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inscription on Canada’s
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available to the Canadian Centre
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*E1/GM(D125'LNN,
Protection; and

Be Smart & Stay Safe

Volume 11 Issue 6

Volume 11 Issue 6 ! November/December 2011

Highlights In This Issue
What’s New For Police In The Library

3

Tip Plus Surveillance Provide Grounds For Arrest

4

Unlawful Arrest Leads To Unreasonable Search

7

Personal Discomfort Does Not Necessarily Amount
To Excessive Force

8

2010 Police Reported Crime

9

Explanation of 2.5 Hour Search Delay After Arrest
Not Required

14

Safety Or Evidence Concerns May Justify Waiving
Knock & Announce

15

Safety Concerns Not Objectively Justified: Entry
Unlawful

17

Police Must Wait A Reasonable Time Before Entry

20

Police Had Reasonable Suspicion Of Drug Activity:
Entrapment Not Proven

22

Graduate Certificates: Intelligence Analysis / Tactical
Criminal Analysis

24

Unless otherwise noted all articles are
authored by Mike Novakowski, MA, LLM. 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 herein are not
necessarily the opinions of the Justice Institute
of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to
this newsletter. If you would like to be added
to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.ca.

POLICE LEADERSHIP
APRIL 6-8, 2013
“Staying Connected in a Changing World”

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

Mark your calendars. The British
Columbia Association of Chiefs
of Police, the Ministry
of Public Safety and
Solicitor General, and
the Justice Institute of British
Columbia Police Academy are
hosting the Police Leadership
2013 Conference in Vancouver,
British Columbia. This is Canada’s largest police
leadership conference and will provide an
opportunity for delegates to discuss leadership
topics presented by world renowned speakers.

www.policeleadershipconference.com

Graduate Certificates
Intelligence Analysis
or

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.

PAGE 2

Tactical Criminal
Analysis
see page 24

Volume 11 Issue 6 ! November/December 2011
Exploring research.
Neil J. Salkind.
Boston, MA: Pearson, [2011], c2012.
BF 76.5 S24 2011

WHAT’S NEW FOR POLICE IN
THE LIBRARY
The Justice Institute of British Columbia Library is an
excellent resource for learning. Here is a list of its
recent acquisitions which may be of interest to
police.

Liquor and host liability law in Canada.
Lorne Folick, Michael Libby, Paul Dawson.
Aurora, ON: Canada Law Book, c2010.
KE 3734 F65 2010

The art of successful relationships: the prince or
the predator.
Georina Ramirez.
New York, NY: Vantage Press, 2010.
HM 1106 R36 2010

The manager as coach. [videorecording]
Supernova Learning Solutions.
M i s s i s s a u g a , O N : R G Tra i n i n g R e s o u rc e s
[distributor], 2011.
1 videodisc (14 min.): sd., col.; 4 3/4 in. (DVD) + 1
CD-ROM (leader's guide)
An emotionally intelligent approach to coaching
builds effective working relationships, and helps
create a culture that supports learning and
c o n t i n u o u s i m p r o v e m e n t . Th i s p r o g r a m
demonstrates a simple coaching framework and
highlights the skills you need to coach effectively.
HF 5549.5 C53 M36 2011 (Restricted to in-house.)
D1227

Building the learning organization: achieving
strategic advantage through a commitment to
learning.
Michael J. Marquardt.
Boston, MA: Nicholas Brealey Pub., 2011.
HD 58.82 M37 2011

The negotiation of teaching presence in
international online contexts.
Tannis Morgan.
Vancouver, BC: Faculty of Graduate Studies,
University of British Columbia, 2008.
LC 5803 C65 M676 2008

The change book: change the way you think
about change.
Tricia Emerson, Mary Stewart.
Alexandria, VA: ASTD Press, c2011.
BF 637 C4 E443 2011

On the edge [videorecording]: managing high risk
situations.
Edge Training Systems, Inc.; directed by Dan
Thompson.
Richmond, VA: Edge Training Systems; Santa Ana,
CA, c2001.
1 videodisc (18 min.): sd., col.; 4 3/4 in (DVD) +
CD-ROM (leader's guide).
Presents realistic scenarios on how to recognize
warning signs in potentially volatile situations in the
workplace and to act to prevent the violence before
it occurs.
HF 5549.5 E43 O5 2001 (Restricted to in-house.)
D1190

Aggression in the sports world: a social
psychological perspective.
Gordon W. Russell.
Oxford; New York: Oxford University Press, 2008.
BF 575 A3 R867 2008

The Constant Contact guide to email marketing.
Eric Groves.
Hoboken, NJ: Wiley, c2009.
HF 5415.1265 G76 2009
Develop your presentation skills.
Theo Theobald.
London; Philadelphia: Kogan Page, c2011.
HF 5718.22 T455 2011

PAGE 3

Volume 11 Issue 6 ! November/December 2011
The silent language of leaders: how body
language can help-or hurt-how you lead.
Carol Kinsey Goman.
San Francisco, CA: Jossey-Bass, c2011.
BF 637 N66 G664 2011

Why are we bad at picking good leaders: a better
way to evaluate leadership potential.
Jeffrey Cohn, Jay Moran.
San Francisco, CA: Jossey-Bass, 2011.
HM 1261 C64 2011

Strategic planning for public and nonprofit
organizations: a guide to strengthening and
sustaining organizational achievement.
John M. Bryson.
San Francisco, CA: Jossey-Bass, 2011.
HD 30.28 B79 2011

Work for all [videorecording]: stop racism in the
workplace = La tête de l'emploi: pour en finir avec
le racisme au travail.
[Montréal, QC: National Film Board of Canada =
Office national du film du Canada, c2006.
2 videodiscs (DVD) (ca. 71; 71 min.): sd., col.; 4 3/4
in.
French and English versions on separate DVDs in
one container. Six short films about racism in the
workplace and interviews with experts.
HF 5549.5 R23 W673 2006 D1205

Success stories from the frontline: intellectual
disabilities and mental health: an anthology of
first person stories as submitted by patients and
their families.
edited by Madeline Hombert; foreword and
summaries by Robin Friedlander and Tina Donnelly.
Port Coquitlam, BC: Friedlander / Donnelly
Publishers, 2006.
RC 451.4 M47 S88 2006

TIP PLUS SURVEILLANCE
PROVIDE GROUNDS FOR
ARREST
R. v. Whyte, 2011 SCC 49
!! !! !! !! !! !! !! !! !! !! !! !! !! !! !! !! !! !! !! !! !

