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.

FORCING ENTRY TO ARREST:
THE COMMON LAW

Ø

the police officer has reasonable grounds to
believe (subjectively held/objectively verifiable)
the person sought is within the premise. The
belief that the arrestee is an occupant of the
premise/property must exist at the time the police
are about to enter. Grounds may include information
the officer receives, observing the suspect through
an opening, or telephone contact with the suspect.

Ø

proper announcement is made prior to entry.
Before forcing entry (in the absence of exigent
circumstances), police should knock, seek admission,
and have admission denied 5. Proper announcement
requires the following6:

Sgt. Mike Novakowski

The legal authority to arrest a person
does not, by itself, justify an entry
into a private premise to effect an
arrest. There is a recognized
distinction between the police power
to arrest and the police power to
enter to carry out the arrest. At
common law, the police may make a
warrantless and non-consensual forced
entry into private property other
than a dwelling house, such as a business, detached
garage, barn, non-dwelling out buildings, land, or vehicles,
to effect an arrest provided the following criteria are
met 1 :
Ø

The police officer must have the power to
arrest2. Generally, this will require the officer
having
reasonable
grounds 3
(subjectively
held/objectively verifiable) to arrest. The power to
enter to arrest is not restricted to criminal
offences but would include situations where the
arrest authority exists under provincial legislation
such as a hit and run arrest under the Motor
Vehicle Act4.

IN THIS ISSUE

Forcing Entry to Arrest:
The Common Law……………………………………………..…….….1
Shotgun Training Returns………………………………..……..3
Class 83 Graduates…………………………………………….………4
Impaired Blood Warrants Now Available for
Detection of Drugs……………………………………………….…….5
Summary Offences Not Found
Committing: The Name Game…………………….…………..6
The Confessions Rule: Securing a
Voluntary Statement………………………………………………….7
R. v. Feeney [1997] 2 S.C.R. 13 at para. 24, R. v. Haglof 2000 BCCA 604.
2
R. v. Landry (1986) 25 C.C.C. (3d) 1 (S.C.C.), R. v. Haglof 2000 BCCA 604, R. v. Feeney [1997] 2
S.C.R. 13.
3

See Volume 1 Issue 3 of this publication.

Volume 1 Issue 6
August 2001

Notice of presence. The police, in some way,
must notify the occupant(s) of the premise/
property that the police are there. This can be
accomplished by knocking or ringing the
doorbell.

•

Notice of authority. The police must identify
themselves
as
police
officers.
Verbal
identification or the production of a badge of
identification may fulfil this requirement. In
some instances, the uniformed nature of the
police may make their character as law
enforcement officers readily apparent 7.

•

Notice of purpose. The police must provide a
lawful reason for entry such as announcing to
the person(s) within that the purpose of
demanding entry is to arrest an occupant.

In providing proper announcement, “learned legal
statements” are not required and a statement similar to
“I am here to arrest you” is sufficient8.
Entry is limited to circumstances of arrest and does not
provide the authorization to enter for the purpose of
R. v. Haglof 2000 BCCA 604.
R. v. Feeney [1997] 2 S.C.R. 13 at para. 26.
6
R. v. Feeney [1997] 2 S.C.R. 13 at para. 26, Eccles v. Bourque [1975] 2 S.C.R. 739.
7
R. v. Anderson (1996) 108 C.C.C. (3d) 37 (Ont.C.H.J.). at p.48-49.
8
R. v. Dupuis (1994) 162 A.R. 97 (Alta.C.A.)
4

1

•

5

pursuing an investigation9. To comport with Charter
values, forced entry without a warrant into dwelling
houses to effect arrests is generally prohibited unless
the privacy interest in the home is outweighed by the
interests of law enforcement 10. One exception to this
rule are cases of hot pursuit11 (other circumstances
include the suspect posing an immediate threat to
arresting officers or the public, or immediate police
action is necessary to prevent the loss of evidence 12).

Ø

Classic Pursuit. Classic pursuit occurs when the
police are lawfully in a position to effect an arrest
and the suspect takes flight from the officer’s
presence. This may occur when the officer
witnesses an offence, attempts to effect an arrest,
and the perpetrator flees. This may also occur when
the officer, although not observing the offence,
arrives on scene and forms reasonable grounds
following a delay while gathering information. While
attempting to effect the arrest, the suspect flees
and the officer pursues. Again, the evasion is
contemporaneous with the arrest attempt. Similarly,
hot pursuit occurs when an attempt to arrest a
person on an outstanding arrest warrant results in
flight 15. The police need not witness the initial crime
but do require the necessary power of arrest prior
to flight.

