ISSUES

OF
INTEREST
VOLUME NO. 7

Juspce Institute
Of British Columbia
Written by John H. Post
July 09~ 1982

4180 West 4th Avenue
Vancouver. 8 .C .
V68 4J5

ISSUES OF Ilft'EUST

(VOLUME II>. 7)

(Written by John H. Post)
July 1982

TABLE OF COB'l"EN'tS
PAGE
COI.OUR. OF RIGHT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Regina v. Teece B. c. Court of Appeal, April 1982
(Not Yet Reported)

1

CA 811197

ASSAULT JIBACE OFFIClll Cll PllIVATK PIOPD.Tt • • • • • • • • • • • • • • • • • • • • • • • •

2

Forsyth and The Queen County Court of Vancouver Island,
March 17, 1982 Victoria Registry 22960 (Not Yet Reported)
UTUU OF m>BEY SEIZED IOR. BVIDDCE - BOOIMAllllG • • • • • • • • • • • • • • • • •

Major v. Attorney General of B. c. B. c. Supreme Court
April 1, 1982 No. CC820303 Vancouver Registry
(Not Yet Reported)

3

DISTlliCTIOB BE'IVDH •oBTAIRED BY- Alm
DERIVED DIRECTLY Cll IllDillCTLY

The Queen v. Geauvreau
(Not Yet Reported)

nor . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Supreme Court of Canada April 5, 1982

ASSAULT .ARD FALSE IllPl.ISORMDT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

5

Lang v. B and C Saskatchewan Reports 96 [1981]
Saskatchewan Queen's Bench

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

7

ITA!'U'IOR.Y PllESUKPTIORS .AID> BVDSAL OF (llOS • • • • • • • • • • • • • • • • • • • • • •

9

ADIISSIBD.ITY OF srAnHEllTS - COllPULSIOB - OPPDSSIOli
llegina v. Hall 64 C.C.C. (2d) 463
British Columbia Court of Appeal
CIWl.TER. OF l.IGBTS .ARD nEEDOMS
llegina v. Anson County Court of Vancouver
June 4, 1982 (Not Yet Reported)

No. C.C.811351

- ii -

PAGE
USE OF POLICE REPORT 10 IDU'llESB llEKOK.Y ••••••••••••••••••••••••••••
Regina v. Stasiuk The County Court of Westminster
No. X816820 May 3, 1982 (Not Yet Reported)

11

ROADSIDE SUSPENSION Iii B. C. ••••••••••••••••••••••••••••••••••••••
The Queen v. Jarron B. C. Supreme Court May 25, 1982
Vancouver No. 820142 (Not Yet Reported)

12

ADllSSIBD.ITI OF STArEllEITS HADE BY A Ylcrill WHO DIED OF womms
ID'LIC'l"ED Iii OOMKISSION OF OFFUCE ALLEGED AGADIST ACCUSED.
2. ADII.SSIBD.ITI OF SIMILAJl. FACT EVIDEllCE ••••••••••••••••••••••••
Regina v. Henry Supreme Court of B. c. June 1982
No. c.c. 820203 Vancouver Registry (Not Yet Reported)

14

CIWlTER OF RIGHTS ARD l'UEDOMS
ABUSE OF DIE PIOCESS OF DIE mma'
The Queen and Bruneau Supreme Court of B. C.
Vancouver Registry No. CC 820767

.................................
June 1982

18

.......................
June 23, 1982

19

l.

.

CONSPllil'ORS' llCEPTIOK 10 DIE BRARSAY IUJLE
The Queen v. Carter Supreme Court of Canada

POLICE 'DESPASSlllG 10 IliSTAU. IDill'OlllllG IEVICE fOll
AD"l'BOR.IZED IliTERCEPTIOK OF PKIVAD OOMMURICATION
ADII.SSIBD.ITI OF EVIDENCE OF DIE DITEllCEPTED OOlllUNICATIOR
Re ina v. L ons, Prevedoris, McQuire and Flodgate B. C.
Court of Appeal CA 810112 June 21, 1982 Not Yet Reported)

........

21

••••••••••••••••••••••••••• •••••••••••••••••••

22

ADIISSIBD.ITI OF STA.l'EMERTS ARD EVIDENCE
lB'l'D.VIEWEB. BAVIIIG DITELLECTUAL ADVAllTAGE
-

ll!l'IK>TIC ST.Ar£

-

Horvath v. R. 3 w.w.R. 1979 1 Supreme Court of Canada
TIDBITS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

29

- 1 -

COLOUI.. OF RIGHT

Regina v. Teece B. c. Court of Appeal, April 1982
(Not Yet Reported)

CA 811197

After two years of marriage the accused divorced his wife. It was agreed
that Mrs. Teece would get the furniture and the accused his personal
affects which, besides his clothing, consisted of a cedar chest, a photo
album, a book of poems and a radio lamp.
After the divorce, the accused happened to meet his wife and he asked her
for his photo album. She indicated that she would not give it to him.
Four days later, the accused removed the screen from a window of the motel
unit in which his estranged wife lived and entered.
Be was rummaging
through a drawer in the bedroom when his wife arrived. She told him to get
out. Be did, but with his photo album. As a consequence he was convicted
in Provincial Court of "break and enter a place with the intent to C0111Dlit
an indictable offence therein".
The accused appealed his conviction claiming that although he broke into
the motel unit, his sole intention was to recover his personal property
which, according to him, does not amount to an indictable offence. To this
defence the Provincial Court bad responded that the accused's dispute with
his ex-spouse ought to have been settled in a Court of law and not in the
manner the accused decided to proceed. Furthermore, as long as Mrs. Teece
had the property in her possession, then in the absence of a Court holding
otherwise, she did have a special interest in the items the accused claimed
to belong to him. Depriving her of that interest amounts to theft. This
theory, the accused argued before the Court of Appeal, was erroneous in
law. Theft, he said, is taking such property without colour of right. He
felt his taking the photo album was done with colour of right in that he
honestly believed that the album belonged to him or at least that he had a
apecial property or interest in it.
The Court of Appeal said that the trial judge was right in holding that the
way the accused had gone about recovering his property was wrong, but had
given insufficient consideration to a colour of right in the taking of the
album.
To ensure that .this issue would receive adequate consideration, the Court
of Appeal ordered a new trial.
Accused's appeal allowed.

*****

- 2 -

ASSAULT PBACB OPFICBll Oii PllYAr.I PllOPERTI

Forsyth and The queen County Court of Vancouver Island, March 17, 1982
Victoria Registry 22960 (Not Yet Reported)
Because he had been speeding, two constables pursued the accused into his
driveway. The accused jumped out of the car and ran into hie home via the
rear entrance. The constables went to the front door and were met there by
the accused.
Be willingly produced his driver's licence but refused to
show the papers of the car he drove. Be questioned what " • • • you bloody
jerks" were doing on his property and said (according to the accused and
one of the constables) " • • • take off. Get off my property". Then without any further notice the constables were assaulted by the accused and the
police car was wilfully damaged by him.
'l'he Provincial Court convicted the accused on two counts of assaulting a
peace officer and one of mischief regarding the damage to the car.
The accused appealed, claiming that rather than being in the lawful performance of their duty, the officers were in fact trespassers.
'l'he County Court Judge found that the officers had a lawful purpose for
going onto the private property and to the house. They were doing their
duty and had licence to go on the private property, as anyone has when he
is in the pursuit of a lawful purpose. It is the privilege of the lawful
occupier of private property to withdraw that licence and then the licensee
may become a trespasser, if after a reasonable opportunity to do so, he
does not depart.
The officers were in the lawful performance of their duty and due to not
having been given the time to comply with the accused's wish that they
leave, their status did not change.
Accused's appeal dismissed.
Convictions upheld.

