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.

IN MEMORIAL

On November 13, 2004,
39
year-old
RCMP
Auxiliary Constable Glen
Evely was killed when his
patrol car was struck by a
stolen
pickup
truck
following a police pursuit
in
Vernon,
British
Columbia. Other officers had initiated the
pursuit at approximately 0215 hours after
receiving reports of a drunk driver. When they
located the vehicle they determined that it had
been stolen the night before. When the officers
attempted to stop the truck the driver sped
away. The pursuing officers broke off the chase
shortly after it began as a result of the
suspect's reckless driving.
Even though the chase had been terminated the
driver continued to flee. At the intersection of
29th Street and 30th Avenue, in Vernon, the
driver ran a red light and struck the patrol car
Auxiliary Constable Evely was riding in. Auxiliary
Constable Evely was pronounced dead at the
scene. His partner was transported to a local
hospital in serious condition. Both suspects in
the stolen vehicle were also taken into custody.
Auxiliary Constable Evely and his partner were
aware of the earlier pursuit but had not been
involved with it and were not attempting to
locate the vehicle at the time the incident
occurred.
Auxiliary Constable Evely had
served with the RCMP for 2
years. He is survived by his wife
and two children.

Volume 4 Issue 6
November/December 2004

On November 26, 2004, 49 year-old Ontario
Provincial Police Constable Michael John Siydock
suffered a fatal heart attack while investigating
a motor vehicle accident on Highway 401, near
Milton, Ontario. Other officers and medical
personnel at the scene immediately began CPR.
He was then transported to a local hospital
where he was pronounced dead.
Constable Siydock had served
with the Ontario Provincial
Police for 7 years and had
previously
served
as
a
conservation officer
The preceding information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/Canada

SEASON’S GREETINGS
The staff at the Police
Academy would like to wish
our
“In-Service:10-8”
readers and their families all
the best for this holiday
season. Once again, it has been a pleasure
serving British Columbia’s police officers, and
our other readers across Canada, by bringing
them up-to-date on many of the issues facing
them daily as they go about protecting and
serving the citizens of their communities. May
you have a safe and blessed Christmas and all
the best in 2005. Remember, In God we
trust…all others we run on CPIC!

Note-able Quote
Only a fool would risk their life without a
reason—the Lone Ranger

FINDING FUN IN FITNESS

HIGHLIGHTS IN THIS ISSUE
Pg.
3

Search Warrant Provision Adequate
Safeguard for Physio Records

Sgt. Kelly Keith, JIBC

Family-Visit Unit a ‘Cell’ for Prisoner Search

5

There is always controversy on stretching and
its benefits—when it is most appropriate and
how long to hold stretches for.

Intent to Drive Relevant, but not Sole Factor
in Care & Control

7

Here's a re-cap of the most recent studies:

No-Knock Entry Violates Charter

9

Request for ID not a Detention

9

Robbery Test Partly Subjective & Objective

12

Whole Picture Must be Considered for
Search Warrant

13

BC Police Honoured

14

Bar ID Check for Warrants Unconstitutional

18

9-1-1 Entry Logical & Lawful

18

Hunch Insufficient for Investigative Detention

21

Fraser Valley Law Enforcement Conference
24
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

1.

Stretching
should
be
individualized according to
the individual athlete and
their needs;

2.

For most benefit hold the
stretch for a minimum 15 seconds;

3.

Stretching is most beneficial at the end of
your work-out;

4.

There are no studies to indicate that
stretching will reduce injuries;

5.

Active warm-ups reduce injuries; and

6.

Stretching and range of motion for an
athlete can and usually will increase
performance.

Stretching routines should be designed to
achieve one of four things:
1.
2.
3.
4.

maintain or improve range of motion;
be free of pain;
recover from injuries that restrict
flexibility; and
achieve sport-specific goals.

A good stretch is defined as "when you can
perform a stretch but it doesn't hurt."
Don't forget—if you are lifting
weights—the negative portion of
the exercise is often more vital
than the positive part. Try to
spend twice as much time
lowering the weight as you did
lifting it!
ABS: If you are bracing your feet IN or UNDER
anything at the same time you are working your

www.jibc.bc.ca

Volume 4 Issue 6
November/December 2004

abdominal muscles, you are losing a large portion
of the benefit and working
other muscles. If you like the
AB rollers, think about how
you are moving your upper
body to the curl. Most people
use their LATS to do this
movement on AB rollers and
thus are not working their
ABS

ORIGINAL CARE & CONTROL
BROKEN, BUT NEVER
REASSERTED
R. v. Pike,
(2004) Docket: C40852 (OntCA)
The police located the accused’s
car parked at a liquor store
after a carwash attendant
reported its driver appeared
impaired. The officer saw the accused approach
the car—with keys in hand—open the passenger
side door and place a bag of liquor inside the car.
The officer then approached the accused and
asked him whether he had been drinking. He
denied drinking that day, but said he had been
drinking the evening before. A roadside
screening test was administered and the accused
failed. He was then arrested and provided
samples over the legal limit.
At trial in the Ontario Court of Justice, the
judge found that when the accused parked his
vehicle and left it to go into the liquor store,
care and control had been broken. However, in
the judge’s view, care and control had been
reasserted when he returned, keys in hand,
opened the door, and placed the bag inside. The
accused was convicted with care and control over
80mg%.
The accused appealed to the Ontario Court of
Appeal, arguing the trial judge erred in holding
that the accused had care and control. Short of
actual driving, the relevant test for care and

Volume 4 Issue 6
November/December 2004

control is whether the accused engaged in “acts
which involve some use of the car or its fittings
and equipment, or some course of conduct
associated with the vehicle which would involve a
risk of putting the vehicle in motion so that it
could become dangerous.” The unanimous Ontario
Court of Appeal allowed the appeal, set aside the
conviction, and ordered a new trial.
In the justices’ view, there was no risk of danger
by opening the passenger door and placing a
package inside the car just before his arrest.
The judge failed to analyze or address what may
have happened, based on the accused’s earlier
course of conduct, if he was not arrested. Since
the trial judge had earlier found a break in care
and control, there was no indication that the
accused intended to resume driving by simply
opening the door and placing the package inside.
Complete case available at www.ontariocourts.on.ca

SEARCH WARRANT PROVISION
ADEQUATE SAFEGUARD FOR
PHYSIO RECORDS
R. v. Serendip Physiotherapy Clinic et al,
(2004) Docket:C40275 (OntCA)
The
police,
investigating
fraudulent
and
exaggerated
claims and payments on motor
vehicle
accident
victims,
executed a search warrant for patient
information at a physiotherapy clinic. The
warrant, issued by a justice of the peace, was
quashed by the Ontario Superior Court of
Justice because no special post-seizure
conditions were imposed to protect the medical
records. In Justice Ferguson’s view, since there
was a concern about the privacy of health
records, the patient records must be
immediately sealed, notice must be given to all
affected parties, and a hearing should be held to
determine if the seized records should be
disclosed to the police. Since these rigid

www.jibc.bc.ca

3

conditions were not followed, the issuing judge
did not have jurisdiction to issue the warrant.
On appeal by Crown, the Ontario Court Appeal
ruled that the Ontario Superior Court of Justice
erred. Unlike search warrants of law offices,
media outlets, or psychiatric treatment records,
no special requirements are necessary for
physiotherapy records. Section 487 of the
Criminal Code appropriately balances the state’s
interest in law enforcement with the privacy
interest and confidentiality of patient health
records. As Justice Rosenberg of the Ontario
Court of Appeal noted:
The question…is whether the statutory
conditions in s.487 of the Criminal Code strike
the proper balance between the state interest
in law enforcement and the public and
individual
interest
in
protecting
the
confidentiality of health records. In my view,
with the possible exception of psychiatric
records, the section does strike the proper
balance. In the absence of a direct attack on
the constitutionality of s.487, that section
must be taken as meeting the requirements of
the Constitution, including the privacy
protections contained in ss. 7 and 8 of the
Charter. The section is designed to mediate
between the state interest in the investigation
and the public and individual interest in
documents and other materials in which there
is a reasonable expectation of privacy. As a
result of s.487, Parliament has permitted a
judicial officer to authorize all manner of
serious intrusions into the privacy of
individuals. If the requirements of s.487 are
met, the police can enter a private home and
seize the most intimate of records such as
diaries and personal papers. The Criminal Code
does not mandate a further post-seizure
process other than the procedures in s.489.1
dealing with the return of seized property.
Using s.487, the police can obtain financial and
other records from third parties, material
about the individual’s lifestyle, intimate
relationships and even personal opinions. They
can gain access to a core of biographical and
other information that is protected by s.8 of
the Charter. But, it has never been suggested

