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.

LEGAL AID SUFFICIENT
UNLESS DETAINEE REQUESTS
SPECIFIC COUNSEL
R. v. Slinger, 2006 NLTD 14
Police received an anonymous
call that the driver of a truck
had been drinking. A police
officer located the vehicle with
matching licence plate and saw it travel onto the
yellow line a number of times and turn a corner
without signalling. The truck was stopped and
the accused had bloodshot eyes, an odour of
alcohol, and failed a roadside test. He was read
his Charter rights, the breathalyzer demand, and
said he wanted to speak to a lawyer.
At the police station the officer asked the
accused if he knew any lawyers, but received a
negative response. The accused did not ask for a
phone book or express a desire to call any
particular lawyer so the officer called legal aid.
The accused spoke to legal aid in private for five
minutes and did not request to speak to anyone
else or express dissatisfaction with the advice
he received. He subsequently provided two
breath samples over the legal limit and was
convicted of over 80 mg% in Newfoundland
Provincial Court.
The accused appealed to the Newfoundland
Supreme Court arguing, in part, that his rights
under s.10(b) of the Charter were violated. In
his view the police were obligated to advise a
detainee of the various options open to them if
they indicated an interest in speaking to a
lawyer. Justice Schwartz, however, disagreed
stating:

Volume 6 Issue 2
March/April 2006

…I am satisfied that if a detained person
requests specific counsel, or a phone book to
call a particular lawyer, or seeks a lawyer
specializing in a specific field such as criminal
law, the police officer should accommodate
that person and make all reasonable efforts to
meet the request. However, when no such
specific request is made a police officer has
fulfilled his duty to a detained person
pursuant to the Charter when he facilitates an
arrangement for that person to speak to
counsel through the Legal Aid toll free
number. It is then incumbent upon the
detained person to make a further request to
speak to a specific lawyer or to convey he is
not satisfied with the advice received and
wishes to speak with someone else.
………

Circumstances of each particular case must
always be assessed. In this matter the facts
indicate that after the [accused] was read his
Charter Rights and Police Caution the police
officer contacted the Legal Aid toll free line
and made arrangements for [the accused] to
speak to counsel by telephone. The [accused]
did not refuse to speak to the lawyer
contacted, did not indicate he wished to speak
to any other particular lawyer, and after his
conversation did not express a desire to obtain
further advice from another lawyer. He also
did not say he was dissatisfied with the
information he had received.
If [the accused] had expressed a desire to
speak to someone else, either before or after
the call was made to Legal Aid, and such a
request was rejected, this could formulate a
possible Charter breach. Such is not the case
in this matter. [paras. 22-25]

There was no Charter breach and
breathalyzer certificate was admissible.
Complete case available at www.canlii.org

Be Smart and Stay Safe

the

HIGHLIGHTS IN THIS ISSUE
Pg.
4

Approach to Home OK to Communicate
Hotel Desk Drawer a Place for Break-in
Purposes

6

Suspension of Right to Counsel Too Long

8

Reasonable Grounds Based on Individual
Belief, Not Collective Intelligence

10

CDSA
Search
Constitutional

Provision

11

‘Urgent & Heightened Circumstances’ Justify
Detention

12

Youth Sentencing Onus Upheld

13

Ambulance Attendants Not ‘Constitutional
Intervenors’

14

Policy Based ERT Entry Unreasonable

16

Search Must be Related to Reason for Arrest

17

Judge Need Not Check Common Sense At
Door

20

Warrant

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.bc.ca
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

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www.10-8.ca

Volume 6 Issue 2
March/April 2006

‘IN SERVICE’ LEGAL ROAD
TEST
The “In Service” Legal
Road Test is a simple
multiple choice quiz
designed to challenge
your understanding of the law. Each question is
based on a case featured in this issue. See page
19 for the answers.
1. Implied licence allows the police to get from
the sidewalk to a person’s doorstep for the
purpose of communication without violating
the person’s right to privacy.
(a) true
(b) false
2. When searching for evidence as an incident to
lawful arrest the police can search for
evidence related to any offence.
(a) true
(b) false
3. When the police enter a residence with a
search warrant and arrest the occupants they
are always entitled to hold off providing the
arrestees access to a lawyer until the search
is commenced.
(a) true
(b) false
4. When assessing reasonable grounds for arrest
during a police operation, the individual
knowledge of the arresting officer is what
counts rather than the collective knowledge
of all the police officers involved in the
operation.
(a) true
(b) false

Note-able Quote

Kind words can be short and easy to speak, but
their echoes are truly endless—Mother Teresa
1
2
3

Senior officers
Non-commissioned officers
Constables

Volume 6 Issue 2
March/April 2006

FAST FACTS
Police agencies policing a population of 100,000+
Prov SOs1 NCOs2
Csts.3
Total
Locale
ON
89
1,195
3,933
5,217
Toronto
QC
243
975
2,932
4,150
Montreal
ON
44
287
1,292
1,623
Peel Reg.
AB
33
338
1,140
1,511
Calgary
AB
28
308
998
1,334
Edmonton
BC
40
174
1,071
1,285
Vancouver
MB
23
275
908
1,206
Winnipeg
ON
28
204
896
1,128
York Reg.
ON
29
241
848
1,118
Ottawa
ON
22
178
556
756
Durham Reg.
ON
17
169
555
741
Hamilton Reg.
QC
57
159
478
694
Quebec
ON
16
137
520
673
Niagara Reg.
ON
20
138
493
651
Waterloo Reg.
QC
45
118
392
555
Longueuil
ON
12
113
408
533
London
ON
14
88
418
520
Halton Reg.
QC
45
104
317
466
Laval
BC
9
104
345
458
Surrey (RCMP)
ON
14
124
313
451
Windsor
NS
10
75
336
421
Halifax Reg.
SK
10
102
248
360
Saskatoon
SK
10
122
206
338
Regina
QC
38
73
221
332
Gatineau
NF
14
55
182
251
St John’s
ON
6
48
176
230
Greater Sudbury
BC
4
54
156
214
Burnaby (RCMP)
ON
6
33
173
212
Thunder Bay
QC
9
27
164
200
Sherbrooke
3
42
153
198
Richmond (RCMP) BC
BC
7
37
143
187
Abbotsford
QC
14
22
143
179
Saguenay
ON
6
36
133
175
Barrie
ON
5
27
143
175
Kingston
QC
22
14
137
173
Trois-Rivieres
NS
5
28
137
170
Cape Breton Reg.
ON
7
30
130
167
Guelph
ON
8
25
131
164
Chatham-Kent
BC
6
29
109
144
Saanich
BC
5
18
118
141
Delta
BC
3
30
105
138
Kelowna (RCMP)
NB
2
27
108
137
Codiac Reg.
QC
11
26
92
129
Levis
QC
7
13
106
126
Terrebonne
BC
3
27
92
122
Coquitlam (RCMP)
Source: Police resources in Canada, 2005. Statistics CanadaCatalogue no. 85-225

www.10-8.ca

3

APPROACH TO HOME OK TO
COMMUNICATE
R. v. LeClaire, 2005 NSCA 165
Police received an anonymous tip
of a possible impaired driver. A
man had been seen staggering to
a truck and drive away. The
licence number was provided and police attended
the owner’s address, finding the truck parked in
the driveway. The garage door was open and the
officers could see a light in the door window
that lead from the garage to the living area of
the house. The officers went into the garage,
saw a man inside the house, and knocked on the
door. The accused opened the door and the
officers told him they were investigating an
impaired driving complaint and asked if they
could come in. The accused was intoxicated, as
evidenced by his physical condition, advised he
could remain silent, and read his Charter rights.
He admitted to drinking beer and then driving,
that he had arrived home about 15 minutes
earlier, and that he had drank some rum since.
The officer read the breath demand and
transported the accused to the police station,
but he refused to provide a sample.
At trial in Nova Scotia Provincial Court the judge
found the garage entry unreasonable to the point
where the accused allowed the officers inside
his home, at which point it became lawful. The
judge also ruled that the officer had reasonable
and probable grounds to make the breath
demand. The accused was convicted of refusing
to provide a breath sample under s.254(5) of the
Criminal Code, but then appealed to the Nova
Scotia Court of Appeal arguing the trial judge
erred in holding that the unreasonable search
was cured by the granting of permission to enter
the house and that the officer had reasonable
and probable grounds for the demand.

