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

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

LEGALLY SPEAKING:
Reasonable Doubt
It is important for police to understand the meaning of the phrase “beyond a reasonable
doubt”. This legal standard is much more onerous than the legal standard for most police
actions requiring reasonable grounds for belief, such as arrests or searches. So what may
justify an arrest and submission of a Report to Crown Counsel, will is some cases not meet
the proof beyond a reasonable doubt standard required for a criminal conviction. Thus the
reason for a Crown charge approval standard of a substantial likelihood of conviction (or reasonable
prospect of conviction). In short, just because an officer meets the reasonable grounds standard does not
necessarily mean a charge and conviction will follow. “The phrase ‘beyond a reasonable doubt’, is composed
of words which are commonly used in everyday speech,” said Justice Cory for the majority of the Supreme
Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320. “Yet, these words have a specific meaning in the
legal context. This special meaning of the words “reasonable doubt” may not correspond precisely to the
meaning ordinarily attributed to them. In criminal proceedings, where the liberty of the subject is at stake, it
is of fundamental importance that jurors fully understand the nature of the burden of proof that the law
requires them to apply.” To better understand the meaning of this standard, the Canadian Judicial Council
drafted the following model jury instruction for explaining “proof beyond a reasonable doubt”. By reading this,
it may also assist the police in understanding this onerous standard:
[1] The principle of “proof beyond a reasonable doubt” is an essential part of the presumption of innocence.
[2] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It
is a doubt based on reason and common sense. It is a doubt that arises at the end of the case based not only
on what the evidence tells you but also on what that evidence does not tell you.
[3] It is not enough for you to believe that [the accused] is probably or likely guilty. In those circumstances, you
must find him/her not guilty, because the Crown would have failed to satisfy you of his/her guilt beyond a
reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
[4] You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. The
Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law.
[5] If, at the end of the case, and after assessing all of the evidence, you are not sure that [the accused] committed
the (an) offence, you must find him/her not guilty.
[6] If, at the end of the case, based on all the evidence, you are sure that [the accused] committed the (an) offence,
you should find [the accused] guilty.
Volume 9 Issue 1
January/February 2009

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg

On-Duty Deaths Down

4

Later Statement Not Tainted: Connection To
Earlier Statement Weak

6

Policing Numbers Across The Nation

8

RCMP Fast Facts

11

DNA Databank Order Does Not Require Proof
Of Forensic Value

13

Vehicle Thefts: Canada 2007

16

No Consume Condition OK Despite No
Connection To Offence

18

Corroboration Of Tip’s Criminal Aspect Not
Required For Warrant

23

Arrest Of ‘Take-Away’ Objectively Justified

25

Sexual Assault: By The Numbers

27

Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes only
and are not to be construed as legal or other professional
advice. The opinions expressed are not necessarily the
opinions of the Justice Institute of British Columbia. “In
Service: 10-8” welcomes your comments on or
contributions to this newsletter. If you would like to be added
to our electronic distribution list e-mail Mike Novakowski at
mnovakowski@jibc.ca

POLICE LEADERSHIP
APRIL 10-13, 2011
Mark your calendars!!! The
British Columbia Association
of Chiefs of Police, the
Ministry of Public Safety and
Solicitor General, and the
Justice Institute of British
Columbia, Police Academy are
hosting the Police Leadership 2011 Conference in
Vancouver, British Columbia. This is Canada's largest
police leadership conference and will provide an
opportunity for delegates to discuss leadership topics
presented by world-renowned speakers.

www.policeleadershipconference.com

SUPPORT THE BADGE:
RELATIONAL SURVIVAL
FOR POLICE FAMILIES
“The true weight of the badge is not overcome by
muscle, not found in the gym, not measured on a
scale. This weight requires a strength and
conditioning for which few officers are trained. The
badge is not just pinned on a chest, it is pinned on a
lifestyle.” - Police Officer

National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police
officers across British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2.
Police – Legal status, laws, etc. – Canada –
Cases – Periodicals. I. Justice Institute of British
Columbia. Police Academy. II. Title: In service,
10-8. III. Title: In service, ten - eight.

2

www.supportthebadge.ca

www.10-8.ca

Volume 9 Issue 1
January/February 2009

Volume 9 Issue 1
January/February 2009

www.10-8.ca

3

2008 Roll of Honour

ON-DUTY DEATHS DOWN

C.O. Joseph McKeown

On-duty peace officer
deaths in Canada fell by
two last year, the lowest
total in 55 years. This is
the third consecutive year
that on-duty deaths have
declined. In 2008, two
peace officers lost their lives on the job. This low
number has not been seen since 1952 and 1953,
when in those years only two on-duty peace
officers deaths were recorded, as reported by
the Officer Down Memorial Page.
Motor vehicles, not guns, continue to pose the
greatest risk to officers over the last 10 years.
Since 1999, 32 officers have lost their lives in
circumstances involving vehicles, including
automobile and motorcycle accidents (21),
vehicular assault (4), and being struck by a
vehicle (7). These deaths account for 44% of all
on-duty deaths, which is more than twice the
next leading cause of gunfire (15) in the same 10
year period. On average, seven officers lost their
lives each year during the last decade, while 2002
had the most deaths at 12.
Source: The Officer Down Memorial Page, www.odmp.org

Correctional Services Branch, AB
End of Watch: July 22, 2008
Cause of Death: Heart Attack

Constable Eric Lavoie
Laval Police Department, QC
End of Watch: September 8, 2008
Cause of Death: Automobile Accident

They are our heroes. We shall not forget them.
“Police officers are the front line of society’s defence
against crime. ... [A]n attack on a police officer is an
attack on society itself. Parliament has deemed it
necessary to clearly denounce
the murder of a police officer.”
Manitoba Court of Queen’s Bench Justice Menzies in R. v. Sand, 2003 MBQB 43, upholding the constitutionality of
s.234(1)(a) of the Criminal Code in the murder of Royal Canadian Mounted Police Constable Dennis Strongquill.
4

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Volume 9 Issue 1
January/February 2009

Canadian Peace Officer On-Duty Deaths (by year)
Cause

2008

2007

2006

2005

Aircraft accident

2004

2

Assault

2003

2002

2001

2000

1999

Total

1

2

1

8

2
1

Auto accident

1

1

2

Drowned

1

1
3

6

2

1

Duty related illness

1

1

18

1

2

1

1

Fall

1

Gunfire

3

Heart attack

3

1

5

1

1

1

2

1

Motorcycle accident

2

1

Natural disaster

1
15

1

6

2

3

1

Stabbed

1

1

1

Struck by vehicle

3

2

Training accident

1

Vehicular assault

Total

2

1

1

4

6

1

11

7

6

12

7

9

2

7

1

2

1

4

6

72

2008 U.S. Peace Officer On-Duty Deaths

U.S. On-Duty Deaths Drop
During 2008, the U.S. lost 132 peace
officers, down 54 from 2007. The
top cause of death was motor
vehicle accidents (46) — including
autos and motor cycles — followed
by gunfire (36), vehicular assaults
(12), and being struck by a vehicle (11). The state of Texas lost
the most officers (14), followed by California (11), Florida (8),
Pennsylvania (7), the U.S. Government (6), Ohio (6) and the
states of Louisiana, Maryland,
Missouri, New York, and Ohio
each with five. The average
age of deceased officers was
39 years and the average tour
of duty was 10 years and 11
months. Men accounted for
89% of officer deaths while
women made up the remaining
11%.
US On-Duty Deaths by Year

Cause

Total

9/11 related illness

1

Accidental

1

Aircraft accident

4

Assault

1

Auto accident

38

Bomb

2

Drowned

1

Duty Related Illness

2

Electrocuted

1

Exposure to Toxins

1

Gunfire

36

Gunfire (accidental)

2

Heart attack

5

Motorcycle accident

8

Stabbed

2

Struck by vehicle

11

Train Accident

1

Year

2004

2005

2006

2007

2008

Vehicle pursuit

3

Deaths

163

162

153

188

132

Vehicular assault

12

Source: The Officer Down Memorial Page, www.odmp.org (accessed January 3, 2009) Total

Volume 9 Issue 1
January/February 2009

www.10-8.ca

132

5

LEGALLY SPEAKING:
Wiretap Authorization Legal Standard
“The trial judge has to consider whether
there is sufficient reliable information on the
basis of which the authorizing judge could
have granted the authorization.
The authorizing judge must be satisfied that there are
reasonable and probable grounds to believe that an offence
has been, is being, or is about to be committed, and that the
authorization sought will afford evidence of that offence.
However, the trial judge does not stand in the shoes of the
authorizing judge when conducting the review. The question
for the trial judge is whether there was any basis on which
the authorizing judge could have granted the authorization.
The trial judge should only set aside an authorization if
satisfied on all the material presented, and on considering
“the totality of the circumstances”, that there was no basis on
which the authorization could be sustained. The trial judge’s
function is to examine the supporting affidavit as a whole, and
not to subject it to a ‘microscopic analysis’”. - British
Columbia Court of Appeal Chief Justice Finch, R. v. Lee,
Lee,
2008 BCCA 240, paras. 12-14, references omitted.