4

that a properly issued search warrant, meaning
a search warrant that was obtained in
accordance with the requirements set out in
s.487, authorizes an unreasonable search and
seizure.
It follows that the requirements of
s.487(1)(b), in particular the requirement that
the officer provide information under oath of
reasonable grounds to believe that the records
sought “will” afford evidence with respect to
the commission of an offence, strikes the
proper balance even where the target of the
search is the seizure of health records. By its
terms, s.487 precludes granting of a search
warrant for the purposes of a fishing
expedition or on the basis of mere suspicion.
Thus, where, as here, it is conceded that the
medical records are not protected by privilege,
the only mandatory pre-requisites to the
granting of the search warrant are those set
out in that section. In the absence of a
Constitutional challenge to the validity of
s.487, I can see no principled basis for drawing
a line around the types of records seized in
this case and exempting them from the s.487
regime and I can find no legal basis for
engrafting common law requirements on to a
comprehensive statutory scheme.[paras. 3435]

However, an issuing justice retains the
discretion to refuse issuing a warrant even
where the minimum requirements of s.487 are
met. Moreover, they may impose conditions on
the search and seizure of records containing
private medical information, such as mental
health information, but the failure to include
post seizure conditions in every medical record
warrant does not affect the jurisdiction of the
issuing justice of the peace. The appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
When we judge or criticize another person, it
says nothing about that person; it merely says
something about our own need to be critical—
Anonymous

www.jibc.bc.ca

Volume 4 Issue 6
November/December 2004

FAMILY-VISIT UNIT A ‘CELL’
FOR PRISONER SEARCH
R. v. Major & McBride,
(2004) Docket:C39019 & C39286 (OntCA)
The wife of a federal inmate
attended an institution with her
6 year-old daughter for a
weekend visit in a family-visit
trailer. The institution’s preventative security
officer had earlier received information that the
inmate’s wife would be bringing some marihuana
and heroin into the penitentiary during this visit.
Both the inmate and his wife were arrested and
the trailer was searched, without a warrant, by
correctional staff and police officers. The
inmate’s wife led the officers to a rear bedroom
where marihuana and heroin were found and she
admitted to bringing the drugs into the
institution. Both the inmate and his wife were
convicted in the Ontario Superior Court of
Justice for possession of heroin and marihuana
for the purpose of trafficking, but appealed to
the Ontario Court of Appeal arguing, in part,
that the warrantless search was unreasonable
under s.8 of the Charter and that the evidence
should be excluded under s.24(2).
Section 8 of the Charter is only engaged if a
person can demonstrate they have a reasonable
expectation of privacy. In this case, both
accused had standing to argue s.8 violations
because they had a reasonable expectation of
privacy in the trailer—a place the Correctional
Service promised a reasonable amount of
privacy—although the expectation is much
diminished. Section 58 of the Corrections and
Conditional Release Act allows a staff member to
“conduct
searches
of
cells
and
their
contents…for security purposes,” while s.52 of
the Corrections and Conditional Release
Regulations authorizes the search of individual
cells with prior authorization of a supervisor if
there are reasonable grounds it contains
contraband or evidence.

Volume 4 Issue 6
November/December 2004

In rejecting the accused’s submission that the
family visiting unit requires a warrant to search
it, Justice Rosenberg, for the unanimous appeal
court stated:
In my view, when these provisions are looked
at as a whole, Parliament's intention is
relatively clear. In view of the reduced
expectation of privacy in the prison setting,
Parliament intended to give the Correctional
Service power to conduct warrantless
searches throughout the penitentiary. That
power extends to all persons within the
penitentiary including inmates, visitors and
staff, and even reaches out into the
community to a room in a community-based
residential facility that is occupied by an
offender on parole or other temporary
release. If the accused are correct, the one
search that must be conducted in a
penitentiary with a warrant is the search of
the family-visiting unit. It seems unlikely that
Parliament intended such a result, given the
broad warrantless-search provisions in respect
of both other parts of the penitentiary and all
persons within the penitentiary, which
provisions authorize quite intrusive types of
searches. [para. 35]

Furthermore, although the word “cell” is not
defined in the legislation, a living unit on
penitentiary grounds still falls within the
meaning of that term. Justice Rosenberg noted:
I am, of course, somewhat uncomfortable with
the idea that in this case [the inmate’s] wife
and six-year old daughter were sharing his
"cell". However, the family-visiting unit retains
some of the attributes of a traditional cell.
The unit is surrounded by wire fences and
steps are taken to limit communication
between people in the various trailers. The
family is escorted to the trailer and locked
behind a 10-15 foot gate. The units are
monitored on a regular basis and the occupants
must present themselves to correctional
authorities on request. The unit becomes the
inmate's living quarters where he is confined
for the length of the visit. There are
extensive rules about items that may not be
taken into the trailer, including such routine

www.jibc.bc.ca

5

items as alarm clocks and radios. Even
children's toys may not be brought in except
with the authorization of the institutional
staff. [para. 37

Admissibility of Evidence
Even if there was a s.8 Charter breach, the
evidence would not be excluded, ruled the
Ontario Court of Appeal. Although there was an
intrusion into the living space of the accused and
their daughter without exigent circumstances,
the admission of the evidence would not affect
the fairness of the trial and the officers acted
in good faith. They sought out legal advice prior
to the search, complied with the provisions of
the Act and Regulations, and had reasonable
grounds for the search. Furthermore there was
a greatly reduced expectation of privacy making
the violation not serious. As for the effect of
admission on the administration of justice, the
offence was serious and the drugs were essential
to the prosecution. The exclusion of evidence,
rather than its admission, would have a more
serious impact on the repute of the
administration of justice. The appeal was
dismissed.
Complete case available at www.ontariocourts.on.ca

IMPAIRED REASONABLE
GROUNDS MUST BE VIEWED
IN TOTAL
R. v. Andrea, 2004 NSCA 130
After following a speeding vehicle
which ran two flashing red lights,
a police officer activated his
emergency lights, but it took five
blocks for the accused to react and stop. The
accused had a light smell of alcohol on his
breath, glassy eyes with enlarged pupils, thick
tongued speech, and fumbled with his papers.
The officer formed the opinion the accused was
impaired by alcohol and arrested him. A breath
demand was made and two breath samples over
the legal limit were obtained.

6

At trial in provincial court, the judge concluded
that the indicia reported by the officer—taken
together—provided reasonable and probable
grounds and the breathalyzer tests were
admitted. The accused was convicted of over
80mg%. On appeal, the accused’s conviction was
set aside and an acquittal was entered. The
summary conviction appeal court found the
indicia—neither individually nor collectively—was
equivocal and did not provide reasonable and
probable grounds. The Crown appealed to the
Nova Scotia Court of Appeal contending the
appeal court judge erred in law in reversing the
trial judge’ finding.
Justice Chipman, authoring the unanimous
judgment, held the trial judge’s finding on the
existence of reasonable and probable grounds
appropriate and supported by the evidence. He
stated:
As to the subjective component of reasonable
and probable grounds, [the constable]
testified as to his honest belief, saying that
he arrested the [accused] for "impaired
driving and over 80" and that the [accused]
was, in his opinion, impaired by alcohol. This
was not challenged.
As to the objective components, I am satisfied
that the appeal court judge erred in assessing
the various indicia on which the constable
formed his belief in isolation, rejecting each
on the grounds of consistency with other
explanations. The indicia must be evaluated in
total… Specifically the appeal court judge
reviewed the [accused’s] submissions that each
of these indicia were equivocal or consistent
with the behaviour of a driver who was not
impaired. Although acknowledging that the
circumstances must be taken together, in
effect he weighed them separately, and
concluded that the totality of the evidence did
not overcome the equivocal nature of the
parts. In doing so he also omitted reference to
the [accused’s] failure to respond to the
flashing lights of the following police car while
driving five city blocks.

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Volume 4 Issue 6
November/December 2004

The trial judge's conclusion that the officer
had reasonable and probable grounds was
reached on the basis of the [accused] speeding
on a major artery in Halifax at about 2:00 a.m.
in the morning; (when traffic was light), failing
to stop as required at two flashing red lights,
being oblivious to the flashing lights of the
following police car for five blocks; upon being
approached by the police officer, finishing his
french fries before speaking to the officer,
exhibiting a light odour of alcohol on his
breath, fumbling for his papers, having
"glossy" eyes, large pupils and thick tongued
speech. The trial judge's conclusion was not
unreasonable. [references omitted, paras. 1820]

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

INTENT TO DRIVE RELEVANT,
BUT NOT SOLE FACTOR IN
CARE & CONTROL
R. v. Mercer, 2004 NLCA 65
After driving to a lounge, the
accused parked his pickup truck
and entered to play pool and
consume alcohol over several
hours. After midnight, he and a
friend went outside to the pickup to smoke a
marihuana cigarette. The accused occupied the
driver’s seat and started the vehicle, apparently
to generate some heat while they smoked the
marihuana. A police officer arrived, found the
accused in the driver’s seat with his back
partially against the driver’s side window, motor
running, and window partly lowered. The officer
observed indicia of impairment and read a
demand for breath samples. Two samples of
150mg% were subsequently provided and the
accused was convicted in the Provincial Court of
Newfoundland and Labrador of care and control
with a blood alcohol level over 80mg%, despite
testifying he had no intention to drive.
The accused’s appeal to the Newfoundland and
Labrador Supreme Court Trial Division was