Ø

Shadow Pursuit. Cases will arise where the officer
arrives on the scene of an offence and the suspect
has already fled prior to police arrival. While at the
scene the police engage in further investigative
techniques that provide information causing police
to “shadow”, or "track", the suspect to a dwelling. In
such a case the police neither observed the offence
nor the suspect's entry into the dwelling, nor was an
arrest yet attempted or set in motion. The test is
whether the events linking the offence to the
capture are sufficiently proximate to be considered
as forming part of a single transaction16. There must
be “real continuity between the commission of the
offence and the pursuit undertaken by police”17.
There is no fixed formula for when a fresh pursuit
becomes stale and each circumstance will need to be
taken in context and turn on the facts of the
individual case. For instance, entry following the
application of a police tracking dog shortly after the
commission of an offence may amount to fresh
pursuit.

Hot Pursuit
A person cannot defeat a
lawful arrest that has been set
in motion by seeking refuge in
a private premise (including a
home). In the words of C.J.
Lamer in R. v. Macooh [1993] 2
S.C.R. 802 (S.C.C.):
[I]t would be unacceptable for police officers who
were about to make a completely lawful arrest to be
prevented from doing so merely because the offender
had taken refuge in his home or that of a third party.

Hot or fresh pursuit has been defined as a continuous
pursuit, conducted with reasonable diligence, so that
pursuit and capture along with the commission of the
offence may be considered as forming part of a single
transaction13. Fresh pursuit does not require continuous
and uninterrupted visual contact with the fleeing
suspect. A suspect rounding a corner and briefly lost
from sight will not defeat the hot pursuit doctrine.
Likewise, a person fleeing into a dwelling may be pursued
by police even if the police do not observe that person
enter. Similarly, a pursuit that ends almost as soon as it
begins will still amount to hot pursuit, such as a person
fleeing from a driveway into a dwelling.
It is not necessary that the offence be a criminal
offence for which the person is being pursued. Where
the police have the power to arrest for a provincial
offence, such as running a stop sign, entry into a dwelling
is also justified 14. Two common field situations are
worthy of consideration in determining whether the
circumstances of the officer/citizen interaction amount
to hot or fresh pursuit.
R. v. Plamondon (1997) Docket: CA022460 (B.C.C.A.) at para.33.
R. v. Feeney [1997] 2 S.C.R. 13, R. v. Golub (1997) 117 C.C.C. (3d) 193 ( Ont.C.A.)
R. v. Feeney [1997] 2 S.C.R. 13.
12
See s.529.3 Criminal Code.
13
See R. v. Macooh [1993] 2 S.C.R. 802 (S.C.C.)
14
R. v. Macooh [1993] 2 S.C.R. 802 (S.C.C.), R. v. Haglof 2000 BCCA 604.

In R. v. Haglof 2000 BCCA 604, police attended a
hit and run accident where the driver had fled.
After obtaining information on the registered owner
of the licence plate number provided by a witness,
police attended the owner's residence 15 minutes
after the accident. The police, although knocking at
the door of the residence and receiving no response,

9

10
11

Volume 1 Issue 6
August 2001

15
16
17

City of Vancouver v. Dennis 2001 BCSC 615.
R. v. Haglof 2000 BCCA 604 at para. 38.
R. v. Macooh [1993] 2 S.C.R. 802 (S.C.C.)

2

observed the movement of window blinds from
someone peeking out. After 25 minutes on scene (a
total of 40 minutes after the offence) police
entered the residence through a rear sliding door
that was slightly ajar but secured with a piece of
wood (which was removed by police). The accused
was located in the residence and arrested for hit
and run under the Motor Vehicle Act. Police
conducted a sweep of the residence to ensure no
one else was present, no one was injured or hiding,
and to secure the home. During this process police
located a marihuana operation in the basement. The
accused argued the entry was unlawful but the
Court found the chain of events were sufficiently
proximate and amounted to fresh pursuit. The
evidence obtained following police entry was
untainted and could properly support a search
warrant the police subsequently applied for and
were granted.