The Knock at the Door
Justice Roscoe, authoring the unanimous
judgment for the appeal court, ruled that the

4

entry into the garage to knock on the door was
not an unreasonable search. The police were
entitled to go through the garage and knock
under the implied licence doctrine. He explained
the doctrine as follows:
There is an implied licence for all members of
the public, including the police, to approach a
door of a residence and knock… If the police
act in accordance with this invitation, there is
no intrusion upon the privacy of the occupant.
The purpose of the approach to the door is
determinative of whether they have operated
within the implied invitation to knock. If the
purpose of the police officer is to simply
communicate with the occupant in a normal
manner, proceeding from the street to "reach
a point in relation to the house where he can
conveniently" do so, is permitted within the
implied licence [para. 13]

And further:
There is an implied invitation to the public to
approach a door of a house to knock on it. If
the police do not exceed the extent of the
implied invitation, they do not intrude upon the
privacy of the occupant. If the purpose is to
simply communicate with the occupant, there is
no breach of the privacy right. So for example,
if the police approach the door with the intent
of selling tickets for a charity event, there
would likely be no encroachment upon privacy
rights. [para. 27]

As long as the motivation for the approach to
the house is not to gather evidence (such as
purposively taking a sniff), there is no s.8
violation. Approaching to communicate or ask
questions to further an investigation is
permissible. The Court also noted that the
approach extends to the point where a person
can conveniently knock on the door, not a route
elsewhere on the property to obtain evidence. In
concluding that the police did not conduct an
unreasonable search in this case, Justice Roscoe
stated:
In this case the police officers testified that
there were no lights on upstairs and that it
appeared that the path to the door of the

www.10-8.ca

Volume 6 Issue 2
March/April 2006

living quarters, where they could see a light,
led through the garage. By proceeding through
the open garage to knock on the door leading
into the residence, they progressed "to the
point where a person can conveniently knock on
the door." By walking through the garage they
were making a "direct approach" to the door
apparently used by the occupants to enter the
dwelling, not conducting a "trespassory detour"
elsewhere on the property to secure evidence.
[In other] cases where the suspects were
followed into their garages by the police are
entirely distinguishable from the facts in this
case. Since [they] were personally present in
their garages with the doors open, the police
did not stop to knock. The police in those cases
just walked right in without asking any
permission. Therefore the drivers had no
opportunity to choose not to answer the knock
on the door or to refuse to be observed or
engaged in conversation. Unlike in the present
case, the police in those cases were able, by
entering into the garages, to obtain relevant
evidence about the condition of the drivers
without first asking permission to enter.
Another difference is that in both of those
cases the suspects objected to the presence
of the police in their garages. There was
obviously no implied invitation to enter or an
explicit invitation like the one extended by
[the accused] in response to the knock. Any
implied invitation to enter the garage in [the
other cases] was clearly and expressly
retracted.
Conversely, the entry into [the accused’s]
garage was innocuous. The open garage was like
an extension of the driveway, forming part of
the approach to the door. No evidence was
secured by walking through the garage to
knock on the door.
I
therefore
conclude
that
in
the
circumstances of this case, the conduct of the
police did not amount to a search within the
meaning of s. 8 of the Charter, because their
purpose when they went onto the property of
the [accused] was to investigate the
commission of an offence, not to specifically
gather evidence to use against the [accused].
Furthermore, on these facts, the entry

Volume 6 Issue 2
March/April 2006

through the garage in order to access a door
on which to knock did not exceed the authority
implied by the invitation to knock and
therefore did not infringe on the [accused’s]
reasonable expectation of privacy. I would
dismiss this ground of appeal.
Although I would dismiss this ground of appeal,
I emphasize that it is for different reasons
than those given by the trial judge. I do not
agree that if the walk through the garage had
been properly categorized as an unlawful
search, the actions of [the accused] in
permitting the officers to come into his home
should be considered to be a waiver of his
right to privacy. I would respectfully disagree
with the conclusion that the evidence supports
a finding that the consent to enter the home
was both voluntary and informed as required
by the case law on waivers…[references
omitted, paras. 31-35]

Reasonable and Probable Grounds
While his intoxication was apparent to the
officer at the home, the accused submitted the
officer did not have reasonable and probable
grounds to believe he was impaired when he
drove his vehicle earlier. He argued the
information about his staggering was third hand
hearsay and the police were not experts in the
effects of alcohol on the body, including rates of
absorption and elimination.
Reasonable and probable grounds require a
subjective and an objective analysis. The
subjective branch relates to the officers
honestly held belief while the grounds must also
have an objective foundation. In this case there
were ample grounds; the anonymous tip, an
admission to drinking then driving, a strong smell
of alcohol, unsteadiness, glossy eyes, and slurred
speech. “The fact that part of the bundle of
information available to the officers was hearsay
arising from an anonymous tip is not material”,
said Justice Roscoe.
The argument that there were not sufficient
grounds to believe the accused was impaired
when he was driving, but may have become

www.10-8.ca

5

impaired since drinking at home, was also
rejected:
[The trial judge] accepted that the officer
was entitled to rely on his own opinion of [the
accused’s] sobriety at the time of talking with
him as a basis for believing that he was
impaired at the time of driving. Although the
officer's opinion would not be sufficient
evidence upon which to base a conviction for
impaired driving, I agree with the trial judge
that the officer is able to rely on his own
judgment
and
past
experience
when
determining whether he has reasonable and
probable grounds. …[T]he officer is entitled to
make certain assumptions based on his
observations of the suspect. Although [the
accused] told the officers that he had been
drinking since arriving home, the officers were
entitled to evaluate the validity of that
statement in the context of the other
evidence relating to the glasses. [para. 44]

And further:
I am not satisfied that the trial judge in this
case committed any error in concluding that
the officer had reasonable and probable
grounds to make the demand for a breath
sample. The information giving rise to the
reasonable and probable grounds included the
admission by [the accused] that he had been
driving a few minutes before, that he had a
few beers before he drove, that he was very
likely the person seen by the informant to be
staggering, and the numerous physical indicia
of impairment, including slurred speech,
unsteadiness, glossy eyes, and a strong smell
of alcohol. These factors, coupled with the
officer's understanding that it takes time to
get that drunk, established reasonable and
probable grounds that [the accused] was
impaired at the time of driving. [para. 47]

The appeal was dismissed.
Complete case available at www.canlii.org

Note-able Quote
Education is learning what you didn’t even know
you didn’t know—Daniel J. Boorstin