*****

- 3 -

UTUIN OF HOREY SEIZED FOil BVIDDCB
BOOlt llAUllG

Ma or v. Attorne General of B. C.
No. CC820303

Vancouver Registry

B. c. Supreme Court April 1, 1982
Not Yet Reported)

Mr. Major was arrested and charged with recording bets and unlawfully
engaging in bookmaking. He had $2,950 on his person of which he claimed
that "$500 belongs to me" and the balance to "the company".
Nearly
fourteen months later Major entered a plea of guilty in Provincial Court
and promptly applied for the $2,950 back. The prosecutor was not objecting
to $500 being returned to Major but not the "ill gotten gains".

...

Mr. Major petitioned the Supreme Court to order the Attorney General to
return the $2,450 to him. He argued that the seizure was proper but that
the Crown's right to retain the money ended when the charges against him
were disposed of. Major sought to have the money restored to him by the
inherent jurisdiction of a Court of Superior Jurisdiction and not by any of
the provisions under the Criminal Code or any other statute.
l'he Supreme Court observed that the money was not a proceed of crime, like
theft, fraud or false pretence, where the actual owner (the victim) has a
superior title to the property. In this case, where persons have placed
bets and voluntarily parted with their money, no third person could have a
legitimate interest in the funds.
The Court concluded that there is no general rule of law that money
intended to be used for illegal purposes should not be returned.
In one easel where a person attempted to bribe a government official, the
money he had on his person to give to the official was seized but returned
to him when he was convicted. Another person2 was convicted of conspiracy
to counterfeit money. Funds to commit the crime were seized but returned
to him after the accused was convicted.
No valid ground existed for refusing to return the 110ney (all of it) to
Mr. Major.
Seized money ordered returned.

**••*
1 R. v. Kolstad (1959) 123 c.c.c. 170
2 R. v. Doig (1963) S.C.R. 3 rev'g. (1961) 130 C.C.C. 95 (B.C.C.A.)

- 4 -

.

DISTDICTIOB BE'lVEEll ·oBTAIIUm n· Alm ·oDIVKD D'IUCTLY 01. UDIUCTLY nm1·
The Queen v. Geauvreau
(Not Yet Reported)

Supreme Court of Canada April 5, 1982

Three men conspired for two of them to take an outboard 110tor from the
third. The two would sell the motor and keep the proceeds and the third
(owner) would claim his loss against an insurance policy. The accused, who
knew of the scheme but was not a party to it, bought the motor and was convicted of possession of property knowingly obtained by the commission of an
indictable offence. The conviction was appealed and the Ontario Court of
Appeal (apparently of the opinion that the accused had possession of
property "derived from" rather than "obtained by" the commission of an
indictable offence) amended the information accordingly and ordered a new
trial. The Crown appealed to the Supreme Court of Canada.
The entire issue before our highest Court was whether the Ontario Court of
Appeal, upon amending the information, should have affirmed the conviction
rather than ordering a new trial. The Crown lost that argument.
Though that issue.is no doubt interesting, what police officers are likely
to be more curious about is the illustration of the distinction between
obtaining by and derived from.
Quoting from reasons for judgment by a
provincial Court of Appeal the Supreme Court included in its judgment:
"We are all of the view that the word 'obtained' in the
section, refers to things that constitute the subject
matter of the crime by which they were obtained.
For
example, things obtained by theft, false pretences, or
extortion. The offence 1111st be committed in respect of the
thing obtained. Money, of course, constitutes 'anything'
within the meaning of section 312. Money, however, which
has been knowingly and voluntarily paid by a purchaser to a
vendor with respect to an illegal transaction 1 which constitutes an indictable offence, is not 'obtained' by such
indictable offence within the meaning of section 312. The
offence committed in the offence of trafficking in a narcotic drug, or a controlled drug, is not in respect of the
property transferred as the consideration for the illegal
transaction, but against the public welfare, in the interests of which the transaction is made criminal. The fact
that money was derived from the commission of a crime, does
not necessarily constitute an 'obtaining' of the aoney by
the crime, within the meaning of section 312".
In any event 1 in the ciJ::cumstances, the accused (according to the Ontario
Court of Appeal) had knt;>wledge that the motor in his possession had been
'derived from' rather than 'obtained by' the commission of an indictable
offence. (l'bis was not contradicted by the Supreme Court of Canada).

*****

- s
ASSAIJLT ARD FALSE DIPllSOllKERT

Lang v. B and C
Saskatchewan Reports 96 (1981 )
Saskatchewan Queen's Bench
Mr. Lang is a cattle buyer and owns a feed mill.
As a businessman he
spends approximately four evenings per month in the beverage room of a
local Hotel to meet his clients and to do business. Being a diabetic he
drinks little and it was found as a fact that on the evening in question,
he had over a period of six hours, four glasses of beer. At 22:30 he left
the hotel with bis wife and walked via a lane to where their car was
parked. Lang felt a hypoglycemic attack coming on and he leaned with his
forehead up against a power pole to cope with the discomfort. Cpl. B and
Cst. C were sitting in an unmarked car and believed, from all appearances,
that Lang was about to urinate up against the pole. One of them shouted:
"that is no place to piss", and Lang, not knowing he was spoken to by
police officers, replied "piss off".
One officer was beard to say to the other, "Let's get us a drunk" and they
drove up to Lang, who in the meantime was heading back for the hotel. He
was handcuffed and placed in the car. Mrs. Lang had not been allowed to
accompany her husband unless she wished the cell next to his. She was also
told if she wanted the keys to the Lang car she had to collect them at the
police station. When she did she told the officers that her husband is a
diabetic and in need of insulin by morning.
Lang's lawyer was refused
access to Lang who was was not released until 7:00 a.m. and was definitely
hypoglycemic and unsteady by this time.
Cpl. B., who testified that during bis years of service he arrested at
least 4,000 drunks, also said he was unaware that diabetics and intoxicated
persons may display similar symptoms. The Court described the Corporal as
a "bully" who had conmitted an unforgiveable denial of Lang's rights by
refusing Mrs. Lang or the lawyer to see him, or release him in the custody
of these •stone cold sober people"' to take care of a man who was not belligerent, or violent, or had resisted police. Furthermore, the Court found
that Lang was not intoxicated.
The officers sought protection under a Saskatchewan Statute which states
that no one who arrests or has an intoxicated person in custody, who was
found in a public place, is civilly or criminally liable if he acts in
•good faith".
This, the Court held, meant that they required to have "'reasonable and
probable cause" to belie~e that Lang was intoxicated. That aeans:
•. • • it is necessary that the officer should
have a bone fide belief in fact, which would
justify his conduct".

