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.

POLICE LEADERSHIP 2002
S/Sgt. Murray Lunn

The British Columbia Association of Chiefs of Police,
the Ministry of the Attorney General, Police Services,
and the JIBC are hosting the “Police Leadership 2002
Conference”, April 10 to 12, 2002. The venue for the
Conference is the beautiful Westin Bayshore Resort
and Marina, near Stanley Park in Vancouver.
An impressive list of speakers will be presenting. This
years theme is “Managing Change Through Principled
Leadership”. Confirmed speakers include:
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Sir Ronnie Flanagan, Chief Constable, Royal Ulster
Constabulary
John Murray, Chief Police Officer, Australian
Federal Police,
Dr. James Reese, FBI, (ret.)
Mr. Bob Vernon, Assistant Chief of Police, LAPD
(ret.)
Canadian Olympic Rower, Ms. Silken Lauman.

The Conference will emphasize leadership as an
activity, not a position, and provide an opportunity for
participants of all ranks from Police Services across
Canada, the US, and beyond to engage in leadership
initiatives.
In association with Police Leadership 2002, the JI will
be hosting Mr. Bob Vernon of Pointman Leadership
Institute for a further two-day seminar on Ethics
Training. This additional two days, along with the

IN THIS ISSUE
Police Leadership 2002……………….………………………….…….1
Alta.C.A. Overturns Officer’s Assault Conviction..1
Random Vehicle Stops: Cherry Picking…………….……..2
Sask.CA Examines Plain View……………………………..….….3
Forcing Entry to Effect MHA Apprehensions………..3
BCSC Rules Fly-Over Violates s.8………………..………….4
Police Academy Staff Receive Honours in Texas….4

Volume 1 Issue 4
July 2001

Conference, will qualify participants for an incremental
course under their department’s educational incentive
program.
Cost for the conference is $300, which includes a
reception dinner, a banquet, and lunches.
The
incremental seminar is an additional $100. Registration
is expected to fill quickly. If you are interested,
contact S/Sgt. Murray Lunn at the JI (604) 528-5824
or check the Leadership 2002 web-site at
www.policeleadership.org.

Alta.CA OVERTURNS OFFICER’s
ASSAULT CONVICTION
R. v. Yum, 2001 ABCA 80

The Alberta Court of Appeal
overturned the conviction of an
Edmonton police officer who was
convicted of assault after he kicked a
suspect on the ground. The uniformed
officer attended an apartment building to execute an
arrest warrant. The officer was familiar with the
apartment building as a location from where numerous
family assaults, intravenous drug use, and weapons
complaints had previously occurred. The suspect (alleged
victim) was smoking crack cocaine in one of the
apartment suites and fled the premises on seeing the
police vehicle. The officer commanded the suspect to
stop and a chase ensued. In an effort to conceal his
location, the suspect laid on the ground by a vehicle. The
officer noticed the suspect but was initially concerned
he was armed. The Court described the suspect as “an
unknown, but criminally inclined risk”. Avoiding risk by
not crawling under the vehicle to arrest the suspect, the
officer kicked the suspect in the chest to gain control.
In overturning the officer’s earlier conviction, the
Appeal Court held:
We assess the circumstance as a decision taken by a
police officer in the clear performance of his duty, a
decision taken neither from revenge, anger or malice
and which could only be characterized as an

application of situational force designed to dissolve
a potential risk to his own personal safety.
………
[T]he kick was administered under a legitimate
motive. … Had the force been applied without a
weapon or in some other way, i.e. by a nightstick or a
flashlight, and without injury to the suspect, the
matter may well have rested at that. But a kick as an
instrument of force must be assessed carefully. The
optics here are far worse than the actual force
employed. It is the package, not the content, that
offends. (emphasis added)

Complete case available at www.albertacourts.ab.ca.

RANDOM VEHICLE STOPS:
CHERRY PICKING
Sgt. Mike Novakowski

Does the stopping of a vehicle at
“random”, without having reasonable
grounds to believe nor an articulable
cause to suspect an offence has
been committed, violate s.9 of the Charter to be free
from arbitrary detention?
A detention will be
considered arbitrary when it is made without
“articulable cause” 1 . In BC, s.73(1) of the Motor Vehicle
Act (MVA) authorizes the arbitrary stopping of
motorists:
s.73(1) MVA
A peace officer may require the driver of a motor vehicle to
stop and the driver of a motor vehicle, when signalled or
requested to stop by a police officer to stop by a peace
officer who is readily identifiable as a peace officer, must
immediately come to a safe stop.

