working conditions of the judges and - 3 the conditions affecting the administration of the court to which the judge is appointed, which includes the administrative relationship b~tween that Court and the executive branch of government. In other words, i f the institution is not independent then neither are the persons presiding over its proceedings. In addition, the Supreme Court of Canada, said that even i f the individual judge is clear of political and business entanglements, and his working conditions and his court meet all requisites to independence, then what can also cause a ·judge not to be "impartial or independent" is "... how a tribunal will actually act in a particular adjudication, and a tribunal that does not act in an independent manner cannot be held independent within the meaning of s. ll(d) of the Charter ..... Finally, the Court reminded that apparent and actual impartiality are of equal importance. Said the Court: "Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case, but also to individual and public confidence in the administration of justice". (Emphasis is mine) There is no doubt that the Constitution Act (which includes the Charter of Rights and Freedoms) has substantially increased judicial power. The Courts as constitutional referees, have for instance power to declare legislation "without force or effect". By means of constitutional assignments in addition to the couunon law function to interpret the law, the courts have gained in their law making function. Consequently the matter of independence and impartiality on the part of our judiciary are now more sensitive and must receive greater attention than they did before. Hence it is advocated by many that considering the many criminal cases concluded in our lower courts, the provisions for superior court judges in sections 99 and 100 of the Constitution Act of 1867 should also apply to the judiciary of our lower courts. These sections provide: 1. tenure of office is during good behaviour (corrupt and criminal behaviour only are justification for removal from office); 2. removal from office can only be "on address of the Senate and House of Commons"; and 3. remunerations, allowances and pensions shall be fixed by Parliament. The advocates submit that where these sections refer to House of Commons and Parliament, we must for Provincial Court Judges substitute "Provincial Legislative Assemblies". To determine in this Valente case if the Ontario Provincial Court - 4 Judge was independent and impartial at the time the accused appeared before him in regard to an allegation of careless driving, the Supreme Court of Canada firstly looked at the Judge's tenure and the security of that tenure, The Provincial Court Act of Ontario provided that the Judge could be removed from office only "for misbehaviour or for inability to perform his duties properly". Such misbehaviour or inability must be determined by a Superior Court Justice by means of an inquiry during which the subject judge has, of course, a right to participate fully. The Superior Justice must then file his report with the Ontario Legislative Assembly. But whatever the recommendations are, the Cabinet is not bound to act on it. Since the impartiality and independence of this provincial court judge was challenged, the Ontario government amended the Provincial Court Act. Now the provincial court judges can only be removed by the Cabinet if: (a) (b) (c) a complaint has been lodged with the Judicial Council; a judicial inquiry has been made and results in a recommendation of removal; and, in addition, an address of the Legislative Assembly. The Supreme Court of Canada found that these current provisions are sufficient to provide the necessary security of tenure for a provincial court judge. The second matter considered was the financial security of the provincial court judge. The wages of the judges and their pensions are established at the whim of the executive branch of government. It was submitted that these matters should be decided by the Legislative Assembly. A further argument was that the judges should get paid directly from the "coffers" and should not be included in the budget of any ministry. The remuneration of provincial court judges are usually included in the budgets of the Attorneys General with the salaries established through Regulations (Orders in Council). The Supreme Court of Canada made an interesting observation when they held that it would be preferable for judges' salaries to be established by the Legislative Assembly. Whether these salaries are established by Regulations or Legislat~oc, in both situations the law would be initiated by the executive oranch of government. The c-nly difference would be, that if the salaries would come via the legislative route they would be subject to public debate in the House. Concluding that in the situation in question, the salaries are established by law, the procedure does not raise a reasonable apprehension in regards to impartiality or independence on the part of Ontario provincial court judges. - 5 The third consideration was whether the executive branch of government was involved in the Court's administration to the extent that it affected the independence of the judges. The question was the requisite administrative