- 6 -

.

'l'he officers did not have such reasonable and probable grounds, held the
Court.
The officers (who the Court said bad not acted conscientiously and as
public servants) were ordered to pay Lang $4,000 - •jointly and severally".
Cpl. B. was ordered to pay an additional $1,000 for punitive
damages.

*****

- 7 -

.·

ADMISSIBILin OP STATDIERTS - <DIPULSION - OPPDSSIOll

Regina v. Hall 64 c.c.c. (2d) 463
British Columbia Court of Appeal
Ms. Ball (the accused) was arrested when found counting money while in
company of others who possessed heroin. As she was seen "fiddling" with
the waistband of her jeans, her hands were cuffed behind her back. When
she entered the rear seat of the police car she was seen placing her hands
inside her jeans and appeared to be placing something between the horizontal and vertical part of the seat.
A search revealed a rubber balloon
containing capsules with white powder which was later analyzed to be
heroin.

When the constable who found the balloon asked the accused, '"How many
caps?" (while waving the evidence in front of her) she answered, "Nine or
ten... Approximately 30 seconds later, the accused volunteered. '"Sixteen".
When the accused was booked, another constable (after having informed the
accused of her right to remain silent) asked her, '"Is this all you have?"
(referring to the balloon and capsules). The accused replied, "Yes".
A voir dire was conducted in regards to these two statements.
Police
testified that the accused was co-operative, scared, and concerned about
having to spend time in jail. Although the trial judge found that there
were no threats, inducements or offers of advantage, he said that the
circumstances under which the statements were made were 'oppressive'. This
was due to the handcuffs, police investigation and the accused being
scared. The case the trial judge relied on, of course, was R. v. Horvath*
where the psychological overhand the interviewers had over the interviewee
created compulsion and oppression which put him in an hypnotic state of
JDind, according to psychiatric evidence.
This resulted in the accused

* (1979) 44 c.c.c. (2d) 385.

(This important precedent has been referred
to in this publication several times but was never 'written up', as the
judgment was handed down· 1n 1979, prior to the birth of '"The Issues of
Interest".
To familiarize the readers with the circuastances, the
reasoning and resolves of our highest Court, you will find a synopsis of it
on page 22 of this issue) .

- 8 -

..

being deprived of an 'operating mind' and doubt that the statement was
voluntarily given.
This was a precedent where a statement was ruled
inadmissible in evidence for reasons other than hope of advantage or fear
of prejudice.
In any event, Ms. Ball was acquitted and the Crown appealed, arguing that
the principle established in Horvath had been erroneously applied in this
case.
After reviewing the "Horvath principle" and other reasons for which statements have been disallowed (see 1 and 2 below), the B. C. Court of Appeal
held:
" • • • there was no evidence which could, in law,
bring these statements within the exclusionary
rules • • • ".
Crown's appeal allowed
Acquittal set aside and new trial
ordered.

*****
,...

1 R. v. Serack, Braun and Braun (1974] 2 W.W.R. 377 (Suspect was stripped
naked and had been wrapped in a blanket for eight hours by the time he
was interviewed).
2 a. v. Wishart (1954) 110 C.C.C. 129 (Accused was intensively interrogated
by a three man team while he was very tired).

- 9 -

CURTER OP llCBTS MD P.IEEDOllS
STATDTOIY PBSUMPTIORS MD llEVDSAL OP OBOS

Regina v. Anson County Court of Vancouver
(Not Yet Reported)

No. C.C.811351 June 4, 1982

The accused challenged the constitutional validity of sections 4(2) and 8
of the Narcotics Control Act in view of the Charter of Rights.
Section 4(2) prohibits possession of a narcotic for the purpose of trafficking.
Section 8 provides that if a person is charged under section 4(2)
and does not plead guilty, then, if the trial judge finds that the accused
was in possession of a narcotic, it is up to him (the accused) to show that
the possession was not for the purpose of trafficking. If he successfully
does so he can only be convicted under section 3 of the Act (ordinary
possession).
'!be accused claimed that the section violates his right to liberty of which
he can only be deprived "'in accordance to the principles of fundamental
justice"' (Section 7 Charter of Rights). The reversed onus, he claimed, was
such a radical departure from tradition (the burden of proof being solely
on the Crown) that any provision that places a burden to rebut a statutory
presumption on the accused is a violation of the rights granted under
Section 1 of the Charter.
Furthermore, the accused argued that the presumption in section 8 of the
Narcotic Control Act compels him to testify and does not presume him innocent until proven guilty (S. 11 Charter of Rights).
'lbese violations of the Charter would render section 8 and potentially all
statutory presumptions and reversed onus clauses invalid.
The accused
submitted that the Court should so declare in respect to section 8. He
pointed out that this would be a remedy open to the Court by virtue of
section 24(1) of the Charter, which states:
"'Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a Court of competent
jurisdiction to obtain such remedy as the
Court considers appropriate and just in the
circumstances"'.

- 10 •
The Court declined to hold that aection 8 N.C.A. contravenes the Charte~ and
gave reasons for judgment which touched on all 26 clauses of the Criminal Code
which involve presumptions and reversal of onus and many that exist at common
law.

The Vancouver County Court held that section 8 N.C.A. was simply a "procedural
aection for general application" and did not violate "the principles of fundamental justice". The Court said that fundamental and natural justice are not
dissimilar concepts. If the accused bad been deprived of giving a full answer
and defence, natural justice would not have been done and the process under
section 8 N.C.A. would have violated the principles of fundamental justice.
The accused's claim that section 8 N.C.A. created "a burden of establishing
innocence" in violation of section ll(d) of the Charter was also unsuccessful.
Defence counsel showed that the presumptions and reversal of onus
provisions had resulted in a greater rate of convictions than where normal
procedures are followed.
The Court held that that evidence failed to show
that these clauses were contrary to fundamental justice. That argument, said
the Court, is equally consistent to say that these provisions were to attain
fundamental justice which includes "convicting those properly found guilty
according to law".
The Court reminded the accused that the "'presumption of innocence" principle
now entrenched in the Charter is a '"safeguard against wrongful convictions".
However, the provision does not say "presumed innocent until proven guilty
beyond a reasonable doubt'" but rather states, "presumed innocent until proven
guilty according to law". To place a burden on the accused "by law" before
the proof against him is beyond a reasonable doubt in a fair and public hearing by an independent tribunal, is not contrary to section ll(d) of the
Charter. "According to law", means in compliance with enactments of Parliament or established common law and the presumptions and reversed onus clauses
are part of that.
Section 8 N.C.A. does presume the accused innocent, but simply places on him a
burden to show that his possession was innocent after that possession was
proved beyond a reasonable doubt.
Should an accused have to take the witness stand on the second stage of the
procedure described in section 8 N.C.A., it is not because of that section but
of the circumstances such as quantity or possession by others.
The accused's challenge failed.
Section 8 of N.C.A. does not contravene
the Charter of Rights.
Note: It seems the Court applied the principle similar to the well known one
Iii""'regards to statements _and inferences drawn from lack of explanation:
"A aan aay be so surrounded by inculpatory
circumstances that he either explains or
stands condemned".