6

HOTEL DESK DRAWER A ‘PLACE’
FOR BREAK-IN PURPOSES
R. v. Charron, 2005 BCCA 607
The accused was observed by a
hotel
operator
on
video
surveillance looking into a
hotel’s pantry through a keyhole
and then enter a concierge area by stepping over
a latched gate. The operator called security and
the accused was confronted about 10 feet from
the concierge’s desk. He said he was visiting a
friend but there was no-one by the name he
provided registered at the hotel. When told this
information, the accused said he made a mistake
and his friend was actually staying at another
hotel nearby. After the security guard
attempted to verify the accused’s story, they
returned to the hotel where the accused
emptied his pockets on request, producing a
broken cutlery knife embossed with the hotel’s
initial, as well as some pills which he quickly
swallowed. Fresh damage to the desk drawers in
the concierge area was also discovered.
At trial in British Columbia Provincial Court the
accused was convicted of the Criminal Code
offences of break and enter and commit an
indictable offence (theft) as well as possession
of break-in instruments (a prying knife). The
trial judge concluded the concierge area was a
“place” as defined in s.348(1)(b) of the Criminal
Code. However, the judge did not make a specific
finding of theft.
The accused appealed to the British Columbia
Court of Appeal. Although the Crown conceded
there was insufficient evidence to support a
theft, Justice Low, authoring the unanimous
judgment, quashed the conviction for break and
enter and commit an indictable offence (theft)
and substituted a conviction for break and enter
with intent to commit an indictable offence. As
for the possession of break-in instruments
conviction the accused challenged whether the
desk or drawers in the concierge area was a

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Volume 6 Issue 2
March/April 2006

“place” as defined in the Criminal Code and also
whether the broken knife was suitable for
break-ins. In upholding the trial judge’s decision
on these issues, Justice Low stated:
…the trial judge had already said that the
[accused] was “in a building or structure or any
part thereof”. This is in accord with the
definition of place in s. 348(3)(b) of the Code.
Both the desk and the drawers in it were a
“place”.
As to the suitability of the knife as a break-in
instrument, that is a matter of common
knowledge…It is common experience that a
knife could be used to force a gate latch or a
drawer lock.
The explanations given by the [accused], even
if believable, merely suggest one or another
reason for him being in the hotel. They do not
explain his presence in a closed-off area.
[references omitted, paras. 12-14]
Complete case available at www.courts.gov.bc.ca

APPROVED SCREENING
DEVICES vs. APPROVED
INSTRUMENTS
Under s.254 of the Criminal
Code a peace officer can give
two types of breath test
demands.
An
approved
screening device demand can
be made under s.254(2) if a
peace officer reasonably suspects a person
operating or in care and control of a motor
vehicle has alcohol in their body. An approved
screening device is defined as “a device of a kind
that is designed to ascertain the presence of
alcohol in the blood of a person and that is
approved for the purposes of this section by
order of the Attorney General of Canada.”
Under the Criminal Code Regulations—Approved
Screening Devices Order—the following devices,
are approved for the purposes of section 254 of
the Criminal Code:

Volume 6 Issue 2
March/April 2006

(a) Alcolmeter S-L2;
(b) Alco-Sûr;
(c) Alcotest®7410 PA3;
(d) Alcotest® 7410 GLC;
(e) Alco-Sensor IV DWF;
(f) Alco-Sensor IV PWF; and
(g) Intoxilyzer 400D.
An approved instrument
demand (aka. breathalyzer
demand”) can be made
under s.254(3) if a peace
officer has reasonable and
probable grounds to believe
a person has committed, by
consuming alcohol, the offence of impaired
driving/care or control or over 80mg%. An
approved instrument is defined as “an instrument
of a kind that is designed to receive and make an
analysis of a sample of the breath of a person in
order to measure the concentration of alcohol in
the blood of that person and is approved as
suitable for the purposes of section 258 by
order of the Attorney General of Canada.”
Under the Criminal Code Regulations— Approved
Breath
Analysis
Instruments
Order—the
following instruments are approved as suitable
for the purposes of section 258 of the Criminal
Code:
(a) Breathalyzer ®, Model 800;
(b) Breathalyzer ®, Model 900;
(c) Breathalyzer ®, Model 900A;
(d) Intoximeter Mark IV;
(e) Alcolmeter AE-D1;
(f) Intoxilyzer 4011AS;
(g) Alcotest® 7110;
(h) Intoxilyzer ® 5000 C;
(i) Breathalyzer®, Model 900B;
(j) Intoxilyzer 1400;
(k) BAC Datamaster C;
(l) Alco-Sensor IV-RBT IV;
(m) Breathalyzer® 7410-CDN with Printer;
(n) Alco-Sensor IV/RBT IV-K; and
(o) Alcotest 7110 MKIII Dual C.

www.10-8.ca

7

SUSPENSION OF RIGHT TO
COUNSEL TOO LONG
R. v. Patterson, 2006 BCCA 24
After stopping a black Cadillac
at about 1:00 pm, the police
officer saw the male driver and
female
passenger
quickly
change seats. The officer had been present
when the accused was served a driving
prohibition a month earlier and had known him to
be aggressive. He complied with an order to exit
the vehicle, was arrested for driving while
prohibited under British Columbia’s Motor
Vehicle Act, and patted down. A baggie
containing 13.8 grms. of cocaine was found in his
pants pocket. He was then arrested for
possession for the purpose of trafficking and a
search of the vehicle resulted in the seizure of
an expandable baton in the centre of the
console. The accused, along with two passengers,
was arrested for possession of a prohibited
weapon and given his Charter rights and
warnings. He requested to speak to a lawyer and
was transported to police cells, arriving at 1:24
pm.
The accused was not allowed to call his lawyer
because the officer wanted to search his
residence. He was concerned for officer safety
and the destruction of evidence if the arrestees
called someone before the search was
completed. A warrant was obtained at 5:01 pm
and the search began at 5:50 pm, ending at 7:16
pm. Drug paraphernalia, cash, and weapons were
seized. The accused was offered the use of a
telephone at 7:30 pm.
At trial the judge concluded that the officer
had reasonable and probable grounds to arrest
the accused without a warrant under s.79 of the
Motor Vehicle Act for prohibited driving. The
cocaine was found during a non-intrusive pat
down search and an arrest for possession for the
purpose of trafficking followed. The judge also
ruled that the accused’s right to counsel had not

8

been violated until the search warrant was
executed. In her view the police were entitled to
get the premises under control given the
officer’s concern about safety and evidence
preservation. However, once the search was
commenced at 5:50 pm the accused should have
been allowed access to counsel. The cocaine was
nonetheless admitted as evidence under s.24(2)
of the Charter and the accused was convicted of
possessing cocaine for the purpose of
trafficking under s.5(2) of the Controlled Drugs
and Substances Act.
The accused appealed to the British Columbia
Court of Appeal arguing, in part, that the trial
judge erred in not finding a s.8 Charter violation
regarding the search incidental to arrest and
that his rights under s.10(b) were also breached
when he was held “incommunicado” and denied
access to a lawyer from the time he was
arrested until the search was completed on his
residence.