autonomy by the judges to meet the independence under s. 11 of the Charter. Should the administration include assigning courtrooms; supervision over the quality of the work by court staff; selection and hiring of those personnel; the preparation of budgets for the Courts and all ancillary (including personnel management) matters thereto? No province has given their provincial court judges' such autonomy. Though such autonomy may be desirable it is not essential to meet the standards of independence under the Charter, held the Supreme Court of Canada. The Court also recognized that such institutional autonomy would be riddled with problems and inconsistencies. It found that the institutional independence of the provincial court in Ontario is now adequate to consider the members of the provincial judiciary independent, despite control by the executive branch of government over the salaries of discretionary benefits for judges and control over the management of the support services to the Court. Accused's appeal was dismissed. ***** - 6 THEFT OF CONFIDENTIAL INFORMATION Regina v. Offley, Alberta Court of Appeal, April 1986, No. 8503-9075-A. The accused, a retired policeman, went into private security and investigative work. He was in need of information contained in the national and local police computers. He applied for access to the computers but his request was denied. He then approached a constable in the record section and offered him money for information. The constable reported the offer to his superiors and the accused was set up; the constable supplied information and the accused paid. Consequently he was convicted of counselling the constable to counn.it theft; and with corruptly paying the constable to procure the offence of theft of information (bribery). He appealed the conviction. Needless to say 'the sole and kernel question to be decided was whether confidential information is capable of being stolen in terms of theft as defined and made culpable by the Criminal Code of Canada. A couple of years ago the Ontario Court of Appeal considered in a similar case* if' confidential information is capable of being stolen. The Court answered in the affirmative but held that it only amounts to theft when the information is removed or taken so it is not available to the owner any more. Getting access to information only for the purpose of intelligence gathering without depriving the owner of that very information, does not amount to theft. In other words, the Ontario Court of Appeal held that confidential information is "property" as defined in s. 2. C.C. that can be stolen i f the owner is deprived of it. One Ontario Justice had reasoned that taking confidential information causes it to lose its confidentiality and it cannot be left or returned in the condition in which it was when taken. The Justices of the Alberta Cous:T of Appeal in this Offley case did not think such consideration u~cessliry. Classifying information "confidential" is pegging a quality to it. Quality has never been s factor to determine if something is property. In respect to loss of confidentiality upon the officer giving the accused the information, the Alberta Court observed that the information was never taken away. Furthermore, wondered the Court, does, for instance, revealing a secret entrusted by a friend amount to committing a theft? What about plagerism, violation of copyrights, * R. v. Stewart 5 C.C.C. (3d) 481 - 7 advertently reading a confidential memorandum, etc.? The Court recognized that civil law Courts award injunctions as well as damages in respect to breach of contract or confidence. In business, secrets are valuable and are legally sold and bought. Secrets have commercial value but are not property for the purpose of theft. There may well be civil liability for breaching confidences if there are consequential damages. But there is no criminal liability. The Alberta Court of Appeal quoted from a text book: "It does not assert that appropriating value without appropriating property is theft". Hence, confidential stolen. information is incapable of Accused's appeal allowed. Conviction quashed. ***** criminally being - 8 - RIGHT TO COUNSEL WITHOUT DELAY TIME FOR BREATH TESTS RUNNING OUT Regina v. Frebowski, County Court of Westminster, No. X016236, New Westminster Registry. The accused was found driving while he appeared impaired by alcohol. A demand was properly made for samples of his breath and he was told of his right to counsel. Everything happened with dispatch including him being taken to the breathalyzer. Just before the operator was to take the samples the accused made it known that he firstly wished to speak with a lawyer. He was immediately given a phone and privacy. In 10 minutes the accused made several calls and was unsuccessful in contacting a lawyer. For another 13 minutes the officer made four calls on behalf of the accused. The attempts to reach a lawyer were without avail. Considering the statutory time limitations for the tests to be done, there were only a few minutes left to spare; perhaps enough time to make a few more calls. However the technician insisted that the accused complied with the demand made of him. He refused and was convicted accordingly. The accused appealed submitting that not utilizing