*****

- 11 -

USE OF POLICE DPORT 'IO BFJIESB llDIO:U
Regina v. Stasiuk The County Court of Westminster No. X816820 May 3, 1982
(Not Yet Reported)
A police officer testified that he had made notes when he processed the
accused for a drinking/driving offence. He had used those notes to make up
the Police Report and never looked at them again. In preparation for the
trial some nine months later, he had refreshed his memory from the report
and not the notes. Defence counsel applied to examine the notes and the
trial judge would not allow it. The accused appealed his conviction on
this issue, among others.
The County Court Judge held that the trial Judge had not improperly exercised his discretion and quoted a portion of the reasons for judgment in
R. v. Lewis (1968) 67 W.W.R. by the B. C. Supreme Court:

•

"There is no absolute rule that in every case
a witness must aake available to counsel for
the opposite side any notes or documents
prepared by him relevant to the trial.
The
question of refreshing the memory from notes
goes to credibility and it lies in the absolute discretion of a trial judge to decide
whether or not a witness who bas referred to
notes either during the giving of bis evidence
or before hand, and in preparation therefor,
should be required to produce them to the
opposite party.
Accused's appeal dismissed.
Conviction upheld.

*****

- 12 -

JlOADSIDB SDSPBRSIOB D B. C.

The Queen v. Jarron B. C. Supreme Court
820142 (Not Yet Reported)

May

25, 1982

Vancouver No.

'lbe accused was convicted of driving, knowing that his driver's licence was
suspended under section 214X of the B. c. Motor Vehicle Act. He appealed
his conviction on the basis of a precedent set by the B. C. Supreme Court
in 1977*.
In that case the person was also charged, like the accused,
under section 88.1 M.V.A. on account of driving after the driver's licence
was suspended by a police officer under the provisions of the then section
203 M.V.A., which read:
" ( 1) The driver's licence of a person whose
venous blood contains not less than 8 parts of
alcohol to 10,000 parts of blood is subject to
suspension.
"(2)
A Peace Officer, may, at any time or
place on a highway when he has reason to
suspect that the driver of a motor vehicle has
consumed alcohol, request the driver to drive
the motor vehicle, under the direction of the
Peace Officer, to the nearest place off the
travelled portion of the highway and there to
surrender his driver's licence."
"(J)(a) On a request being made under subsection (2), the driver's licence of the driver
is suspended, and he shall i111111ediately
surrender his driver's licence to the Peace
Officer, who shall return it to the driver on
(1) the driver voluntarily undergoing a
test imnediately that indicates his
venous blood contains less than 8 parts
of alcohol to l 0, 000 parts of blood;"
etc.
In the Bush case the B. C. Supreme Court held that due to subsections (1),
(2) and 3(a) quoted above, the officer who suspends a licence must
'suspect' that the driver has consumed alcohol in such quantity that his
blood/alcohol content is in excess of 0.8%.

* R. v. Bush (1977) 2 B.C.L.R. 230

.

- 13 -

-·
'l'he accused (Jarron) in this case, argued that there was no evidence what
the officer who suspended him believed or suspected and therefore be should
receive the same consideration.
Since the Bush decision, the section became section 214X and was amended by
repealing subsection (1).
The Crown suggested that possibly this meant
that it no longer had to show a suspicion on the part of the police officer
that the accused's alcohol level was above .08%.
The Supreme Court Justice disagreed and held that the Bush case was still
good law in spite of the elimination of subsection (1). The Justice said:
" • • • when subsection (2) and subsection 3(a)
of section 214X are read together, the intent
of the legislature becomes clear, namely that
no suspension is contemplated unless a driver
has in his venous blood not less than 8 parts
of alcohol to l 0, 000 parts of blood".
•

Accused's appeal allowed •
Conviction set aside.

*****

- 14 -

1.

ADUSSIBILITI OP STATDIKllTS llADB BY A Ylcrlll 1lllO DIBD OP VOUllDS
IllPLICl'BD D aHllSSIOB OF OFFEllCE Ainqzn .AG.UBST .ACCUSED.

2.

ADIISSIBILITI OF SDllL&lt FACr BVIDDCE.

Regina v. Henry Supreme Court of B. C.
Vancouver Registry (Not Yet Reported)

June 1982

No. c.c. 820203

In a 10 day voir dire during the accused's trial for first degree murder
the following event'ii""'Unfolded.
A 24 year old woman had agreed one late evening to go for a ride with a

negro in the latter's pick-up truck. She was driven out of town and off
the highway into a wooded area. The man disrobed the woman and attacked
her sexually. He then stabbed her in the throat and chest and left her for
dead. The woman struggled to reach the highway and in the ordeal fell off
a 20 ft. cliff. She finally reached the highway and was found by a passer
by at 4:00 a.m., naked, wounded, suffering shock and hypothermia. While in
this condition she spontaneously said to her "Sameritan" and members of the
emergency team who attended her while in a state described as "conscious but not very conscious", "Are you a cop?" - "I have been stabbed" - "It was
a negro". When asked who had done this to her, she bad replied, "A black
man".
A police officer accompanied the woman in the ambulance and was present
during the treatment she received in the emergency ward.
Although the
victim was "fading and coming back" she identified herself, told from where
she was picked up and described the clothes she was wearing, her assailant, and his pick-up truck.
To the attending doctor she related a similar account of events and when
asked if she was raped, she had replied that she had been.
The following two evenings, subsequent to surgery and on an apparent path
of recovery ahe gave police long and detailed statements of what she had
endured.
Eight days after the incident the woman "suddenly and unexpectedly" died.
A part of the voir dire was devoted to the question what, if any, of the
victim's statementi were admissible in evidence against the accused.
The prosecutor suggested. that the statements were "dying declarations".
Such declarations are ad•issible as an exception to the hearsay rule. The
Supreme Court Justice rejected that suggestion as the prerequisite to the
exception is a state of mind on the part of the victim of a "settled hopeless expectation that she was about to die i1111ediately".
The theory is

..

- 15 -

that such a state of mind is so awesome that stateaents ude regarding the
cause of death and directly or indirectly relevant to the identity of the
person responsible, is equally if not more compelling to tell the truth
than to do so upon oath in the witness etand. In other words, it is safe
to accept the truth of the content of statements made by a victim in such
frame of aind.
There was no evidence in this case that the victim believed she was dying
when she made the statements.
Another exception to the hearsay rule is statements made which are the res
gestae or part of the .!!!. gestae. These are statements made during or-SO
closely related to an event that they are part of it. The basic theory
here is that if someone witnessed an event, then what be saw is admissible
in evidence. Then why should utterances heard during or i1D11ediately after
the event not be part of that event. One of the tests to determine admissibility of such statement is whether it is so detached or disengaged from
the event that what was said may be a concoction.
In this case the key issue was expressed as follows:
.. As regards statements made after the event,
it aust be for the judge, by preliminary

ruling, to satisfy himself that the statement
was so clearly made in circumstances of spontaneity or involvement in the event that the
possibility of concoction can be disregarded".
The Supreme Court Justice held, that in spite of the time lapse between the
infliction of the wounds and the making of the statements by the victim,
(when found on the side of the road, in the ambulance, and in the emergency
ward) all were components of one terrible event she endured. The statements were clearly "spontaneous" and made in "circumstances of involvement"
in that event.
Said the Court:
""It is difficult to imagine a more terrifying
series of events or a series of events aore
likely to still the reflective faculties of
the deceased. In all of these circumstances I
hold that all of the statements made by the
deceased from the time of her discovery on the
highway until she was operated on • • •
constitute one continuing transaction and are
admissible in ..evidence.
In my view these
statements are admissible as proof of the
truth of their content.N

- 16 -

•
•
'l'he detailed statements taken by police from the victim after the surgery
were found to be detached from the event and not in any catagory which
constitutes an exception to the hearsay rule.
It is interesting to note that the Supreme Court Justice remarked that he
personally felt that the law should allow the detailed statements to be
heard by the jury for them to decide what weight to attach to them.