A CBSA officer assigned! to the
integrated weapons trafficking
investigations team received a tip
from a previously reliable informant.
The informer said that a black male,
possibly named “Jay,” would very soon be coming to
Windsor from the Toronto area, maybe with
someone else, for a transaction related to firearms
and drugs.! The address of an apartment building
where the transaction was going to take place was
also provided. The tip was passed on to a Windsor
police officer assigned to the Provincial Weapons
Enforcement Unit. In the officer’s experience,
Windsor was a place where people came to
purchase inexpensive firearms because of its
proximity to Detroit (where firearms were much

Yes! 50 scientifically proven ways to be
persuasive.
Noah J. Goldstein, Steve J. Martin, and Robert B.
Cialdini.
New York, NY: Free Press, 2010.
HF 5718 G65 2010
more available).! In the officer’s view, Windsor had
become a nucleus for illegal trafficking in
firearms.!Since drugs, such as cocaine, were cheaper
in the Toronto area, there was a trade in firearms and
drugs between Toronto and Windsor. Police set up
surveillance at the apartment and saw a black Grand
Prix automobile arrive at about 5:00 a.m.. Two
people, a black male wearing a track suit and a
black female, entered the building.! About half an
hour later, these same two people left the building,
returned to their car and headed back to the Toronto
area.! A check of the licence plate revealed that the
car was rented. This was! significant to the officer
because, in his experience, people involved in
illegal drug and firearm trafficking tended to use
rental vehicles to transport contraband and avoid
asset forfeiture.
!

Surveillance was broken but Peel police later found
the car parked in the upper level of a parking lot
outside a high rise apartment building at about 7:45
a.m..! A few minutes later they saw a black male

PAGE 4

Volume 11 Issue 6 ! November/December 2011
move the car.! About 15 minutes later, the police
found the car parked in the apartment building’s
underground parking lot. After another 15 minutes,
two black males and one black female were seen
coming out of the apartment building and go into
the underground parking lot, walking directly to the
trunk of the car.!One of the men, wearing a tracksuit,
was carrying a shoe box and supporting its bottom
with both of his hands.! The two men bent over the
trunk area and seemed to be moving things around.!
The man in the tracksuit pulled off the cover of the
spare tire. He removed the spare tire, replaced it
with the shoe box, and then put the cover back on.
The accused and the female then drove off. The
vehicle was followed to downtown Toronto where it
was stopped by a police tactical team. The accused
and his female companion were arrested, and the
vehicle was searched. Inside the shoe box were
three handguns wrapped in a pillowcase.!One of the
handguns was loaded and another loaded handgun
was located in the centre console of the
vehicle.! Police also found a backpack with some
ammunition. The accused was charged with six
firearm offences.
!

At trial in the Ontario Superior Court of Justice, the
accused argued that the evidence should have been
excluded under s. 24(2) of the Charter. The judge
found that the arresting officer had the requisite
subjective belief to make an arrest but lacked the
objective grounds.! Although the accused conceded
that the informant was credible, the judge found the
tip was not compelling. The tip was very vague and
the opportunity for innocent coincidence was too
high.! Nor had the tip been independently
corroborated. The fact that the vehicle was rented
added nothing to the grounds for arrest nor did the
handling of the shoe box indicate that its contents
were contraband. While the activity of hiding the
shoe box was suspicious, it did not meaningfully
contribute to the existence of reasonable grounds.
Considering the totality of circumstances, the trial
judge held that the police only had a hunch or
suspicion that the vehicle contained firearms. The
police did not have reasonable grounds to arrest the
occupants of the vehicle and the accused’s arrest
was unlawful and the search that followed was
unreasonable. As a result of these ss. 8 and 9 Charter

breaches, the evidence was excluded under s. 24(2)
and the accused was!acquitted of all!the charges.
!

The Crown appealed to the Ontario Court of Appeal.
Justice Rosenberg, delivering the opinion of the
Court, concluded that the trial judge failed to give
any weight to the accused’s concession of the police
informer’s credibility. Furthermore, the trial judge
failed to consider the totality of the information
available to the arresting officers in deciding that the
police did not have the requisite objective grounds
to arrest the occupants of the car.!
!

An Informer’s Tip and Reasonable Grounds
!

The test for determining whether there are
reasonable grounds based on an informer’s tip
requires a weighing of whether the information
predicting the commission of a criminal offence was
compelling, whether the source was credible, and
whether the information was corroborated by police
investigation. These factors do not form separate
tests, but rather must be viewed on the “totality of
the circumstances”. Weaknesses in one factor may
be compensated by strengths in the other two.
!

In this case, the accused conceded that the
informant was credible. The informer was not just
credible in the general sense because he had
provided reliable information to the police in the
past, but he had provided information in the past
concerning firearms and drugs, as in this case. The
informer’s credibility was not just simply a factor to
consider but it could compensate for weaknesses in
the other two areas, especially whether the
information predicting the commission of the
offence was compelling.!
!