the few spare minutes to make further attempts to contact a lawyer amounted to an infringement of his right to counsel and gave him a reasonable excuse to refuse. The accused's counsel argued that although police were very cooperative, allowed him to make a number of calls, and even assisted him, several numbers the accused (as well as the officer) dialed were either "busy" or "no longer in service". The trial judge had not taken this in consideration when he had concluded that the accused had received fair treatment and that therefore his rights had not been infringed. Defence counsel apparently also made a plea that the Charter is supreme law and supersedes the provisions of the Criminal Code. The two hour time limit for taking breath samples is a legislative provision of an evidentiary shortcut favoring the Crown. It provides fuC' .::..dduC'.ing the results of ana~yses by means of a certificate and allows i t to be presumed that tho:.. blcGd alcohol level at the time of analysis is equivalent to that at the time of driving. The accused had to forego his rights granted him by supreme law to accommodate the Crown's evidentiary convenience provided for by ordinary statute law. The accused had not deliberately lingered; his attempts and intent to make contact with a lawyer had been sincere. He should have been permitted to continue those attempts until he had completely exercised his right. If the samples, as a result would have been given outside the two-hour period the Crown would not have been estopped from - 9 prosecuting the accused. It only would have to call the breathalyzer technician to prove the analyses and an expert to prove the blood alcohol level at the time of driving. A citizen should not have to relinquish a constitutional right to make the prosecution process more convenient for the State. (The reasons for judgement are not too clear on this presumed submission by defence counsel. However, what it does contain is sufficient to infer that this was the tenor and drift of his argument). The County Court Judge held that other cases which appear similar on the surface are distinct from this case. In the others there had been sufficient time left within the two hour period to make further attempts to contact counsel. The time given to the accused was reasonable and the authorities had treated him fairly and in compliance with his rights. Appeal dismissed. Conviction upheld. *** Another case similar in circumstances was decided in the same level of Court in respect to Regina v. Willey (No. X016720), New Westminster Registry. The accused had appealed his conviction for refusing to blow. He was under demand to give breath samples and was made aware of his right to counsel. He requested to make a long distance call to his lawyer. He spoke to his counsel from 1:31 a.m. till 2:04 a.m. He was then asked to hang up as police were running out of time. He continued to speak to his lawyer for another three minutes when another request was made to terminate the call. He complied but told police that since they were short of the prerequisite reasonable and probable grounds, he, on the advice of his lawyer, refused to give any breath samples. At trial and in this appeal hE.! argued that being forced to terminate the phone call after 36 minutes amounted to depriving him of receiving legal advice. The accused had been given ample time to receive adequate legal advice, held the Court. He acted on that advice and gave reasons. As it turned out the advice was wrong and so was the accused's perception of what his rights to counsel were in the circumstances. Also that appeal had been dismissed and his conviction upheld. ***** - 10 - ARREST OF PASSENGER IN CAR FILLED WITH MARIHUANA SMOKE UNREASONABLE SEARCH; ARBITRARY DETENTION; AND INFRINGEMENT OF RIGHT TO COUNSEL Regina v. Guberman, 23 C.C.C. (3d) 406 Manitoba Court of Appeal The accused was a passenger in a car stopped in a road block to check for impaired drivers. A strong smell of marihuana smoke was detected and after some discussion the driver handed over a bag of marihuana to the officer. The accused was also arrested and informed of his right to counsel. He was promised to be afforded an opportunity to phone counsel as soon as they would get to the police station. However, before allowing the accused to phone, the officers searched him and found marihuana hidden on his person. Innnediately after the search he was allowed to call his counsel. The accused was firstly acquitted of the charge of possession of a narcotic. The Crown's appeal was allowed and the accused went to the Manitoba Court of Appeal appealing this reversal of his acquittal. The grounds for appeal were: 1. The arrest was not based on reasonable and probable grounds and amounted to an arbitrary detention contrary to the accused's right (s. 9 of the Charter); 2. The search by which the narcotics were found was unreasonable and contrary to s. 8 of the Charter; 3. There was a denial of right to counsel in that the search caused delay in contacting a lawyer who could have rendered advice; AND 4. That the trial judge had erred in admitting the narcotics and the certificate of analysis into evidence despite the infringements of rights by means of •·!hich the evidence had been obtained. The accused reasoned