Similar Fact Evidence:
In 1968 (in eastern Canada) the accused bad pleaded guilty to attempted
1111rder. He bad (in a •gay hangout") picked up a man who, for the occasion,
was dressed in female clothing. What the accused had done to that man was
identical to the circumstances in this case except that the victim had
survived the ordeal.
The prosecutor sought to present the facts of that case to the jury as
similar fact evidence.
Evidence of similar facts must be convincing and compelling and may not be
•trifling in weight" while being gravely prejudicial to the accused.
Neither is it evidence of previously comnitted crimes that prove such a
character that the accused is likely to have committed the crime for which
he is tried. It can only be used and is admissible for the purpose
". • • to show design or intent or to meet a
defence open to the acc~ed • • • ".
When similar fact evidence is adduced .. to meet a defence open to the
accused" it is usually the defence of identity {Not l • • • ). The objective then is to show that the crime previously committed has "peculiarities
in common" with the offence charged "so as to support a reasonable inference that the accused committed the crime".
The crime coamitted by the accused in 1968 had so many peculiarities in
common with the circumstances of this case that the evidence of his
previous crime was ruled admissible.

-----On June 23, 1982 the Supreme Court of Canada also considered the admissibility of similar fact evidence in the case of SWeitzer v. The queen {not
yet reported).
One early morning the accused entered the apartment of a woman.

She raised

'-

- 17 -

..
an alarm, police attended and the accused was apprehended. This apprehension apparently ended a period of four and one half years during which at
least fifteen similar incidents had occurred in that vacinity, in which
women had been raped and indecently assaulted.
The Crown proceeded with one charge of rape only. The accused allegedly
entered an apartment occupied by a woman and her child. The woman woke up
to a voice warning her not to make a sound lest ahe wanted the child hurt.
The woman was blind folded, raped and forced to perform felatio. After an
hour of sexual activities, the perpetrator left.
The woman could not
identify the accused as the intruder. The Crown, however, proved that the
rapist was the accused by means of aiml.ar fact evidence related to the
other incidents and the observations of a detective.
The ""similar facts.. fell in two groups. Eleven of the incidents were in
the actions of the intruder and other circumstances nearly identical to the
methods used by the perpetrator in this case against the accused. In three
other cases there was direct evidence of the accused being the assailant.
In addition, the accused was identified by a detective as the man he caught
peering through the window of a motel unit in the district where the incidents had taken place. Upon approach, the accused had fled and was not
apprehended. The evidence of all incidents was admitted as similar fact
evidence and the accused was convicted. Be appealed.
The Supreme Court of Canada had the same to say about similar fact evidence
as the B. C. Supreme Court and added:
""Evidence of similar facts has been adduced to
prove intent, to prove a system, to prove a
plan, to show malice, to rebut the defence of
accident or mistake, to prove identity, to
rebut the defence of innocent association, and
for other similar and related purposes"
However, the Court commented that such evidence should be excluded if it
does not have a material bearing on the issues, or on a link between the
similar facts and the accused. In other words, a jury must be able to find
that the similar facts were acts of the accused.
Due to the lack of evidence of identification in the eleven cases, there
was no link between those incidents and the accused.
Therefore, the
circumstances surrounding those cases were inadmissible as similar facts.
Accused's appeal allowed
New trial ordered.

*****

- 18 CIWlTEll OF UGH'l'S AllD ftDDOllS

ABUSE OP THE PROCESS OF 'DIE COUl.T
The Queen and Bruneau Supreme Court of B. C.
Vancouver Registry No. CC 820767

June 1982

The accused, charged with "break and enter", claimed that he entered into an
agreement with the Crown. The deal was that the charges against him would not
proceed if he revealed inf ornation regarding a cache of narcotics and entered
a guilty plea to a charge of possession of marihuana for the purpose of
trafficking.
The accused states that as a part of the bargain he would submit to a lie
detector test to ensure that his information related to the cache was accurate. He had given the information and pleaded guilty as promised but had
missed his appointment with the polygraph operator.
In spite of making
himself available for the test later, the Crown went ahead with the "break and
enter" charge.
When arraigned on the charge of break and enter, he applied for a judicial .
stay of proceedings claiming that in view of the "bargain" the proceedings
amounted to an abuse of the process of the Court. In other words, be was not
prosecuted for committing the crime of break and enter but rather for missing
the appointment. The Provincial Court Judge claimed to lack jurisdiction to
stay the proceedings and the accused now applied to the Supreme Court for an
order to compel that Judge to "consider and determine" such a stay.
Whether or not (in criminal cases) the Courts have the right to stay prosecutions to '"prevent the misuse of its jurisdiction" is somewhat questionable.
Without discussing the details of the varied opinions on that issue, the
interesting part of this case is the Supreme Court Justice's comments on the
possible impact section 7 of the Charter of lights and Freedoms may have on
this question. The section simply ensures that we cannot be deprived of life,
liberty and security of the person except in accordance with the principles of
fundamental justice.
The Court declined to say if this section applied in these circumstances.
This as the merits of the case had not been heard by the Provincial Court
Judge.
The circumstances as related above are submissions made by the
accused only.

The Supreme Court ordered that
'". • • the Provincial Court Judge exercise his
jurisdiction to enquire into the facts alleged by
the accused ......
This for that judge to determine if on the facts the process of his Court is
abused and if he has the jurisdiction to stay the proceedings.