The Arrest and Search
Justice Levine, authoring the unanimous appeal
court judgment agreed with the trial judge that
the officer had “obvious” grounds for arrest; he
was involved with the service of the accused’s
driving prohibition a month prior, he saw him
driving a vehicle he was known to drive, he saw
him move from the driver’s seat to the
passenger seat, knew he was aggressive and had
reasonable grounds to be concerned for his
safety. Justice Levine stated:
I agree with the trial judge…that it was not
reasonably necessary for the police officer to
check his computer to confirm that the driving
prohibition was still in effect, nor was it
necessary in the circumstances for him to ask
whether the prohibition had been appealed and
stayed.
There is no basis to find, as the [accused]
alleges, that the police officer breached s.
29(2) of the Criminal Code by failing to advise
the [accused] that he was being arrested for
driving while prohibited. The [accused’s]

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conduct in changing seats made it clear that
he knew why he was stopped…and the officer
was not required to state the grounds for the
arrest before he searched the [accused].
Nor is there any basis to find that [the
officer] acted in bad faith. The [accused]
suggests that [the officer] was “rounding up”
the [accused] and the two passengers in the
car for suspected drug violations. Much of the
[accused’s] argument regarding bad faith
focused on the treatment of the two
passengers, which is of course not relevant to
the [accused’s] claim that his Charter rights
were breached… The trial judge made no
finding with regard to bad faith. In any event,
there is no basis for the claim, since the trial
judge clearly found, and I agree, that [the
officer] had reasonable grounds for the arrest
and he believed that he had such grounds.
[references omitted, paras. 20-22]

Since the arrest was properly based on
reasonable grounds, the incidental search that
followed was reasonable and did not contravene
s.8.

Denial of Telephone Access
The accused argued that his rights under s.10(b)
were violated because he was denied access to
counsel until the search of his home was
completed. He submitted that the evidence
should be excluded under s.24(2) or a stay of
proceedings should be granted under s.24(1). The
Crown conceded his rights were violated when
police denied access to a telephone after the
search commenced, but contended there was no
breach from arrest to the start of the search.
Justice Levine ruled that the trial judge erred in
finding the police were justified in holding off on
the accused’s access to counsel until the search
had commenced. The officer’s concerns about
safety and evidence were too general and not
specific. After considering other case law,
Justice Lavine noted:
[The cases of] Strachan, Schultz, James, and
Kiloh share certain characteristics not present

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in this case. All of them dealt with
investigations in progress, involving high risk,
volatile situations where firearms were known
to be involved. The police had identifiable
reasons for concerns about the potential for
violence and a risk that evidence may
disappear or be destroyed. In Strachan, the
police encountered not only the accused, but
two other unknown persons, during a search
for known firearms. In Schultz, the accused
was involved, with accomplices, in a violent
armed kidnapping. In James, the accused and
accomplices were involved in the violent
murder of a security guard, and were known to
be trading in firearms. In Kiloh, the accused
were arrested in a volatile situation for armed
robberies of jewellery stores where shots had
been fired at civilians.
In this case, the trial judge accepted that
[the officer] had concerns about officer
safety and the preservation of evidence. But
the concerns were of a general nature; there
was no evidence that the police knew there
were weapons in the residence, or that the
[accused] had accomplices in his drug dealings
that were at large or in the residence. There
was no investigation in progress until after the
[accused’s] arrest, which arose initially from a
roadside stop for a driving prohibition. It
took an unexplained three-and-a-half hours to
obtain the search warrant, and another fifty
minutes until the search of his home began.
The “suspension” of the [accused’s] right to
counsel extended over a total of six-and-ahalf hours.
In my opinion, the [accused’s] right under s.
10(b) of the Charter to retain and instruct
counsel without delay was infringed when he
was not allowed to use a telephone shortly
after he was taken to the police detachment
and charged. The police were not justified in
“suspending” the [accused’s] right for six-anda-half hours. [paras. 40-42]

Despite this Charter breach, the evidence was
admissible under s.24(2) and a stay of
proceedings under s.24(1) was not justified. The
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

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9

REASONABLE GROUNDS BASED
ON INDIVIDUAL BELIEF, NOT
COLLECTIVE INTELLIGENCE
Richardson v. Vancouver, 2006 BCCA 36
The police organized a cleanup
operation after homeless people
were evicted from a large
vacant building and some of the
squatters, and their supporters, camped out on
the sidewalk under the building’s canopy. The
plaintiff, a lawyer and executive director of the
Pivot Legal Society, attempted to cross a police
line set up to keep the peace and protect city
workers removing tents, mattresses, and debris.
The plaintiff was yelling, identified himself as a
lawyer, and demanded to know the police
authority for cordoning off the area.
He tried to get through the police line, but was
told he could not cross. He continued to move
through the line, so a police officer took him by
the arm and moved him to the sidewalk, telling
him if he tried again he would be arrested for
obstructing a peace officer. He tried again and
was arrested. He was handcuffed, searched,
placed in a wagon, and transported to jail where
he was held overnight and released without
charge.
The plaintiff sued the City of Vancouver in
British Columbia Provincial Court alleging, among
other torts, that he was subject to a wrongful
arrest. The trial judge ruled that the officer
had reasonable grounds to arrest the plaintiff
for obstructing the officer in the lawful
execution of his duty. In the judge’s opinion, the
officer’s perception of the events, when viewed
objectively, would have been apparent to a
reasonable person placed in the officer’s
position. The plaintiff had crossed a police
cordon set up to keep the peace and protect city
workers. He had been removed once and warned
to stay behind the police line. His lawsuit was
dismissed.

10

The plaintiff appealed to the British Columbia
Court of Appeal arguing, in part, that the trial
judge erred in finding the arrest lawful. He
submitted that the trial judge only considered
what the arresting officer saw or heard, and
ignored what other police members were aware
of. Since other officers at the scene knew he
was a lawyer who represented protestors, that
he requested to speak to the officer in charge,
and that he demanded to know why the police
barred access to the street, he suggested his
arrest for obstruction was untenable. Justice
Donald writing the opinion of the British
Columbia Court of Appeal, however, disagreed. In
his view the question was not whether the
collective knowledge of the officers on scene
provided the necessary grounds, but rather what
was apparent to the arresting officer at the
scene. Nor did it matter whether or not the
plaintiff could have been convicted of the
charge. Justice Donald stated:
The lawfulness of arrest must depend on the
subjective belief of the arresting officer and
an objective assessment of that belief based
on what the officer knew at the material
time. It is a question related to the individual
officer. I know of no authority that supports
the notion of a collective intelligence, the sum
of knowledge possessed by all the police in an
operation, as the basis for judging the
lawfulness of arrest. Here, [the arresting
officer] arrived on the scene in the middle of
the action and had no opportunity to learn
what prior interaction the plaintiff had had
with other officers. It cannot be said that he
was indifferent or wilfully blind to relevant
circumstances.
The premise of the plaintiff's line of argument
is that he was not guilty of obstructing the
police and he therefore could not have been
lawfully arrested. This is a theme running
through the wrongful arrest claim and I think,
with respect, it is wrong.
The plaintiff runs together his criminal
liability with the officer's civil liability (and
the City's vicarious liability) for the tort of
wrongful arrest. They each have a different

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conducted under s.11 was unreasonable and
violated s.8 of the Charter.

set of legal rules and procedures; they must
be treated separately to avoid the kind of
confused thinking manifest in the plaintiff's
argument. Many lawful arrests may ultimately
result in an acquittal. If an acquittal were to
create exposure to tort liability, the power of
arrest would be radically curtailed. There is
no logical relationship between the criminal
and civil determinations; they are each aimed
at different questions: "Did the accused
obstruct?" is not the same as "Did the officer
have reasonable and probable grounds to
believe he did?" [paras. 18-20].