that the officers had acted on mere suspicion. The accused was not known to police and the car he was a passenger in happened to be stopped by police in a road check. The arrest was therefore illegal in that police lacked reasonable and probable grounds in respect to the accused and so was the subsequent search by which the marihuana was found. The police action had been illegal in its entirety claimed the accused, and to seriously consider the weight of evidence obtained by such illegal means would surely bring the administration of justice into disrepute. - 11 The Manitoba Court of Appeal concluded that considering the circumstances, police had the reasonable and probable grounds for beiieving that the accused had committed or was about to commit an indictable offence. There was marihuana in the car and ample evidence that it was being used. This included grounds for believing it would be used again. The accused's arguments that he could have entered the car after the smoking took place and may, even if he was present, not have been the one who smoked or possessed the contraband, were rejected. Responded the Court: i f police officers were permitted to allow suspects to proceed on their way because of a possibility of innocence (despite their reasonable and probable grounds), few persons guilty of an offence would ever be detected". (The portion between parenthesis is mine and is necessary to convey the Court's intent apparent from of other passages in the reasons for judgement). The smell was strong. If the accused entered the vehicle after the smoking took place, then accepting a ride in that vehicle subjected him to the consequences of the conclusion police could draw from that evidence. The search police conducted was in accordance with authority granted under s. lO(l)(d) N.C.A. The search was not unreasonable in any way. The accused argued that the search which resulted in finding marihuana on him occurred at a time prior to him receiving the legal advice he had indicated to the officers, he wanted without delay. This means, submitted the accused, that the right to counsel had been infringed when he was searched. Consequently the evidence obtained by that search should have been excluded. The Court reasoned that it would have been entirely proper for police to have searched the accused at the roadside, immediately upon his arrest. In this case, out of courtesy to the accused, he was takem out of inclement weather and public view and then searched at the police station. Nothing had, because of the "change of venue", changed in respect to · the police's authority to search the accused. He was not demanded like a suspected impaired driver to produce evidence. He was simply, due to the lawful arrest, a person police have a right to search. Said the Court: "There were no options open to the accused upon which he might require the advice of counsel prior to the search ••• To say otherwise would be to impede the police in the due execution of their duty to investigate in circumstances in which they have reasonable and probable grounds for believing a crime to have been committed." - 12 The Manitoba Court of Appeal concluded that the accused's submissions and claims are inconsistent with the meaning and intent behind the Charter. Furthermore the Justices then seemed to join in with their B. C. counterparts in saying that even if some infringement was involved the wording of s. 24(2) of the Charter suggests that illegally obtained evidence will continue to be admitted, save in those cases where its admission would bring the administration of justice into disrepute." Accused's appeal dismissed. ***** - 13 - THE REASONS WHY B.C.'S COMPULSORY BLOOD TEST LAW WAS UNCONSTITUTIONAL Regina v. Chatham and Regina v. Ketola, 23 Columbia Supreme Court. c.c.c. (3d) 434, British Q.iite within its legislative purview, the B. C. legislative assembly enacted that where a peace officer has reasonable and probable grounds to believe that a driver (or a person who was driving within the last 2 hours) has consumed alcohol, he may demand of that person to supply a sample of ~lood for the purpose of analysis. This law was supposed to catch drivers who were injured or faked injuries when involved in an accident. There is not too much detail on the circumstances involving the accused Chatham but Ketola was a motorcycle rider who collided with a car and was transported to hospital by ambulance. It was obvious he had been drinking and the investigating officer demanded he give a sample of blood. As a result Ketola was charged with "over 80 mlg." under s. 220.1(1) of the Motor Vehicle Act. Chatman was charged with the same offence. Both were acquitted as the respective trial judges found the compulsory blood test law to be excessive in view of our rights under the Charter. The B. C. Attorney General appealed. At the outset of his judgement and all through his reasoning the Justice of the B. c. Supreme Court recognized and acknowledged the enormity of the devastation the drinking drivers are causing in society. He indicated to be cognizant that restricting our freedoms to reduce such consequences of adverse behaviour is justified. However, there must be a balance between the severity of the ailment and the side-affects of the medication. Firstly the Court found that the prerequisite grounds for making the demand is for the police to believe that a driver has consumed alcohol; not the commission of an offence. Also that there is no connection between those grounds and the offence of "over 80 mlg. created in the same section of the Motor Vehicle Act. The vile does not even refer to the other. Therefore the provision for the demand is arbitrary. To drink and drive is not an offence, only where it causes impairment or a blood/alcohol level in access of "80 mlg. per 100 milliliters of blood." Driving is not an offence but speeding is. The blood test legislation is the equivalent of given police authority to demand from every person who operates a car to present proof of the speed of the car. Furthermore s. 220. 