••*• *

- 19 -

COBSPillATOJlS' BXCEPTIOB TO DIE RUISAY IDJLB

The Queen v. Carter

Supreme Court of Canada June 23, 1982

A basic rule of law is that what 1s said by one is not evidence against
someone else. Even where persons are charged jointly with
offence, the
confessions or admission of the one is not evidence against his co-accused.

an

Also, what is done by the one in the absence of the other, is not evidence
against the absent party.
However, this is not the case if the individuals are parties to a conspiracy. Then, the acts and statements by one is evidence against the others.
The part of these exceptions related to the statements is known as the
"Conspirators' Exception to the Hearsay Rule".
The accused was acquitted of having conspired with others to import a
narcotic into Canada. The Crown appealed claiming that the aquittal was as
a result of a direction by the trial judge to the jury which was erroneous
in law. The trial judge had instructed that jury that before they could
consider the declarations and actions of the other conspirators as evidence
against Carter, they had to find that he was a party to the conspiracy. In
other words, they first had to find him guilty of the charge and then
consider the evidence afforded by the actions and utterances of his coconspirators. Needless to say that since membership in the conspiracy is
the charge, such an exercise is one of total futility. On the other hand,
it does not take an expert to realize that grave injustice can result i f
our rules of evidence allowed the hearsay evidence to be used for proving a
person part of the conspiracy, unless there was firstly some direct evidence to show that he was. After all, hearsay evidence is of a kind where
the witness cannot vouch for the truth of his testimony (for instance, a
witness can vouch for what an accused said to him, but cannot vouch for the
truth of the content of the statement). Therefore, the Crown asked a very
simple question of the Supreme Court of Canada:
"'Where an accused is charged with a conspiracy, what degree of proof DUSt be adduced that
he and a particular actor or declarant were
both involved in that conspiracy, before the
latter's acts or declarations are admissible
against him?"
The Supreme Court of Canada reviewed bow this problem is approached in the
U. S. Apparently whether or not there are adequate preliminary facts to
allow the application of the "conspirators" exception to the hearsay rule"
is determined by the judge in a voir dire. The jury then does not have to
deal with this complicated issue-.-------

- 20 -

This method was rejected by the Supreme Court and a precedent was set for
a •two stage approach" in the charge to the jury.
It was held that "the hearsay exception may be brought into effect only
where there is some evidence of the accused's membership in the conspiracy
that is directly admissible against him without reliance upon the hearsay
exception raising the probability of his membership".
The jury must be instructed to firstly decide if they are satisfied beyond
a reasonable doubt if the conspiracy in the indictment existed. If so,
then they must decide if, based on the direct evidence (not the hearsay),
"a probability is raised" (not beyond a reasonable doubt) that the accused
was a member of that conspiracy.
If such probability is there, then they
may consider whether the aggregate of the direct evidence and the hearsay
evidence is proof beyond a reasonable doubt that the accused was a party
to the conspiracy. In other words, although they 11111st make three separate
decisions, the verdict must be based on all of the evidence.
Holding that the trial judge had imposed a higher burden of proof on the
Crown than what is required by law,
the Crown's appeal was allowed and
a new trial was ordered.

*****

- 21 -

POLICI DESPASSIBC TO DSTALL IDII'l'OllBG IEVICB IOR
AU'fBOR.IZED DITUCEPTIOlf C. PRIVATE CXHIUllICATIOB
ADllISSIBILift OF BYIDKllCE OP THE DTERCEPTKD COMllDIUCATIOR

Regina v. Lyons, Prevedoris, McQuire and Flodgate
CA 810112 June 21, 1982 (Not Yet Reported)

B.

c. Court of Appeal

The Privacy Act (Part 1V.1 of the Criminal Code) was enacted to protect
the rights to privacy. However, said one Court*
"It may be more realistic to say that the
purpose or effect of Pt. IV .1 has been to
regulate the method of breach of any such
right.
'lbat the right may be subject to
frequent lawful breach is clear from the
scheme of Pt. IV .1, but the courts must be
astute to limit breaches to the extent
provided by the Code".
The accused appealed their conviction of conspiring together to import
coccaine into Canada. Part of the evidence against them bad been obtained
by judicially authorized intercepted private connnunications. To ins tall
the monitoring device the police made a surreptitious entry into a
residence. The defence claimed that the trespass vitiated the authorization and rendered the direct and indirect evidence obtained by means of
the interception inadmissible.
The Court of Appeal agreed with the above quotation but held that i f the
police committed trespass to install the device as an act ancillary to the
authorization, those acts may give rise to civil or criminal proceedings
against police, but they do not vitiate the authorization. The evidence
was admissible.

* Goldman v. Regina (1980) 13 C.R. {3d) 288

{Appeal by accused dismissed)

- 22 -

ADIISSIBILin OP srAnMENTS .A11D IVIDEllCB
lll!'Kl.VIBWKB. BAVDIG DDLLECTIJAL ADVAl'DGB
-

BYPllOTIC STATE

-

Horvath v. lt. 3 W.W.R. 1979 1 Supreme Court of Canada
The accused, a 17 year old youth, took the spare keys to the car owned by
his mother's comon law husband and went to his "stepfather's" place of
employment. Be took the car from the employees' parking lot and did some
joyriding which included two hit and run accidents.
When the stepfather arrived home from work, he found his common law wife
(the accused's mother) in the bedroom from where the keys were taken "with
her head bludgeoned into a pulp". The accused was arrested at midnight of
the same day and subsequently interrogated from 12:20 a.m. until 3:10 a.m.
and from noon until 4:15 p.m. Later, the accused took police to a location
where a baseball bat, two socks and gloves were recovered upon directions
from the accused. The accused was charged with 11a1rder.
The B. C. trial judge had refused to admit in evidence the statements made
by the accused and the jury returned a verdict of not guilty. The Crown
appealed and the B. c. Court of Appeal ordered a new trial, holding that
the trial judge had erred in law. The accused then appealed this decision
to the Supreme Court of Canada. Seven members of this Court considered the
appeal, deciding with four justices in favor, to restore the acquittal.
The issue involved was aainly the voluntariness of the accused to make the
statements that were adduced by the Crown.
Since the Supreme Court of
Canada added little to what the trial judge had found to be the facts, and
his interpretation of them, his (the trial judge's) comments may best
describe the circumstances surrounding the issue of voluntariness.
The interview from 12:20 a.m. till 3: 10 a.m. was done by two very experienced police ·officers.
Intellectually and in personality, the officers
were far superior to the accused and no match for him. They all sat at a
table with the officers at the ends and the accused in between. Questions
were "fired" at the accused "bot and furious"; he was "bamered with shots
from both Bides•, and told that he was not believed.
To determine the voluntariness on the part of the accused to make the
statements, the Crown called a psychiatrist to testify about his opinion of
the mental state of the accused towards the end of this interrogation

- 23 -

•
1'be trial judge had already at this point indicated that being outmatched
as the accused was, may be considered unfair. Despite that faimess is not
a test of voluntariness, the statement was ruled inadmissible. The atmosphere of the interview was given to the Court by the officers who, in the
judge's view were "'particularly honest".
The trial judge held that the
atmosphere of oppression was so great that it gave . the accused a sense of
being threatened. Said the Judge:
.. • • • I exclude the first examination on
the grounds of the method used, the age of
the accused, the circumstances of the day
he had been through, the hours of the
morning, the length of the interrogation
and the technique used."'
The interview that took place the same day, between noon and 4:15 p.m. was
done by an R.C.M. Police officer, who through training and experience had
"'great skill in interrogation techniques".
SuD1Ding up the circumstances
surrounding this interview the trial judge had complimented the officer and
said that the interview was
.. • • • the most skillful example of police
interrogation that has ever come to my
attention in 36 years as a lawyer and
judge."
lbe officer was "'intellectually adroit" and the interview was like "a cat
manoeuvering a mouse••.
The interview bad been taped and was divided in
three phases. In between each phase and at the conclusion of the interview, the accused was left alone with the sound recording system left on.
The interview was so intense that during these periods, while by himself,
the accused would have a monologue, called a "soliloquy" by the psychiatrist.
During the first chat with himself, the accused vowed vengeance upon the
person who killed his mother.
During the second monologue the accused
related how his mother had begged him to kill her. He had complied after
promising her never to reveal the fact that she had requested to be
killed. During the last soliloquy the accused begged his mother's forgiveness for revealing her request.