LATER STATEMENT NOT
TAINTED: CONNECTION TO
EARLIER STATEMENT WEAK
R. v. Woods, 2008 ONCA 713
The accused was arrested at 6:16 pm on
assault and weapons charges after his
wife was shot in the kitchen of their
home. In the police cruiser, he made a
number of statements to police. He said the shooting
was an unintended accident. He did not expect the gun
to go off and did not think he could shoot or think
straight. He said he was a gunsmith and was cleaning
his gun when his wife “started bugging” him. He also
claimed that he had previously been of assistance to
police. In response to specific questions from a police
officer about the ownership and type of gun, the
accused admitted it was his gun and said that it was a
“.38 police special”.
The accused was transported to the police station,
arriving at about 6:49 pm. He was taken to an
interview room with working videotape equipment and

6

his entire contact with police in the interview room was
recorded. He was promptly advised that he was now
charged with murder and was cautioned about his
rights, but was not told he should not be influenced by
anything he had said earlier to other officers when he
was in the cruiser. After attempts to contact his
counsel of choice were unsuccessful, he spoke to duty
counsel by telephone for about 14 minutes. The police
later located his lawyer of choice and he spoke to her
for about five minutes and later met for about 30
minutes with another lawyer. In total, he consulted with
three different lawyers for over 50 minutes in a fourhour period, during which time the police made no
effort to question him except about the victim’s nextof-kin.
At 12:54 a.m. a detective interviewed the accused for
two hours and twenty minutes and took a statement
from him. The accused willingly talked about the
shooting, giving various contradictory accounts of his
actions and those of his wife, whether he knew the gun
was loaded or whether he had loaded the gun, how he
reacted or even knew about a telephone call his wife
made to a male friend, the amount of alcohol consumed
by his wife on the evening of the shooting, his reactions
to the telephone call and his wife’s drinking, his
knowledge of guns, the mechanics of the .38 calibre gun
in question, and his repeated statement that the
shooting was an accident. He explained that he had
pointed the gun at the kitchen door with the intention
of scaring, not shooting, his wife.
At trial in the Ontario Superior Court of Justice the
judge excluded the accused’s statements to police
taken in the cruiser after his arrest because the Crown
failed to prove voluntariness and reliability. The
experienced police officer specifically asked the
accused about the gun in contravention of the his
s.10(b) Charter rights—he wanted to consult with his
lawyer. The judge was also concerned about the
reliability and trustworthiness of the accused’s
statements in the cruiser because the police officer
typed his notes with his right hand at the same time
that he was driving the cruiser. In the judge’s view, the
admission of the cruiser statements would tend to
render the trial unfair.
As for the accused’s videotaped statement at the
police station, it was ruled admissible. The judge
recognized that the detective was not involved in the
accused’s statements in the cruiser and “there is

www.10-8.ca

Volume 9 Issue 1
January/February 2009

statements. In my view, the
nothing in the confessions rule
“The is nothing in the confessions station statement was a “fresh
which prohibits the police from
rule which prohibits the police from start”…
questioning the accused in the
questioning the accused in the While it would undoubtedly have
absence of counsel after the
absence of counsel after the
accused has contacted or retained
been ideal, with the benefit of
counsel.” The manner or duration accused has contacted or retained hindsight, if [the detective] had
also cautioned the [accused] not
of questioning was not oppressive
counsel.”
to be influenced by anything he
and
the
accused
willingly
had said earlier to other officers,
volunteered information, even though he knew he did
such a caution was not required in the
not have to and was told by counsel not to talk to the
circumstances of this case where the combination
police. The questions by police were simple and
of the temporal, causal and contextual connections
straightforward and appropriate to the accused’s
between the two statements was so weak. [paras.
limited cognitive abilities. There also were no
9-11].
attempts to use aggressive techniques or non-existing
The accused’s appeal was dismissed.
or fabricated evidence to elicit answers. And he was
not asked any questions about the statements he gave
Complete case available at www.ontariocourts.on.ca
in the cruiser. He was convicted by a jury of second
degree murder.

The accused appealed to the Ontario Court of Appeal
arguing, among other grounds, that the trial judge
erred in admitting the videotaped statement he gave
at the police station on the basis that the statement
was tainted by the circumstances of his earlier
statements in the police cruiser. Justice Lang, writing
the Court’s opinion, rejected the accused’s assertion:
[I]n our view, the police station statement was not
tainted by the earlier cruiser statement. It was
taken more than six hours after the [accused] was
advised of the new charges of murder. The
statement, which was extensive, was taken in a
different location by a different officer after the
[accused] had been given his right to counsel, had
consulted three different lawyers and had
acknowledged that he understood he was not
required to answer the officer’s questions.
The officer who took the cruiser statement was
not present during the station interview and,
indeed, had left the station some two hours
earlier. During the course of the station interview,
the [accused] willingly volunteered information,
sometimes without prompting. The interviewing
officer did not refer to nor rely on the cruiser
statement in his questioning of the [accused], nor
was there anything in the cruiser statement that
would have compelled the [accused] to want to give
a further explanation to the police. In both
interviews, the [accused] consistently maintained
that the shooting was an accident. Accordingly,
there was no nexus between the cruiser and station

Volume 9 Issue 1
January/February 2009

BY THE BOOK:
s.11.2(5) Ontario’s SPCA Act:
Protecting Law Enforcement Animals
On November 27, 2008, Ontario’s Bill 50,
the Provincial Animal Welfare Act, ,
received Royal Assent and amends the
Ontario Society for the Prevention of
Cruelty to Animals Act. In it, a new section
makes it an offence to harm a law
enforcement animal.

Prohibitions re distress, harm to an animal
Harming law enforcement animals
11.2 (5) No person shall harm or cause harm to a dog,
horse or other animal that works with peace officers in the
execution of their duties, whether or not the animal is
working at the time of the harm.

Offences
18.1 (1) Every person is guilty of an offence who … (c)
contravenes subsection [11.2(5)]…
.........
(3) Every individual who commits an offence under clause
(1) …(c) is liable on conviction to a fine of not more than
$60,000 or to imprisonment for a term of not more than
two years, or to both.

www.10-8.ca

7

POLICING NUMBERS ACROSS
THE NATION
According to a 2008 report
recently released by Statistics
Canada there were 65,283 police
officers across Canada last year,
up 1,149 (1.8%) from the previous year. Ontario had
the most officers (24,945) while the Yukon had the
least (117) (see map below for all provincial/
territorial numbers). With
a population of 33,223,840,
Canada’s average cop per
pop ratio was 196 police
officers
per
100,000
residents.
The report included all
levels of policing: federal,
provincial / territorial,
municipal,
and
First
Source: Statistics Canada, 2008,
Police Resources in Canada,
Catalogue No:85-225-X, December 2008

Nations. In terms of percentages, municipal policing
accounted for about 65% of officers, provincial
policing 25%, federal policing 7% and others (such
as the RCMP HQ and Training Academy) 4%.