Justice Joyce ruled that the absence of such a
night time search limitation did not render s.11
unconstitutional. He stated:

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

CDSA SEARCH WARRANT
PROVISION CONSTITUTIONAL
R. v. Barnhill & Barnhill, 2006 BCSC 42
Police

executed

a

s.11

Controlled
Drugs
and
Substances Act (CDSA) search

warrant on the accused’s
residence and outbuildings for a marihuana grow
operation at 11:35 pm. The accused and his two
teenage daughters were sleeping when police
entered the house. He was charged with
marihuana production and possession for the
purpose of trafficking, but applied in British
Columbia Supreme Court to have s.11 of the
CDSA declared unconstitutional because it
violated s.8 of the Charter since it did not place
any time restrictions on when a residence could
be searched.
Section 11 of the CDSA allows a justice, when
satisfied there are reasonable grounds, to issue
a search warrant authorizing a peace officer to
search “at any time”. Unlike s.488 of the Criminal
Code, which requires a justice to endorse a night
time search (9 pm-6 am) under s.487 or a
telewarrant under s.487.1, s.11 of the CDSA does
not. Because there is no such limitation in s.11,
the accused argued that a night time search

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In my view the manufacture and trade in
controlled
substances
creates
special
challenges for the police and requires special
measures to deal with it. Manufacturing
facilities for marihuana and other controlled
substances, such as methamphetamine and
ecstasy, are generally not found in industrial
areas. Nor are they usually set up with safety
in mind. They are commonly found in the
basements and kitchens of ordinary homes and
apartments in residential areas.
They
frequently involve dangerous electrical wiring.
Toxic and dangerous chemicals are used in the
manufacture of many of these drugs. The
operations expose not only those who operate
them to the risk of harm from fire, explosion
and exposure to toxic chemicals but also
unknowing neighbours and sometimes the
innocent children and other family members of
the operators. Weapons are often found at
such operations or in the hands of those
persons responsible for them. It is important,
therefore, that when there are reasonable
grounds to believe that a drug manufacturing
operation exists in any place, including a
residence, the police be able to act quickly to
conduct a search, apprehend the operators
and dismantle the operation.
A number of decisions have emphasized the
harm caused by illicit drug manufacture and
trade and the difficulties faced by the
authorities in combating it. They note that
Parliament has adopted special provisions to
deal with the problem…
In my view s. 11(1) of the CDSA strikes an
appropriate balance between the need to
safeguard the rights of citizens against
unwanted and unwarranted intrusions into
their home and the interests of the state in
the demands and challenges of law
enforcement…

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11

It should be noted as well that there is
nothing in s. 11(1) of the CDSA that purports
to take away the residual discretion of the
justice to refuse to issue a search warrant in
appropriate circumstances even though the
statutory criteria for its issuance have been
met, that is required by s. 8 of the Charter…

detain him. The trial judge, however, found the
detention justified, stating:
The accused argues that the police ignored
information that, if considered, would have
alerted them to the possibility that the Jetta
was not reasonably involved in the shooting.
That information included the police radio
broadcast concerning a black Corvette, six
male occupants in a four-door sedan, and a
black male suspect in a red t-shirt

I therefore conclude that s. 11 of the CDSA
does not contravene s. 8 of the Charter by
reason of the fact that it permits a justice to
issue a search warrant authorizing a peace
office, at any time, to search the place
specified for the things enumerated in that
subsection. [references omitted, paras. 31-35]

However, [the officer] could not recall
hearing that information. He testified that,
once he saw the dark four-door sedan pass
him on Hornby Street and heard that the
suspect vehicle was travelling north on
Hornby and was passing a police vehicle at
that location, he was then focussed on the
task of following that vehicle.

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

‘URGENT & HEIGHTENED
CIRCUMSTANCES’ JUSTIFY
DETENTION

The police were responding to a high priority
call, which calls for immediate response. They
had a duty to check all leads. They did not
have the luxury of waiting and synthesizing all
the information available to them.

R. v. Mollazadeh, 2006 BCCA 35
A police officer received a
priority one call of a shooting at
a nightclub. He took up a
containment position and heard
on the police radio that a 911
caller reported persons involved were leaving the
area in a black four door vehicle travelling
through an intersection passing a police vehicle.
At that moment the officer saw a black four
door Jetta pass him. The Jetta was accelerating
and passing other vehicles.
The officer followed the vehicle and once backup arrived stopped it. The accused (driver) and
his passenger were ordered out of the vehicle.
They and the vehicle were then searched for
weapons. In the car police found crack cocaine.
At trial in British Columbia Supreme Court the
accused argued that the police ignored other
information available (the suspected shooter was
a black male, a Corvette was of interest, six
males ran into a dark four-door sedan) and
therefore did not have articulable cause to

12

When the police pulled over the Jetta, they
knew that a shooting had recently occurred at
the Urban Well. They had a description of a
dark four-door sedan. They were told it was
travelling north on Hornby Street. The sedan
was reported to be passing a police vehicle at
the very location Constable Barry was posted
in his police wagon. There was a reasonable
concern that the persons fleeing the scene of
a shooting would have firearms in their
possession
In my respectful view, that information
constitutes, in the urgent and heightened
circumstances of this case, a combination of
objectively discernible facts that justified
the police detaining the occupants of the
Jetta.

The accused was convicted of possession of a
controlled substance for the purpose of
trafficking but appealed to the British Columbia
Court of Appeal arguing he was arbitrarily
detained and the drugs should not have been
admitted as evidence. Justice Ryan, delivering

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the opinion for the Court, disagreed. In her view,
the trial judge did not err in her analysis. The
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

YOUTH SENTENCING ONUS
UPHELD
R. v. K.D.T., 2006 BCCA 60
The accused, a young person
under the Youth Criminal
Justice Act (YCJA), was
convicted of manslaughter in
British
Columbia
Supreme
Court. Since manslaughter is a “presumptive
offence” under s.2 of the YCJA, an adult
sentence is required unless the youth applies for
a youth sentence and satisfies the court that a
youth
sentence
is
appropriate
in
the
circumstances. The accused applied to be
sentenced as a youth, but Crown opposed the
application.
The sentencing judge then ruled that the
accused’s rights under s.7 of the Charter (the
right to life, liberty, and security of the person)
were breached because he bore the onus of
persuading the court that he should not be
sentenced as an adult. The judge ordered that
Crown now needed to prove the accused should
get an adult sentence. She sentenced the
accused as a youth and gave him a sentence of
20 months in custody followed by 12 months
supervision and a 10 year firearms ban and
ordered a DNA sample. The Crown appealed the
judge’s ruling on the constitutionality of the
sentencing provision under the YCJA as well as
the sentence given.
Under the old Young Offenders Act (YOA) a
youth charged with a serious crime could be
raised to adult court. Today, however, there is a
presumptive offence regime found in s.72 of the
YCJA. If a youth 14 years or older is convicted
of a presumptive offence (such as manslaughter),
they are to be sentenced as an adult, unless the

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accused applies for an order that they be
sentenced as a youth. If the Crown opposes the
youth’s application a hearing will be held to
determine the appropriateness of a youth
sentence. The YCJA presumptively places the
onus on the youth to justify a youth sentence
rather than on the Crown to justify an adult
sentence.
Justice Braidwood, authoring the unanimous
British Columbia Court of Appeal decision, ruled
that s.72 did not violate s.7 of the Charter.
After reviewing several cases and considering
the transfer provisions under the former Young
Offenders Act, he stated:
The onus described in…s. 72(2) of the YCJA is
not one that contains a requirement of proof,
nor does it remove the onus on the party
bringing forward contested facts to prove
those facts. As in any sentencing situation, if
the Crown wishes to bring forward evidence of
aggravating factors, the Crown bears the
burden of proving any relevant facts that are
contested. Likewise, contested facts in
support of mitigating factors must be proved
by the offender. As in all sentencing
situations, the aim of the judge is to balance
the considerations raised and arrive at an
appropriate sentence.
It is also important to bear in mind that s.
72(2) of the YCJA does not mark the debut of
a presumptive offence regime or a reverse
onus in the Canadian youth criminal justice
system. The post-1995 YOA contained a
presumptive offence scheme as well: a young
person charged with a presumptive offence
had to apply to be tried in youth court, as
opposed to the general court system, and
satisfy the court that the change of forum
was appropriate in the circumstances. Courts
in several jurisdictions, including British
Columbia, held that there was no constitutional
breach created by the onus provision set out
in the 1995 version of the YOA…
………