As for the police surveillance, the trial judge had
compartmentalized the information obtained from it
and unreasonably discounted its value.!Here, police
surveillance confirmed elements of the tip including
the attendance at the address provided by the
reliable informer. Plus, driving a rental car all the
way from Toronto for a 30 minute stay was highly
suspicious and provided some confirmation that the
people were in Windsor for a criminal purpose.!
“These facts, on their own, may not have been
sufficient to provide the police with reasonable

PAGE 5

Volume 11 Issue 6 ! November/December 2011
grounds for arrest, and the police themselves
recognized this fact,” said Justice Rosenberg.
“However, these facts were beginning to build a
compelling picture of criminal activity as predicted
by the informer.” As to the significance that the car
was rented, Justice Rosenberg added:

contribute to the existence of reasonable grounds
(contrary to the trial judge’s conclusion). The
surveillance was not to stand on its own, but
independently confirmed the informer’s tip. In
conclusion, Rosenberg held:
!

To summarize, by the time the police decided to
stop the vehicle they had the following
information to confirm the tip from the reliable
informer:
• The vehicle arrived at the Windsor
apartment building address as predicted in
the tip;
• Windsor was known to be a location for
firearm/drug transactions;
• The suspects were driving a rental vehicle;
• The suspects arrived in Windsor at 5:00
a.m. and remained for only 30 minutes;
• A black man wearing a track suit and a
black woman were involved in both
Windsor and Peel;
• The vehicle was parked in Peel for only 30
minutes before the occupants of the car
were on the move again, this time with a
shoebox secreted in the space where the
spare tire had been.

!

First, whether or not there were reasonable
grounds did not stand or fall on the opinion of
officers as to the weight to be attached to
mundane items that could be found in any
vehicle, rented or otherwise.! The police in this
case were relying on a tip from an informer who
had proved reliable in the past …! Second, the
inference to be drawn from the use of a rented
car was simply one piece of information to be
considered along with all the other information.!
It was entitled to some weight based on the
officers’ training and experience.! On its own, it
could not provide objective grounds for a
search. However, it could not be wholly
discounted, since there was no evidence to
undermine the value of the officers’ training and
experience …! Finally, the fact of the use of a
rented car had to be placed into context.!The car
had been rented in the Toronto area, which
confirmed the aspect of the tip that the suspects
were coming from Toronto. [para. 26]

!

Taken together, this information was sufficient to
confirm the tip from the reliable informer and
provide the police with the necessary objectively
reasonable grounds to arrest the occupants of
the vehicle and search the vehicle.! …

Even though the police lost sight of the vehicle for a
brief period and were unable to verify that the
people who travelled to Windsor were the same
ones who returned to the car with the shoe box, the
surveillance was still of value. “In Windsor, a black
male wearing a track suit and a black female were
associated with the vehicle,” said Justice
Rosenberg.!“In Toronto, a black male wearing a track
suit and a black female were again associated with
the vehicle, along with another black male.! The
police could not say for certain that they were the
same people associated with the vehicle in Windsor,
but it was an interesting coincidence.”
Furthermore, the highly suspicious handling of the
shoe box was, even on its own, powerful evidence
that the vehicle was being used to carry
contraband.!Although it was not possible to say that
the shoe box contained firearms as opposed to drugs
or some other contraband by simply looking at how
it was handled, it could nonetheless meaningfully

!

In this case, the sequence of events, from the 30
minute stay at the specified address in Windsor
to the secreting of the shoe box after the 30
minute stay in Peel, sufficiently conformed to the
anticipated pattern to remove the possibility of
innocent coincidence.! This sequence of events
had to be measured against the knowledge and
experience that the police officers brought to the
investigation in informing the inferences to be
drawn from the observations.! That experience
included knowledge of the trafficking in firearms
in the Windsor area and the use of rental cars in
illegal trafficking of drugs and firearms.! [paras.
29-31]
!

The Ontario Court of Appeal found the police had
reasonable grounds, subjective and objective, to

PAGE 6

Volume 11 Issue 6 ! November/December 2011
believe that the occupants of the vehicle were in
possession of illegal firearms. The arrest of the
occupants was lawful, the search that followed was
incidental to arrest, and there were no Charter
breaches. The evidence was admissible. The Crown’s
appeal was allowed, several weapons convictions
were entered, and the matter was remitted back to
the trial judge for sentencing.! !He was subsequently
sentenced to!6 " years imprisonment less credit for
4 years of pre-trial custody. He was also given a
lifetime firearms! prohibition, ordered to provide his
DNA,!and the seized weapons were!forfeited.
!

The accused then appealed to the Supreme Court of
Canada. In a short oral judgment, Justice Deschamps
delivered the unanimous opinion and concluded
that the Ontario Court of Appeal did not err. The
accused’s appeal was dismissed.
Complete case available at www.scc-csc.gc.ca

UNLAWFUL ARREST LEADS TO
UNREASONABLE SEARCH
R.!v.!Smith,!2011 ONCA 748!
A police officer received general and
generic information from an untested
informant that the accused was in
possession of cocaine and was
selling it in the Hamilton area.! The
informant further stated that the accused kept the
cocaine inside his vehicle, a black Nissan with black
rims, and at his house along with a firearm.
However, the location of where the firearm was kept
was unknown.!The informant had a lengthy criminal
record, was deeply entrenched in the criminal
culture, and appeared to be motivated by the hope
of consideration for his own outstanding charges at
the time. There was no indication of the source of
the informant’s information and there were no
specific details of any drug transaction. The police
confirmed the information about the motor vehicle
the accused drove and set up surveillance on his
residence. He was seen leaving the residence and
drove to a townhouse complex where a male
walked to the accused’s car and got in.! The car
proceeded to move slowly for about 10 metres and
stopped, at which point the unknown male got out