Canada’s Largest Municipal Police Services 2008
Service

Officers

% Female

Actual

Authorized

Toronto, ON

5,535

5,510

17%

Montreal, QC

4,481

4,538

29%

Peel Regional, ON

1,700

1,829

16%

Calgary, AB

1,620

1,670

14%

Edmonton, AB

1,345

1,375

18%

York Regional, ON

1,318

1,364

17%

Winnipeg, MN

1,311

1,318

15%

Ottawa, ON

1,273

1,301

22%

Vancouver, BC

1,351

1,235

22%

Durham Regional, ON

827

831

19%

Royal Newfoundland Constabulary
3,693

CANADA:
By the Numbers

Quebec Provincial Police
5,277

Ontario Provincial Police
5,718

YK
117

NU
119

NWT
178

BC
8,134

AB
5,734

NF
884
MN
2,419
SK
2,124

ON
24,945

In 2007, the total expenditures on policing was $10,543,530,000

8

www.10-8.ca

QC
15,403
NB
1,355

PEI
231
NS
1,864
RCMP ‘HQ’ &
Training Academy
1,776

Volume 9 Issue 1
January/February 2009

Gender

RCMP

There were 12,207 female officers accounting for
18.7% overall. Quebec had the greatest percentage
of female officers (21.8%) while Nunavut had the
lowest (10.1%). Female officers
% Female
accounted for 7.7% of senior Area
officers,
13.3%
of
nonQC
21.8%
commissioned officers, and
BC
21.3%
21.2% of constables.
NWT

18.0%

NF

17.8%

SK

17.7%

ON

17.5%

AB

16.4%

NB

15.3%

NS

14.9%

MB

14.8%

YK

13.7%

PEI

12.6%

NU

10.1%

The RCMP had the largest presence in
British Columbia with 5,742 officers,
followed by Alberta (2,417), Ontario
(1,335) and Saskatchewan (1,176).

Canada’s Largest Municipal RCMP Detachments 2008
Service

Officers

% Female

Actual

Authorized

Surrey, BC

546

588

24%

Burnaby, BC

272

265

31%

Richmond, BC

206

206

23%

Kelowna, BC

141

141

25%

Coquitlam, BC

130

140

29%

Langley Township, BC

111

129

29%

Prince George, BC

118

128

23%

Red Deer, AB

111

125

25%

Kamloops, BC

109

120

26%

Nanaimo, BC

118

118

25%

Police Officers by Gender-Canada 2008
10 0%
90%

Percentages

80%
70%
60%
50%

94 .9 %

9 2. 0%

5. 1%

8. 0%

198 8

1993

87 .8 %

8 4. 3%

81. 3 %

12 .2 %

1 5. 7%

18. 7 %

1998

20 03

2008

40%
30%
20%
10%
0%

M a le
Fe m a le

Volume 9 Issue 1
January/February 2009

Year
www.10-8.ca

9

MORE FACTS, FIGURES, &
FOOTNOTES

CMA Police Officers & Crime Rates
CMA

Officers - 2008

Crime Rate - 2007

Toronto, ON

9,585

4,461 (26)

Montreal, QC

6,997

5,958 (16)

Vancouver, BC

3,410

9,136 (7)

Calgary, AB

1,711

6,202 (13)

Edmonton, AB

1,667

9,572 (5)

Winnipeg, MN

1,364

9,644 (4)

Ottawa, ON

1,350

5,457 (21)

Hamilton, ON

1,081

5,511 (20)

Quebec, QC

1,019

4,524 (24)

Kitchener, ON

743

4,906 (22)

St. Catharines-Niagara, ON

727

5,711 (18)

London, ON

693

7,296 (12)

Halifax, NS

679

7,954 (10)

Windsor, ON

603

6,138 (14)

Victoria, BC

511

9,335 (6)

Saskatoon, SK

449

11,560 (2)

Gatineau, QC

431

5,718 (17)

Regina, SK

386

11,827 (1)

St. John’s, NL

303

7,325 (11)

Thunder Bay, ON

266

8,819 (8)

Greater Sudbury, ON

249

5,627 (19)

Abbotsford, BC

242

10,341 (3)

Trois-Rivieres, QC

227

4,478 (25)

Sherbrooke, QC

227

4,831 (23)

Kingston, ON

218

5,970 (15)

Saint John, NB

208

8,292 (9)

Saguenay, QC

179

4,398 (27)

•

in Canada in 2006. This includes private security
guards (91,325) and private investigators (10,200).
•

Source: Statistics Canada, 2008, Police Resources in Canada,
Catalogue No:85-225-X, December 2008

10

24% - percentage of private security personnel
who were women. This is up from 20% in 1996 and
23% in 2001.

•

$31,029 - average income in 2005 dollars for
private security guards.

•

CMA=Census Metropolitan Area

101,525 - number of private security personnel

$49,762 - average income in 2005 dollars for
private investigators.

•

$73,582 - average income in 2005 dollars for
police officers.

•

37% - percentage of private security guards in
2006 that had completed at least a college
certification.

•

55%

•

75% - percentage of police officers in 2006 that

- percentage of private security
investigators in 2006 that had completed at least
a college certification.

had completed at least a college certification.
•

321 - rate of private security personnel per
100,000 Canadian population in 2006.

•

192 - rate of police officers per 100,000
Canadian population in 2006.

•

20% - proportion of private security personnel
belonging to a visible minority in 2006. This is up
from 10% in 1996 In 2006, all occupations in
Canada were 15% visible minority, while police
officers were only 6% visible minority.

•

5% - proportion of private security personnel who
were Aboriginal in 2006. This is up from 3% in
1996. In 2006, all occupations in Canada were 3%
Aboriginal, while police officers were 4%
Aboriginal.

Source: Statistics Canada, 2008, Private Security and Public
Policing, 85-002-X, Vol. 28, no. 10, December 2008.

www.10-8.ca

Volume 9 Issue 1
January/February 2009

RCMP FAST FACTS
The Royal Canadian Mounted Police is
Canada’s largest police organization. As
of April 15, 2008 the force’s onstrength establishment was 26,292,
including 17,618 police officers, 60
special constables, 3,244 civilian
members and 5,370 public servants.
As well, more than 75,000 volunteers
assist the RCMP which is divided into four regions
with 15 divisions. (source: www.rcmp-grc.gc.ca)
Region

Division

North West

D

Manitoba

F

Saskatchewan

G

Northwest Territories

V

Nunavut Territory

K

Alberta

Depot
Pacific

Area

British Columbia

M

Yukon Territory

Rank

# of Positions

Commissioner

1

Officers

685

Staff Sergeants

826

Sergeants

1,779

Corporals

3,209

Constables

11,118

Total

17,618

Source: www.rcmp-grc.gc.ca, accessed December 24, 2008

Regina, Saskatchewan

E

RCMP On-Strength Establishment
as of April 15, 2008

Region
Central

Numbers under each
provincial abbreviation
indicate number of
RCMP officers

YK
117

BC
5,742

Atlantic

NU
119

NWT
178

AB
2,417

SK
1,176

MN
957

Division Area
A

National Capital Region

O

Ontario

C

Quebec

B

Newfoundland

H

Nova Scotia

J

New Brunswick

L

Prince Edward Island

NF
515

ON
1,335

PEI
141

QC
1,015
NB
897

RCMP ‘HQ’ & Training Academy 1,776
Volume 9 Issue 1
January/February 2009

www.10-8.ca

NS
989

Source: Statistics Canada, 2008,
Police Resources in Canada,
Catalogue No:85-225-X
December 2008

11

30 DAY CONDITIONAL SENTENCE
HEARING TRIGGERED ON ARREST
R. v. Kabosos, 2008 ONCA 711
Five weeks after the accused was given a
12 month conditional sentence and a two
year probation order for break and enter
x 3 and failure to comply with probation,
he was arrested and charged with break and enter,
possessing break-in instruments, and possessing stolen
property stemming from a new incident. About a month
later, the accused’s conditional sentence supervisor
prepared documents for the conditional sentence
breach. A warrant for the accused’s arrest was issued
a week later and was subsequently executed about
three weeks after issue.
Ninety-six days after the accused’s arrest for the
new offences (or 56 days after the warrant was
issued, and 33 days after the warrant was executed)
the hearing related to the alleged breach of condition
took place. However, under s.742.6(3) of the Criminal
Code “The hearing of an allegation of a breach of
condition shall be commenced within thirty days, or as
soon thereafter as is practicable, after (a) the
offender’s arrest…”. The Ontario Superior Court
judge hearing the case found the 33 day delay (from
when the warrant was executed until the
commencement of the hearing) was close to the
statutory 30 day period and was as soon as is
practicable.
The accused then challenged the judge’s ruling to the
Ontario Court of Appeal arguing, in part, that the
issuance of the warrant should trigger the 30 day time
period even though it was not an “arrest”. In his view,
the underlying policy of s.742.6 of the Criminal Code
is to address alleged breaches of a conditional
sentence urgently. As well, he submitted the
conditional sentence is potentially suspended when the
arrest warrant is issued and if its execution, rather
than its issuance, triggers the 30 day period there
would be no incentive for police to execute the
warrant expeditiously.
Justice MacPherson, delivering the unanimous
judgment for the Court, first noted there were three
possible triggers for the statutory 30 day time period:
1) the accused’s arrest on the new offence which led
to the conditional sentence breach;

