POLICE ACADEMY

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

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

REBUTTING THE WARRANTLESS
PRESUMPTION:A REVIEW
Sgt. Mike Novakowski

search is to be authorized by law, the following three
elements must be met 6:
Ø

Although there is no constitutional
warrant requirement, all warrantless
searches
are
prima
facie
unreasonable1. Rather than justifying
a search after it occurs (subsequent
validation), the warrant requirement
serves as a means of preventing unjustified searches
before they occur (prior authorization). When a
warrantless search occurs, the police bear the burden of
justifying the search2. The warrantless/ unreasonable
presumption may be rebutted provided the search
satisfies the following criteria3:
•
•
•

the search must be authorized by law
the law authorizing the search must be
reasonable
the search must be conducted in a reasonable
manner

•
•

Ø

The search must be carried out in accordance with
the procedural and substantive requirements of the
authorizing law. The court must determine whether
the provisions of the statute or the requirements of
the common law have been satisfied. A search,
which does not comply with these requirements, is
not a search authorized by law. For example, a
search authorized under the conventional search
warrant provision of s.487 of the Criminal Code
requires issuance on the basis of a sworn
information establishing reasonable grounds. If the
justification for initiating the search (reasonable
grounds) is insufficient, the search warrant will be
invalid. Similarly, a search incidental to arrest
requires a lawful arrest and a reasonably conducted
search related to the arrest.

Ø

The scope of the search must be limited to the area
and those items for which the law has granted
authority to search. For example, if the police are

Under both the Charter and the common law, police "can
only enter onto or confiscate someone's property when
the law specifically permits them to do so4". The right
of the police to search, without a warrant, is
subordinated to the existence of a rule of law5. If a

IN THIS ISSUE

Fitness Excellence at the JI……………………………………….4

Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.)
R. v. Silveria [1995] 2 S.C.R. 297 (S.C.C.) per La Forest at para. 50.
R. v. Wiley (1993) 84 C.C.C. (3d) 161 (S.C.C.) at p.168.
9
R. v. Flintoff (1998) 126 C.C.C. (3d) 321 (OntC.A.), R. v. Nicolosi (1998) 127 C.C.C.
(3d) 176 (Ont.C.A.), Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.), R. v. Kalin
[1987] B.C.J. No.2580 (B.C.Co.Ct.)
6

Hunter v. Southam (1984) 14 C.C.C. (3d) 97 (S.C.C.)
2
R. v. Lamy (1993) 80 C.C.C. (3d) 558 (Man.C.A.) at p.562.
3
R. v. Collins (1987) 33 C.C.C. (3d) 1 (S.C.C.)
4
Caslake v. the Queen [1998] 1 S.C.R. 51 (S.C.C.) at para. 12.
5
R. v. Higgins and Higgins (1996) 111 C.C.C. (3d) 206 (Que.C.A.) at p.211.
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Volume 1 Issue 2
June 2001

common law (search without warrant)
statute law (search with or without warrant)

A departmental policy in itself does not have the
force of law9. However, a policy may be written in
accord with the law and by satisfying policy
requirements police will also be complying with the
law. The true source of authority is the law, not
policy.

Authorized by Law?

Rebutting the Warrantless
Presumption: A Review……………………………..….….………..1
Exigent Circumstances:
Justification or Mitigation?….……………..………..………..2
Apprehended Breaches: Preventing
Them Before They Occur……………………….…………....….3

The police officer conducting the search must
resort to a specific statute or common law rule that
authorizes the search. For instance, if the police
enter a house without the authority of statute or
common law, the police commit a trespass7. Two
sources of authority are8:

7
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executing a search warrant they must only act
within the scope and ambit of the warrant having
regard to the description of the premises and the
range and type of items listed in the warrant. The
police may only search those areas that might
contain the evidence specified in the warrant.
Similarly, a plain view seizure does not permit an
affirmative search. If the search exceeds the
boundaries recognized under the authorized law, the
search is not authorized to the extent that the
search exceeds the limits.