and walked towards the complex.! This male was
unknown, was not detained, and was not seen
carrying anything in or from the car.! Because the
windows were tinted no observations could be made
of any activity and nothing was overheard.
The accused drove away, parked his vehicle, and
entered a bank. When he returned to his car he was
arrested, advised of his rights, and indicated he
wanted to speak to counsel. However, instead of
holding off the questioning, a police officer
interviewed the accused as to the existence of a
firearm and drugs at his residence. The accused and
his car were searched and police found cocaine in
his car, and cash and cell phones on his person.
Using the evidence found from the post arrest
searches as well as the accused’s statements, the
police applied for and obtained a tele-warrant to
search his house. Cocaine, other drug paraphernalia,
cash, a firearm, and ammunition were subsequently
located.
The trial judge in the Ontario Court of Justice found
the accused’s arrest unlawful and arbitrary. The tip
was from an untested informant and lacked any
information as to the source of the tipster’s alleged
assertion that the accused was a drug dealer. This,
combined with a very brief observation of the
accused meeting with an unidentified person in the
accused’s vehicle, did not provide reasonable
grounds for the arrest. “I find that the arrest fell short
of passing the objective requirement insofar as
reasonable grounds are concerned,” said the
judge.! “Combining the vague information from a
previously untested informant with the observation
of one event which was also reasonably capable of
innocent explanation is insufficient to meet the
standard for objective belief of the commission of
the offence subjectively believed by the officers.!This
information and observation certainly justified
further observation and! investigation but not an
arrest.” The judge also found a s. 10(b) Charter
breach (right to counsel) at the time of arrest, which
was conceded by Crown, to be serious. The
evidence following the arrest was excluded and
could not be used to support the search warrant of
the accused’s home. He was acquitted.

PAGE 7

Volume 11 Issue 6 ! November/December 2011
The Crown’s challenge to the accused’s acquittal
before the Ontario Court of Appeal was dismissed.
“We agree with the trial judge’s characterization of
the tip provided by the informant and the
surveillance observations made by the police
officer,” said the Court. “The very short duration of
the meeting between the [accused] and the
unidentified person in the [accused's] car, the only
fact relied on by the police to support the inference
that the meeting involved a drug transaction, was,
on any reasonable view, a neutral fact. It follows
from the finding that the arrest was illegal that the
subsequent search of the [accused] and his vehicle
were unconstitutional.! The search of the residence
based upon a warrant founded on information
flowing from the unconstitutional arrest and searches
of the [accused] and the vehicle was also
unconstitutional.”! These Charter breaches were
compounded by the serious breach of the accused’s
right to counsel.! The trial judge did not err in
excluding the evidence under s. 24(2).

Editor’s note: Facts of this case taken from 2009
ONCJ 641.
Complete case available at www.ontariocourts.on.ca

PERSONAL DISCOMFORT DOES
NOT NECESSARILY AMOUNT TO
EXCESSIVE FORCE
Richmond v. Her Majesty the Queen,
[2011] S.C.C.A. No. 251
The plaintiff, a 38-year-old man
suffering from psychiatric challenges,
resided in a home owned by his
mother. One day, while in an agitated
state due to perceived inattention by
his parents, he made a number of threatening
telephone calls to his father. The plaintiff’s father
contacted the Ontario Provincial Police (OPP). This
conversation prompted officers to attend the
plaintiff’s home and knock on door. There was no
response but officers could hear music playing
inside the residence. Although the telephone was
picked up when police called, no conversation
ensued as the phone was hung up by the resident of
the home. The police set up a perimeter around the

home and contacted the plaintiff’s family physician.
Based on the doctor’s prior observations of the
plaintiff and the police description of his current
behaviour, the doctor signed a Form 1 under
Ontario’s Mental Health Act for the plaintiff’s
apprehension, which was communicated to the
officers on scene. Police breached the front door,
which had been barricaded by a motorcycle and a
box of tools. Upon entry, the officers observed the
plaintiff standing in the foyer. He was told to lie
down and did so. A large knife was seen near him
but he made no aggressive moves. He was
handcuffed and taken to the hospital where the
attending physician referred him to a mental health
centre.
The plaintiff brought an action in the Ontario
Superior Court of Justice against the OPP alleging it
had used excessive force in apprehending him,
which he felt was illegal. But the judge dismissed his
claim, finding the OPP did not use excessive force in
apprehending the plaintiff. “While [he] may have
experienced some personal discomfort, as a result of
the apprehension,” said the judge, “that discomfort
does not equate to a finding that the police used
e x c e s s i v e f o r c e .” H i s a p p r e h e n s i o n a n d
transportation to the hospital was lawful. It was
justified under the legislative authority of the Mental
Health Act.
The plaintiff’s appeal to the Ontario Court of Appeal
was dismissed. The Court found the trial judge’s
decision turned on the findings of fact and no error
was made. The plaintiff then sought leave to appeal
before the Supreme Court of Canada. Chief Justice
McLachlin and Justices Binnie and Deschamps,
however, dismissed the plaintiff’s application
without reasons. The decision of the Ontario
Superior Court judge therefore stands.

Editor’s note: Facts of this case taken from 2010
ONSC 2738.
Complete case available at www.canlii.org

PAGE 8

www.10-8.ca

Volume 11 Issue 6 ! November/December 2011

2010 POLICE REPORTED CRIME
In July 2011 Statistics Canada
released its “Police reported
crime statistics in Canada,
2010” report. Highlights of this
recent collection of crime data
include:
• there were 2,095,921 crimes (excluding traffic)
reported to Canadian police in 2010; this
represents 77,039 fewer crimes reported when
compared to 2009 data.
• the total crime rate dropped -5%. This included a
violent crime rate drop of -3% and a property
crime rate drop of -6%.
Source: Statistics Canada, 2010, “Police-reported crime statistics in
Canada, 2009”, Catalogue no. 85-002-X,released on July 21, 2011.