Volume 4 Issue 6
November/December 2004

dismissed and his conviction was affirmed. He
further appealed to the Newfoundland and
Labrador Court of Appeal arguing he did not have
care and control of his vehicle because he had no
intent to drive, but rather intended to take a
taxi home and retrieve his truck the next
morning. Justice Welsh, for the unanimous court,
dismissed the appeal. While intention to drive is
a relevant factor in assessing care and control, it
is not the sole determining factor. Instead, the
circumstances as a whole must be considered. In
this case, it was not sufficient merely for the
accused to say that he did not intend to drive his
vehicle. The court stated:
[T]he vehicle was running and all that was
necessary to set it in motion was to depress
the brake and put it in gear. Further, [the
accused] was not attempting to sleep in the
vehicle. Rather, accompanied by a friend in the
vehicle, he was sitting in the driver’s seat
smoking marihuana, an activity that would only
increase his impairment. [para. 9]

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

IMPAIRED INDICIA MUST BE
ASSESSED COLECTIVELY
R. v. Kuss, 2004 BCSC 1529
Responding to a report of a
possible impairer in a pick-up
truck dragging a dog, a police
officer located the vehicle and
spoke to the accused seated
behind the wheel with the engine running. Beside
him was a dog with bloodied paws. The officer
noted a very strong smell of liquor, bloodshot
eyes, slurred speech, and fumbling with his
wallet. As well, the accused admitted to having a
“couple” or “a few” drinks. The officer made a
breath demand and the accused was convicted in
British Columbia Provincial Court of over 80mg%.
However, the accused appealed to the Supreme
Court of British Columbia arguing the trial judge
erred in holding that the officer had the
requisite objective grounds for the demand.

www.jibc.bc.ca

7

In dismissing the appeal, Justice Bernard ruled
that the trial judge had a sufficient evidentiary
foundation for concluding that the officer had
reasonable and probable grounds to demand the
breath samples. He stated:
It is well established that the indicia of
impairment need only give rise to a crediblybased likelihood of impairment, and that the
indicia must be assessed collectively. Whether
there is a credibly-based likelihood of
impairment is a finding of fact, and deference
for such a finding ought to be given to the
trial judge. [para. 5]

In this case, the finding of the trial judge was
well supported.
Complete case available at www.courts.gov.bc.ca

PSYCHOLOGIST NOT AGENT
WHILE SPEAKING TO
PAEDOPHILE
R. v. Gallup, 2004 ABCA 322
The naked body of a missing 5
year old girl was found in a
brush pile. She had died from
asphyxia, but there was no
evidence to identify a killer.
About a week later the accused, who knew the
victim and had been seen talking to her the day
she went missing, was arrested for car prowling.
He had a suicide note in his pocket—expressing
self loathing for paedophilic urges—and an
extension cord around his neck. He was detained
in a psychiatric unit under Alberta’s Health Act.
One of the police investigators asked a
psychologist
for
general
advice
about
interviewing paedophiles and told her the
accused was on suicide watch in the hospital. The
psychologist knew the accused and worked with a
colleague who had previously counselled him. The
psychologist went to the hospital and advised
the accused that his therapist had been in an
accident and that he could contact her instead.

8

While in detention the accused asked for the
psychologist and told her he had difficulty
controlling his intense paedophilia feelings. The
psychologist, in turn, advised police. Later, the
psychologist told the accused she had spoken to
the police however, he again repeated what he
had told her earlier. He also made some
incriminating remarks to the psychologist. These
statements and other evidence were sufficient
to convict the accused of first degree murder in
the Alberta Court of Queen’s Bench.
The accused appealed to the Alberta Court of
Appeal arguing, in part, that the trial judge
erred in admitting the statements made to the
psychologist. He contended that the statements
were obtained contrary to s.7 of the Charter. In
his view, the psychologist was acting as an agent
of the state and therefore his right to silence
had been breached.
Justice
Fruman,
authoring
the
court’s
judgement, concluded the psychologist would
have visited the accused in the hospital had the
police not intervened. She, upon hearing the
accused was in hospital, expressed an interest in
seeing him to inform him that his primary
counsellor had been in an accident and was
unavailable. She alone made the decision to visit
the accused and no police officer attempted to
contact her after she left the police station.
She then contacted the police because she felt
she had a professional ethical obligation to do so.
She was then asked by police to tell the accused,
and did convey the information at her next visit,
that she may be compellable as a witness and
that he did not have to talk to her.
The psychologist visited the accused on her own
and was neither instructed to nor manipulated
into doing so by the police. The psychologist was
acting independently and the police did not trick,
coerce, or force the psychologist to cooperate.
The appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

www.jibc.bc.ca

Volume 4 Issue 6
November/December 2004

NO-KNOCK ENTRY VIOLATES

REQUEST FOR ID NOT A
DETENTION

R. v. Ngo & Ngo, 2004 BCSC 1414

R. v. Nguyen, 2004 BCCA 546

The police obtained a search
warrant to search the accused’s
residence for marihuana. When
they executed the warrant,
they did not knock and
announce their presence. Rather, they checked
the door to see if it was locked and used a
battering ram to break it down, entering with
their guns drawn and yelling “police”. During a
voire dire to determine the admissibility of
evidence, the accused argued that the search
was unreasonably carried out because of the
absence of an announcement, thus violating s. 8
of the Charter. As a result, they submitted the
evidence should be excluded under s.24(2).

While arriving at a home to
execute a search warrant for
electricity theft, the police saw
a van parked directly in front of
the house. This vehicle was registered to a
person wanted on an outstanding warrant for
possession of marihuana for the purpose of
trafficking. The residence was entered and
police found a marihuana grow operation in the
basement that could be accessed through a
locked door. A key for the door was found inside,
but no one was home.

CHARTER

The police stated they used the no knock
procedure because it offered surprise and
addressed safety concerns. However, British
Columbia Supreme Court Justice StrombergStein found this method unnecessary based on
the circumstances. In her view, entering
simultaneously with announcement or waiting a
split second before forcing entry is not knock
and announce, but rather knock and crash in.
In this case she held that there were no safety
issues, since the main investigator indicated that
prior to the search a briefing was held to discuss
officer safety concerns, but there were none.
There was no evidence the police made any
inquiries about the premises that would have led
them to believe there was a danger if they did
not announce there presence. Neither police
policy nor police practice is sufficient, by itself,
to waive the knock and announce rule. The
evidence was excluded and the charges of
marihuana production and possession for the
purpose of trafficking were dismissed.
Complete case available at www.courts.gov.bc.ca

Volume 4 Issue 6
November/December 2004

One of the officers exited the house to get
something from his vehicle when he saw a
Vietnamese male coming from the back yard
between the residence and a neighbouring house.
The officer said “police” and the man responded
he was there to visit a friend. After being asked
to produce identification, the man provided a
driver’s licence in the name of the van’s
registered owner.
The accused was arrested on the outstanding
warrant and Chartered. He was then searched
and police found a keys that opened the van and
the unlocked door to the residence. At trial in
British Columbia Provincial Court, the keys were
admitted as evidence and the accused was
convicted of unlawfully producing marihuana and
theft of electricity. He appealed to the British
Columbia Court of Appeal arguing, in part, that
the evidence was obtained through an arbitrary
detention contrary to s.9 and an unreasonable
search and seizure contrary to s.8 of the
Charter and that it should be ruled inadmissible
under s.24(2).
Citing the recent Supreme Court of Canada
decision R. v. Mann, 2004 SCC 52, Justice
Saunders for the unanimous court noted that
“the police cannot be said to ‘detain’, within the
meaning of ss.9 and 10 of the Charter, every

www.jibc.bc.ca

9

suspect they stop for the purposes of
identification, or even interview” and the rights
recognized by those sections are not engaged if
there is “no significant physical or psychological
restraint”. Justice Saunders stated:

GLOBAL SIX YEAR SENTENCE
FIT FOR TWO OVER 80mg%
CHARGES

The exchange which led to the identification
being provided was brief. It occurred at a
crime scene. [The accused] was on the
property, having come from the rear.
Whether the [accused] was a suspect or a
witness, or neither, a reasonable person in
possession of the information [the officer]
had would expect a police officer to ask him
whom he was and what he was doing on the
premises. [para. 16]

The accused, a 61 year old man,
pled guilty to two charges of
driving with a blood alcohol
content over 80mg% that
occurred approximately three
months apart. In neither of these incidents was
anyone injured nor was there property damage.
As well, he pled guilty to one count of prohibited
driving under British Columbia’s Motor Vehicle
Act and one count of driving while disqualified
under the Criminal Code. He was sentenced to
three years on each over 80mg% charge, to be
served consecutively, and given a $300 fine and
7 days in jail on the Motor Vehicle Act
prohibition and a lifetime driving prohibition and
one year concurrent sentence on the Criminal
Code disqualification charge.