12

2) the issuance of the arrest warrant for the
conditional breach;
3) the execution of the conditional breach arrest
warrant.
Justice MacPherson concluded that the triggering
event was the accused’s arrest on the breach warrant,
not the day the warrant was issued. First, the
legislation is clear that the 30 day period is triggered
by the “offender’s arrest”:
[T]he wording of s. 742.6(3) is clear. The 30 day
period leading up to the commencement of the
breach hearing is triggered by “the offender’s
arrest”. The arrest of the offender on the new
offence is an arrest. So is the execution of the
warrant which compels the offender to appear to
answer the charge of breach of condition.
However, the issuance of the warrant is not an
arrest; it compels nothing of the offender until he
receives it.
………

This leaves a final question: does “the offender’s
arrest” as stated in s. 742.6(3)(a) of the Criminal
Code refer to the [accused’s] arrest for the new
offence, or to his arrest … for a breach of his
conditional sentence?
In my view, the answer is obvious; the relevant date
is when the warrant is executed. Section 742.6 is
entitled Procedure on Breach of Condition and
contains the subheading Warrant or arrest –
suspension of running of conditional sentence.
Further, the entire provision deals with a specific
offence: the breach of condition of a sentence. In
addition, there will be some cases (not this one)
where the offender commits no new offence; all he
does is breach a condition of the sentence he is
already serving. Accordingly, both the wording and
the logic of s. 742.6 compel the conclusion that “the
offender’s arrest” in s. 742.6(3)(a) refers to his
arrest for breach of condition, not for the new
offence. [references omitted, paras. 15-18]

Justice MacPherson also rejected the accused’s delay
argument. Section s. 742.6 (14) of the Criminal Code
allows a court to deem unreasonable delay in the
execution of an arrest warrant as time served under
the conditional sentence order. “This provision,
coupled with the policy underlying the provision and
judicial statements… combine to ensure that the police
and court administrators will not delay steps they
must take in an alleged breach of condition scenario,”
he said.
Complete case available at .ontariocourts.on.ca

www.10-8.ca

Volume 9 Issue 1
January/February 2009

DNA DATABANK ORDER DOES
NOT REQUIRE PROOF OF
FORENSIC VALUE
R. v. Boskoyous, 2008 ABCA 359

requirement that, before an order is made, the
offender must be proven to likely be implicated in
past or future crimes by DNA traces that have
evidential significance. DNA residue may be a
potential source of evidence in almost any crime
situation. DNA evidence can be exculpatory also. It
is not for courts, absent unconstitutionality, to
judicially narrow the categories chosen by
Parliament.

The accused pled guilty in Alberta
Provincial Court to trafficking in cocaine,
a secondary designated offence under
As to the second error, the trial judge’s approach
ss.487.051(3) and 487.04 of the Criminal
to the [accused’s] criminal record of 35 prior
Code for the purposes of a DNA databank order. The
convictions, including some for violent conduct, is
sentencing judge therefore had the discretion to
similar to the first error. He seems to say that in
make a DNA databank order, but did not order it. The
order for a criminal record to be relevant, it must
judge was not satisfied the accused tended to leave
also include prior convictions for offences
DNA at crime scenes, nor was a DNA order
designated for inclusion in the DNA databank. In
appropriate based on the accused’s past criminal
mandating consideration of the criminal record
under s. 487.051(3), Parliament did not state any
behaviour because many of his crimes would not even
such limitation. The criminal record
be secondary offences. The
“Parliament has defined eligibility of an offender can be relevant for a
Crown appealed the sentencing
variety of reasons, one of which may
judge’s decision not to impose
for DNA databank orders by
be its indication that the person is
the DNA data bank order to the
categories of offences, not by a defiant to the laws of society
Alberta Court of Appeal.
generally, in which case his future

requirement of proof of present and
conduct is of concern. Further, the
individual forensic value ...
The unanimous Appeal Court
statistical
objectives
of
the
allowed the appeal. In delivering
Parliament did not stipulate a databank may also be served by such
the Court’s judgment from the requirement that, before an order is further information about the source
bench, Justice Watson noted
made, the offender must be proven donors. Further still, the “impact” of
that the sentencing judge
taking of the DNA samples upon
to likely be implicated in past or the
appeared to have assumed that
the privacy and security of the
future crimes by DNA traces that person of the specific offender may
DNA testing was inappropriate
be better appreciated in light of his
have evidential significance.”
if he was not persuaded that
there was a present forensic
purpose for the testing process, which is specific to
the individual offender. The sentencing judge also
appeared to dismiss the accused’s criminal record as
relevant in determining whether DNA testing would be
appropriate. Justice Watson found the sentencing
judge erred in both respects:

experience with the administration
of justice. Once again, it will be recalled that DNA
evidence may be exculpatory. It will also be recalled
that when an offender’s DNA profile is already
included in the DNA databank and has not been
removed under law, further sampling may not be
necessary: s. 487.071 of the Code. [references
omitted, paras. 4-5]

As to the first error, Parliament has defined
eligibility for DNA databank orders by categories
of offences, not by a requirement of proof of
present and individual forensic value. Parliament’s
intention to create and maintain a large comparative
databank of persons who commit offences within
those categories is reflected in the language it has
used. This serves the administration of justice and
the interests of justice broadly as well as by
individual. Parliament’s intentions could include the
acquisition of statistical information; category
offenders can be said to be volunteers for such
research. Parliament did not stipulate a

The reasons of the sentencing judge in this case did
not support a decision to exempt the accused from a
DNA databank order. The Crown’s appeal was
successful and, in the best interests of justice, a DNA
databank order was made by the Alberta Court of
Appeal.

Volume 9 Issue 1
January/February 2009

Complete case available at albertacourts.ab.ca

Note-able Quote
“Laws too gentle are seldom obeyed; too severe,
seldom executed.” - Benjamin Franklin

www.10-8.ca

13

VEHICLE THEFTS:
CANADA 2007

Canada’s Top 10 Stolen Vehicles - 2008
Year Make

Model

2000 Honda

Civic SiR 2-door

1999 Honda

Civic SiR 2-door

400 - average number of vehicles stolen in Canada

2004 Subaru

Imprezza WRX Sti 4-door AWD

each day.

1995 Dodge/Plymouth Grand Caravan/Voyager

54% - percentage of stolen motor vehicles that

1995 Dodge/Plymouth Caravan/Voyager

were cars, followed by trucks, vans, or SUVs at
35%, motorcycles at 4%, and other types of
vehicles accounted for the remaining 8%.

2002 Acura

RSX Type S 2-door

2001 Audi

TT Quatro Roadster

2,500 - the number of motor vehicles that were

1995 Acura

Integra 2-door

stolen during the commission of another, more
serious offence.

1996 Dodge/Plymouth Neon 2-door

According to a Statistics Canada report released in
December 2008, there were 146,142 vehicles stolen in
Canada in 2007. Other highlights include:
•

•

•

•

11% - percentage of vehicles thefts where an
accused was identified by police.

•

•

40 - the number of people who die each year as a
result of motor vehicle thefts.

1996 Dodge/Plymouth Neon 4-door
Source: Insurance Bureau of Canada, www.Ibc.ca, (December 17,
2008) accessed December 23, 2008

•

vehicle thefts (36,216). It also had the lowest
recovery percentage (33.6%).

15 -18 year olds - represent the highest rate of
accused motor vehicle thieves. As one ages, the
rate gradually tapers off.

Canada Motor Vehicle Thefts & Rates - 2007

Quebec - the province having the most motor

•

Manitoba - the province having the highest motor
vehicle theft rate per 100,000 population (1,236).