Police-Reported Crime Severity Indexes

Police-Reported Impaired Driving Offences
Province

Rate

Impaired Driving
Offences

Rate change
2008 to 2009

SK

628

6,566

+3%

PEI

511

727

+10%

NF

416

2,119

+22%

AB

399

14,865

-14%

NS

363

3,426

+8%

BC

355

16,067

-8%

NB

350

2,628

+8%

MB

246

3,040

-18%

QC

208

16,424

-1%

ON

130

17,191

-7%

T=Total Crime Severity Index
V=Violent Crime Severity Index
NV=Non-Violent Crime Severity Index

YK
T-171.2
V-188.1
NV-164.7

NWT
NU

T-340.2
V-325.2
NV-345.9

T-345.7
V-505.7
NV-284.2

BC

AB

SK

MB

T-102.4
V-102.1
NV-102.5

T-97.9
V-98.1
NV-97.8

T-148.2
V-153.9
NV-145.9

T-127.8
V-162.3
NV-114.5

NF
T-80.2
V-70.2
NV-84.1

QC
ON

PEI

T-76.9
V-76.5
NV-77.0

T-65.5
V-44.0
NV-73.8

T-65.0
V-77.7
NV-60.2

NS
NB

The Crime Severity Index (CSI) is another measure of police-reported crime.
Each offence is assigned a weight, derived from sentences handed down by
criminal courts. The more serious the average sentence, the higher the offence is
weighted. The weighted offences are then summed and divided by the population.
An overall CSI has been created as well as a violent CSI and non-violnet CSI.

PAGE 9

T-69.0
V-68.4
NV-69.2

T-83.5
V-84.5
NV-83.1

Volume 11 Issue 6 ! November/December 2011

Police-Reported Crime Rates
per 100,000 population

YK
20,965
-10%

NWT
46,400
+11%

NU
39,223
+4%

NF
6,725
+3%

Canada
6,145
-5%

BC
8,404
-6%

AB
8,084
-6%

SK
12,578
-2%

MB
10,187
-3%

ON
4,458
-5%

QC
4,770
-5%

NB
5,496
-2%

Homicide
There were 554 homicides reported, 56 less than the
previous year. Ontario had the most homicides at
189 (a +5% increase), followed by Quebec (84)
British Columbia (83), and Alberta (77). Prince
Edward Island reported no homicides while the
Yukon and the Northwest Territories each reported
only one. As for provincial or territorial homicide
rates, Nunavut had the highest (18.1 per 100,000
p o p u l a t i o n ) f o l l ow e d by M a n i t o b a ( 3 . 6 ) ,
Saskatchewan (3.3), Yukon (2.9), Northwest
Territories (2.3) and Nova Scotia (2.2). As for Census
Metropolitan Areas (CMA), Thunder Bay, ON had the
highest homicide rate at 4.2. The Canadian
homicide rate was 1.6.
Top CMA Homicide Rates per 100,000

PEI
6,206
-1%
NS
6,980
+1%

Canada’s Top Ten Reported Crimes
Offence

Number

Theft Under $5,000 (non-motor vehicle)

536,151

Mischief

339,831

Break and Enter

196,881

Administration of Justice Violations

176,560

Assault-level 1

173,843

CMA

Rate

CMA

Rate

Thunder Bay, ON

4.2

Greater Sudbury, ON

2.4

Disturb the Peace

117,903

Regina, SK

3.7

Abbotsford-Mission, BC

2.3

Motor Vehicle Theft

92,683

Saskatoon, SK

3.7

Moncton, NB

2.2

Fraud

88,491

Winnipeg, MB

2.8

Saint John, NB

1.9

Impaired Driving

84,397

Edmonton, AB

2.7

Kingston, ON

1.9

Halifax, NS

2.7

London, ON

1.8

Uttering Threats

75,927

PAGE 10

Volume 11 Issue 6 ! November/December 2011

Robbery

Top Ten CMA Robbery Rates per 100,000

In 2010 there were 30,405 robberies reported,
resulting in a national rate of 89 robberies per
100,000 population. Manitoba had the highest
robbery rate followed by Saskatchewan, British
Columbia, and Ontario.

Police-Reported Robberies
Robberies

Rate change
2009 to 2010

CMA

Rate

CMA

Rate

Winnipeg, MB

258

Montreal, QC

142

Saskatoon, SK

199

Toronto, ON

128

Regina, SK

196

Edmonton, AB

118

Thunder Bay, ON

149

Calgary, AB

109

Vancouver, BC

147

Halifax, NS

95

Province/
Territory

Rate

MB

176

2,177

-11%

SK

121

1,263

0

BC

108

4,878

-7%

ON

88

11,567

-6%

AB

86

3,213

-15%

In 2010 there were 196,881 breakins reported to police. The national
break-in rate was 577 break-ins per
100,000 people. Nunavut had the
h i g h e s t b r e a k - i n ra t e ( 2 , 0 3 5 )
followed by the Northwest Territories
(1,629) and Saskatchewan (938).

QC

81

6,442

-6%

Police-Reported Break-ins

NWT

55

24

+84%

NS

52

486

-17%

YK

49

17

NU

42

NF

Break and Enter

Province/
Territory

Rate

Break-ins

Rate change
2009 to 2010

+84%

NU

2,035

676

+3%

14

-41%

NWT

1,629

713

-2%

31

160

+37%

SK

938

9,806

-1%

NB

19

142

-29%

MB

819

10,116

-5%

PEI

15

22

+15%

YK

718

248

-6%

CANADA

89

30,405

-7%

BC

692

31,346

-8%

QC

680

53,733

-9%

NF

667

3,399

+17%

AB

606

22,533

-5%

NS

558

5,259

+3%

PEI

515

732

+1%

NB

483

3,633

+4%

ON

414

54,687

-5%

CANADA

577

196,881

-6%

• Winnipeg, MB had the highest CMA
rate of robbery in Canada (258),
-13% lower than its 2009 rate. Saguenay,
QC had the lowest rate (19) for the second
year in a row. Three CMAs reported jumps of
+20% or more in robbery rates; St. John’s, NF
(+53%), Brantford, ON (+26%), and KitchenerCambridge-Waterloo, ON (+20%).
• five CMAs reported declines in robberies of -30%
or more; Saint John, NB (-50%), Kingston, ON
(-50%), Trois-Rivieres, QC (-31%), AbbotsfordMission, BC (-30%), and Moncton, NB (-30%).