Thus, there was no detention at the time of the
identification request and therefore an enquiry
into whether s.9 or s.10 had been violated at
that moment did not arise.
With respect to whether the identification
request was a breach of s.8, Justice Saunders
held:
Counsel for [the accused] also complained that
the request for identification, and [the
accused’s] provision of it by way of a driver's
licence, was a breach of s. 8 of the Charter.
That is, he contends that there was some
improper constraint upon [the accused] which
resulted in him identifying himself by name and
birthdate, by producing a driver's licence. I
do not agree. For the reasons expressed
above, in the circumstances [the detective’s]
request of [the accused] that he identify
himself, and his review of the driver's license
produced, was not a Charter violation. That
information, in my view, was not obtained
through a Charter breach. [para. 18]

As for the search following arrest, it was proper
as an incident thereto. The accused had been
lawfully arrested once he was identified as the
person wanted on the warrant. The keys were
discovered during that lawful search and it was
not unreasonable. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

10

R. v. Newhouse, 2004 BCCA 569

At sentencing, the judge inferred the accused
was an alcoholic because he admitted it to police
and had 17 prior convictions for either impaired
driving or driving with a blood alcohol content
over 80mg%. However, the judge said he was not
punishing him for being an alcoholic, but rather
for his arrogance and “the selfishness of
constantly getting drunk and driving and
exposing the public to risk.” Furthermore, the
accused’s refusal to follow court orders and the
fact he was on bail during the second impaired
charge, provided aggravating circumstances
warranting public protection.
The accused appealed his sentence arguing that
a six year sentence was too long and that a three
year sentence could adequately address the
sentencing objectives. As the accused pointed
out, he had been conviction free from 1986 to
1995, with his last conviction in 1998. However,
the British Columbia Court of Appeal disagreed,
stating:

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Volume 4 Issue 6
November/December 2004

No error in principle was suggested that could
give rise to a reconsideration of the
appropriate sentence for the [accused]. The
individual sentence for each of the offences
was within the appropriate range for like
offences for offenders, even offenders with
less serious records. Moreover, the totality of
the sentence was fit, including as it did a
lifetime prohibition on driving. The trial judge
was right in this case to consider the primary
need to protect the public. The protection of
the public from this [accused’s] driving
demanded the sentence the trial judge gave.
[para. 10]

The appeal against the length of sentence was
dismissed.
Complete case available at www.courts.gov.bc.ca

24 HOUR PROHIBITION
CONSIDERED IN IMPAIRED
SENTENCING
R. v. Longul, 2004 BCCA 562
The accused pled guilty to
impaired driving after driving his
vehicle into a chain link fence at
a ball park where a game was in
progress. Two breathalyzer tests subsequently
obtained showed readings of 200mg%. The
accused had 38 separate convictions on his
criminal record between 1986 and 2000, three
of which were for impaired driving, one for
driving over 80mg%, eight for driving while
prohibited or disqualified and five for failure to
attend court. As well, his driving record showed
six Motor Vehicle Act offences for driving while
prohibited or suspended and one for no
insurance. His most recent driving record entry
was a 24-hour driving prohibition under s.215 of
the Motor Vehicle Act. The sentencing judge
rejected the accused’s call for a suspended or
conditional sentence, instead sentencing him to
nine months in jail and a two year driving
prohibition.

The accused appealed, arguing that his sentence
should be reduced because the sentencing judge
placed to much emphasis on the length of his
criminal record that contained only three dated
impaired driving convictions, the most recent of
which was 10 years old. Moreover, he submitted
that his voluntary payment of $2,700 to repair
the property damage was enough of a penalty to
satisfy sentencing principles, including general
and specific deterrence as well as denunciation.
In rejecting the accused appeal for leniency, the
British Columbia Court of Appeal held that the
sentencing judge did not err in imposing the nine
month sentence. The judge neither erred in
principle nor overlooked nor overemphasized any
relevant sentencing factor. In dismissing the
appeal on behalf of the unanimous court, Justice
Rowles stated:
In March 2002, he received a 24-hour driving
prohibition under s. 215 of the Motor Vehicle
Act. That section does not create an offence;
rather, it provides that a peace officer may, if
the peace officer has reasonable and probable
grounds to believe that a driver's ability to
drive a motor vehicle is affected by alcohol or
a drug, serve the driver with a notice of a 24hour driving prohibition. While the s. 215
prohibition cannot be treated as having the
same force as a conviction for impaired
driving, it seems to me that such a prohibition,
particularly when taken together with [the
accused’s] record for related offences and the
circumstances of the offence for which he was
being sentenced, undermines any suggestion
that the offence for which he was being
sentenced ought to be treated as an
unfortunate lapse or an isolated event. Given
his prior record for drinking-driving offences,
it would be reasonable for the trial judge to
have inferred that [the accused] had failed to
recognize
the
serious
dangers
and
consequences that can result from drinking
and driving and that both specific and general
deterrence, as well as denunciation, had to be
given considerable weight in sentencing in this
case. [para. 14]
Complete case available at www.courts.gov.bc.ca

Volume 4 Issue 6
November/December 2004

www.jibc.bc.ca

11

ROBBERY TEST PARTLY
SUBJECTIVE & OBJECTIVE
R. v. Bourassa, 2004 NSCA 127
The accused was charged with
robbery under s.344 of the
Criminal
Code
after
he
approached a bank teller’s
wicket wearing a hooded jacket,
put on sunglasses, and pulled out a note. He told
her that he wanted large bills while keeping one
hand in his pocket at all times. The teller, who
had been robbed before, froze and did not hand
over the money. The accused then crossed the
wicket, reached into the till, and grabbed the
bills before leaving the bank. Although she did
not actually see a weapon, the teller assumed the
accused was holding one in his pocket. The
accused was convicted in Nova Scotia Supreme
Court, but appealed to the Nova Scotia Court of
Appeal arguing, in part, that the trial judge
erred in determining whether a robbery or
simply a theft had occurred.
Section 343 of the Criminal Code defines
robbery in several ways, including when a person
“uses violence or threats of violence to a person
or property” while they steal (s.343(a)). Steal is
defined in s.2 of the Criminal Code as committing
“theft”. In examining the difference between
theft and robbery, Justice Saunders, for the
unanimous appeal court, stated:
"Theft" is defined generally in s. 322. Also
relevant in this case is s. 588 which concerns
the ownership of property, here the financial
institution's money. From these definitions and
the jurisprudence which has considered them,
one sees that in simplistic terms the
difference between "robbery" and "theft" is
that robbery is committed by confronting and
intimidating the person whose property is
taken, whereas theft is committed without
violence or threats of violence, and often
occurs secretly, such that the victim is left
unaware of being relieved of their property.
[para. 7]

12

The “uses violence or threats of violence”
characterization of robbery under s.343(a) is
usually applied to robberies not involving weapons
or imitations, or personal violence. In deciding
whether a robber’s conduct amounted to using
threats of violence, a partly subjective and
partly objective test may be used. In holding
that the trial judge correctly concluded that a
robbery occurred in this case, Justice Saunders
wrote:
[The teller] said she was frightened and angry
to find herself again the victim of a bank
robbery. Such evidence was clearly subjective,
but
was
certainly
relevant
to
the
determination of whether she felt threatened
by the conduct and whether such fear was
reasonable under the circumstances.
To
simply isolate one or two actions of the thief
as the appellant suggests, presents a distorted
view. The better approach is to examine the
entire sequence of events through the eyes of
a reasonable observer who happened upon the
scene. When assessing, objectively, whether
such fear was reasonable, many features of
the incident would be especially persuasive, for
example: the individual had the hood of his
jacket up over his head as he approached the
wicket; then after putting his sunglasses on,
and keeping his right hand in his pocket,
passed the teller a note, and by some gesture
and grunting sounds made it clear that he
wanted the large bills. When the teller froze
and was unable to react, he reached across the
till, grabbed the money and fled. [para 15]

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

11 HOUR DETENTION OF
IMPAIRED DRIVER ARBITRARY

www.jibc.bc.ca

R. v. Iseler,
2004 Docket: C41473 (OntCA)
A police officer came upon the
accused sleeping in his vehicle
parked on the roadside. The
vehicle was running and its high

Volume 4 Issue 6
November/December 2004

beams were on. The accused fumbled for his
driver’s licence and the officer detected a smell
of alcohol on his breath. A roadside screening
device was administered and the accused failed.
He was arrested, allowed to speak with a lawyer,
and provided two breath samples with readings
registering 177mg% and 175mg%. He was placed
in a cell at 5 am and about three or four hours
later attempted to get the attention of police
because—feeling ill—he needed toilet paper to
use the toilet. He gestured to the security
camera, rattled the bars, and shouted—but
received no response. An hour later he again
tried to get the guard’s attention, but was
unsuccessful. At about 3 pm he was thrown a
submarine sandwich and was released an hour
later.
During his eleven hour detention, he had no
contact with anyone other than the five second
encounter with the officer throwing him the
sandwich. The accused had money to take a taxi
home or his wife could have picked him up. At his
trial in the Ontario Court of Justice, the
accused sought a stay of proceedings arguing he
was arbitrarily detained and imprisoned under
s.9 of the Charter. The judge concluded he was
not arbitrarily detained and his application was
rejected. Instead, he was convicted as charged.
He again launched an appeal to the Ontario
Superior Court of Justice, but it was dismissed.
He appealed once more, this time to the Ontario
Court of Appeal.
Justice Armstrong, authoring the unanimous
appeal judgment, found that there had been an
arbitrary detention. There was no evidence of an
assessment of the accused’s level of sobriety
that may have warranted continued detention.
Furthermore, “the police either paid no attention
to the gesturing, or they were unaware of it
because they simply failed to monitor the
security camera. In either case, those
responsible for his incarceration and well-being
would appear to have failed in their duty”. This
was an 11 hour detention in which the accused
was ignored but for a five second encounter at