•

Nunavut - the province or territory having the

Region

Thefts

Rate

Recovered

Quebec

36,216

470

33.6%

Ontario

34,737

271

68.5%

Canada’s Least 10 Stolen Vehicles - 2008

British Columbia

27,112

619

81.6%

Year Make

Model

Alberta

23,248

669

75.5%

2003

Deville 4-door

Manitoba

14,671

1,236

81.4%

2002 Lincoln

Continental 4-door

Saskatchewan

5,526

554

81.4%

2001

Lincoln

Town Car 4-door

Nova Scotia

1,875

201

69.2%

2007

Chevrolet

Impala 4-door

New Brunswick

1,343

179

61.6%

2001

Toyota

Avalon 4-door

Newfoundland

606

120

77.6%

1999

Toyota

Tacoma 2 WD

Northwest Territories

300

704

90.3%

2005

Buick

Terraza EXT

Nunavut

207

665

94.6%

2003

Buick

Regal 4-door

Prince Edward Island

167

121

77.1%

2002

Toyota

Highlander 4-door 2WD

Yukon

134

432

82.3%

2000

Ford/Mercury

Taurus/Sable Wagon

Rates are per 100,000 population
Source: Statistics Canada, 2008, Motor Vehicle Theft in Canada, 2007,
Catalogue No:85-002-X, Vol. 28, no. 10, December 2008

16

highest percentage of stolen motor vehicles
recovered (94.6%)

Cadillac

Source: Insurance Bureau of Canada, www.Ibc.ca, (December 17,
2008) accessed December 23, 2008

www.10-8.ca

Volume 9 Issue 1
January/February 2009

•

Public areas - the place where most stolen
vehicles were taken in 2007. Parking lots
accounted for 32% of stolen vehicles, followed
by the street or other open area (24%),
commercial establishments (eg. shopping
centres) (9%), and public institutions (eg.
schools) (2%). About 33% were taken from
private property while about 1% were stolen
from a car dealership or rental company.

•

Total Thefts

Theft Rate

Recovered

Winnipeg, MN

12,548

1,714

81.6%

Abbotsford, BC

1,693

1,001

74.1%

Edmonton, AB

9,120

832

70.0%

Regina, SK

1,495

735

75.3%

Calgary, AB

7,318

639

86.0%

Vancouver, BC

14,411

630

84.1%

Saskatoon, SK

1,541

616

80.8%

Montreal, QC

22,403

601

30.9%

theft declined from 2006 to 2007.

London, ON

2,331

489

73.0%

-25.2% - the percent decline in Canada’s

Hamilton, ON

3,400

481

82.1%

motor vehicle theft rate from 1997 to 2007.

Trois-Rivieres, QC

533

363

44.0%

$1,000,000,000.00 - the estimated annual

Victoria, BC

1,204

355

83.0%

Sherbrooke, QC

524

350

43.3%

Gatineau, QC

860

294

53.4%

Toronto, ON

15,392

279

67.2%

Halifax, NS

1,035

269

66.8%

Saguenay, QC

384

265

34.9%

443 - Canada’s rate of motor vehicle theft
per 100,000 population.

•

63.6% - Canada’s overall stolen vehicle
recovery rate.

•

•

•

CMA Motor Vehicle Thefts & Rates 2007

-9% - percentage by which motor vehicle

financial cost of motor vehicle theft to
consumers, police, insurance companies, and
governments.
Source: Statistics Canada, 2008, Motor Vehicle Theft in
Canada, 2007, Catalogue No:85-002-X, Vol. 28, no. 10,
December 2008

CMA

•

44 - the average number of vehicles stolen in
British Columbia each day.

•

70 - the average number of vehicles broken

Ottawa, ON

2,353

264

62.5%

into in British Columbia each day.

St. Catherines-Niagara, ON

1.100

254

72.7%

Ford F-series trucks - most stolen vehicle in

Kitchener, ON

1,186

239

76.7%

Thunder Bay, ON

286

233

82.1%

Windsor, ON

769

231

76.1%

Greater Sudbury, ON

367

226

82.6%

Quebec, QC

1,585

216

55.1%

St. John’s, NF

383

210

78.5%

Kingston. ON

269

176

53.6%

Saint John, NB

170

168

71.0%

•

British Columbia (as of October 16, 2008).
Source: www.icbc.com, accessed December 28, 2008.

B.C.’s Top 5 Stolen Vehicles - 2007
Make

Model

Model Years

Honda

Civic

93,95,97,98,00

Chrysler
(Dodge/Plymouth)

Caravan/Voyager

92-95

Honda

Accord

90-94

Ford

F-series

97,03-06

Jeep

Cherokee

92-96

Volume 9 Issue 1
January/February 2009

CMA=Census Metropolitan Area

Source: Statistics Canada, 2008, Motor Vehicle Theft in Canada,
2007, Catalogue No:85-002-X, Vol. 28, no. 10, December 2008

www.10-8.ca

17

NO CONSUME CONDITION OK
DESPITE NO CONNECTION TO
OFFENCE

has pointed out, they are not designed to be punitive
in nature; i.e. they are not put in place for purposes
of
denunciation,
retribution,
or
general
deterrence. …

R. v. Hardenstine, 2008 BCCA 474

In order for conditions of probation to be
reasonable, they must be linked to the
circumstances of the offender.
Often, the
circumstances of the offence will be critical to
establishing the link, but a court is not limited to a
consideration of the circumstances of the offence
in determining what conditions of probation are
appropriate. The court may consider, as well, other
aspects of the offender’s situation. [references
omitted, paras. 6-8]

The accused pled guilty to possessing
ammunition while prohibited arising from
an incident where police attended his
residence looking for his girlfriend. She
had been wanted on a number of outstanding warrants.
The accused was sentenced to an additional 30 days
imprisonment in addition to time served and was placed
on two years probation, which included conditions that
he abstain absolutely from the consumption of any
alcohol or non-prescription drugs and was not to enter
any premises such as a bar, pub or liquor store, where
the primary commodity sold was alcohol.
The accused appealed his probation order to the
British Columbia Court of Appeal, seeking to vary it by
deleting provisions requiring him to refrain from
consuming alcohol and from entering certain premises
where alcohol was sold. He argued that neither the
circumstances of the offence nor his background
provided any basis for concluding that the probation
conditions would assist in his rehabilitation or protect
society. Although his criminal record was appalling,
with over 40 criminal convictions, it did not disclose
any pattern of alcohol abuse (other than a single over
80mg% conviction). The impugned probation conditions,
he suggested, should not have been imposed in the
absence of solid evidence of alcohol abuse.
Justice Groberman, delivering the judgment of the
Court, disagreed:
Section 732.1(3)(c) of the Criminal Code specifically
authorizes a condition such as [no alcohol
consumption] to be imposed where appropriate.
[Refraining from entering premises serving alcohol]
appears to have been imposed pursuant to s.
732.1(3)(h), which permits a court to prescribe, as
a condition of probation, that the accused “comply
with such other reasonable conditions as the court
considers desirable … for protecting society and for
facilitating the offender’s successful reintegration
into the community.”
Probation conditions are generally put in place to aid
in the rehabilitation of the accused, and to protect
society during the period of probation. As counsel

18

Although there was no clear connection between the
impugned probation conditions (alcohol consumption or
places where alcohol was sold) and his offence
(possession of ammunition while prohibited) and any
connection with his past criminal record was weak, the
conditions were nonetheless reasonable. In holding
there was a sufficient basis for concluding that the
impugned probation conditions were desirable tools for
enhancing
the
prospects
of
the
accused’s
rehabilitation and for protecting society during the
period of probation, Justice Groberman stated:
While the case at bar does not represent the
strongest case for imposing the conditions with
respect to alcohol that were imposed, there were
factors in the accused’s situation that made the
conditions reasonable. This is particularly so when
the judge was entitled to take judicial notice of the
fact that alcohol consumption generally reduces
inhibitions, and that places where alcohol is
consumed are not infrequently also associated with
drug trafficking and with weapons. In this case,
1) the accused had recently overcome an addiction
to drugs, and wished to avoid further trouble;
2) he had some, albeit limited, past criminal
behavior associated with alcohol consumption;
3) he had a history of violent crime, and the
offence for which he was being sentenced involved
ammunition for firearms
4) the additional custodial sentence being imposed
was very short, such that it provided little time for
the accused to be further rehabilitated prior to his
release into the community
[para. 16]