PAGE 11

Volume 11 Issue 6 ! November/December 2011
• break-ins accounted for about 15% of all
property crimes.
• 61% of break-ins were to a residence, 28% to a
business location, and 11% to other locations,
such as a shed or detached garage.
• residential break-ins dropped -4% while business
break-ins declined -13%.
• from 2000 to 2010, the break-in rate dropped by
-40%.
• among CMAs, Saskatoon, SK reported the highest
break-in rate (845) while Toronto reported the
lowest (307) for a second straight year.
Peterborough, ON (+27%), Saguenay, QC
(+21%), and Moncton, NB (+13%) all reported
double digit increases in the break-in rate, while
Abbotsford-Mission, BC (-37%), Victoria, BC
(-29%), Saint John, NB (-24%), Sherbrooke, QC
(-19%), Kingston, ON (-17%), Regina, SK
(-16%), Thunder Bay, ON (-16%), Vancouver, BC
(-13%), Windsor, ON (-11%), Guelph, ON
(-10%), and Ottawa, ON (-10%) all had double
digit drops.
Top Ten CMA Break-in Rates per 100,000
CMA

Rate

CMA

Rate

Trois-Rivieres, QC

875

Vancouver, BC

787

Regina, SK

856

Brantford, ON

775

Saskatoon, SK

856

St. John’s, NF

766

Winnipeg, MB

810

Abbotsford-Mission, BC

727

Kelowna, BC

796

Gatineau, QC

713

Drugs

Possession Offences
by Drug Type

In 2010 there were 108,529
10%13%
drug-related offences coming to
the attention of police. These
offences included possession,
t ra f f i ck i n g , p r o d u c t i o n o r
77%
distribution.
• possession offences
Other drugs
accounted for 73,588 of
Cannabis
these crimes - cannabis
Cocaine
(56,870); cocaine (7,256);
and other drugs (9,462). Other drugs include
heroin, crystal meth, and ecstasy;

• the trafficking, production, Trafficking, Production &
Offences
and distribution offences Distribution
by Drug Type
totaled 32,974 - cannabis
(16,404); cocaine
20%
(10,027); and other drugs 30%
(6,543).
Other drugs
50%
Cannabis
Cocaine
Drug-related Crime Rates by Province
per 100,000 population
Province

Cannabis
rate

Cocaine
rate

Other
drugs rate

BC

421

106

64

SK

252

63

51

NS

251

34

46

QC

208

25

54

NF

205

38

67

NB

199

30

55

AB

195

76

37

ON

165

38

42

MB

157

58

30

PEI

108

22

41

• British Columbia had the highest drug related
offence rates of all 10 provinces for cannabis and
cocaine. Newfoundland was tops for other drugs.
Territory

Cannabis
rate

Cocaine
rate

Other
drugs rate

NWT

1,261

293

114

NU

1,039

15

18

YK

327

130

64

• The territories continue to have some of the
highest drug-related crime rates in Canada.
• Overall, drug offences were up in 2010 (+10%)
from 2009, mainly due to a +13% rise in
cannabis offences.

PAGE 12

Volume 11 Issue 6 ! November/December 2011

Motor Vehicle Theft

Top Ten CMA Vehicle Theft Rates per 100,000

In 2010 there were 92,683 motor vehicle thefts
reported to police, down (-15%) from 107,992 in
2009 and down -48% from a decade ago.
• on average there were 254 vehicles stolen per
day in Canada in 2010.
• the motor vehicle theft rate was 272 per 100,000
population.
• the most vehicles reported stolen was in Quebec
(24,410) while the Yukon had the fewest vehicles
stolen (160).

CMA

Rate

CMA

Rate

Regina, SK

562

Saskatoon, SK

471

Abbotsford-Mission, BC

553

Edmonton, AB

446

Winnipeg, MB

503

Vancouver, BC

370

Kelowna, BC

494

Calgary, AB

369

Brantford, ON

474

Montreal, QC

361

CANADA’S TOP 10
STOLEN VEHICLES
2010

Police-Reported Motor Vehicle Thefts
Province/
Territory

Rate

Motor Vehicle
Thefts

Rate change
2009 to 2010

NU

614

204

+2%

NWT

507

222

-5%

SK

477

4,988

-8%

YK

463

160

+18%

MB

453

5,596

AB

411

BC

1.

2000 Honda Civic SiR 2-door

2.

1999 Honda Civic SiR 2-door

3.

2002 Cadillac Escalade 4-door 4WD

4.

2004 Cadillac Escalade 4-door 4WD

5.

2005 Acura RSX Type S 2-door

-15%

6.

1997 Acura Integra 2-door

15,298

-18%

7.

2000 Audi S4 Quattro 4-door AWD

352

15,957

-20%

8.

2003 Hummer H2 4-door AWD

QC

309

24,410

-11%

9.

2006 Acura RSX Type S 2-door

ON

171

22,611

-18%

NB

165

1,239

-4%

NS

136

1,282

-3%

NF

118

603

+30%

Police Assaults

PEI

79

113

-30%

CANADA

272

92,683

-15%

Assaulting a police officer rose (+45%) from 2009 to
2010. In 2010 there were 17,377 assault police
officer offences compared to 11,837 the previous
year. This increase may be attributable to new
offences of assault with weapon/CBH to a peace
officer and aggravated assault against peace officer
which were recently added to the Criminal Code.
These offences would have previously been reported
under the general assault with weapon/CBH or
aggravated assault provisions in the Criminal Code.

10. 2004 Hummer H2 4-door AWD
Source: Insurance Bureau of Canada, December 16, 2010

• eight CMAs reported declines in motor vehicle
thefts of -25% or more; Trois Rivieres, QC
(-41%), Guelph, ON (-37%), Brantford, ON
(-31%), Peterborough, ON (-31%), Barrie, ON
(-30%), Ottawa, ON (-30%), Moncton, NB
(-27%), Victoria, BC (-27%), Edmonton, AB
(-26%), and Kelowna, BC (-25%).