NIGHT TIME SEARCH
UNREASONABLE

R. v Sutherland, 2000 Docket:C32762 Ont.C.A.
The Ontario Court of Appeal has
recently
held
that
a
search
conducted by the police during the
night violated the s.8 Charter rights
of the accused. In this case, the police searched the
accused’s residence using a s.487(1) Criminal Code
search warrant. The Court noted that s.488 of the Code
requires that a search warrant under 487(1) be
executed by day:
s.488 Criminal Code
A warrant issued under 487 or 487.1 shall be executed by day,
unless
(a) the justice is satisfied that there are reasonable grounds
for it to be executed by night;
(b) the reasonable grounds are included in the information;
and
(c) the warrant authorizes that it be executed at night.

The Court recognized that “a search of a dwelling house
must be approached with the degree of responsibility
appropriate to an invasion of a place where the highest
degree of privacy is expected”:
The mere presence of police officer’s at one’s home in
the middle of the night, for whatever reason, is a

Volume 1 Issue 6
August 2001

frightening event. Parliament has recognized that only
in exceptional circumstances can the police exercise
this unusually invasive procedure.

Although the warrant, on its face, authourized the
execution of it by night, the information did not provide
the necessary grounds to support its execution by night.
The Court held the “the failure to satisfy s.488(b) is a
strong indicator, if not conclusive” of a s.8 violation.
Again, the Court is recognizing that conformity to the
law is an essential component of the reasonableness of a
search.
Complete case available at www.ontariocourts.on.ca.

SHOTGUN TRAINING RETURNS
Sgt. Steve Wade

Shotgun training
has
been
reintroduced to the
Block 3 recruit
firearms program, piloted with Class 83. Recruits
receive 7 hours of instruction in shotgun nomenclature,
ammunition, loading, unloading, carrying, firing
positions, cleaning, disassembling, stoppage clearance,
and live firing (aimed and from the hip). Live firing
includes a qualification course of fire using tactical
rounds (OO Buck) and rifled slugs.
This training has returned to address shotgun
deployment by some departments and the increased
use of intermediate weapons (beanbag). Although this
training is not specifically targeted at beanbag rounds,
it provides a basic shotgun users program that can be
built upon at the member’s home department.

PASSENGER IN STOLEN AUTO:
PARTY TO POSSESSION
R. v. Barnhardt, 2001 BCCA 191
The accused passenger was charged
with theft and possession of stolen
property jointly with the driver of a
stolen vehicle. In the early morning
hours, the owner of a Jeep heard its alarm and saw a
male taking the vehicle from the owner’s driveway. The
homeowners were the victims of a break and enter in
which the keys to a Jeep and a GMC vehicle were stolen
a week earlier. After the Jeep had maneuvered out of

3

the driveway, the horn was honked three times and a
second male ran from some bushes and got into the
passenger seat. Five minutes later a police officer saw
the vehicle stopped. As the officer turned his patrol car
around, the two males had fled. A police dog was
dispatched and tracked to a grass through-way, but was
unable to track any further. Police continued to look for
the suspects and their attention was drawn to male
voices and splashing in a ditch. As the two males walked
from the bush, breathing heavily and with wet feet, they
were arrested. One of the males, who later plead guilty,
had a screwdriver and the GMC keys (stolen the week
earlier) in his pocket. The suspects were arrested 20-25
minutes after the officer spotted the Jeep and 15
minutes after the dog had lost the track.
In a 2-1 decision, the BCCA upheld the accused’s
conviction for possession of stolen property. Without
deciding whether the accused was in possession as
defined by s.4(3) of the Criminal Code, the Court
nonetheless found the accused’s occupation of the
vehicle in the circumstances amounted to “abetting” and
the accused was culpable as a party to the offence:
The only reasonable inference open to the trier of fact
in the circumstances described is that the appellant
was a voluntary passenger in a vehicle he knew to be
stolen, and that he thereby encouraged [the driver] in
possessing the stolen property.