The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

www.10-8.ca

Volume 9 Issue 1
January/February 2009

Volume 9 Issue 1
January/February 2009

www.10-8.ca

19

CORROBORATION OF TIP’s
CRIMINAL ASPECT NOT
REQUIRED FOR WARRANT
R. v. Caissey, 2008 SCC 65
A police officer received information
from a first time informant that he/she
had been in a certain apartment within
the preceding 72 hours and had observed
a large quantity of marijuana being held by the accused
for resale. The informant identified the accused, the
address of the apartment, and also indicated that
while the accused had a roommate (Kelsey Coenen) it
was only the accused who was involved in selling drugs.
The informant said that the accused had been selling
drugs for one year. The informant provided details
relating to the interior of the apartment and the
accused’s motor vehicle, and indicated that no children
lived at the address.
The investigating officer confirmed from independent
sources that the accused lived with Kelsey Coenen at
the address provided, and that the accused drove a
vehicle that matched the informant’s description. The
officer prepared an information to obtain a search
warrant in which he set out the information he
received and disclosed the extent and result of his
investigation. While the officer verified the
information provided, the police had not corroborated
certain details, such as the fact that marijuana could
be found in the apartment.
The search warrant was issued and executed. In a
locked bedroom within the residence the police located
and seized 180 grams of marijuana, drug paraphernalia,
and documents in the accused’s name. He was charged
with possession of marijuana for the purpose of
trafficking.
At trial in Alberta Provincial Court the accused
challenged the validity of the search warrant. He
argued, among other grounds, that the information
provided was insufficient to support the issuance of
the search warrant. The trial judge ruled the
information established those details that had been
confirmed, which provided a sufficient basis to issue
the search warrant. She concluded that it was
reasonable to believe that there was marijuana in the
apartment and the accused was convicted of simple
possession.

20

The accused then appealed his conviction to the
Alberta Court of Appeal submitting, in part, that the
trial judge erred in failing to apply the proper legal
test when determining the validity of the search
warrant. He contended that confirmation of
information received from a confidential informant
must include confirmation of criminal activity. In his
view, information provided by a first-time informant
can only constitute sufficient grounds for the issuance
of a search warrant if there is independent
confirmation of the allegations relating to the crime.
Consequently, he argued that the search warrant
should not have been issued because the police failed
to independently confirm the first-time informant’s
information that the accused had marijuana in the
apartment. The accused submitted that some
independent confirmation relating to the criminal
aspect of the tip was required in a case where the
police were relying on a tip from an informant of
unknown reliability in order to negate the possibility
that the informant was offering false information.
The Crown, on the other hand, submitted that the trial
judge applied the correct test in reviewing the
issuance of the search warrant and that the
jurisprudence did not require confirmation of the
criminal aspect of the information. Rather, the court
must take into account the totality of the
circumstances to determine whether the search
warrant could have issued on the evidence. The Crown
further submitted that the evidence was sufficient to
meet that test.
In a 2:1 majority, the Alberta Court of Appeal upheld
the issuance of the search warrant. When the validity
of a search warrant is challenged, it may be necessary
to inquire into the source and quality of the
information provided to the police at the time of the
search in order to establish that there were
reasonable and probable grounds for the search. Mere
conclusory statements by an informant are insufficient
to constitute reasonable and probable belief. Details
relating to the confidential informant, the information
received or the background investigation must be
provided.
An informant’s "tip" must contain sufficient detail to
ensure it is based on more than mere rumour or gossip,
whether the informer discloses his or her source or
means of knowledge and whether there are any indicia

www.10-8.ca

Volume 9 Issue 1
January/February 2009

of his or her reliability, such as the supplying of
reliable information in the past or confirmation of part
of his or her story by police surveillance. The
reliability of the tip is to be assessed by recourse to
"the totality of the circumstances". There is no
formulaic test as to what this entails. Rather, the
court must look to a variety of factors including the
degree of detail of the "tip"; the informer’s source of
knowledge; and indicia of the informer’s reliability such
as past performance or confirmation from other
investigative sources. When the police rely on an
anonymous tip or on an untried informant the quality of
the information and corroborative evidence may have
to be such as to compensate for the inability to assess
the credibility of the source.
In holding the warrant valid in this case, the majority
stated:
Reliability of an informant may be established by
past performance as an informant or by
confirmation from other investigative sources of
part, or all, of the information provided by the
informant….
The issue on review is whether there was some
evidence that might reasonably be believed to
support the issuance of the warrant, not whether
there is some guarantee that the informant is
telling the truth when he makes the allegation of
criminal activity. Information of a crime itself being
committed does not have to be confirmed…
We agree with the Crown’s submission that the trial
judge applied the correct test and made no error in
concluding that the search warrant could have been
issued on the evidence provided. The trial judge
considered whether the information provided was
"sufficiently detailed to preclude the possibility
that it’s based on mere rumour." Regarding the
aspect of reliability of the informant, the trial
judge relied on the evidence confirming some
aspects of the information provided. In this
respect, she stated: "We are looking for this
confirmation because if the tipster is proven
correct about some details it might be safe to rely
on other information provided." The trial judge
examined the factors set out in Garofoli and
correctly referred to the standard of review. She
acknowledged that she could not overturn the
search warrant simply because she might not have
granted it. The trial judge concluded that the
authorizing judge could have issued the search
warrant based on the record before him, as

Volume 9 Issue 1
January/February 2009

amplified on review, as there was some information
that might reasonably be believed. She based this
finding on the information that the informant had
recently been in the [accused’s] apartment and had
personally witnessed the drugs in the [accused’s]
possession.
The trial judge committed no error. With reference
to the three factors set out in Debot, the
information provided by the informant was detailed
and compelling, and was based on his/her personal
knowledge that had been recently obtained while in
the [accused’s] apartment. Although the informant
had not previously provided confidential information
to the police, he/she was known to the police
officer, and the police independently confirmed a
number of details, including the identity of the
[accused] and his residential address, that no
children lived in the home, the name of his
roommate, and the description of his vehicle.
Confirmation of this information tended to
substantiate the reliability of the informant’s
information, and was sufficient in the context of
the other factors to meet the reasonable
probability test. While the police did not obtain any
confirmation of the fact that the [accused]
possessed marijuana, such confirmation is not
necessary in the circumstances of this case. The
trial judge correctly stated and applied the law.
[paras. 22-25]

A Different View
Justice Martin, in dissent, concluded that the
information provided was insufficient to support the
search warrant. He said:
Here, the information was sufficiently detailed to
guard against rumour and innocent coincidence.
However, the informant’s credibility was untested
and remained unknown at the time the search
warrant issued. In terms of corroboration, the
police investigator was only able to corroborate
non-criminal particulars, such as the [accused’s]
address, the identity of his roommate, the make and
colour of his motor vehicle. This was innocuous
information available to anyone in the neighbourhood
and those familiar with the [accused] (or his
roommate). Confirmation of these non-criminal
particulars shed no light on the reliability of the
accusation that the [accused] was in possession of
marijuana or selling drugs. It did not, in any material
way enhance the credibility of this first-time
informant.

www.10-8.ca

21

I accept that in assessing the reliability of the
information provided, the totality of circumstances
must be examined and short comings in one of the
three factors may be compensated by strengths in
another. But here, there was no evidence at all to
establish the third factor, informant’s credibility or
meaningful corroboration. This is more than a mere
short coming.
To issue this search warrant, the justice of the
peace relied exclusively on uncorroborated
allegations of criminal conduct provided by a firsttime informant. The information relied on to obtain
the search warrant did not offer any meaningful
assurance that the informant was credible and
therefore the allegations of criminal conduct were
likely true. In my opinion, this was inadequate legal
justification to authorize the search of a home.
………
In my opinion, when a first-time informant whose
credibility has not been previously (or otherwise)
established, evidence of his or her credibility is
required before allegations of criminal conduct are
relied upon….
In my opinion, confirmation of non-criminal
particulars offered by a first-time informer does
not necessarily alleviate the concern that the
information about criminal conduct may be false.
Only corroboration of some criminal particular
offers that assurance. A malicious informant may
falsely offer very detailed information by claiming
it was based on personal observation. Therefore,
neither a detailed account nor corroboration of an
innocent particular of that account offers the
needed assurance that the informant is credible and
the information likely true. [paras. 31-38]

The accused then appealed to the Supreme Court of
Canada. In a brief oral judgment Chief Justice
McLachlin dismissed the appeal on behalf of the seven
member court. She agreed with the legal test adopted
by majority of the Alberta Court of Appeal and
rejected the view that only corroboration of some
criminal particular of the offence was needed to
justify the issuance of the search warrant.
Complete case available at www.scc-csc.gc.ca

Editor’s note: The facts of this case and the lower
judgment of the Alberta Court of Appeal were taken from
2007 ABCA 380.