- 24

••

1'be psychiatrist, called by the Crown, was asked to examine the tapes and
to evaluate the affects on the accused's mind by being subjected to this
type of interview. This of course, to determine the voluntariness of the
etatements including the "soliloquies•. Be was given a week to do this.
Having exaained the accused and the tapes, the psychiatrist concluded that
the officer's skill and superiority over the accused in every aspect had
caused "emotional disintegration·. The officer had "unwittingly" put the
accused "in a mild hypnotic state". The doctor added however, that recounting the painful memories in his aonologues had been a voluntary act on the
part of the accused and was the truth as be (the accused) saw it.
Nevertheless, the trial judge bad not allowed any part of the interview in
evidence. He said:
"Had Dr. Stephenson not given the evidence
of an hypnotic state, I would have, with
some misgivings, admitted this statement.
It is the accumulation of all the factors,
and I have dealt with those, plus the
factor of the subject having been, for a
sizeable part of the interview, in an
hypnotic state imnediately before the
confusion came out, that have caused me to
reject the statement. This ruling is given
with very real regret that police work as
skillful as this should end in frustration
of its purpose".
The Crown argued before the B. C. Court of Appeal and the Supreme Court of
Canada, that police interrogation is not a sporting event where fairness in
relation to the contestants being matched properly is a weighty factor to
decide on the validity of the game.
It was submitted that the judicial
consideration respecting the admissibility of statements, aust be confined
to a test that they were made by a person free of •hope of advantage or
fear of prejudice", and nothing more. The Supreme Court of Canada agreed
in part but refused to confine voluntariness to lack of fear or hope.
As mentioned above, there were four Justices of the Supreme Court of Canada
out of seven who formed the majority that ruled the statements inadmissible. These four Justices split in duos each with reasons for judgement.
'l'he issue they appear to agree on is that the meaning of voluntariness goes
beyond the proverbial hope of advantage and/or fear of prejudice.

- 25 -

One part of the judgement sums it up. After reviewing all the well known
cases on this issue the Court concluded that these cases:
•. • • have not and need not be considered
to have reduced the words 'free and voluntary' in the test ea to the admissibility
of a statement made by the accused to
meaning only that the _statement bas not
been induced by any hope of advantage or
fear of prejudice, and it is s.y view that a
statement may well be held not to be voluntary, at any rate• if it bas been induced
by some other motive or for some other
reason than hope or fear".
It was also held that the matter of hypnosis alone contained an element of
moral violence, which by itself rendered the statements involuntary. The
other two Justices said that no particular emphasis ought to be placed on
the hypnosis.
All the cirumstances surrounding the interview must be
considered. It is the "emotional disintegration" that rendered the statements involuntary and inadmissible, they said.
In relation to the articles found upon direction of the accused, the Court
held that neither the accused's statements or scientific tests could associate the articles with the murder. For those reasons only the articles
were not admitted in evidence either
Accused's appeal allowed;
Order for a new trial cancelled.
Acquittal restored.

Comment: It seems that the Supreme Court of Canada was anxious to say that
this is not a landmark case which render things like unfairness, unbalanced
wits, llisconceptions and other 1111tters adverse to the accused, reasons for
disallowing statements into evidence.
The Supreme Court of Canada implied that the cases establishing the binding
precedents never suggested that only the "hope and fear" formula was

- 26 -

capable of rendering involuntary a statement by an accused to a person in
authority. The Supreme Court of Canada aaid on this point:
"Although aany Courts seem to have done ao,
I do not regard auch an authority as
Ibrahim! as indicating that the natural
meaning of the word 'voluntary' should be
confined to cases of hope of advantage or
fear of prejudice" •.
The Court said very much the same about the Boudreau2 case. Although the
language the Supreme Court of Canada used in 1949 in "Boudreau" is strong,
it is not too clear in defining the word "voluntary" where it relates to a
person's volition when he gives a statement to a person in authority. When
statements are adduced as proof of the truth of their content the Supreme
Court was and is extremely concerned that fear and/or hope would affect the
reliability of statements 11ade to persons in authority. On the other hand,
it is equally concerned about abuses by accused persons who may invent some
pretty sophisticated reasons why their statements to an authority should
not be considered voluntary. Here is the portion of the reason for judgement in Boudreau v. R. which bas received the narrow and the broad interpretation by our Courts:
"The underlying and controlling question
then remains: is the statement freely and
voluntarily made?
Here the trial judge
found that it was. It would be a serious
error to place the ordinary modes of investigation of crime in a strait jacket of
artificial rules; and the true protection
against improper interrogation or any other
kind of pressure or inducement is to leave
the head question to the Court.
Rigid
formulas can be both meaningless to the
weakling and absurd to the sophisticated or
hardened criminal; and to introduce a new
rite as an inflexible preliminary condition
would serve no genuine interest of the
accused and but add an unreal formalism to
that vital branch of the administration of
justice."

1 Ibrahim v. R. 1914 A.c. 599 at 609 P c.
2 Boudreau v. R. 1949 94 C.C C. 1

- 27 ••

This seems to give a discretion to a trial judge to consider all circumstances surrounding the making of a statement to a person in authority and
all aspects that may affect the voluntariness of the person vho made it.
Flexibility to avoid injustice in this regard seems to be emphasized. •i.et
each situation be weighed on its own merits" the Court seemed to have said.
Consistent with this are the •Judges Rules" which speak of "oppression" in
this regard. A quotation from a British case in which the Supreme Court of
Canada found support for its views is as follows:
"What may be oppressive as regards a child,
an invalid or an old man or somebody inexperienced in the ways of this world may
tum out not to be oppress! ve when one
finds that the accused person is of a tough
character and an experienced man of the
world."
'lbe Justices favoured the inadmissibility of the statements by Horvath
strictly because of the accused's hypnotic state of mind. This is outside
the restricted interpretation of voluntariness. Holding that the principle
of voluntariness is the sole condition which "inspires the rule", they had
to decide firstly on the very same issue as the other two Justices who,
with them, aade up the majority of the Court. These Justices found that
voluntariness being the main issue, not too much attention should be paid
to what Judges had to say in other cases. A Judge may only say what is
necessary to decide the issue in the case he is dealing with and what he
says beyond that is his peraonl view. However interesting that view may
be, it is not part of any "judge-made rule" that may be binding on other
Courts. Said the two Justices:
•The
principle
(voluntariness)
always
governs, and may justify an extension of
the rule to situations where involuntariness has been caused otherwise than by
promises, threats, hope or fear, i f it is
felt that other causes are as coercive as
promises or threats, hope or fear, and
serious enough to bring the principle into
play.'"

- 28 -

.•
The psychiatrist testified that the accused's confession was voluntary in
the sense that a person under hypnosis, whatever 1.ta depth, cannot be
forced to say or do anything to which he has not already given tacit
consent. The Court found that this was not the 'VOluntariness meant by the
principle. The two justices held that by certain physical elements
" • • • such as an hypnotic quality of voice
and manner, a police officer gained unconaented access to what in a human being is
of the utmost privacy, the privacy of his
own mind • ....