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

DID YOU KNOW……
…there was a recent amendment to the Criminal Code
concerning “spouses”. As a result of Bill C-23, the
Modernization of Benefits and Obligations Act, the
definition of “common-law partner” was added to s.2 of
the Code.
"common-law partner", in relation to an individual, means a
person who is cohabiting with the individual in a conjugal
relationship, having so cohabited for a period of at least one
year;

Subsection 23(2) of the Code, which provided
statutory immunity for a spouse from charges of being
an accessory after the fact, was repealed. Similarly,
s.329 of the Code, which provided a spousal exemption
from theft, has also been repealed. Other changes
include replacing spouse with “spouse or common-law

Volume 1 Issue 6
August 2001

partner” in s.215(4)(d) (duty of persons to provide
necessities), s.423(1)(a) (intimidation), s.718.2(a)(ii)
(sentencing principles), s.722(4)(b) (victim impact
statement), s.738(1)(c) (restitution of victims), s.810(1)
(peace recognizance), and s.810(3.2) (recognizance
conditions).

CLASS 83 GRADUATES
The Police Academy is pleased to
announce
the
successful
graduation of recruit Class 83 as
qualified municipal constables on
July 27, 2001.
DELTA
Cst. Tim Cardinal
Cst. Kevin Jones
NEW WESTMINSTER
Cst. Natasha Purba
SAANICH
Cst. Cindy Brown
Cst. Duncan Campbell
Cst. Michael Duquette
Cst. Tara Jefferson
Cst. Tracey Walt
VICTORIA
Cst. Mike Niederlinski
Cst. Rae Robirtis
Cst. Dale Sleightholme

VANCOUVER
Cst. Marie Brown
Cst. Eric Davis
Cst. Steve Dhaliwal
Cst. Lora Dujmovic
Cst. Brodie Haupt
Cst. Roy Janzen
Cst. Jennifer Lee
Cst. Garett MacDonald
Cst. David Menzies
Cst. Kevin Ng
Cst. Fred Oldendorf
Cst. Shayne Savage
Cst. Susan Sharp
Cst. George Specht
Cst. Robert Styles
Cst. Adrian Thomson
Cst. Joel Tuininga
Cst. Byron Yee

Congratulations to Cst. Fred Oldendorf,
who was the recipient of the British
Columbia Association of Chiefs of
Police Shield of Merit for best all
around recruit performance in basic
training. Cst. Tim Cardinal received the
Abbotsford Police Oliver Thomson Trophy for
outstanding physical fitness. Cst. Mike Niederlinski was
the first time recipient of the new Vancouver Police
Union Excellence in Academics award for best academic
test results in all disciplines. Cst. Eric Davis received the
British Columbia Federation of Police Officers
Valedictorian award for being selected by his peers to
represent his class at the graduation ceremony.
Although not formally recognized at the graduation
ceremony, Cst. David Menzies was the recipient of the

4

new Abbotsford Police Recruit Marksmanship award for
highest qualification score during Block 3 training
(50/50).

IMPAIRED BLOOD WARRANTS
NOW AVAILABLE FOR
DETECTION OF DRUGS
A recent amendment to the Criminal Code now permits
police officers to obtain a warrant for blood samples
(to determine the concentration of drugs) from
suspected impaired drivers.
s.256 Criminal Code
(1) Subject to subsection (2), if a justice is satisfied, on
an information on oath in Form 1 or on an information on
oath submitted to the justice under section 487.1 by
telephone or other means of telecommunication, that
there are reasonable grounds to believe that
(a) a person has, within the preceding four hours,
committed, as a result of the consumption of
alcohol or a drug, an offence under section 253 and
the person was involved in an accident resulting in
the death of another person or in bodily harm to
himself or herself or to any other person, and
(b) a qualified medical practitioner is of the opinion
that
(i) by reason of any physical or mental condition of
the person that resulted from the consumption of
alcohol or a drug, the accident or any other
occurrence related to or resulting from the
accident, the person is unable to consent to the
taking of samples of his or her blood, and
(ii) the taking of samples of blood from the person
would not endanger the life or health of the
person,
the justice may issue a warrant authorizing a peace
officer to require a qualified medical practitioner to
take, or to cause to be taken by a qualified technician
under the direction of the qualified medical practitioner,
the samples of the blood of the person that in the
opinion of the person taking the samples are necessary to
enable a proper analysis to be made in order to
determine the concentration, if any, of alcohol or drugs
in the person's blood.

Unfortunately, the blood demand (s. 254(3) Criminal
Code) remains the same and an officer may not give the
blood demand unless the officer believes impairment is
“as a result of the consumption of alcohol” (no drugs).