Although permitting arbitrary detentions, s.73(1) is
justified under s.1 of the Charter as a reasonable limit
to be free from arbitrary detention2. However, the
detention of the motorist must be rationally connected 3
and limited by the purpose of the stop (highway traffic
matters), and must be brief, unless other grounds are
established to justify further detention4. Legitimate
purposes related to enforcing driving laws and traffic
safety include:

R. v. Griffin (1996) 111 C.C.C. (3d) 490 (Nfld.C.A.) appeal to S.C.C. dismissed [1997]
S.C.C.A. No. 32
2
R. v. Wilson (1993) 86 C.C.C. (3d) 145 (B.C.C.A.), see also R. v. Ladouceur (1990) 56
C.C.C. (3d) 22 (S.C.C.), R. v. Hufsky [1988] 1 S.C.R. 621,
3
R. v. Del Ben [2000] O.J. No. 812 (Ont.S.C.J.)
4
Brown v. Durham Regional Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.), R. v.
J.R. [2000] O.J. No. 930 (Ont.S.C.J.)
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Volume 1 Issue 4
July 2001

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producing documents drivers are by law required to
possess such as driver’s licences and insurance 5
and checking those documents against information
available on CPIC6
assessing the mechanical fitness of a vehicle7
checking the sobriety of drivers8

When the justification for continued detention is
neither related to the original purpose nor based on an
articulable cause of other unlawful activity, the
extension of the detention becomes arbitrary.

Multi or Dual Purpose Stops
There may be occasions where the police properly rely
on motor vehicle legislation while at the same time have
a secondary purpose in connection with the traffic
detention. The stop will not be rendered arbitrary by
having a collateral purpose provided the additional
purpose is a “legitimate police interest” such as
gathering police intelligence, investigating criminal
activity, or the maintenance of the public peace 9.
Legitimate police interests carried out congruently
with a properly circumscribed traffic stop will not
render the stop invalid if “the decision to stop is made
pursuant to some standard or standards which promote
the legislative purpose underlying the statutory
authorization to stop” (highway regulation and
safety) 10.
For example, only questions that may
justifiably be asked are questions related to driving
offences 11 . However, illicit police motives will
transform an otherwise lawful traffic stop into an
improper detention regardless of legitimate highway
safety concerns factoring into the decision to
effectuate the stop. For instance, stopping a motorist
on the basis of gender or colour will render the stop
improper 12.

Note-able Quote
“Tact is the ability to close your mouth before someone
else wants to13”.

R. v. Ladouceur [1990] 1 S.C.R. 1257 at p.1287, R. v. Wilson (1993) 86 C.C.C. (3d)
145 (B.C.C.A.).
6
Brown v. Durham Regional Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.)
7
R. v. Ladouceur [1990] 1 S.C.R. 1257 at p.1287, Brown v. Durham Regional Police
Force (1998) 43 O.R. (3d) 223 (Ont.C.A.),
8
R. v. Ladouceur [1990] 1 S.C.R. 1257 at p.1287, R. v. Wilson (1993) 86 C.C.C. (3d)
145 (B.C.C.A.)
9
Brown v. Durham Regional Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.)
10
Brown v. Durham Regional Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.)
11
R. v. Ladouceur [1990] 1 S.C.R. 1257 at p.1287.
12
Brown v. Durham Regional Police Force (1998) 43 O.R. (3d) 223 (Ont.C.A.)
13
Author unknown.
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clearly in plain view. With respect to the box, the
court acknowledged there may be proper
circumstances where a seizure could be justified
by plain view. The sample on top is an invitation to
open the boxes. However, the trial judge made no
finding on this issue and the Court proceeded on
the assumption this seizure was unreasonable.

Sask.CA EXAMINES
PLAIN VIEW

R. v. SPINDLOE, 2001 SKCA 58
Saskatoon police officers entered the
premises of the Vinyl Exchange (a
store that sells LPs, CDs, collectibles
and “smoking accessories”) armed with
a warrant to search for instruments and literature for
illicit drug use. Although the warrant was found to be
invalid, the court examined the application of the plain
view doctrine. Plain view requires lawful presence by
police, inadvertent discovery, and the item must be
apparently subject to seizure. In determining whether
the police were lawfully present, the Court agreed with
the trial judge that a business establishment open to
all members of the public is not immune from police
entering
under
implied
invitation.
Respecting
inadvertent discovery, the Court recognized that police
had foreknowledge of the existence of the items
(after all they had obtained a warrant, albeit invalid).
If the police have a right to be present at a location in
the first place, the “inadvertence requirement becomes
less important”. The Court held:
The plain view seizure power cannot be exercised as a
pretext for a planned warrantless seizure, but if the
police are lawfully present in premises, they may seize
property in plain view as long as there is probable
cause to associate the discovered property with
criminal activity.

While at the premises, police seized items that were
placed into four categories and addressed by the Court
in the following manner:
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Items located on counters or in locations a
customer could pick them up (pipes, scales,
magazines). These items were clearly in plain view
and subject to seizure.

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Items located behind a glass display that a
customer could see but would have to ask for
assistance to handle and see closely (pipes, bongs,
literature, roach clips, scales, etc.). These items
were also found to be in plain view. There was “no
legitimate expectation of privacy shielding the
interior of the display counter in the store”.