'lbe Court concluded
" • • • that this was a form of violence or
intrusion of a moral or mental nature, more
subtle than visible violence but not less
efficient in the result than an amytal
injection administered by force."
(Amytal is a "truth serum")

All this means that we now have a binding majority judgement by our highest
Court that voluntariness goes beyond the "fear and hope" rule.

*****

- 29 •
'HD-BITS

It is coD1Don that an authorization to intercept the private communications
of a person indicates the places at which such comnunications may be intercepted. · As it is unpredictable from what other place that person may
comnunicate, the authorization usually provides that that person's communications may be intercepted at places he may "resort" to. The Supreme Court
of B. c. · was asked to rule on the meaning of that verb as it is used in the
authorizations.
The Court said the word means "to frequent, to go to
customarily or usually". However, in the context of the authorizations it
does not "require habitual attendance before a person can be said to resort
to a location". "One attendance is enough".
(The Queen and Newall et. al. B. C. Supreme Court No. 17315-T. Victoria
April 20/82 (Not Yet Reported))

* ****

The accused was under demand to give samples of breath.
Upon request he
was placed in a room by himself with a telephone to phone a lawyer. After
20 minutes he said not to have been successful. He was given a few more
minutes and then taken to the breathalyzer.
Be refused to give any
samples.
At trial he testified he had phoned relatives and asked them to get a
lawyer for him. He believed that be was entitled to one phone call only
and had spent his time at the phone waiting for a lawyer to call him. He
had not told the off ice rs this at the time, which would have been reasonable if he had the difficulties he claimed he had.
It was reasonable for
the officers to demand a sample of his breath after the time he spent
trying to get a lawyer.
Be had no reasonable excuse to refuse in the
circumstances.
(B.. v. Montgomery The County
Victoria Registry 22145)

Court

of Vancouver

*****

Island

February

1982

- 30 -

'l'he accused applied under section 24( 1) of the Charter of lights for a
remedy in relation to a denial of his right to reasonable bail (section
ll(e) of the Charter). The B. C. Supreme Court found that the bail set for
the accused was unreasonable and granted the relief the accused applied for
by ordering him released on his own recognizance without the surity the
Provincial Court ordered.
The facts that brought this matter before the Supreme Court were particular
and unusual. 'l'heref ore, this case is not a precedent that this Court will
review the "unreasonableness" under the Charter in regards to bail.
R. v. Lee B. C. Supreme Court
(Not Yet Reported)

Vancouver No. CC829618

May 20, 1982.

***• •

Procuring a female person to become a prostitute is a criminal offence
(section 195 (l)(d) C.C.). The accused appealed his conviction of attempting to procure an undercover R.C.M.P. officer to become a prostitute. The
role the officer was to play was that of a prostitute who had fled a big
city to escape its 'baneful influences'.
The accused had encouraged the
officer to continue her trade and offered to be her pimp.
The Alberta
Court of Appeal quashed the accused's conviction holding that Parliament
meant to prohibit procuring a woman to become a prostitute.
There is
simply no offence if the woman is already a prostitute. The officer made
the accused believe that she was a prostitute and he therefore lacked the
mens rea to c:Onmit the offence.
R. v. Cline

65 c.c.c. (2d) 214

**•**

- 31 •
'lbere is a precedent that testimony that •a standard police demand .. was
made is not evidence of a proper demand under a. 235(1) c.c..
In other
words. the officer must relate to the Court what he said to the accused in
asking the demand.
In this case a constable investigated an accident and
discussed the details of it with the accused at the scene.
Then the
constable questioned the accused on bow 1111ch he had had to drink.
The
constable testified at the accused's trial that he had made •a standard
breathalyzer demand".
'lbe defence on appeal argued that this was no
evidence of a proper demand. The Court held that the testimony. coupled
with the evidence of the accident and questioning the accused on how much
he had to drink, linked that demand to section 235(1) c.c.
(The County Court of Yale March 17, 1982 Vernon Registry 06918)

*****
•

The accused gave all appearance to blow in the breathalyzer.
Bis face
turned red and his cheeks were puffy from his efforts. However, the three
pseudo attempts did not result in any breath getting into the instrument.
'lbe officer told the accused he was charged with refusing. upon which the
accused said he would gi v~ samples and not do anything to prevent the
analyses of his breath.
'lbe officer did not accept and the accused was
convicted of 'refusing'.
The accused appealed claiming that his offer
negated his actions which the Crown said amounted to refusal.
'lbe Court held that the refusal was complete by the time he made his
offer. Conviction upheld.
(The County Court of Vancouver Island. March 22. 1982 Victoria Registry

22319).

*****

32 -

..
In another case of •refusing" the technician testified that the accused
aerely puffed bis cheeks when going through the motions of giving breath
samples. The accused was given a separate mouthpiece to practise on, but
gave the same performance as before when putting h:l.s mouth to the piece
attached to the breathalyzer. He was convicted of refusing and appealed.
The Court held that the Crown should have proved that the mouthpiece the
accused used was not blocked.
There was evidence that the instrument
worked but nothing about the mouthpiece.
In view of the evidence, there
was a reasonable doubt that the accused's failures were deliberate.
Conviction set aside.
(The County Court of Yale April 1, 1982 Kamloops Registry CCC 286)

**•**
The two breath tests were taken 25 minutes apart and at trial the breathalyzer technician could not explain why the delay. The accused was consequently acquitted of "over .08%.. as the "as soon as practicable" applies to
both samples and without an explanation, there was no evidence of such
practicability.
The Crown appealed unsuccessfully.
What complicated
matters was the evidence of the time of driving being vague and the possibility the second sample was taken outside the two hour limit.
(The County
X81-7013}

Court

of Westminster March

*****

15,

1982

New Westminster

No.

- 33 -

•
An expert with respect to the rate of elimination of alcohol in humans,
testified that the ·two readings obtained (considering the time period
between them) were inconsistent with that rate of elimination.
He, in
support of the charge of impaired driving, testified that anyone with a
level in excess of .10% blood alcohol is impaired. The physical evidence
by the officers was 'very weak' and the Crown had to rely exclusively on
the readings of ... 13· and ".11" to prove impairment.
The accused was
convicted and appealed, arguing that in view of the expert's evidence the
accuracy of both readings is in doubt.
The Court rejected this argument
and held that Parliament had recognized the possibility of differences in
readings and provided that when that occurs the lowest reading must be
considered only (s. 237 c.c.). In this case that was in excess of ".10%".
The appeal was dismissed and the conviction upheld.
(R. v. Underwood

British Columbia County Court

January 1982)

Comment:
In providing the presumption that a blood-alcohol level determined within two hours of driving is equal to that at the time of driving
(s. 237 C.C.), Parliament did not likely intend to say that if two samples
of breath are analyzed, then, in all likelihood one of them is correct; and
in any event give the suspect the benefit of the lowest reading. It seems
more acceptable that Parliament intended the presumption and the benefit of
the lowest reading to be considered in relation to accurate analyses. The
provisions dealing with the differences in readings obtained are believed
to be in regards to the elimination or absorption of alcohol in humans and
not to the fallibility of the breatbalyzer.

•****