PAGE 13

Volume 11 Issue 6 ! November/December 2011

EXPLANATION OF 2.5 HOUR
SEARCH DELAY AFTER ARREST
NOT REQUIRED
R. v. Asp, 2011 BCCA 433
!

The accused left a hotel in the middle
of the night in a manner that a private
security guard at the hotel found
suspicious.!He had left the hotel with
a female and did not inform the front
desk. The security guard followed the vehicle driven
by the accused and called 911. During the 911 call
the guard started to scream, reported his location,
and then the phone went dead.!The police attended
and saw two males involved in an altercation. The
accused’s vehicle rolled forward and struck a pole.
The collision dislodged the lid from the top of the
white box in the backseat, exposing plastic bags of
marijuana in the box.! The accused and his female
companion were initially arrested for possessing a
controlled substance and then re-arrested for
possession for the purpose of trafficking. The vehicle
was towed to the police station where it was
searched without a warrant about 2.5 hours after the
arrest. A total of 13.59 kgs. of marihuana, found in
54 zip-lock bags, was seized. Although the police
never investigated, arrested or charged the accused
with theft from the hotel, he was charged with
possessing marihuana for the purpose of trafficking.
At trial in British Columbia Supreme Court it was
agreed that the police could have obtained a search
warrant had they applied for one. There were no
exigent circumstances such that evidence in the
vehicle might have been lost or destroyed had they
waited and applied for a warrant. Nor was there any
risk evidence would have been removed from the
vehicle while awaiting a warrant.! It was further
agreed that the police searched the vehicle as part of
a drug investigation and they did not seek the
accused’s consent. The trial judge concluded that the
police did not breach the accused’s s. 8 Charter
rights by searching his vehicle and seizing the
marijuana. She found that both the plain view
doctrine and the common-law power of search
incidental to arrest applied.! “Neither the initial
seizure of the marijuana from the [accused’s] vehicle

seen by the police in plain view, nor the subsequent
search of the vehicle and the further seizure of
marijuana in the context of a search incidental to
arrest, constituted a violation of [the accused’s] s. 8
Charter rights,” said the judge. A conviction
followed.
The accused appealed his conviction to the British
Columbia Court of Appeal, contending that the
warrantless search of his vehicle and the seizure of
the drugs were unreasonable under s. 8 and that the
drugs should have been excluded under s. 24(2).!In
his view, the facts neither supported the application
of the plain view doctrine or the power of search
incidental to arrest.! He submitted, among other
grounds, that the search of his vehicle did not fall
within the common-law power of search incidental
to arrest because the Crown failed to establish how
much time passed between the arrest and the search
and did not provide an explanation for any delay. In
this case, the accused suggested that the distance
from the place of arrest to the police station as well
as how much time passed from the arrest until the
vehicle was searched were not known. !

Search Incidental to Arrest
Justice Frankel, authoring the unanimous opinion for
the Court, first cited a useful summary of the leading
authority on the application of the common-law
power of searching vehicles incidental to arrest from
R. v. Majedi,2009 BCCA 276:
•

•

•
•

PAGE 14

Officers undertaking a search incidental to arrest
do not require reasonable and probable grounds;
a lawful arrest provides that foundation and the
right to search derives from it;
The right to search does not arise out of a reduced
expectation of privacy of the arrested person, but
flows out of the need for the authorities to gain
control of the situation and the need to obtain
information;
A legally unauthorized search to make an
inventory is not a valid search incidental to arrest;
The three main purposes of a search incidental to
arrest are:! one, to ensure the safety of the police
and the public; two, to protect evidence; three, to
discover evidence;

Volume 11 Issue 6 ! November/December 2011
•

The categories of legitimate purposes are not
closed:! while the police have considerable
leeway, a valid purpose is required that must be
“truly incidental” to the arrest;
If the justification for the search is to find
evidence, there must be a reasonable prospect the
evidence will relate to the offence for which the
person has been arrested;
The police undertaking a search incidental to
arrest subjectively must have a valid purpose in
mind, the reasonableness of which must be
considered objectively. [reference paras. omitted]

to the execution of the warrant, police officers had
received information from various sources that the
accused was trafficking in cocaine and other drugs.
The ITO included information from a source that he
had been at the apartment within the last 24 hours
and had seen the accused in possession of what was
believed to be cocaine. As part of! their plan to
obtain and execute the search warrant, the police
were going to utilize a “hard” (“no-knock” or
“dynamic”) entry. They chose a hard entry because
they were concerned about:

As for the delay between the arrests and the search,
Justice Frankel found the search took place within a
reasonable amount of time. Although there will be
some cases in which the Crown will be required to
provide a reasonable explanation for a delay
between an arrest and a search, this was not such a
case.! Here, the police arrived at the scene of the
altercation at 3:00 a.m. The accused was arrested
shortly after that and the date and time stamp on
photographs that were tendered as an exhibit at trial
established that the search took place approximately
two and one-half hours after the accused was taken
into custody and his vehicle towed to the police
station. “In my view, that period is prima facie
reasonable,” said Justice Frankel. “There is no delay
that the Crown needs to explain.”

1. officer safety: (the accused’s criminal past
included convictions for weapons and drug
related offences and an outstanding charge of
assaulting a police officer. CPIC also contained
two cautions about the accused, (i) violence
and (ii) armed and dangerous);!