2(1) M. V.A. does clearly provide that the demand may be made of a person who drove within the last two hours and has - 14 consumed alcohol... just before he drove, yesterday, last year or whenever. The latter, we must assume is a construction error, but the section nevertheless does so provide. As the section stands, with non-compliance constituting an offence, the demand by a police officer being intimidating and there not being any connection or link between it and any offence, it (the section) provides for an involuntary deprivation of the liberty and security of the person. This is quite in violation of section 7 of the Charter which assures "the right to life, liberty and security of the person". The legislative draftsman did "cast a net" so broad that it ensnares innocent persons in circumstances totally irrelevant to the massive evil of impaired driving which the Crown says was to be curbed by the legislation that allows an assault (taking of blood) upon mere suspicion of a vague fact unconnected with anything. The legislation then creates an offence for the victim for not permitting the assault. Furthermore the legislation allows an unreasonable search and seizure on account of the lack of any link with an offence. This renders it unjustified under s. 1 of the Charter. The B. C. Supreme Court held that admission of evidence obtained by the provision of s. 220.1(2) M.V.A. to prove any offence, would bring the administration of justice into disrepute. Crown's appeal dismissed. Dismissals upheld. Comment: When reading the reasons for judgement one is inclined to predict that if the Crown had not appealed by means of stated case, the B. C. Supreme Court would have declared the legislation "without force or effect" under s. 52 of the Charter. The stated case posed specific questions directly related to the reasoning by the trial judges. Probably the Supreme Court was restricted to respond to the narrow question contained in the stated case. also is reasonable to infer that the Court is very sympathetic to apparent objective of the law makers in enacting s. 220.1(2) M.V.A. It seems to suggest that legislation less broad, linked to an offence, with realistic prerequisite grounds to the demand will be considered constitutional. J~ th~ In December 1985, one month after this decision by the B. C. Supreme Court, section 220.2(1) of the Motor Vehicle Act was amended. Although the following case is in relation to the law as it was before the amendment, the County Court's reasons for judgement delivered in May of 1986, may well apply to practices surrounding the demanding and taking of bloodsamples under the new law. ***** - 15 Regina v. Constantinescu, County Court of Yale, Vernon Registry No. 15231, May 1986. Prior to the former provisions for the taking of blood samples under s. 220. l of the B. C. Motor Vehicle Act meeting with constitutional difficulties as explained in the Chatham and Ketola cases above, a police officer demanded from the accused Constantinescu a sample of her blood while she was being attended to in the emergency ward of a hospital. She had been the driver of a car and sustained injuries in an accident. She had been taken by ambulance from the scene to the hospital. The officer did tell the accused of her right to remain silent and that of access to counsel without delay. The officer conceded to have made the demand for a blood sample to collect evidence for a drinking/driving charge under the Criminal Code of Canada rather than for the offence of "over 80 mlg." under the Motor Vehicle Act. However, he did not inform the accused of that purpose, neither did he make the accused aware that with the exception of breath on demand, no person is obliged to give any sample of a bodily substance for chemical analysis for evidence under the Criminal Code. Evidence that there was a refusal to give such a sample or that it was not taken, is inadmissible. (See s. 237(2) c:c.). The accused had complied with the officer's demand and was consequently charged with impaired and dangerous driving. The Court had to decide if the evidence resulting from the analysis of the blood was admissible. After all, s. 237(2) C.C. does not render evidence that a sample of a bodily substance was taken or the results of an analysis of that substance inadmissible. When the officer made the demand for a bloodsample, the enabling legislation had not yet been declared excessive from a constitutional viewpoint by the B. C. superior courts. However, when a law