…"Once guilt has been established, our
fundamental principles of justice dictate a
focus on the most appropriate sentence for
the guilty party."
By establishing the

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13

presumptive offence regime under the YCJA,
Parliament has said that the appropriate
sentences for serious violent crimes are adult
sentences. By providing the convicted youth
the opportunity to satisfy the court that an
adult sentence is not appropriate in his or her
circumstances,
Parliament
allowed
an
appropriate sentence to be crafted that takes
both the vulnerability of young persons and
the purposes of the YCJA into account.
In summation, the onus on the applicant under
s. 72(2) of the YCJA…does not place an
onerous burden of proof on the convicted
youth. While it is true that the framework in
the YCJA is, in some respects, different from
that in the YOA, it is not sufficiently distinct
to indicate that there is a different onus
being placed on the convicted youth under s.
72(2) than the onus on the accused youth at a
transfer
hearing.
If
the
onus
was
constitutionally acceptable at the pre-trial
stage, where s. 7 rights play a more significant
role, then it is also constitutional at the
sentencing stage. I find that s. 72(2) of the
YCJA is not contrary to s. 7 of the Charter.
It is not necessary therefore to address
whether the provision is justified under s. 1.
[references omitted, paras. 62-68]

And further he went on to conclude:
The onus provision in s. 72(2) of the YCJA
does not violate s. 7 of the Charter. The onus
on the convicted youth to demonstrate that he
or she should be sentenced as a youth is a
legislative choice that forms part of the
balancing of considerations that occurs in the
sentencing procedure. It is not a heavy
burden, but is consistent with the standard
described by the Supreme Court of Canada…
Further, it is not an onus that applies with
regard to issues of guilt or innocence, nor are
concerns about a fair trial raised when dealing
with the sentencing process.
In the context of the YCJA, I am not
persuaded that a young person would face an
unreasonable burden in a sentencing hearing
under s. 72. When the tests in s. 72 are
properly applied, the persons who will receive
an adult sentence for a presumptive offence

14

are those for whom a youth sentence would
not provide accountability. [paras. 82-83]

As for the sentence, an adult sentence was
appropriate. Justice Braidwood found a sentence
of 2 years less a day with 2 years probation fit.
The 10 year firearms ban and DNA sample
remained in effect.
Complete case available at www.courts.gov.bc.ca

AMBULANCE ATTENDANTS
NOT ‘CONSTITUTIONAL
INTERVENORS’
R. v. Brissonnet, 2006 ONCJ 31
Two ambulance attendants
driving in a marked ambulance
followed the accused driving
erratically over three blocks.
The ambulance driver, concerned there might be
an accident, used emergency lights and siren to
get the accused’s attention while the other
attendant waved him over. After a brief
conversation, an attendant was satisfied there
was nothing medically wrong and asked the
accused for his car keys, which were
surrendered. The police were called, arrived 15
minutes later, and arrested the accused for
impaired operation. He was advised of his rights
to counsel and read the breath demand, later
providing samples of 173 mg% and 161 mg%.
At trial in the Ontario Court of Justice the
accused applied to have the evidence gathered
by the ambulance attendants excluded under
s.24(2) of the Charter because they did not
advise him of his s.10(b) rights. Furthermore,
without their evidence, the accused argued the
officer did not have reasonable grounds for the
breath demand, thereby violating his right to be
secure against unreasonable search and seizure.
In his view, the breathalyzer readings should
also be excluded.
Although the ambulance attendants were
employees of a municipal government and acted

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under their statutory powers under the Highway
Traffic Act in order to stop the accused, they
were not “constitutional intervenors” when they
took his keys and detained him until police
arrived. In ruling that it was not necessary for
the ambulance attendants to provide the accused
with his rights under s.10(b) of the Charter,
Justice Harris stated;
…the real question to be asked is whether the
individual initiating the detention is a
"constitutional intervenor" for the purposes
of the Charter (rather than a State agent an expression now devoid of all meaning).
Extrapolating from existing case law on
detention, it is submitted that the "detainor"
is a constitutional intervenor and responsible
for the provision of s. 10 rights if the
individual satisfies one of the following two
criteria:
(a) The detainor initiated contact with the
accused at the request or direction of
the police, pursuant to an express
delegation of police powers…
Or,
(b) The detainor initiated contact with the
accused specifically and primarily for
the purpose of conducting a criminal
investigation within the terms of his/her
employment and there has been at least
partial abandonment of a police power to
the private sector…
In this case, the contact with [the accused]
was primarily for the purpose of public safety
- protecting other drivers from a head-on
collision. That the ambulance attendants
might ascertain that the cause of the erratic
driving was due to alcohol impairment or some
other medical explanation, was incidental to
the purposes of the stop: They certainly were
not conducting a criminal investigation. As
well, their actions were entirely outside the
normal terms of their employment. While they
may have used the emergency equipment on
the vehicle improperly and in a manner
unintended by the enabling legislation, their
actions can be justified as a minor provincial
violation in pursuit of the preservation of

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human life, not unlike a police vehicle passing
through a red light in pursuit of a dangerous
driver. In other words, the ambulance
attendants were acting in a civilian capacity
notwithstanding the fact that they were
employed by the (municipal) government and
they briefly used, in a very minimal fashion, a
statutory power they possessed to bring the
defendant's vehicle to a standstill. The two
criteria listed above would place the
ambulance attendants outside of the
application of the Charter and as well, would
have the virtue of permitting government
employees to intervene in their civilian
capacity to preserve life and property from
the tragic results of drinking and driving
without
the
judicialization
of
government/civilian relations beyond the point
that society could tolerate.
Further, the ambulance attendants in their
civilian capacity do not meet the definition of
constitutional intervenors because they were
neither acting under the direction of the
police nor conducting a criminal investigation
within the terms of their employment. They
were merely civilians acting to protect the
public from another civilian…
Consequently, in all the circumstances, I find
that the ambulance attendants were not
constitutional intervenors and were not
responsible for, or expected to, provide the
defendant with his rights under s. 10 of the
Charter. If I am wrong in the conclusion such
that there was a breach of s. 10(b), I would
conclude that the breach was of such a minor
nature that to exclude the evidence
requested would bring the administration of
justice into disrepute. The attendants were
acting in good faith as responsible, concerned
citizens to protect the public from what was
becoming a very dangerous situation. They
should be encouraged to do so. Their
intervention was as minimally intrusive as was
required to remove the danger. Finally, the
evidence (the observations of the attendants)
was non-conscriptive and did not affect trial
fairness; the charges were serious and the
defendant had little expectation of privacy as
to his manner of driving. Having ruled against
the alleged s. 10(b) violation and application to

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15

exclude evidence, it will not be necessary to
consider the Charter s. 8 argument.
[references omitted, paras. 19-23]

The breathalyzer readings,
excluded on other grounds.