Volume 4 Issue 6
November/December 2004

the tenth hour. The accused had presented a
prima facie case of arbitrary detention and the
Crown left it unanswered.
Despite the arbitrary detention however,
Ontario’s highest court found a stay of
proceedings would be inappropriate in this case:
While the police conduct in failing to monitor
the accused was inexcusable, it is important to
note that the breach of the [accused’s] s. 9
Charter rights occurred post-offence. The
breach had nothing to do with the
investigation and the gathering of evidence
against him. It did not impact on trial fairness.
As Morden A.C.J.O. said in Sapusak [[1998]
O.J. No. 4148], "[t]here was no temporal or
causal connection between the breach and the
obtaining of the evidence". I am accordingly
satisfied that this is not "the clearest of
cases" warranting the grant of a stay of
proceedings. [para 31]

The appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

WHOLE PICTURE MUST BE
CONSIDERED FOR SEARCH
WARRANT
R. v. Saunders, 2004 SCC 70
Three
confidential
police
informants provided information
that the accused was receiving
hash oil and keeping it at his
house. One source told police he had bought
some at the accused’s house while the two other
sources said drugs were there. On the basis of
this information the police obtained a Controlled
Drugs and Substances Act search warrant,
executed it, and found drugs and money. The
accused was charged with possession of a
controlled substance for the purpose of
trafficking.
At his trial in the Provincial Court of
Newfoundland and Labrador, the trial judge
ruled the police had violated the accused’s s.8

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13

Charter right to be secure against unreasonable

search or seizure. In his view, the warrant was
improperly issued by the justice of the peace. As
a result, the evidence was excluded under
s.24(2) and the accused was acquitted.

The Crown successfully appealed to the
Newfoundland and Labrador Court of Appeal
(2003 NLCA 63) arguing that the trial judge
failed to examine the “totality of the
circumstances” when assessing the sufficiency
of the information used to support the warrant.
In the 2:1 judgment, the appeal was allowed and
a new trial was ordered. In the majority’s
opinion, “the trial judge ‘deconstructed’ every
paragraph (and many phrases within paragraphs)
in the information to obtain, concluding they
suffered from some inadequacy.” As Chief
Justice Wells noted:
…the trial judge engaged in a critique of the
information to obtain ... almost as if he were
correcting a student's term paper ... and not
an assessment of the sufficiency of the
information in the "totality of the
circumstances". The approach taken by the
trial judge was like that of a person who
views a painting square centimetre by square
centimetre to identify defects ... which has
its place ... but then fails to step back and
view the painting as a whole. [para. 11]

And further:
If one "deconstructs" each item of
information from source "A" and then that
from source "B" and then that from source
"C" and applies the test as against each item
individually, as did the Trial Judge, then the
answer may well be "no", as the trial judge
concluded. But, if one considers the "totality
of the circumstances" one sees that the
information from the three sources is
corroborative inter se; because of this, the
whole of their information becomes greater
than the sum of its parts. To put it another
way, the sequence of pictures drawn by the
three sources tells a consistent story: [The
accused] sold hash oil, he kept it at his
residence, he had hash oil at his residence on

14

April 1, 2001. As such the whole could enable
the justice of the peace to conclude that
credibly-based probability had replaced
suspicion. [para. 15]

As a result, the majority viewed the whole
picture as capable of supporting the search
warrant. Justice Welsh, on the other hand,
disagreed with the majority. In his opinion, a
careful paragraph by paragraph review was
necessary to assess the reliability of various
pieces of information to identify any
deficiencies in order to determine whether the
totality of the circumstances lacked a valid or
substantial foundation. He found that there was
insufficient information to establish the
reliability of any of the informants, even if their
information was consistent with each other.
Further independent police corroboration could
have buttressed the warrant, but was not
undertaken. Welsh found the search warrant
invalid, the resultant search a s.8 Charter
violation, and would have dismissed the Crown’s
appeal.
The accused appealed to the Supreme Court of
Canada. In a short oral judgment dismissing the
appeal, Chief Justice McLachlin, for a five
member Supreme Court, affirmed the order of
the Newfoundland and Labrador Court of Appeal.
In her view, there was sufficient information
before the issuing justice to support the
granting of the search warrant.
Complete cases available online at www.canlii.org

BC POLICE HONOURED
Many
of
British
Columbia’s finest police
officers were honoured
on November 18, 2004
at Government House in Victoria. They were
selected by a committee comprised of
representatives from the British Columbia
Association of Chiefs of Police and Police
Services Division, Ministry of Public Safety and
Solicitor General. Awards were presented for

www.jibc.bc.ca

Volume 4 Issue 6
November/December 2004

either valour or meritorious service. The criteria
for the awards are as follows:

the life of a suicidal male attempting to jump
from a viaduct.

Valour (gold coloured) is the highest award for a
police officer in British Columbia and involves an
act of exceptional valour in the face of extreme
hazard. It is awarded to police officers who
purposely took action for the benefit of others
while knowing that, in doing so, they placed
themselves at substantial risk of death or
serious injury.

Constable Pamela Falconer (currently serving
with West Shore RCMP) and Constable Kelly
Falconer (currently serving with West Shore
RCMP) for apprehending a violent male who, while
armed with a knife, threatened fellow officers.

Meritorious
Service (silver coloured) is
exemplary performance that enhances the image
of police officers in British Columbia. It is
awarded to police officers who clearly
demonstrated that they acted in a manner
significantly beyond the standard normally
expected.

Awards of Valour

Constable Dave Piket, Prince Rupert RCMP, for
rescuing two occupants from a submerged
vehicle.
Constable Sandi Swanson and Constable Paul
Bouwman, Salmon Arm RCMP, for apprehending a
distraught male armed with a shotgun.
Constable Rico Wong (currently serving with
RCMP "E" Division, Integrated National Safety
Enforcement Team), for his drug investigation in
Fiji leading to successful convictions.

Sergeant Rhen Hallett, Delta Police Department,
for apprehending a violent male who, armed with
a rifle, threatened the lives of several citizens.

Corporal Willie Hornseth, Kelowna RCMP
Detachment, for apprehending a violent suspect
who, armed with a handgun, threatened a fellow
officer.

Constable Dan McLean, Constable Derek
Gallamore, and Constable Phillip DiBattista, Delta
Police Department for apprehending armed and
violent suspects, one of who was armed with a
handgun, who were threatening the lives of
several citizens.

Constable Wahnese Antonioni-Stevens (currently
serving with Alexis Creek RCMP) and Constable
Steven Croft, Mission RCMP Detachment, for
saving a suicidal male who attempted to jump
from an overpass railing.

Constable Chad Gargus, Delta Police Department,
for rescuing a suicidal male from the outside
railing of the Alex Fraser Bridge.
Constable Dave Walker and Constable Richard
Vanstone, Vancouver Police Department, for
apprehending a violent male who, armed with
knives, threatened to cause harm to family
members.
Constable Dina Tzetzos, Vancouver Police
Department, for saving the life of a suicidal male
who was stabbing himself with a knife.
Constable Tony Blouin and Constable Silvana
Burtini, Vancouver Police Department, for saving

Volume 4 Issue 6
November/December 2004

Constable Cameron Joseph (currently serving
with Penticton RCMP), for apprehending a violent
male who had caused him personal injury.

Awards for Valour During Forest Fire
Season 2003
Staff Sergeant Allen Olsen, (currently serving
with Boundary Regional RCMP) and Constable
Todd Vande Pol, Barriere RCMP (currently
serving with Lytton RCMP), for evacuating
several communities threatened by the 2003
Lewis Creek forest fires.
Staff Sergeant John Folk, (currently serving
with Central Interior RCMP Highway Patrol),
Sergeant Rick Bigland, (currently serving with

www.jibc.bc.ca

15

Summerland RCMP) and Constable Larry Boak,
(currently serving with Central Interior RCMP
Highway Patrol), for evacuating the village of
Pritchard during the 2003 forest fire season.
Corporal Don Longpre, (currently serving with
RCMP "E" Division, Security Engineering
Section), Constable Denise Bendfeld, Chase
RCMP and Constable Mark Skotnicki, Chase
RCMP, for evacuating the McGillvery Lake shore
and the Kamloops Shuswap Road area during the
2003 Forest Fires.
Sergeant Garry Kerr, (currently serving with
Southeast District RCMP HQ, Kamloops) for
performing several roles related to the 2003
Forest Fires.