is found to be constitutionally flawed we must consider it to have been so from the date it came into effect and not from the date it was judicially declared to be in some conflict with our supreme law. It then follows that in this case the officer made the demand under law that was unconstitutional from the outset. That the law was apparently in tact in that the contrary had not yet been decided when the officer made his demand, did have a bearing on the Court dealing with the matter of good faith and the officer's bona £ides. After all, s. 237(2) C.C. is silent on the matter---of admissibility of the evidence resulting from an analysis of a bodily substance and outside of s. 24(2) of the Charter, the principle that evidence regardless how obtained is admissible, still applies. - 16 Legally then there was no basis for the officer to make the demand for the sample of blood. The provisions of the Motor Vehicle Act under which he made the demand were in conflict with the rights established under s. 7 and 8 of the Charter. Consequently the accused's rights to the security of her person and that rendering her secure against unreasonable search and seizure had been infringed. This triggered consideration under s. 24 of the Charter for exclusion of the evidence resulting from the blood analysis. This left the Court to consider the circumstances (including the matter of good faith on the part of the officer) and whether admission of the evidence would bring the administration of justice into disrepute. Obviously referring to the officer's intent to use the evidence resulting from the analysis of the accused's blood for charges under the criminal code rather than under the Motor Vehicle Act (despite the fact that she was not obliged to give any sample for that purpose) the Court found that the "demand" had been misleading. Said the Court: "The officer, in attempting to do indirectly what he was not entitled to do directly, and without being candid and informing the accused of the true purpose of his demand and the provisions of s. 237(2) of the Code, has shown a certain deviousness, a lack of candor, an unfairness of the pocedure followed, and therefore a lack of bona fides compelling the Court in this instance to rule the blood sample as being inadmissible." This took care of good faith and "circumstances". As a consequence the admission of the blood evidence would bring the administration of justice into disrepute. ***** - 17 - SUSPECT SWALLOWING - JUSTIFICATION OF DETENTION OBTAINING AND ADMISSIBILITY OF EVIDENCE Regina v. Duman, 23 C.C.C. (3d) 366 Alberta Court of Appeal In the opinion of the courts, the police officers in this case had a sincere but erroneous belief re continued detention of a person they suspected of having swallowed drugs for the purpose of storage. The accused, whom the officers suspected of having illicit drugs in her possession did, despite the choke hold, swallow something. They took her into custody and informed her of her rights to counsel. The reason for the custody was to keep her detained for up to 30 days so whatever she passed could be seized or for her to go to a hospital to have vomiting induced. The accused was informed of the reason for her arrest and was officially given the choice of the "up to 30 days custody" or up-chuck. She did not make any phone calls but elected to go to the hospital where the drugs she had swallowed were recovered. All of this led to a conviction of possession of a narcotic for the purpose of trafficking. She appealed this conviction to the Alberta Court of Appeal claiming that: 1. her election to go to the hospital and have the narcotics retrieved was induced by misleading and police statements erroneous in respect to the law; 2. her rights to counsel had been infringed as no phone was made available to her; and that 3. her rights to security of her person, not to be arbitrarily detained and to be secure against unreasonable search and seizure had been violated. All or any one of these matters, the defence claimed, should have resulted in the exclusion in evidence of the . retrieved narcotics and the certificate of analysis. The Alberta Court of Appeal observed that the police officers had a duty to seize and preserve the contraband they had reasonable grounds to believe were in the possession of the accused. Although the law they cited as authority for holding her was erroneous, the actual period the accused had been detained had not extended beyond a period of time the officers were authorized to detain her. Furthermore, there was no evidence that the erroneous quoting of law was done maliciously; there was no evidence of "bad faith". - 18 - The case was distinct from R. v. Therens*. There the accused was compelled by law to do something. In this case the law did not require anything from the accused. Therefore the apparent strictness aP'plied by the Supreme Court of Canada in holding that the evidence supporting a "drinking/driving" allegation against Therens must be excluded, did not compel the same consideration in this case. The accused was an intelligent person. When arrested she was given her rights to counsel and obviously understood them. When she asked immediately upon her arrest if she could talk to a lawyer, she was told she could if that