22

NEW SUPREME COURT JUSTICE
APPOINTED
On December 22, 2008 The Right
Honourable Beverley McLachlin, Chief
Justice of Canada, welcomed the
appointment by Prime Minister
Stephen Harper of Mr. Justice
Thomas Cromwell to the Supreme
Court of Canada. “Justice Cromwell is
a judge of the highest ability,
integrity and intellect”, said Chief Justice McLachlin.
“In addition to his vast experience on the Bench, he
also brings a profound understanding of the role and
the challenges of the Supreme Court. I look forward to
the contribution of this distinguished jurist to the
work of the Court.”
Justice Cromwell, who sat as a judge of the Nova
Scotia Court of Appeal, was sworn in as a justice of the
Supreme Court of Canada on December 23, 2008.
The Supreme Court for 2009 now consists of the
following nine members:
•
•
•
•
•
•
•
•

•

The Right Honourable Beverley McLachlin, P.C. Chief
Justice of Canada
The Honourable Mr. Justice William Ian Corneil Binnie
The Honourable Mr. Justice Louis LeBel
The Honourable Madam Justice Marie Deschamps
The Honourable Mr. Justice Morris J. Fish
The Honourable Madam Justice Rosalie Silberman Abella
The Honourable Madam Justice Louise Charron
The Honourable Mr. Justice Marshall Rothstein
The Honourable Mr. Justice Thomas Albert Cromwell

LEGALLY SPEAKING:
Reasonable Grounds-Breath Demand
“The Criminal Code provides that where a
police officer believes on reasonable and
probable grounds that a person has
committed an offence pursuant to s. 253 of
the Code, the police officer may demand a
breathalyzer. The existence of reasonable and probable
grounds entails both an objective and a subjective component.
That is, s. 254(3) of the Code requires that the police officer
subjectively have an honest belief that the suspect has
committed the offence and objectively there must exist
reasonable grounds for this belief:’ - Supreme Court of Canada
Justice Sopinka in R. v. Bernshaw, [1995] 1 S.C.R. 254

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23

INFORMER PRIVILEGE & THE
INNOCENCE AT STAKE
EXCEPTION
R. v. Zidarov, 2008 NLCA 65
Police received a tip from a regular and
confidential informant that the accused
was selling marijuana from his car, that it
was parked in a mall parking lot, and that
the informant had recently seen marijuana in the
vehicle. Acting on the tip, police went to the mall and
found the accused seated in his vehicle with a
significant quantity of marijuana in bags in the back
seat (street value of between $2,200 to $3,200). In
addition to the drugs, police seized $1,565 in cash and
three cell phones from the vehicle.
At trial in Newfoundland Provincial Court the accused
testified he was sitting in his car awaiting the return
of an acquaintance who he had driven to the mall. The
acquaintance and owed the accused $2,000, which was
to be repaid that evening. The accused also said he did
not know the marihuana was in the back seat and said
the acquaintance had placed the packages containing
the marijuana in the vehicle. The trial judge refused to
order the disclosure of the confidential informant on
the basis of the “innocence at stake” exception, so the
accused called the acquaintance as a witness. The
acquaintance denied having any contact with the
accused on the day of his arrest. The trial judge
refused to allow a question about whether the
acquaintance had been in contact with the police on
that date, on the basis the answer might identify the
informer. The trial judge found the accused guilty of
possessing marihuana for the purpose of trafficking.
The accused appealed his conviction to the
Newfoundland Court of Appeal arguing, in part, that
the trial judge erred in finding the accused could not
establish his innocence was at stake so as to warrant
an order that the identity of a confidential informant
be revealed. He submitted that the acquaintance had
lied to the court if he and the informer were the same
person. That is, the acquaintance denied having contact
with the accused on the day of his arrest but the
informer reported having had contact. This false
testimony, it was suggested, would likely raise a
reasonable doubt about whether the marijuana
belonged to the accused and warrant reconsideration

24

of whether there should be an exception to the
informer privilege rule in these circumstances.
Justice Barry, writing the opinion of the Newfoundland
Court of Appeal first examined the law surrounding the
innocence at stake exception and informer privilege. In
R. v. Leipert, [1997] 1 S.C.R. 281, the Supreme Court of
Canada explained the onus is on an accused to raise the
innocence at stake exception to informer privilege and
show some “basis on the evidence for concluding that
disclosure of the informer’s identity is necessary to
demonstrate the innocence of the accused”. Mere
speculation that the information might help the
accused is not enough. If an accused is successful in
meeting the onus and showing that disclosure is
necessary to prove innocence, the “court should only
reveal as much information as is essential to allow
proof of innocence. Before disclosing the information
to the accused, the Crown should be given the option of
staying the proceedings. If the Crown chooses to
proceed, disclosure of the information essential to
establish innocence may be provided to the accused.”
An example of a circumstance falling within the
innocence at stake exception includes a situation where
the informer is a material witness to the alleged crime.
In this case, Justice Barry concluded that the trial
judge erred in not reconsidering the innocence at stake
exception to informer privilege following the
acquaintance’s testimony that he had not been in
contact with the accused. Here, the identity of the
informer went to a material element of the offence—
whether the accused had possession of the drugs or
whether they were only in the possession the
acquaintance. If the informant and the acquaintance
turn out to be the same person, his credibility may be
so damaged as to raise a reasonable doubt as to the
accused’s guilt and put his innocence at stake if the
informant was not identified.
The accused’s appeal was allowed and a new trial was
ordered.
Complete case available at www.canlii.org

Note-able Quote
“Common sense in an uncommon degree is what the
world calls wisdom.” - Samuel Taylor Coleridge

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ARREST OF ‘TAKE-AWAY’
OBJECTIVELY JUSTIFIED
R. v. Doak, 2008 BCSC 1359
A police investigator, believing there was
a marihuana grow operation in one of two
outbuildings, applied for a warrant to
search the outbuildings and a residence on
property owned by the accused and his wife. The
justice issued the warrant for the two outbuildings,
but refused to allow a search of the residence. While
waiting for the warrant, police took up surveillance of
the property. The investigator instructed the officers
doing surveillance to arrest anyone leaving the
property (“take-aways”).
The accused, seen near the residence, was observed to
enter a pickup truck and leave the property. The
vehicle was stopped by an officer and the driver, who
was recognized as the accused, was arrested for
producing marihuana. He was searched and $10,985
was found in his pocket along with ½ pound of marihuana
bud in a shopping bag stuffed behind the driver’s seat
in his vehicle. The investigator, with this additional
information, re-applied for the warrant to search the
outbuildings and the residence. It was granted and,
upon executing it, police discovered a marihuana grow
operation in one of the outbuildings along with a hydro
bypass. The police seized evidence from the other
outbuilding and from the main residence. He was
charged with production of marihuana, possession for
the purpose of trafficking, and theft of hydro.
At trial in British Columbia Supreme Court the accused
challenged, in part, the validity of the search warrant
relating to the residence, asserting it breached s.8 of
the Charter. He argued that the arresting officer did
not have the necessary grounds to arrest him. Thus,
the arrest was unlawful and arbitrary, and breached
s.9. The search of his person and the vehicle that
followed was not lawful as incident to arrest and
therefore was unreasonable under s.8 and the
information obtained from it must be excised from the
ITO. The warrant to search the house was therefore
not justified and the evidence should be excluded
under s.24(2).
The Crown, on the other hand, conceded that the police
lacked reasonable grounds to arrest every person,
whether of known or unknown identity, seen leaving the

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property, even though they had reasonable grounds to
believe a marihuana grow operation was located in one
or both of the outbuildings. The Crown submitted,
however, that the arresting officer was not simply
acting
on
the
investigator’s
direction,
but
independently had reasonable grounds to arrest the
accused. He had been identified as the prime suspect
in connection with the suspected marihuana grow
operation and was seen coming from the property. The
blanket instruction given by the investigator to arrest
anyone seen leaving the property did not nullify the
grounds possessed by the arresting officer. The
search was therefore lawful as an incident to arrest
and none of the information in the ITO required
excision.