Meritorious Service
Sergeant
Ross
Poulton,
Saanich
Police
Department, for pursuing an investigation
involving a series of fires that resulted in the
conviction of a serial arsonist.
Detective Constable Les Yeo, Vancouver Police
Department, for his investigation of a jewellery
store robbery led to several charges being laid.
Constable Kevin Lastiwka, Constable Paul
Spencelayh and Constable Rae Robirtis , Victoria
Police Department, for rescuing residents from a
burning apartment building.
Constable
Paul
Brookes,
Victoria
Police
Department, for his contributions and dedication
leading to the development and delivery of the
"Youth Combating Intolerance Conference" held
on Thetis Island.
Constable Jana Hardy and Constable Dale
Sleightholme, Victoria Police Department, for
saving the life of a drowning male.
Constable Marc Searle, Surrey RCMP, for
volunteering numerous hours of community
service.
Corporal Michael Pacholuk, RCMP “E” Division
Major Crimes Section, Staff Sergeant Glenn

16

Magark, RCMP “E” Division Major Crimes Section,
Corporal Stephen Thatcher, RCMP "E" Division,
Vancouver Commercial Crime, and Sergeant
Gerry Peters (currently serving with RCMP "E"
Division, Criminal Operations Policy), for their
eight-year investigation of child abuse at Native
Indian residential schools in B.C. resulting in
several Criminal Code charges.

Awards for Meritorious Service During
Forest Fire Season 2003
• Superintendent William McKinnon (currently
serving with SE District RCMP HQ, Kelowna)
• Staff Sergeant Kerry Solinsky, Kelowna RCMP
• Staff Sergeant Shawn Wylie (currently
serving with Westbank RCMP)
• Sergeant John Jordan, Kelowna RCMP
• Staff Sergeant Peter McLaren (currently
serving with SE District RCMP HQ, Kelowna)
• Staff Sergeant Henk Wamsteeker (currently
serving with SE District RCMP HQ, Kelowna)
• Sergeant Darryl R. Little (currently serving
with Nelson RCMP)
• Corporal Kevin Keane (currently serving with
Boundary Regional RCMP)
• Corporal Rick McIsaac, Nakusp RCMP
• Staff Sergeant Terry Miles (currently
serving with Island District RCMP HQ,
Victoria)
• Staff Sergeant Norm McPhail (currently
serving with Whistler RCMP)
• Corporal Brian Hunter, Salmon Arm RCMP
• Constable Kevin Christensen (currently
serving with Creston RCMP)
• Staff Sergeant Dave Williams (currently
serving with Salmon Arm RCMP)
• Constable Darren Bonang (currently serving
with Central Interior RCMP Highway Patrol)
• Staff Sergeant Len Carlson (currently serving
with North Okanagan RCMP)
• Sergeant Kirk Nevison, Kamloops RCMP
• Corporal Steve Nordstrum (currently serving
with RCMP HQ, Emergency Response Team,
Ottawa)
• Constable Glenn Beattie, Kamloops RCMP

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Volume 4 Issue 6
November/December 2004

• Sergeant Dennis Bauhuis (currently serving
with Kamloops Rural RCMP)
• Corporal Mark Jorgenson, Cranbrook RCMP
• Constable Derren Perpelitz, Cranbrook RCMP
• Sergeant Brian Richard Roy Edmondson,
Cranbrook RCMP
• Constable John Ferguson (currently serving
with West Kootenay RCMP Highway Patrol)
Source: http://www.pssg.gov.bc.ca/police_servi
ces/honours/recipients/2004.htm

FIVE YEAR SENTENCE FOR
PURSUIT CAUSE INJURY FIT
R. v. Breton, 2004 ABCA 391
Just days after completing a
seven year and two month
sentence for dangerous driving,
theft, and obstructing a police
officer, the accused was stopped at a random
check-stop driving a vehicle with the wrong
licence plate. He could not produce the vehicle
registration , insurance, or his driver’s licence
and was asked to turn off the vehicle. He did not
and appeared to be about to drive off. The
officer reached in to turn off the vehicle,
became entangled in the seatbelt and a struggle
ensued, with both exchanging blows. The accused
drove off at a high rate of speed and dragged
the officer for four blocks before the officer
fell onto the roadway, suffering only minor
physical injuries but heavily damaging his boots,
clothing, holster and firearm. A police pursuit
followed and the accused was stopped by a spike
belt and collision with a parked vehicle. In the
vehicle police found a stolen licence plate,
jewelry, a screwdriver, pliers and binoculars.
The accused entered an early guilty plea to
flight causing bodily harm, leaving the scene of
the accident, and possession of break-in
instruments. While Crown sought a four to six
year sentence and the accused only four years,
the Alberta Provincial Court judge sentenced him
to five years on the flight charge and one year
concurrent on the other two charges. The

Volume 4 Issue 6
November/December 2004

accused appealed to the Alberta Court of Appeal
arguing
the
sentence
overemphasized
denunciation
and
deterrence,
was
not
proportionate to the offence since the officer
was not seriously injured and gave too little
weight to the early guilty pleas.
In dismissing the appeal, Alberta’s top court
noted:
Section 249.1 of the Criminal Code, involving
flight or evasion from a peace officer, is
intended to protect the public and the police
when a person operating a motor vehicle being
pursued by the police fails to stop as soon as is
reasonable. The maximum penalty where bodily
harm occurs is 14 years. This is significant
because the maximum penalty for impaired
driving causing bodily harm or negligence
causing bodily harm is 10 years. [para. 8]

In finding no error in the sentencing judge’s
decision, the court stated:
In the case before us, the sentencing judge
specifically identified the mitigating factors
of the guilty plea, the apology showing
remorse, and the one month spent in custody.
He took them into account in sentencing the
[accused] to 5 years. There is no basis for
finding that he gave too little weight to the
guilty plea.
He also considered the very aggravating factor
that the [accused] tried to shake the police
officer off in order to escape. He said that it
was evident that the [accused] did not care
whether the police officer would be injured or
killed by his actions. While the injuries turned
out to be minor, there was an actual risk and it
was very great. The [accused’s] actions showed
a disregard for the lives and safety of others.
An accused who evades police is morally
blameworthy for the risk created. The
accused’s reckless behaviour was a serious
aggravating factor in this case. [para. 18-19]

The global five year sentence was a fit and
proper sentence, even though there were only
minor physical injuries to the officer.
Complete case available at www.albertacourts.ab.ca

www.jibc.bc.ca

17

BAR ID CHECK FOR WARRANTS
UNCONSTITUTIONAL
R. v. Skeet, 2004 MBPC 10141
Eight police officers attended a
bar to do a spot check project
whereby they would spread out
through the bar, randomly walk
up to individuals and request identification to
determine if they were wanted on warrants. No
one had called the police nor was there any
criminal conduct requiring police intervention.
Officers approached the accused’s table where
he was drinking from a bottle of beer and asked
him for identification. He produced a picture
driver’s licence. He was checked on CPIC and was
found to be bound by a probation order requiring
him to abstain from the consumption or
possession of alcohol. As a result, the accused
was charged with breaching his probation.
At his trial in Manitoba Provincial Court, the
accused admitted he had been drinking but
testified officers were blocking the exits to the
bar, did not tell him he could refuse to identify
himself, and felt he did not have any option but
to do what he was told. He argued his s.8, s.9,
and s.10 Charter rights were violated, while the
Crown submitted there were no Charter
breaches because there had been no detention
until the CPIC checked revealed the probation
order.
Justice Garfinkel concluded the accused had
been both physically and psychologically detained
when they asked for identification—he felt he
could not or should not refuse. The police action
was “compulsive”—the officers wore police
attire, their weapons and equipment were visible,
they prevented people from leaving, and they did
not tell people they did not have to produce
identification nor answer questions. In Justice
Garfinkel’s view, “people have the right to drink
or eat in a public bar or restaurant without
police approaching and asking, without any cause
articulated, to produce identification”. There

18

was no observable illegal activity, no disturbance,
or no assault upon which to take police action.
Thus, the accused’s Charter rights were violated
by this deliberate police action to check for
warrants.
Since the identification provided by the accused
was conscriptive—he was detained and compelled
to produce it—the trial would be rendered
unfair. Furthermore, the Charter violation was
serious. The accused was not suspected of doing
anything illegal and the degree of intrusiveness
was more than minimal in the circumstances. The
admission of the evidence would therefore bring
the administration of justice into disrepute.
Complete case available at www.canlii.org

9-1-1 ENTRY LOGICAL &
LAWFUL
R. v. Havelock, 2004 MBQB 189
The police received a 9-1-1 hang
up call from an apartment suite.
On call back a female answered,
said it was a joke, and lied
about her name. A male voice then came on the
phone and told the call taker off. About 15
minutes later, two officers arrived at the suite
and could hear yelling from inside. They heard
the accused yell, “Shut the fuck up. You fucking
bitch” and a female take blame for calling 9-1-1.
The accused said he didn’t “care if the fucking
cops came.”
The police knocked on the door and the accused
opened it, yelling and asking what they wanted.
The officer asked if the police could come in and
talk, but the accused became angry, said “no”,
and blocked the doorway by standing in the
middle of it. The officer explained the police
would have to come in and ensure everything was
okay because of the yelling and the 9-1-1 hang up
call. The officer took a step to pass by, but the
accused lunged and pushed the officer
backwards, both losing their balance and falling
to the floor. A struggle ensued—one officer