Volume 1 Issue 6
August 2001

SLAP TO FACE AMOUNTS TO
SEXUAL ASSAULT
R. v. Alceus (2000) 151 C.C.C. (3d) 91 (Que.C.A.)
The Quebec Court of Appeal has
overturned an acquittal for sexual
assault and entered a conviction for
an accused who had struck the victim
twice in the face when she refused
to perform fellatio on him. This occurred in the
accused’s bedroom following other sexual activity. The
offence of sexual assault requires a two stage enquiry:
•
•

was there an assault?
was the assault committed in circumstances of a
sexual nature?

The trial court had earlier convicted the accused of
assault but entered an acquittal on the sexual assault
charge. In overturning the acquittal and finding the
assault to be sexual in nature, Fish J.A. for the appellate
Court held:
The bedroom setting, the ongoing sexual activities,
the words accompanying the assault, and the
undisputed nexus between the sexual gratification
demanded and the refusal to “deliver the goods”
persuade me that “the sexual or carnal context of the
assault [is] visible to a reasonable observer”.

COMMENTS OF U.S. JUDGE,
PROSECUTOR VIOLATE
FUGITIVE’S RIGHTS
Cobb v. USA 2001 SCC 19
The Supreme Court of Canada has
ruled that the comments of a U.S.
judge and U.S. prosecutor have
violated the s.7 Charter rights of two
Canadian fugitives wanted in the U.S.
on charges of fraud and conspiracy to commit fraud. The
fugitives were Canadian citizens against whom
extradition proceedings had been instituted. The U.S.
Judge had made the following impugned comments
during the sentencing of the accused’s co-accused (they
had not fought extradition and voluntarily returned to
the U.S.):

5

I want you to believe me that those people who don’t
come in and cooperate and if we get them extradited
and they’re found guilty; as far as I’m concerned
they’re going to get the absolute maximum jail
sentence that the law permits me to give.

In my opinion, absent some statutory provision to the
contrary, a person must only identify himself or
herself to a police officer if that police officer is in a
position to arrest that person or to issue some form
of summons to him.
………
Furthermore, it is my opinion that to trigger a charge
of obstructing a peace officer in the execution of his
duty requires some knowledge on the part of the
person to be charged that a threshold has been
reached and that the police officer is in a position to
arrest or issue a summons or appearance notice.
(emphasis added)

The Assistant U.S. Attorney prosecuting the case was
interviewed on CBC’s The Fifth Estate and in response to
a question by the reporter stated:
You’re [the fugitives are] going to be the boyfriend of
a very bad man if you wait out your extradition.

The Supreme Court upheld the lower court’s decision to
stay the extradition proceedings as an abuse of process:
By placing undue pressure on Canadian citizens to
forego due legal process in Canada, the foreign State
has disentitled itself from pursuing its recourse
before the courts and attempting to show why
extradition should legally proceed.

Complete Case available at www.lexum.umontreal.ca/cscscc.

A person refusing to identify themselves once the legal
obligation has arisen, would then be committing an
obstruction of the officer in the execution of their
duty18. Thus, the person could be subject to arrest for
the obstructing offence19. In R. v. Marchand [1993]
B.C.J. No. 2473 (B.C.S.C.), police investigating a "cause a
disturbance by fighting" (a summary conviction offence
not committed in the officers' presence) arrested the
accused following his refusal to identify himself. Curtis
J. held20:
I am in agreement that there is no logical distinction
to be made between a constable actually seeing the
offence committed and believing it to have been
committed upon reasonable and probable grounds, at
least in circumstances where the accused is advised
that the police have reasonable and probable grounds
to believe that he has committed the offence. In
either instance the accused knows himself to be the
subject of a bona fide police investigation, and can be
taken to know that he obstructs the police officer in
the execution of his duty should he refuse to give his
identify.

SUMMARY OFFENCES NOT
FOUND COMMITTING:
THE NAME GAME
Sgt. Mike Novakowski

Cases will undoubtedly arise
where
the
investigating
officer determines that there
is sufficient evidence to
warrant a charge for a
summary conviction offence
even though the officer lacks
the power to arrest (did not
find committing). Provided the officer has reasonable
grounds to believe the person has committed the
summary conviction offence, the person's identity is
required if the officer seeks to procure attendance in
court by way of a summons (or warrant). If identity is
not known, the process of compelling attendance by
summons is defeated and the person would be immune
from prosecution. In R. v. Legault [1998] B.C.J. No. 1309
(B.C.S.C.) Lamperson J. examined at what stage, short of
arrest, people are obligated to identify themselves at
the request of a police officer:

Volume 1 Issue 6
August 2001

In short, a police officer must, before demanding
identification, meet the following requirements:
Ø

have the requisite reasonable grounds to believe
the person has committed an offence,

Ø

inform the person of this belief , and

Ø

inform the person of the reason for the request
(ie. summons).