however,

were

POLICY BASED ERT ENTRY
UNREASONABLE
R. v. Bui & Nguyen, 2006 BCPC 47
After obtaining a search
warrant for a marihuana grow
operation at a residence, police
used an Emergency Response
Team (ERT) to serve the
warrant. An officer used a bullhorn to make four
announcements the police were there to serve a
search warrant, the occupants were under
arrest, and they should come to the door and
show themselves. There was no response and the
front door was rammed. Inside the house police
found two adult residents who were removed
from the house at gunpoint with their
nightclothes on.
They were arrested,
handcuffed, searched, and handed over to
investigators. The house was cleared, a
marihuana grow operation was located, and the
search warrant was left on the kitchen table.
During a voir dire in British Columbia Provincial
Court the judge heard testimony that it was
police policy to use ERT to serve warrants on
residences where there was theft of hydro or
marihuana grow operations. In the ERT leader’s
opinion, ERT was best trained to address the
unknown risks associated with grow operations
where weapons or explosives could be present.
As well, occupants could be violent and there
could be electrical hazards present. On the
other hand, the officer testified he did not know
of any members being injured or attacked by
weapons when executing these warrants.
Furthermore, the officer said an operational plan
is usually developed and the residence may have
been checked for history, databases may have
been searched for suspects, a drive by may have

16

been done, floor plans may have been obtained,
and surveillance for updated intelligence may
have been conducted. The officer, however, did
not know which checks were done or the results.
The accused argued, in part, that their rights
under ss.8 (search and seizure) and 9 (arbitrary
detention) of the Charter were violated. It was
suggested that the police entry and search of
the residence was unreasonable and that the
arrests were unlawful.
Judge Bennett agreed with the accused and
ruled the police violated their rights. First, the
way the police conducted their entry was
unreasonable under s.8 of the Charter. The
court held:
Crown counsel submitted that police officers
took a very measured and slow approach to
entering the residence. They were in uniform
and properly identified themselves. In the
circumstances, to police took reasonable steps
to execute the warrant.
I cannot accept those submissions. The basis
for the policy of using the ERT to serve
warrants for hydro thefts and marijuana grow
operations is based on risk of danger.
However, that policy is not consistent with
[the ERT leader’s] seven years experience on
the ERT. If there is a statistical basis for the
policy, it was not be tendered into evidence.
More specifically in this case, there is very
little evidence of what actually was done to
develop an operational plan. It could easily be
inferred that because the policy was in place,
regardless of the circumstances, there was no
actual need to develop a realistic operational
plan.
The question of whether the use of force to
enter a residence was reasonable was
addressed in Regina v. Vadon, [2000] B.C.J. No.
2081 (B.C.S.C.). In that case, the police had a
search warrant for a suspected marijuana grow
operation in a house. The police officers used
a battering ram on a door to gain entry to the
house. Several officers rushed into the house
with their guns drawn. They did this prior to

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announcing that they were the police and had a
search warrant. Regarding the manner of
entry, Williamson J. held:
“Here, there is no evidence of a suggestion,
let alone an explanation, of a violent response
at this house. Indeed, the evidence was that
if the police had grounds to expect such a
response, they would have utilized the
services of the emergency response team.
There is no evidence of any discussion by the
police officers on this issue with respect to
this residence.
Rather, the evidence
indicates it was policy. In other words,
something along the lines of the carte
blanche criticized by Chief Justice Dickson,
a routine practice of effecting such entry
without regard to the actual knowledge of
the circumstances pertaining with respect to
a particular incident.

And further:
... In the case before me, [the accused] were
merely “found ins”. There were no reasonable
and probable grounds for believing that [they]
were, had or were about to commit any crime.
Therefore, the arrests were not made
pursuant to Section 495(1) of the Code. The
arrests were arbitrary and unlawful. I do
conclude that both of the accused’s rights
under Section 9 of the Charter were
breached. [para. 37]

To attempt to justify the routine use of a
battering ram to violate, unannounced, a
private residence on the grounds that there
have been weapons found in some homes
where there have also been marijuana grow
operations does not come close to meeting
the onus upon the police to show why they
concluded that such force and surprise were
necessary in a particular entry. It is clear
from the comments in Genest that the Crown
must lay an evidentiary framework to show
that there were grounds to be concerned
about the possibility of violence in this
particular case. No such evidence was led.”
(paras 20 and 21).

The evidence, including the electrical diversion
and marihuana plants, was excluded.
Complete case available at www.provincialcourts.bc.ca

SEARCH MUST BE RELATED
TO REASON FOR ARREST
R. v. Mitchell, 2005 NBCA 104

Although the…police did make the required
announcements before ramming the door of the
residence, the same legal principles apply. If
there were reasons for the use of the ERT at this
particular residence, they are not in evidence. The
evidence of policy is not sufficient. Therefore, I
can only conclude that the manner of entry, in
particular, was unreasonable.Enter [paras. 26-30]

As for the lawfulness of the arrest, Judge Bullar
Bennett concluded there were no reasonable
grounds and the accused were therefore
arbitrarily detained, stating:
The police executing the search warrant did
not have arrest warrants. Their surveillance
of the residence in the early morning
immediately prior to their attendance at the
residence did not show indications of any

Volume 6 Issue 2
March/April 2006

human life inside. Their investigation and the
early morning surveillance did not link either
[accused] to the residence. [The accused]
were merely “found in” the residence. They
were arrested before the search commenced.
Then, without questioning, they were taken to
the police station and held there in cells for
the better part of the day. [para. 34]

Police in New Brunswick were on
the look out for the accused
because they had information
he would be travelling to their
area to sell crack, he had an undertaking to
remain in Nova Scotia, and he was under
investigation for obstructing justice by falsely
identifying himself. They saw his car and pulled
it over. The accused was driving and was unable
to provide a driver’s licence, registration, or
insurance. He again provided a false name and
was arrested for obstruction of justice and
breach of undertaking. He was frisk searched
and police found $1,175 in cash but no drugs. He
was advised of his right to counsel and wanted to
speak to a lawyer.
After informing the accused his uninsured
vehicle would be towed to the police station, he

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17

told officers there was $2,000 in the glove box.
The police said they would inventory the
contents of the car and it would be placed in a
secure area. A further search revealed 24.6
grms of crack cocaine hidden behind the gas cap
cover. He was arrested for this offence, again
advised of his rights, and subsequently charged
with possession for the purpose of trafficking.
At no time did the police inform the accused
they suspected him of possessing cocaine or that
they were going to search his car for such.
The accused filed a motion in New Brunswick
Provincial Court alleging his rights under s.8 of
the Charter had been breached. The police
testified that in their opinion the accused’s car
contained cocaine but they did not want to
arrest him because he then might be able to
identify the informant. As well, police said a
search warrant was not obtained because they
were searching incidental to arrest. The grounds
the police proffered were the informant
information, the large amount of money in
possession of the accused, and the money found
in the glove box. The accused submitted that the
search was not incidental to arrest and violated
his right to be secure against unreasonable
search and seizure protected by s.8 of the
Charter.
The trial judge ruled there was no unreasonable
search. As long as the police had reasonable
grounds (subjective/objective test) to search
the car, the common law allowed them to search
as an incident to arrest. The evidence was
admitted and the accused was convicted.
The accused appealed the judge’s ruling to the
New Brunswick Court of Appeal. Justice
Robertson, authoring the Court’s unanimous
judgment on the s.8 Charter issue, allowed the
appeal, largely relying on the Supreme Court of
Canada decision R. v. Caslake [1998] 1 S.C.R. 51.
Although warrantless searches are prima facie
unreasonable, a search incidental to arrest can
be undertaken to secure the safety of the police
and public, to protect evidence from being