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Volume 4 Issue 6
November/December 2004

trying to handcuff while a second tried to
restrain his legs while being kicked at. The
accused was subsequently restrained and
convicted in Manitoba Provincial Court of
assaulting a peace officer in the execution of his
duty.
The accused appealed his conviction to the
Manitoba Court of Queen’s Bench arguing the
trial judge erred in finding the officer acting in
the lawful execution of his duty. In his opinion,
the officer was exercising an unjustifiable use
of police powers when he attempted to enter the
suite. He submitted that the police could have
determined the health and safety of the female
without going inside the suite—such as asking
the accused to have her come to the door or
calling out to her to come to the door herself.
The Crown, on the other hand, contended the
officer was engaged in the execution of his duty
when he attempted to enter the suite, which was
justified in the circumstances.
Justice Hanssen of the Manitoba Court of
Queen’s Bench agreed with the Crown and
dismissed the accused’s appeal. In his view,
there was no doubt “the police officers had a
duty at common law to ascertain the reason for
the 911 call and to ensure that [the female] was
safe.” Furthermore, the officer’s attempt to
enter the suite did not involve an unjustifiable
use of police powers associated with that duty.
Justice Hanssen stated:
[The officer’s] attempt to enter the suite in
the manner he did was justifiable considering
the totality of the circumstances. The police
officers were responding to a disconnected
911 call. They had a duty to act to protect life
and safety. They had a duty to respond to the
call. Once they arrived at [the accused’s]
suite, they had a duty to ascertain the reason
for the call. They had no indication as to the
nature of the problem. They did not know
whether the call related to a criminal offence.
When they arrived they heard a heated
argument taking place in the suite. They heard
[the accused] yelling loudly. When he answered
the door he was hostile and uncooperative. The

Volume 4 Issue 6
November/December 2004

officers could not see [the female] inside the
suite. They did not know whether she had been
injured and might be in need of assistance.
The fact that [the accused] tried to block the
doorway contributes to the appropriateness of
[the officer’s] response.
Given
[the
accused’s]
belligerent
and
uncooperative mood, it would have been
pointless for the officers to have asked him to
have [the female] come to the door. It is
obvious he would not have complied. It was also
reasonable for them not to call out to [the
female] to come to the door. This might have
resulted in unnecessary delay in rendering
assistance to her. In fact, given [the
accused’s] hostile frame of mind it is possible
she would have been exposed to some danger
if she had come to the door to speak with the
officers. Moreover, it would have been more
appropriate for them to deal with her in the
privacy of the suite instead of a public hallway.
Under the circumstances, it was logical and
lawful for [the accused] to attempt to enter
the suite without [his] permission. … [The
officer] hoped to gain entry without having to
use any force. This is why he tried to step
around [the accused]. Had he been successful
in gaining entry in this manner the
interference with [the accused’s] privacy
would have been minimal and brief. [The
officer’s] intention was merely to ascertain
the health and safety of [the female] and to
provide whatever assistance she might require.
He did not intend to intrude any further on
[the accused’s] privacy than was necessary in
order to achieve these goals. [paras. 16-18]

The officer’s attempted entry into the suite was
reasonable.
Complete case available at www.canlii.org

DID YOU KNOW…
…that a new federal law makes it an offence to
make a terrorist hoax. Real acts of terrorism
are already criminal offences, but s.82.231 of
the Criminal Code fills a gap in the existing law
by creating an offence, punishable by a maximum
life in prison—if death results—for terrorist
hoaxes.

www.jibc.bc.ca

19

NEW

(PROPOSED)
UPDATE

LAWS

Production Offences

There are several new Bills
before Parliament that may
impact police officers and how
they do their job. These Bills
include C-16 and C-17.

Bill C-16 (first reading only:

November 1, 2004)

New amendments to the Criminal Code provisions
respecting impairment by alcohol or drug have
been proposed, including authorizing specially
trained peace officers—known as evaluating
officers—to conduct physical coordination tests
(prescribed by regulation) to determine whether
a person is impaired by a drug or a combination
of drugs and alcohol. Furthermore, the new
section will allow police to take bodily fluid
samples to test for the presence of drugs or a
combination of drugs and alcohol in a person’s
body.
A person who fails or refuses,
without reasonable excuse to
comply with a demand to
perform
the
physical
coordination tests or provide
urine
tests
commits
an
offence.

Bill C-17 (first reading only: November 1,
2004)

Several amendments to the

Controlled
Drugs
and
Substances Act (CDSA) have

been re-introduced following
the recent federal election.
These proposed changes
include reducing the maximum punishment, by
fine only, and the possibility of “ticketing”
processes for minor marihuana possession

20

offences. Penalties for growing marihuana would
be increased.

In its bid to toughen
penalties against marihuana
growers,
Parliament
is
proposing to double the
current maximum sentence
(proposed
s.7(3)
CDSA).
Under the present law of
producing marihuana (which
includes
cultivating,
propagating, or harvesting
the substance), a convicted
grower can only receive a
maximum of 7 years in
prison. Under the new proposal, maximum
sentences are based on the number of marihuana
plants grown. The following sentencing grid
shows the corresponding penalty attached to the
number of plants:
1-3

Offence type
Summary only

4-25

Dual

26-50
51+

Indictable
Indictable

# of plants

Punishment
<$500 adult
<$250 young person
by indictment
• <5 yrs. prison
by summary
• <$25,000 and/or
• <18 mos. prison
<10 yrs. prison
<14 yrs. prison

Possession Offences
This new legislation will “de-criminalize”, but not
“de-legalize”, possession of small amounts of
marihuana. Therefore, enforcement action can
still be taken. Marihuana possession of amounts
less than 30 grms. or hashish possession less than
1 gram remain summary conviction only offences.
However, maximum penalties for these offences
have been reduced in some cases.

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Volume 4 Issue 6
November/December 2004

Offence
s.4(5)
CDSA
summary
s.4(5.1)
CDSA
summary
s.4(5.2)
CDSA
summary

s.4(5.4)
CDSA
summary

Drug Amount
hashish
< 1 grm.

Max. Penalty
Adult = $300
YO = $200

marihuana
< 15 grms.

Adult = $150
YO = $100

If person in possession
of <1 grm. of hashish
grms.
of
or
<15
marihuana:
• is operating or in
care & control of a
motor
vehicle,
railway
equip.

Adult = $400
YO = $250

aircraft, or vessel
• while committing
an
indictable
offence
• in or near a school
or school grounds
marihuana
more than 15 grms.,
but not more than
30 grms.

•

•
•

the accused used real property belonging to
a 3rd party to commit the offence;
the production was a potential security,
health, or safety hazard to children at the
location or in the immediate area;
the production was a potential public safety
hazard in a residential area; or
the location was set with a trap or other
device likely to cause death or bodily harm.

Complete copies of these and other proposed Bills are
available at www.parl.gc.ca

HUNCH INSUFFICIENT FOR
INVESTIGATIVE DETENTION

Option
< $1000 fine
and/
or
6
months
in
prison

Contraventions
Act process:
Adult = $300
YO = $200

Marihuana amounts in excess of 30 grams or
hashish amounts in excess of 1 gram will continue
to be a dual offence. If possession of these
amounts proceeds by indictment, the maximum
punishment available is imprisonment for a term
not exceeding 5 years less a day. If the offence
is proceeded summarily, a first offence can draw
up to 6 months in prison and/or a $1000 fine
while a second or subsequent offences can bring
up to one year in prison and/or a $2000 fine.

Sentencing Reasons
A new section will place an affirmative duty on
judges in some cases to justify why a person is
not sent to jail (proposed s.10(2.1) CDSA). If an
accused is convicted of a production offence
where 4 or more plants are involved, but is not
sentenced to imprisonment, the Court must give
reasons why if:

Volume 4 Issue 6
November/December 2004

•

R. v. Calderon & Stalas,
(2004) Dockets: C38499 & C38500
(OntCA)
Ontario
police
officers
stopped a rented Lincoln Town
car with BC licence plates
travelling 10 km/h over the
speed limit at night on a highway. Inside the
vehicle an officer saw several indicators
suggesting the two occupants—who identified
themselves and cooperated with police—were
drug couriers. These items included cell phones,
a pager, a road map, fast food wrappers, and two
duffel bags. As well, the officer thought the
vehicle appeared too expensive for the
occupants to be driving. The driver exited the
car on request and would not allow the police to
search it. The officer then asked the
passenger—who rented the car—if he could
search the car and he said yes. As the passenger
exited the car, the officer detected a fresh
odour of marihuana, but his partner did not. The
passenger withdrew his consent, but the officers
searched the car anyways without informing the
occupants of their right to counsel or
considering a warrant. In the trunk of the car
police found two duffel bags containing 22 lbs.
of marihuana. The occupants were both arrested
and advised of their right to counsel.

www.jibc.bc.ca

21

At trial in the Ontario Superior Court of
Justice, the accused were convicted after
Justice Kurisko concluded there were no Charter
violations. In his view, the stop was legitimately
connected to highway traffic concerns and the
officers also had articulable cause for
suspecting there may be drugs in the car. Even if
their were breaches of the Charter, the trial
judge would have admitted the evidence under
s.24(2). The accused were convicted of
possession for the purpose of trafficking.
The accused appealed to the Ontario Court of
Appeal arguing their rights were violated under
s.8 (unreasonable search or seizure), s.9
(arbitrary detention) and s.10(b) (right to
counsel) of the Charter. Crown conceded the
accused’s rights under s.8 and 10(b) were
infringed, but argued the trial judge was correct
in finding no arbitrary detention and with his
s.24(2) analysis.