See R. v. Moore (1978) 43 C.C.C. (2d) 83 (S.C.C.), R. v. Dilling (1993) 84 C.C.C. (3d) 325 (B.C.C.A.)
leave to appeal to S.C.C. refused 88 C.C.C. (3d) vi (S.C.C.),
19
See s.129 of the Criminal Code; willfully obstructing a peace officer in the execution of their
duty.
20
Curtis J. overturned the conviction of the accused for obstruction because the police did not testify
they had reasonable grounds to believe the accused committed the offence and in any case they did not
tell the accused they had reasonable grounds to believe he had committed the offence before the
request for identification.
18

6

POLICE PROSECUTIONS
VIOLATE CHARTER
HMTQ v. Cooper 2001 BCSC 855
The BCSC ruled police officers who
function as both the prosecutor and a
witness in traffic ticket prosecutions
violate the right to a fair hearing
entrenched in s.11(d) of the Charter.
However, Justice Metzger has allowed the Crown an
opportunity to demonstrate that, although a Charter
violation, prosecutions by police witnesses are
demonstrably justified as a reasonable limit under s.1 of
the Charter. Stay tuned!!!
Complete case available at www.courts.gov.bc.ca.

THE CONFESSIONS RULE:
SECURING A VOLUNTARY
STATEMENT
Sgt. Mike Novakowski

The confessions rule focuses on
the basic requirement that a
statement provided to a person
in authority must be voluntary.
Although at times linked, the
voluntariness of statements
and s.10(b)
enquiries
are
separate issues. The former is
concerned with intimidation or
inducements made by persons in
authority, including the police. Section 10(b) is more
concerned with police control over a person's
movements 21. In the sense that a statement is
voluntary, the person must be entitled to choose
whether to make a statement or not make a statement.
In the voluntariness enquiry, the analysis involves a
review of police conduct and whether or not the police
deprived the person of making an effective choice 22. If
a person chooses to answer questions put to them by
police, the answers are admissible if the prosecution
establishes that the statements were voluntary23.
Unlike a Charter violation (established on a balance of
probabilities by the accused), the Crown must prove
21
22
23

R. v. Voss (1989) 50 C.C.C. (3d) 58 (Ont.C.A.), R. v. Pabani (1994) 89 C.C.C. (3d) 437 (Ont.C.A.)
R. v. Whittle (1994) 92 C.C.C. (3d) 11 (S.C.C.) at p.24.
R. v. Esposito (1985) 24 C.C.C. (3d) 88 (Ont. C.A.) leave to appeal to S.C.C. refused (1986) at p. 95.

Volume 1 Issue 6
August 2001

beyond a reasonable doubt that a statement was
voluntary. If the Crown is unable to satisfy this burden
the statement must be excluded. One of the
predominant reasons for the confessions rule is that
involuntary confessions are more likely to be (though
not always) unreliable or false. Few persons will
spontaneously confess to a crime and the police must
often use investigative techniques to convince the
person that it is in their best interest to confess.
Where inducements offered by the police, by
themselves or in combination with other factors, are
sufficiently strong to raise a reasonable doubt about
whether the will of the person has been overborne, the
Crown has failed in its burden. Where it has been
shown that inducements were made but ceased, the
burden rests with the Crown to establish that the prior
inducements did not continue to act on the person's
mind. To this end, the Crown has an obligation to
demonstrate through clear and positive evidence that
the influence on the person's mind of the prior
inducement has been removed24. In reviewing whether
a statement was voluntary, the court will assess and
consider all the relevant factors concerning the
confession including 25:
Ø
Ø
Ø
Ø

threats or promises;
oppression;
operating mind; and
police trickery

Threats or Promises
The types of threats or promises that will raise a
reasonable doubt concerning the voluntariness of a
confession may include fear of prejudice or hope of
advantage. Fear of prejudice includes outright violence,
(demanding statement exclusion) or may occur when
the police issue veiled threats such as "it would be
better" to confess, implying that dire consequences
might flow from refusal to talk. Such statements like
"it would be better" require exclusion only where the
circumstances reveal an implicit threat or promise.
However, phrases like "it would be better if you told
the truth" will not automatically result in exclusion but
must be weighed by the entire context of the
confession. Hope of advantage includes an offer to
procure lenient treatment or the prospect of leniency
from the courts in return for a confession and will
warrant exclusion in all but exceptional circumstances.