The Arrest
The accused’s arrest would be lawful if the arresting
officer had the requisite grounds to arrest him for the
offence of production of a controlled substance. Under
s. 495(1)(a) of the Criminal Code a peace officer may
arrest, without warrant, a person “who, on reasonable
grounds, he believes has committed or is about to
commit an indictable offence”. The test for reasonable
grounds imports both a subjective and an objective
component. The arresting officer must subjectively
have reasonable grounds for the arrest and those
grounds must be objectively justifiable. However, the
police need not demonstrate anything more than
reasonable grounds and are not required to establish a
prima facie case for conviction before making the
arrest.
In this case, “the mere fact that a person was seen
leaving the Property would not be sufficient to connect
that person with the crime that [the investigator]
believed was being committed on the Property,” said
Justice Joyce. He continued:
[I]t is my view that the police in this case lacked
reasonable and probable grounds to arrest everyone
found on or found leaving the Property, regardless
of who they were. [The accused’s] arrest was
therefore not lawful if [the arresting officer]
simply relied on [the investigator’s] general
instruction. There is no suggestion that [the
investigator] was aware that [the accused] was seen
leaving the Property and that he therefore had
reasonable and probable grounds to arrest [the
accused] and gave specific instructions to [the
arresting officer] to arrest [the accused]. [para. 42]

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25

However, despite the investigator lacking grounds for
arrest, the arresting officer himself had reasonable
grounds and did not simply arrest any person seen
leaving the property in accordance with the general
instruction given:
When [the arresting officer’s] evidence with
respect to the grounds for arrest…is considered as
a whole, I am satisfied that he in fact used his own
independent judgment to determine that he had
reasonable grounds to arrest [the accused] and did
not simply rely on the general instruction given by
[the investigator]. Clearly, he relied on the
information gathered by [the investigator] during
his surveillance, which was shared with [the
arresting officer] at the police briefing, to conclude,
in his mind, that a marijuana grow operation was
being conducted on the Property and he was entitled
to rely on that information.
But it is important that, in deciding to arrest
arrested [the accused], [the arresting officer] also
relied on the fact that he was able to identify
arrested [the accused], who was the owner of the
Property and prime suspect, as the person who had
just left the Property. As [the defence lawyer]
himself suggested to [the arresting officer], based
on the information [the arresting officer] had
received from [the investigating officer], he
arrested [the accused] “as soon as [he was] able to
identify that it was [the accused].”
………
[The arresting officer] honestly believed that [the
accused] was participating in a criminal offence
based on the information provided to him at the
briefing and his identification of him as the man who
had just left the Property. Subjectively, he had
grounds to arrest. It is also my opinion that the
grounds are objectively reasonable.
In my view, it is the identification of [the accused]
by [the arresting officer] as a person who has just
left the Property that is critical. … These facts,
together with the information that [the arresting
officer] had acquired from [the investigator], gave
[the arresting officer] the objective grounds to
make the arrest. …
The present case is not one in which the police
arrested first and then determined whether the
person arrested was connected to the offence under
investigation.
I am satisfied there were sufficient circumstances
to objectively connect [the accused] to the offence
under investigation to justify his arrest. He was one

26

of the registered owners of property on which the
police had reasonable grounds to believe a marijuana
grow operation was located. I note, contrary to what
was understood to be the case during the course of
submissions, according to the ITO [the accused] had
not, to this point, been identified as the subscriber
to the Hydro account that the police believed
showed elevated usage. Even so, in addition to the
fact that he was an owner of the Property, [the
accused] was the registered owner of a vehicle (the
red Ford Excursion) that was seen leaving the
Property six days earlier. More importantly, just
prior to his arrest, he was seen leaving the Property
in a vehicle that had been parked on the Property in
the vicinity of the shed/shop for over three hours.
In my view, it was reasonable to infer in these
circumstances that he had a present connection to
the Property that went beyond mere ownership and,
in the absence of any contrary information, that he
was in control of the Property.
Prior to the issuance of the first search warrant the
investigation provided reasonable grounds to believe
that a grow operation was being conducted on the
Property in one of the two outbuildings situated near
to the residence. … The additional evidence obtained
… was, in my opinion, sufficient to raise the
connection between [the accused] and the offence
being investigated from a mere suspicion to a
credibly based probability. [paras. 44-50]

Since there were reasonable grounds to arrest the
accused, it was lawful and the police were entitled to
search him and the vehicle he was driving incidental to
his arrest. As a result, the evidence found as a result
of those searches was properly included in the second
ITO.
Complete case available at www.courts.gov.bc.ca

LEGALLY SPEAKING:
Reasonable Grounds-Arrest
“In summary then, the Criminal Code requires
that an arresting officer must subjectively
have reasonable and probable grounds on
which to base the arrest. Those grounds
must, in addition, be justifiable from an
objective point of view. That is to say, a reasonable person
placed in the position of the officer must be able to conclude
that there were indeed reasonable and probable grounds for
the arrest.” - Supreme Court of Canada Justice Cory in R. v.
Storrey, [1990] 1 S.C.R. 241

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SEXUAL ASSAULT: BY THE
NUMBERS

•

In a recent Statistics Canada Canadian Centre for
Justice Statistics profile released in December, 2008
entitled “Sexual Assault in Canada 2004 and 2007”,
victimization and offender data for sexual assaults in
Canada were analyzed. Highlights include:

•

•

reported sexual offences.

63% - percentage of reported sexual offences
cleared by police. Those cleared by charge
accounted for 42%, while 21% were cleared
otherwise, such as when the complainant requested
charges not be laid, when the accused had died, had
diplomatic immunity, or had been diverted, or when
the police otherwise exercised discretion in not
charging.

24,200 - approximate number of sexual assaults
reported to Canadian police in 2007.

•

73 per 100,000 - the Canadian rate of police

One in Ten - number of sexual assaults reported

2007 Police Reported Sexual Offence Clearance Rates

to police out of the number of assaults reported on
a victimization survey.

Cleared
by charge

Cleared
otherwise

Not
cleared

Lvl 1
- sexual assault

42%

21%

37%

• 78% - percentage of sexual attacks to go
unreported to police.

Lvl 2
- sexual assault with weapon

45%

9%

47%

Not Important Enough - the most commonly

Lvl 3
- aggravated sexual assault

68%

4%

28%

Other sexual offences

37%

26%

37%

•

Offence

94% - percentage of sexual touching incidents to go
unreported to police.

•

stated reason why sexual assault victims did not
report an incident to police (58%), followed by the
incident was dealt with in another way (54%), it was
a personal matter (47%), and the victims did not
want to get involved with police (41%). Victims could
report more than one response, therefore the sum
of percentages could exceed 100%.

•

Provincial Rates of Police Reported
Sexual Offences, 2007

•

Province

for sexual offence cases (2006/2007).
•

138

Manitoba

113

Newfoundland

89

New Brunswick

87

Nova Scotia

82

British Columbia

79

Alberta

70

63% - youth court conviction rate for sexual
offence cases (2006/2007).

54% - proportion of convicted adult sex offenders
sentenced to custody. Only 12% of convicted youth
sex offenders were sentenced to custody. Sixty six
percent of convicted adult sex offenders were
sentenced to probation while 78% of youth sex
offenders were sentenced to probation (2006/
2007).

Rate per 100,000

Saskatchewan

49% - adult court conviction (finding of guilt) rate

•

Female - gender most often victim of sexual
assault.

•

•

Male - gender most often accused of sexual
offences. Those charged with sexual offences were
97% male.
Not a stranger

-

where

relationships

are

Quebec

69

Ontario

61

determined, 82% of the time the accused is known
to the victim. The accused was a stranger in only
18% of sexual assault incidents.

Prince Edward Island

58

Source: Statistics Canada, 2008, Sexual Assault in Canada, 2004 and 2007,
Catalogue No:85F0033M,, no. 19, December 2008

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