is what she wanted. At the station she did not ask for the use of a phone. Depending on how naive a person is in these matters, it may in some cases be the duty of police to provide a phone whether asked to do so or not. However, the accused was knowledgeable in these matters and not voluntarily providing her with a phone did not infringe her right to counsel. There simply were no flagrant or overt violations of the accused's rights. But, even if these circumstances had amounted to infringements of her rights, "exclusion of the evidence and not its admission ••• would bring the administration of justice into disrepute". Accused's appeal dismissed. Conviction upheld. ***** * Regina v. Therens, 18 C.C.C. (3d) 481 - Page 1, Volume 21 of this publication. - 19 DOES THE NEW PROSTITUTION LAW OFFEND THE FREEDOM OF SPEECH AND THE FREEDOM OF ASSOCIATION? Regina v. McLean and Regina v. Tremayne - Supreme Court of British Columbia, Vancouver Registry No. CC860492 and CC 860563, May 1986. The two accused were charged with communication with a person in a public place for the purpose of engaging in prostitution contrary to the recently enacted s. 195.1( l)(c) C.C. Defence counsel challenged the constitutionality of this law and the provincial court judge found that it suffered of "overbreadth" and did therefore violate the Charter. The Crown appealed that decision. The Chief Justice of the B. C. Supreme Court did preside over these appeal proceedings. From my perspective the tenor of his reasons for judgement is a predominant feature of it. It seems to have a reprimanding tone when it reviews the considerations the defence counsel's arguments had received in the provincial court; it appears to deliver "the message of law" with patriotic and evangelistic vigor. When the words "seem" and "appears to" are used above, I strictly refer to my own impressions of the judgement. The Chief Justice said that the solicitation practices by prostitutes have associated problems that flow from the "unregulated conduct". In Canada (unlike many other nations) we attempt to control those practices by means of criminal law instead of regulations or by means of enabling legislation so subordinate governments can regulate this historic trade. (This last observation is strictly mine although it is not impossible that the words "unregulated conduct" were, at least, a Freudian slip. In any event, whatever the Chief Justice's opinion may be on the solution to the prostituion problem it would probably have been improper for him to use his judicial response to a narrow question of constitutional law to advocate what elected representatives should do about it.). The Chief Justice reviewed our previous solicitation laws and said that the results of the welknown Hutt* decision by the Supreme Court of Canada in 1978 had been "disastrous": "Prostitutes and pimps were left free to solicit at will, adversely affecting the tranquility and amenities of whole neighbourhoods". He recognized that police were rendered powerless to control the situation and municipal governments did no t have the legislative Hutt v. The ~een, 82 D.L.R. 45. - 20 - competence to remedy the chaos. He also considered the common law injunction for which the B. C. Attorney General finally petitioned the Supreme Court for, as a "drastic step". It seems the Chief Justice expressed disappointment that the problem required an extraordinary judicial remedy to give an interim relief regarding a public nuisance that should have been resolved by the executive and legislative branches of government. After having reviewed the history of the soliciting laws, the Chief Justice addressed himself to the legal arguments that had led to the ruling by the provincial court judge that the new s. 195.l(l)(c) C.C. suffered from "overbreadth" and did thereby "constructively violate" s. 2(b) of the Charter (freedom of expression). The provincial court judge had struck down the words "or in any manner communicates or attempts to communicate with any person" in the section which, of course, removed the teeth from this law and left it a lame duck in regard to its objective (the authority for this can be found in s. 52(1) of the Charter). The Chief Justice did not understand what a "constructive" breach means "Either there is a breach or there is not" he said. Furthermore the provincial court judge had applied the U. s. "overbreadth" principle, which is not known to Canadian law. The Chief Justice indicated that the Provincial Court Judge should have followed the procedure established by the Supreme Court of Canada in February of this year when it went through a similar exercise to determine the validity of legislation*. A Court must first determine whether the law in question violates the Charter. Only i f it does then that Court must determine if that inconsistency with the Charter is "demonstrably jutified in a free and democratic society". If it is not so justified then the Court may declare the law, insofar as i t is inconsistent with the Charter, without force or effect (s. 1 and 52 of the Charter res.pectively). Defence counsel submitted to the B. C. Supreme Court that s. 195.l(l)(l)(c) c.c. offends the freedom of speech and the freedom of association in that it prohibits a prostitute (a trade not proh~bite