Reasonable Law?
If the law authorizing a search is itself unreasonable,
any resultant search from that unreasonable law will too
be unreasonable. The question of whether the law itself
is reasonable cannot be adjudicated by the police
officer in the field unless the officer knows the law has
been previously rendered unconstitutional. The courts
must determine if the authorizing law complies with the
Charter. If the court concludes that the law violates
the Charter, the law will be ruled unconstitutional and
will be of no force or effect.

Reasonable Manner?
Legality alone will not save a search that is excessive in
its execution10. A search authorized by a reasonable law
may be rendered unreasonable by the manner in which
the search is conducted. The manner in which the search
is conducted must be reasonable and "relates to the
physical way in which it is carried out11 ". Generally, the
police maintain exclusive control of how a search is
conducted. Manner includes the nature of the search,
the scope of the intrusion, the place in which the search
was conducted, or whether it was abusive. The extent or
intrusiveness of a search must be proportionate to the
underlying objectives served by the search and the
relevant circumstances of the situation. For example, a
person arrested for an outstanding traffic offence
should not routinely be subjected to a strip search.
Furthermore, an unlawful search will not be
retroactively rendered reasonable even though the
search is conducted in an inoffensive fashion12.

R. v. Greffe (1988) 41 C.C.C. (3d) 257 (Alta.C.A.) per McClung J.A. at p.267
reversed [1990] 1 S.C.R. 755.
11
R. v. Debot [1989] 2 S.C.R. 1140 (S.C.C.) per Lamer J.
12
R. v. Moran (1987) 36 C.C.C. (3d) 225 (Ont.C.A.) at p.241.

The reasonableness test (a search authorized by a
reasonable law conducted reasonably) acts as a template
for assessing whether a search runs afoul of s.8 of the
Charter.

EXIGENT CIRCUMSTANCES:
JUSTIFICATION or MITIGATION?
Sgt. Mike Novakowski

Exigent circumstances frequently arise in search and
seizure cases. The existence of exigent circumstances
becomes important for two reasons. Firstly, exigent
circumstances may justify a warrantless search where
statutory authority authorizes a search without
warrant. Secondly, if a search is found to be
unreasonable by the court, exigent circumstances may
mitigate the seriousness of a Charter violation and
therefore be an important factor in determining the
admissibility of evidence under s.24(2) of the Charter.

What are Exigent Circumstances?
Exigent or urgent circumstances, sometimes referred to
as emergent or exceptional circumstances, are those
situations necessitating immediate police action. Such
circumstances are not restricted to those that rarely
arise, but rather to circumstances that are so compelling
that the right to privacy is outweighed by legitimate
state interest13. These circumstances generally fall
under two categories:
•
•

protection of life
protection of property

Exigent circumstances concerning the protection of life
involve those situations requiring immediate police action
or aid to preserve life or protect persons from imminent
harm.
Exigent circumstances respecting the protection of
property involve an imminent danger of the loss, removal,
destruction, or disappearance of evidence if a search or
seizure is delayed 14. Often, exigent circumstances will
be created by the presence of evidence on a moving
conveyance such as a motor vehicle, water vessel,
aircraft or other moving vehicle. In this sense, there is a
moveable crime scene. However, the capability of these
conveyances to move away rapidly will not in all cases

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Volume 1 Issue 2
June 2001

13
14

R. v. Golub (1997) 117 C.C.C. (3d) 193 (Ont.C.A.) at p.209.
R. v. Grant (1993) 84 C.C.C. 173 (S.C.C.) at p.189.

2

create a situation making it impracticable in obtaining a
warrant. For instance, an unattended vehicle will not
create the same urgency as a vehicle about to be driven
away.

confirmed, that he had that quantity of packaged heroin in his
stomach and intestines2 0 ”. Chief Justice McEachern.