24
25

R. v. Nugent (1988) 42 C.C.C. (3d) 431 (N.S.C.A.) at p.460.
R. v. Oickle 2000 SCC 38.

7

Minimizing the seriousness of an offence by
downplaying the moral culpability of the crime will
usually be an unobjectionable feature of police
questioning. Offers of psychiatric help may be
permissible provided the police do not make the offer
conditional on a confession. Where the police advise
the person "maybe you need professional help", they
are suggesting the potential benefits of confession and
have not improperly induced the statement.
The use of moral or spiritual appeals resulting in
confession as a result of internal desire is permissible
because the officer is not offering anything. Most
spiritual inducements are beyond the control of the
police because the inner urge to confess is self-induced
by the person. Thus, a police officer who convinces a
person they will feel better if they confess has
offered nothing.

Oppression
Police oppression, creating distasteful circumstances,
may result in false confessions. A person may either
wish to escape the distasteful conditions or the
conditions may overbear the person's will to the point
they doubt their own memory by relentless police
accusations. Inhumane conditions such as food,
clothing, water, sleep, bathroom, or medical
deprivation, denying access to counsel 26, or excessively
aggressive, intimidating questioning (inducing, hostile,
coercive) over a prolonged period of time may create
an atmosphere of oppression. The use of non-existent
evidence by the police as a ploy to obtain a confession
may also result in oppressive conditions. The courts
have been reluctant to exclude a statement where the
police have confronted a person with false,
inadmissible, of fabricated evidence standing alone, but
when combined with other factors this investigative
tactic is relevant to the consideration of whether the
confession was voluntary.

Operating Mind
The operating mind requirement as an aspect of the
confessions rule requires that the person have
sufficient cognitive ability to understand what they are
saying and to comprehend that what they say may be
used in proceedings against them. In determining
whether the person made an active choice as to
whether or not to speak, no enquiry need be made into

whether the person possessed the analytical ability to
make a good or wise choice or a choice in their best
interests. Inner compulsion alone, whether due to
conscience or otherwise, cannot displace the finding of
an operating mind unless a statement is found to be
involuntary (through conduct of a person in authority).
Once an operating mind is established, the person is
not exempt from the consequences of their action
unless the conduct of the police is found to make the
statement involuntary27.

Trickery
The police are permitted to engage in acts of trickery
in obtaining a confession provided the police have not
unfairly denied the person of their right to silence. In
assessing whether police trickery has exceeded
permissible boundaries, the court will determine
whether the conduct of the police might "shock the
community". The courts recognize that the police must
often deal with shrewd and sophisticated criminals and
the investigation and detection of crime is "not a game
to be governed by the Marquess of Queensbury
rules"28. Examples of police trickery that may shock
the community include a police officer posing as a
chaplain or a legal aid lawyer, or injecting a truth serum
into a diabetic under the false pretence the injection
was insulin. A confession resulting from police
deception that shocks the community should be
excluded. However where police deception does not
reach this level, the trickery used will nonetheless be a
relevant factor in the overall analysis. Tricks are
permitted, but "dirty tricks" (unfair police methods)
shocking the community will render a statement
involuntary29.

Note-able Quote
“The duties of a police officer are onerous and often
complex. The Charter has served to complicate their
duties. In some instances, police officers can act in an
unjustified manner although their intentions were
good30”. ABPC Justice Allen
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

R. v. Whittle (1994) 92 C.C.C. 11 (S.C.C.)
R. v. Rothman [1981] 1 S.C.R. 640 (S.C.C.) per Lamer J.
R. v. Graham (1991) 62 C.C.C. (3d) 128 (Ont.C.A.).
30
R. v. Cardinal 2001ABPC 92
27
28
29

26

A s.10 Charter violation may also warrant exclusion as a Charter remedy.

Volume 1 Issue 6
August 2001

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