18

destroyed, and to discover evidence that can be
used at trial. If the search is to find evidence
related to the arrest, there must be a
reasonable prospect of doing so. But this is not
the same as having reasonable grounds to
conduct the search. Rather, as Justice
Robertson explained:
…What is required is that the police have a
reasonable basis for conducting the search,
which is to be evaluated on both a subjective
and objective level. The subjective element
asks whether the police officer conducting the
search was actually doing so for purposes
related to the arrest. The objective
component ensures that the police officer's
belief that a valid purpose would be served by
conducting the search was reasonable in the
circumstances… [para. 13]

In this case, the police arrested the accused for
obstruction of justice and the search was not
related to that reason. Justice Robertson held:
Applying the law…to the facts of the present
case, it is clear that the police did not search
the [accused’s] car for purposes of finding
evidence related to the reason for his arrest.
The police were searching for illegal drugs.
That objective is entirely unrelated to an
arrest for obstruction of justice. On their own
admission, the police were acting for reasons
unrelated to the arrest. If follows that the
search in question was not truly incidental to
the arrest and, therefore, the [accused’s]
right to be free of unreasonable searches,
under s.8 of the Charter, was violated.
[reference omitted, para. 19]

Nor was the search justified as an inventory
search:
As the law presently stands, inventory
searches are not authorized under the common
law rule applicable to warrantless searches
that are truly incidental to an arrest. At the
same time, it has been held that if a vehicle is
taken into custody pursuant to a regulatory
duty the police may conduct an inventory
search with respect to "visible property of
apparent value"… In the present case, the
Crown made no attempt to justify the

www.10-8.ca

Volume 6 Issue 2
March/April 2006

warrantless search of the [accused's] vehicle
on the basis of an authorized inventory search.
Even if the law recognized the validity of such
searches, the search of the [accused’s] vehicle
could not be justified as it went far beyond
the itemizing of visible property of apparent
value. The drugs were found concealed behind
the gas cap. [reference omitted, para. 15]

The court however was divided on the
admissibility of the evidence. Justices Robertson
and Deschenes were of the view the police were
not acting in good faith and the evidence should
be excluded under s.24(2) of the Charter.
…it must be determined whether the police
acted in good faith. This is certainly not a case
where we can hold that the search in question
was the product of a reckless or deliberate
disregard for the [accused’s] rights. At the
same time, if there were any instance in which
the plea of ignorance of the law should be
rejected this is the one. The rule promulgated
in R. v. Caslake is unambiguous: the reason for
the incidental search must be related to the
reason for which the accused was arrested.
Chief Justice Lamer made this clear when he
drew specific attention to the rule by
underlining the relevant sentence… Prior to
the release of R. v. Caslake, one could have
argued that the issue was unsettled despite
the Ontario Court of Appeal decision in R. v.
Belnavis, as that decision is not binding in this
Province. One could go so far as to argue that
the subsequent endorsement of Belnavis in the
majority opinion in R. v. Stillman was obiter and
given the deep divisions within that Court the
law on car searches incident to arrest
remained clouded. However, once the Supreme
Court released its decision in R. v. Caslake the
police could no longer plead ignorance or
reasonable error. To use the words of Justice
Sopinka in R. v. Kokesch, either the police knew
or ought to have known what the law with
respect to a vehicle search that is incidental
to an arrest. Clearly the police ought to have
known.
In the present case, one cannot even make a
credible argument that the error in question
arises
from
"an
entirely
reasonable
misunderstanding of the law". This is because

Volume 6 Issue 2
March/April 2006

there is nothing to misunderstand. Moreover
R. v. Caslake has been on the books since
January of 1998. A period of nearly eight
years has passed and yet the police's only
explanation for their ignorance of the law is
that they were ignorant. Should a plea of good
faith be accepted in these circumstances? In
my opinion, the answer to that question must
be no… [paras. 31-32]

Justice Richard, on the other hand, would have
admitted the evidence. As a result of the
majority’s decision, the drugs were excluded,
the conviction set aside, and a not guilty verdict
was entered.
Complete case available at www.canlii.org

‘IN SERVICE’ LEGAL ROAD
TEST ANSWERS
1. (a) true—see R. v. LeClaire (at p. 4 of this
publication). Justice Roscoe stated, “There is
an implied licence for all members of the
public, including the police, to approach a door
of a residence and knock… If the police act in
accordance with this invitation, there is no
intrusion upon the privacy of the occupant.”
2. (b) false—see R. v. Mitchell (at p. 17 of this
publication). Justices Robertson (Deschenes
concurring) stated, “The rule promulgated [for
searches incidental to arrest by the Supreme
Court of Canada] in R. v. Caslake is
unambiguous: the reason for the incidental
search must be related to the reason for
which the accused was arrested.” In other
words, the evidence the officer is searching
for must be connected to why they made the
arrest. For example, an arrest for break and
enter would surely justify a search for
evidence related to break and enter, such as
stolen property or break-in tools. However, a
search for drugs may be outside this ambit,
unless of course, the break-in was related to
drugs, such as a grow rip.

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19

3. (a) false—see Patterson (at p. 8 of this
publication). In this case the court concluded
the officer’s safety concerns were of a
general nature and not specific enough to
justify suspending the arrestee’s right to
counsel until the search began. This case,
once again, reminds officers that there is no
bright line rule in suspending an arrestee’s
right to counsel. What is reasonable in any
given situation will turn on the unique facts of
the case.
4. (a) true—see Richardson v. Vancouver (at p. 10
of this publication). Justice Donald stated,
“The lawfulness of arrest must depend on the
subjective belief of the arresting officer and
an objective assessment of that belief based
on what the officer knew at the material
time. It is a question related to the individual
officer. I know of no authority that supports
the notion of a collective intelligence, the sum
of knowledge possessed by all the police in an
operation, as the basis for judging the
lawfulness of arrest.”

JUDGE NEED NOT CHECK
COMMON SENSE AT DOOR
R. v. Mowry, 2006 NBCA 18
Acting on source information,
the police attended a remote and
uninhabited area of Crown land
where they found a 175
marihuana plant grow in a clearing. The officers
left and returned a few months later. The plants
had grown a few feet, were dry, and their leaves
were yellow. The following day the police
returned and conducted surveillance. The
accused, and two others, arrived and were
videotaped for about 12 minutes.

other two men were seen involved in activities
such as pruning, carrying a water bucket, or
holding a hose. At trial in New Brunswick
Provincial Court the accused was convicted of
marihuana production. “Produce” under the
Controlled Drugs and Substances Act includes
obtaining a substance by cultivating, such as
doing anything to help raise the plants, like the
preparation and use of the soil, the removal of
weeds from the vicinity of the plants, and
pruning. An appeal to the New Brunswick Court
of Queen’s Bench was dismissed.
The accused appealed further to the New
Brunswick Court of Appeal arguing that the trial
judge’s verdict was unreasonable since the video
did not show what he was doing with his hands.
He was not seen touching the plants or handling
any watering equipment. Chief Justice Drapeau,
writing the unanimous opinion, dismissed the
appeal. He stated:
The trial judge was not required to check her
common sense at the courtroom door. A
contextual commonsensical appreciation of
what [the accused] is shown doing on the
videotape leads inescapably to the conclusion
that he was engaged in cultivating the cannabis
(marihuana) plants that are the subject of the
underlying charge and the impugned conviction.
It is obvious from the video that [the men]
were operating as a team, each doing his part
to help the plants’ growth. The trial judge
properly assessed [the accused’s] actions in
the context provided by the evidence as a
whole, including the actions of his two
plantation co-workers. [para. 14]

The conviction was upheld.
Complete case available at www.canlii.org

In the video tape the accused could be seen
moving around the plants and bending over at the
waist, however his hands were not in view. The

20

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Volume 6 Issue 2
March/April 2006