APPREHENDED BREACHES:
PREVENTING THEM BEFORE
THEY OCCUR

Justifying a Warrantless Search
An exigent circumstance does not in itself furnish an
exception where the law requires a warrant15. However,
exigent circumstances will justify a warrantless search
authorized by statute. In cases where a warrantless
search provision is silent on whether exigent
circumstances are required for its operation, exigent
circumstances are to be read into the provision creating
the authority16. In this sense, where the obtaining of a
warrant would not be practicable the search may
proceed without a warrant17. If exigent circumstances
are absent, a warrant is required.

Sgt. Mike Novakowski

What is a Breach of
the Peace?
The term “breach of the peace”
is not defined in the Criminal
Code. It is therefore necessary to consider the common
law definition21:
[W]henever harm is actually done or is likely to be
done to a person or in his presence to his property, or
a person is in fear of being so harmed through an
assault, an affray, a riot, unlawful assembly or other
disturbance.

Mitigating a Charter Violation
Exigent circumstances are one factor that the court
uses in assessing whether evidence should be excluded
under s.24(2) of the Charter 18. The Court will consider
whether the urgency of the situation mitigated the
seriousness of the breach and therefore favours
admission of the evidence.

Threshold Inquiry
The presence of exigent circumstances will involve an
assessment of whether or not the police officer
executing the search had reasonable grounds exigent
circumstances existed. This assessment will involve the
subjective good faith belief of the officer and whether
that belief was supported by objective criteria19.

Generally, "a breach of the peace contemplates an act or
actions which result in actual or threatened harm to
someone 22" and may be a situation where there is some
kind of a disturbance by one or more people involving
unruly behavior and actual or potential violence. Other
definitions include:

or

… a violent disruption of public tranquillity, peace, and
order.2 3

Note-able Quote

… when either an actual assault is committed on an
individual or public alarm or excitement is caused.
Mere annoyance or insult to an individual stopping
short of actual personal violence is not a breach of
the peace.2 4

“No one but lawyers and judges would have any difficulty
deciding that the appellant, whom I shall call “the accused”,
imported nearly a pound of heroin into Canada when he arrived
at the Vancouver Inter-national airport…This would be so
especially so when, upon being informed by a customs officer
that he would be X-rayed, the accused admitted, as was later

A "breach of the peace" must be sufficiently substantial
to cause concern that more serious conduct may erupt
(e.g. an assault, mischief or riot) unless the police
intervene and effect an arrest. In R. v. Khatchadorian
(1998) 127 C.C.C. (3d) 565 (B.C.C.A.) police responded
at the request of the occupant to a noisy house party.
R. v. Oluwa (1996) 107 C.C.C. (3d) 236 (B.C.C.A.) at p.240.
R. v. Howell [1981], 3 All E.R. 383 approved by Canadian courts (see R. v. Lefebvre
(1982) 1 C.C.C. (3d) 241 (B.C.Co.Crt.) affirmed 15 C.C.C. (3d) 503 (B.C.C.A.)
22
See Brown v. Durham (Regional Munivcipality) Police Force (1998) 43 O.R. (3d)
223 (Ont.C.A.) appeal to S.C.C. granted [1999] S.C.C.A. No. 87 then discontinued.
23
See R. v. S.S. (1999) 138 C.C.C. (3d) 430 (Nfld.C.A.)
24
See the statement in Clerk & Lindsell on Torts, (10th ed.) accepted by Kerwin J.
in Frey v. Fedoruk [1950] S.C.R. 517 (S.C.C.).
20

R. v. Martin (1995) 97 C.C.C. (3d) 241 affirmed 104 C.C.C. (3d) 224 (S.C.C.) per
Gibbs at p.249.
16
R. v. Grant (1993) 84 C.C.C. (3d) 173 (S.C.C.)
17
R. v. Lamy (1993) 80 C.C.C. (3d) 558 (Man.C.A.) at p.567
18
See R. v. Collins (1987) 33 C.C.C. (3d) 1 (S.C.C.), R. v. Silveira [1995] 2 S.C.R. 297
(S.C.C.)
19
R. v. McCormack 2000 BCCA 57 at para. 25.
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The accused attempted to interfere in the
conversation between the police and the person in
charge of the premises, questioned the authority of
the police, and endeavored to dissuade persons from
leaving the party. The accused persisted in his
interfering conduct as several officers assisted in
shutting down the party. The accused was arrested for
breach of the peace, searched, and cocaine was found
on his person. The Court found the situation as one of
an ongoing breach of the peace and that the police
were entitled to arrest25.
Although many breaches of the peace constitute
criminal offences, not all do. For example, causing a
disturbance, which is a criminal offence, is also a breach
of the peace 26. An assault, threats, riot, and unlawful
assembly on their face would also appear to constitute
breaches of the peace. However, there may be
circumstances where the behaviour, albeit non-criminal,
will nonetheless constitute a breach provided the
conduct creates the fear as contemplated by the
definition.