Search and Seizure
Justices Laskin (with Feldman concurring)
concluded that the Crown was correct in
conceding the s.8 violation. The search was
warrantless and presumed to be unreasonable. A
warrantless search can be justified under the
common law as either a search incidental to an
investigative detention or incidental to arrest.
Searches “incidental to an investigative
detention can only be justified for protective
purposes: officers must believe on reasonable
and probable grounds, that their safety or the
safety of others is at risk.” However, neither
officer testified they searched for safety.
Their search was to discover evidence of a
crime—drugs—which could not be justified as an
incident to investigative detention.
A search incident to arrest may precede an
arrest provided the officer had reasonable
grounds to make an arrest prior to the search
and the arrest follows on the heels of the
search. However, the majority held that the
police did not have the subjective or objective
grounds to make the arrest before searching the

22

trunk. Nor could the search be based on consent.
Before the search of the trunk, one occupant
refused to consent and the second occupant
quickly withdrew his. Furthermore, both accused
were detained prior to the search and had not
been advised of their s.10(b) rights. Where a
person is detained and the search depends upon
their consent, the failure to advise them of their
right to counsel renders the resultant search
unreasonable.

Arbitrary Detention
When the officers stopped the accused’s vehicle
for speeding-10 km/h over the limit—it was a
legitimate highway safety concern and the
officer’s “suspicion about drugs did not taint the
lawfulness of the initial stop.” However, the
investigative detention related to drugs that
followed would not be arbitrary only if the
officer had an articulable cause, or reasonable
grounds to detain the accused. As Justice Laskin
noted:
On an objective assessment of all of the
circumstances, the officers had to have
reasonable grounds to suspect that the
[accused]
were
implicated
in
the
transportation of drugs. The objectivity of the
assessment is critical. An officer cannot
exercise the power to detain on a hunch, even
a hunch born of intuition gained by experience.
[para. 69]

In this case the officer testified to taking a one
week drug interdiction course where he was
trained on the indicators of drug couriers. He
said the items he saw, along with his view that
the occupants did not fit the expensive car they
were driving led him to reasonably suspect they
were drug couriers. But on cross examination he
testified the indicators were neutral and might
be found in any car. Furthermore, he said he had
previously stopped between 10 and 20 cars with
these indicators and made no arrests while his
partner stopped between 50 and 100 cars
without an arrest.
Justice Laskin concluded the neutrality and
apparent unreliability of these indicators did not

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Volume 4 Issue 6
November/December 2004

amount to reasonable grounds for detention and
therefore the investigative detention was not
justified and was arbitrary under s.9.

Right to Counsel
Justice Laskin ruled that when the police were
looking for drugs the accused were at least
physically restrained and therefore detained
under the Charter which triggered their rights
under s.10(b)—which had not been provided.

Complete case available at www.ontariocourts.on.ca

Admissibility
The majority held that the evidence should be
excluded under s.24(2). Although the nonconscriptive evidence would not affect trial
fairness, the police committed three violations.
There was no urgency or necessity and the
violations were not inadvertent or technical. The
police searched the trunk—an area with a
reasonably high expectation of privacy—without
a warrant or consent and did not have reasonable
grounds to do so. Moreover, the police could have
obtained a telewarrant and lawfully searched the
car

Another View
Justice Weiler, on the other hand, found the
initial stop lawful. The stop was legal under s.216
of Ontario’s Highway Traffic Act and the
officer’s motive of investigating possible drug
smuggling, in addition to the highway safety
concerns, did not taint the lawfulness of the
stop. Furthermore, the police did have
articulable cause to conduct an investigative
detention. Although the individual factors by
themselves were susceptible to innocent
explanation, their totality was suspicious.
However, the police unjustifiably used their
power to detain since they did not advise the
accused of their right to counsel before asking
for their consent to search. Thus, although
articulable cause existed, the detention was still
arbitrary under s.9. But, unlike the majority,
Justice Weiler would have found the evidence
admissible under s.24(2). The accused had a

Volume 4 Issue 6
November/December 2004

reduced expectation of privacy in the vehicle,
there was no oppressive police behaviour, no
ongoing pattern of disregard for their rights, no
deliberate breach of the Charter and the search
was unobtrusive. Furthermore, the detention was
brief before the police smelled the marihuana
and thereby acquired reasonable grounds to
effect the arrest and search incidental thereto.
As well, the evidence was non-conscriptive real
evidence discoverable in any event.

ACTUAL ARREST NOT A
PREREQUISITE TO SEARCH
PROVIDED GROUNDS EXIST
R. v. Dubois, 2004 BCCA 589
Two police bicycle members on
patrol detected a smell of
burning marihuana as a car
passed by them. The car turned
into a parking lot and the
officers rode up to it. An officer saw the driver
raise a beer and take a drink. A strong odour of
burning marihuana was detected coming from the
car and an open beer was seen on the console
area. The driver and his female passenger were
asked to exit the car. At this time the female
brushed what the police suspected was
marihuana leaves or remnants from her pants
and police saw residual marihuana leaf
throughout the interior of the car.
Both occupants were advised they were being
detained for investigation of possession of a
controlled substance and that the vehicle would
be searched. A police dog was called to the
scene, searched the car, and located a baggie of
marihuana between the passenger seat and the
passenger door, roaches in the ashtray, and a
sum of money. The accused driver was told he
was being detained and read the Charter and
police warning. He was taken to the police
detachment where a jail guard found a deck of
cocaine in his pants.

www.jibc.bc.ca

23

At his trial in British Columbia Provincial Court
the accused was acquitted of the marihuana
found in the vehicle—since the judge was not
satisfied he had control over it—but was
convicted of possessing the cocaine. Although he
argued that his rights under s.9 (arbitrary
detention) and s.8 (unreasonable search and
seizure) of the Charter had been violated, the
trial judge ruled the police had reasonable
grounds upon which to arrest the accused prior
to the dog search. In his view, “a reasonable
person would readily conclude that given the
aroma emanating from the vehicle it was
reasonable to conclude that one or both of the
occupants had recently used marihuana within it
and might do so again.”
The accused appealed to the British Columbia
Court of Appeal arguing that the police did not
arrest him prior to the dog search, and
therefore the search incidental thereto was
unreasonable. He contended that the odour of
marihuana and the leafy substance on the
female’s pants were insufficient grounds in any
event upon which to base an arrest.
Justice Huddart, authoring the unanimous
British Columbia Court of Appeal, upheld the
trial judge’s decision. In her view, an actual
arrest is not a prerequisite to a search
incidental to arrest provided there are
reasonable
grounds—both
objective
and
subjective—upon which to arrest prior to the
search. In this case, the police had reasonable
and probable cause to arrest the accused before
the dog search began. Evidence of marihuana
odour alone in every circumstance is not
necessarily insufficient to found an objective
belief that a crime has been or is about to be
committed. The trial judge’s finding that the
officer had a subjective belief to arrest was
supported by the evidence and her inference
there was probably marihuana in the car was
reasonable. The trial judge did not err and the
appeal was dismissed.

March 12-15, 2005
“Mass Murder in the Home,
the School and the Workplace:
Spree Killers and Annihilators”

Location:
Ramada Inn & Conference Centre
Abbotsford, BC

Registration:
$329
Registration fee includes tickets to the
opening ceremonies and receptions,
on-site continental breakfasts, and
tickets for the conference banquet.

Topics:
Dunblane School Massacre,
Scotland, 1996
Gakhal Family Murders, Vernon,
British Columbia, 1996
Ottawa Transpo Massacre,
Ottawa, Ontario, 2001
Kamloops Murders, British
Columbia, 2002
Port Arthur Massacre, Tasmania, 1996
Columbine High School Massacre, 1999
Expert presenters include Lt. Col. Dave Grossman,
U.S. Army (Retired), Director, Killology Research
Group, who is one of the world's foremost experts in
the field of human aggression, the roots of violence
and violent crime.

Visit www.fvlec.org for more info!

Complete case available at www.courts.gov.bc.ca

24

www.jibc.bc.ca

Volume 4 Issue 6
November/December 2004