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Items located in boxes with a sample item on top
(ornamental bongs). The sample item on top was

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July 2001

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Items in closed drawers or behind the counter
only a search would reveal (water pipes, hash
pipes, hash vials, roach clips, scales, etc.). Plain
view is limited to those items that are visible.
The police exceeded plain view in searching for
these items.

Complete case available at www.canlii.org.

FORCING ENTRY TO EFFECT
MHA APPREHENSIONS
Sgt. Mike Novakowski

There is no express provision in the Mental Health Act
(MHA) permitting forced entry into private premises to
effect an apprehension of a mentally disordered person.
In R. v. Nicholls (1999) 139 C.C.C. (3d) 253 (Ont.C.A.),
police responded to an emergency call involving a
psychiatric patient who was a threat to himself and
others. Efforts were made to contact the patient by
telephone and knocking at the door. Police, in the
company of an ambulance attendant, forced entry into
the apartment. The accused was located lying in his bed
with his hands under the covers. Following repeated
requests to show his hands, the accused jumped from
the bed with a butcher knife and was subsequently shot
by police. The accused was convicted of weapons
offences for his attack on the police officers. The
accused appealed his convictions arguing the police were
not justified in entering the apartment and therefore
were not in the lawful execution of their duties. The
Ontario Court of Appeal found the police common law
duty to protect life and prevent injury was engaged and
the accompanying authority to force entry under the
circumstances was justified:
The police and ambulance crew were responding to a
serious 911 call and had a duty to investigate the
situation to ensure the appellant was not a danger to
himself or others. In order to locate the appellant and
do so, forced entry was necessary.

3

In many cases, police entry to apprehend a mentally
disordered person satisfying the requirements of s.28
MHA will involve an emergent situation (preservation of
injury/protection of life):

as airplanes and helicopters. Furthermore, the police
are entitled in appropriate cases to use electronic
surveillance. That was precisely the reason for the
enactment of the general warrant section. However,
in this case the police chose not to get a warrant
before embarking upon the fly-overs. The accused's
right to privacy was clearly violated by the
inordinately low altitude of the flights. The police
admitted that the altitude of the fly-overs was so
low that they could see one of the parties urinating.
This was a private residence. The fly-overs together
with the use of the intrusive technology constituted
an unlawful search and seizure. (emphasis added)

s.28(1) MHA
A police officer or constable may apprehend and immediately
take a person to a physician for examination if satisfied from
personal observations, or information received, that the person
(a) is acting in a manner likely to endanger that person's own
safety or the safety of others, and
(b) is apparently a person with a mental disorder.

A necessary requirement to apprehend under s.28 is
the belief a person is a danger to themselves or others.
Endangerment itself has an element of exigency or
urgency requiring immediate police intervention. The
interest in preserving life outweighs the privacy
interest of the person within the sanctity of their
dwelling14 and by not entering, police would be derelict
in their duty.

BCSC RULES WARRANTLESS
FLY-OVER VIOLATES S.8
R. v. Kuitenen et al., 2001 BCSC 677
A police officer received information,
believed to be reliable, that a property
in the 100 Mile House area was the site
of a significant marihuana grow
operation. Despite this information, the police officer
did not believe he had sufficient grounds to obtain a
search warrant under s.487 CC or s.11 CDSA. Police flew
over the property in a police helicopter equipped with
forward-looking infrared radar (FLIR) and videotape
technology. Police testified that they flew low enough
they could see two people in the yard, one of whom was
urinating. Police reviewed the videotape taken during the
fly-over and observed what appeared to be an
underground bunker on the property. As a result of the
information provided and the results of the fly-over,
police applied for and were granted a general search
warrant under s.487.01 CC. Among other issues, Justice
Oppal found the fly-over by police violated the accused’s
right to privacy protected by s.8 of the Charter:
There is no doubt that police have the right to
secure evidence through the use of technology such

Complete case available at www.courts.gov.bc.ca.
Q:
A:

What do you call a drug case without a
Charter argument?
A Guilty Plea!!!!

POLICE ACADEMY STAFF
RECEIVE HONOURS IN TEXAS
Recently, two instructors from the
Police Academy received awards for
excellence in teaching from the
National Institute for Staff and
Organizational Development (NISOD)
at the University of Texas. Mr. Mark
Lalonde, program coordinator for
Contract Law Enforcement and Sgt. Steve Wade, the
recruit firearm/drill instructor were among the
recipients at the National Conference in May. Awards
of Excellence were instituted by NISOD in 1989 to
recognize outstanding performances in the field of
adult education.
Recipients are selected by their
institutions and receive medals at the annual NISOD
conference held in Austin, Texas. Great job!

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

See for example R. v. Godoy (1999) 131 C.C.C. (3d) 129 (S.C.C.), R. v. Custer
(1984) 12 C.C.C. (3d) 372 (Sask.C.A.), R. v. Hardt 1999 Docket :CC970747 B.C.S.C.
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