Anticipated Breaches
At common law, clear authority exists that a police
officer is entitled to make a lawful arrest of someone
"who it is anticipated may shortly engage" in a breach of
the peace 27. This authority is similar to the warrantless
power of arrest under s.495(1)(a) of the Criminal Code
for a person “about to commit an indictable offence”.
The arrest for an apprehended breach of the peace is
exercised in circumstances where the officer has
reasonable grounds for believing the anticipated conduct
which would amount to a breach of the peace, will likely
occur if the person is not arrested. Unlike section 31 of
the Criminal Code requiring the police witness a breach
of the peace before they arrest, the officer need only
be concerned with a breach reasonably expected to
occur (future). There are two requirements that the
police officer must consider when exercising the power
to arrest for an apprehended breach28:

The search incidental thereto was valid and the cocaine admissible as evidence.
See R. v. Biron (1975) 23 C.C.C. (2d) 513 (S.C.C.).
27
See R. v. Khatchadorian (1998) 127 C.C.C. (3d) 565 (B.C.C.A.), R. v. Lefebvre
(1984) 15 C.C.C. (3d) 503 (B.C.C.A.), Hayes v. Thompson (1985) 18 C.C.C. (3d) 254
(B.C.C.A.), R. v. Faulkner (1988) 9 M.V.R. (2d) 137 (B.C.C.A.), Brown v. Durham
(Regional Munivcipality) Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.) appeal to
S.C.C. granted [1999] S.C.C.A. No. 87 then discontinued.
28
See Brown v. Durham (Regional Munivcipality) Police Force (1998) 43 O.R. (3d)
223 (Ont.C.A.) appeal to S.C.C. granted [1999] S.C.C.A. No. 87 then discontinued.

•

The apprehended breach must be imminent. The
possibility that a breach will occur at some unknown
point in time will not be sufficient. The breach must
be impending and likely to occur in the immediate
future29.

•

The apprehended breach must be substantial. The
mere possibility of an unspecified breach will also be
insufficient. The likelihood of a breach must be real
and reasonably apprehended.

Provided the imminent and substantial criteria are
satisfied, police may arrest provided they reasonably
believe the breach of the peace will result if an arrest is
not made.

Officer Created Breaches: Bad Faith
A police officer may not create a breach of the peace
and then claim to have a proper basis for arrest30. A
circumstance where the police, through there own
conduct, deliberately and willfully cause a person to
participate in a breach of the peace and follow up with
an arrest is improper.

FITNESS EXCELLENCE AT THE JI
Sgt. Tammy Schellenberg and Sgt. Frank Querido

In addition to the POPAT, the Police
Academy has introduced a fitness
test designed to measure a recruit’s
overall fitness level. Testing includes
a mile and a half run, pushups, situps,
bench press, grip strength, and flexibility. New
recruits are tested at the beginning of BLK I and again
at the end of their BLK III to measure progress. The
test is skewed by age and gender and recruits attaining
an “A” (86%) are awarded with a “Fitness Excellence-A”
t-shirt.
Also in BLK III, the POPAT is conducted in full duty
gear including vest, boots, and equipment belt.
For comments or topics you would like to see
published in this newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca

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29
30

See Lynch v. Canada (R.C.M.P.) 2000 BCSC53
See R. v. Khatchadorian (1998) 127 C.C.C. (3d) 565 (B.C.C.A.)

4