•

•

Since the drugs were seized by the police in the
lawful exercise of the power of search incidental to
arrest, it was not necessary to address the
application of the plain view doctrine. The accused’s
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

SAFETY OR EVIDENCE
CONCERNS MAY JUSTIFY
WAIVING KNOCK & ANNOUNCE
R. v. Sexton, 2011 NBCA 97
The police swore an Information to
Obtain (ITO) a warrant under the
Controlled Drugs and Substances Act
(CDSA) for a search of the accused’s
apartment. In the month leading up

2. the safety of those in neighbouring apartments:
(if violence arose in the course of entering the
apartment or conducting the search); and
3. the preservation of evidence: (cocaine dissolves
easily and is therefore easily disposed of.
Without the element of surprise, persons inside
the apartment could!the pour cocaine down the
sink or a toilet bowl.)
The police confirmed that the accused was present
in the apartment when two uniformed police officers
knocked on the door under the ruse that they were
looking to speak to his brother on a different matter.
After they left, a team of four police officers, each
armed with tactical rifles, wearing helmets, goggles,
balaclavas, and dressed in emergency response
uniforms with the word "POLICE" inscribed on the
front and back of their vests, entered the apartment
without notice by using a battering ram. The accused
was arrested, the search warrant executed, and
several charges were laid under the Criminal Code
and the CDSA, which included possession of
cocaine, ecstasy, hashish, LSD, a sawed-off shotgun,
an operational replica AK-47 assault rifle, three 9
mm handguns and one .22 calibre handgun.
At trial in New Brunswick Provincial Court the judge
concluded that the hard entry was unreasonable in
the circumstances for three reasons:

PAGE 15

Volume 11 Issue 6 ! November/December 2011
(1) the reliance by the police on the CPIC cautions
was “absolutely comical”,
(2) the police should have known the accused was
not a threat because he was perfectly
reasonable in his interactions with the two
uniformed police officers enquiring about his
brother, and
(3) the police officers wore balaclavas. The judge
found “there was no justification whatsoever”
for their use, citing “an innate distaste and
dislike for anonymity.”
Since the means employed to execute the warrant
violated the accused’s s. 8 Charter rights, the judge
excluded the evidence. He was acquitted on all
charges.
The Crown appealed the judge’s findings that the
search was conducted in an unreasonable fashion
before the New Brunswick Court of Appeal. The
Court first summarized the common law “knock and
announce” rule:
In the ordinary course of events, police officers
are required to make an announcement before
forcing entry into a dwelling house. This is
accomplished by giving “(i) notice of presence
by knocking or ringing the doorbell; (ii) notice of
authority, by identifying themselves as law
enforcement officers and (iii) notice of purpose,
by stating the lawful reason for entry.” [reference
omitted, at para 23]

The police may, however, depart from “the knock
and announce rule in circumstances where they
have reasonable grounds to be concerned about
their safety, the safety of others, or the destruction of
evidence.” But when challenged, the police must
explain why they thought it was necessary to do so.
In determining whether the police had reasonable
grounds for concern to justify use of an
unannounced, forced entry, their decision must be
judged by what was or should reasonably have been
known to them at the time, not in light of how things
turned out to be. After the fact assessments are unfair
and inappropriate where officers must exercise
discretion and judgment in difficult and fluid
situations. As well, the police must be allowed a

certain amount of latitude in the manner in which
they decide to enter premises. They cannot be
expected to measure in advance, with nuanced
precision, the amount of force the situation will
require.
In this case, Justice Bell found the search to be
reasonable in the circumstances, noting a number of
factors:
! There are two practical reasons why police
must take the search of someone else's
residence very seriously. First, it is highly likely
that suspects will know the layout of the place
being searched much better than the police.
They will know potential means of escape and
potential sources of weapons. Second, the
person whose residence is being searched will,
in most cases, have a better knowledge of who
is present in the premises. Unknown layout and
unknown occupancy provide a practical
advantage to the person whose residence is
being searched in the event that person wishes
to destroy evidence or obstruct, evade, or cause
injury to police.
! Police knew the accused had a criminal record
for weapons and drug offences and was
awaiting trial on a charge of assaulting a peace
officer. Information appearing in CPIC
constitutes a source of information which is
used by virtually every police officer in Canada
and whose information is communicated to,
and relied upon, by courts throughout the
country on a daily basis. Not only should
police rely upon CPIC, they would no doubt be
negligent and subject to disciplinary action if
they choose to disregard it. The fact the CPIC
cautions did not constitute a criminal record
did not render them unreliable.
! The uneventful visit at the accused’s door
changed nothing about his criminal record,
outstanding charges, or the CPIC cautions. Nor
did it change anything about the police
knowledge or lack thereof about the layout of
the premises or the occupants of the apartment.
The accused’s response to a search of his
premises for cocaine and other drugs might not

PAGE 16

Volume 11 Issue 6 ! November/December 2011
be the same as when responding to police
questions concerning an unrelated matter. The
courts are not to be "Monday morning
quarterbacks" on these sorts of questions. The
visit at the door was, at best, a neutral event
and the police continued to reasonably hold
the view that a hard entry was required.
! Courts should not attempt to micromanage the
police choice of equipment. Here, the police
said they wore the masks to protect them from
the possibility of shattering glass or flames.
Further, the police were not operating
anonymously. Their vests contained the
inscription “POLICE” on the front and back and
officers removed their balaclavas and helmets
within a few minutes after the apartment was
secured.
The Crown’s appeal was allowed, the accused’s
acquittals were set aside, and a new trial was
ordered.
Complete case available at www.canlii.org

SAFETY CONCERNS NOT
OBJECTIVELY JUSTIFIED:
ENTRY UNLAWFUL
R. v. Larson, 2011 BCCA 454
Police were dispatched at about
10:45 a.m. to investigate a report that
a distraught man had discharged
some pepper-spray inside a vehicle
and was now swimming in a lake.
When officers arrived the accused was swimming
about 30 metres offshore in a rocky area not suited
for swimming.! Officers persuaded him to come to
shore. He was frantic and said he was being pursued
by people who were out to get him and were
shooting at him. Suspecting he was in a state of
drug-induced paranoia and acting in a manner that
was likely to endanger his own safety, the accused
was apprehended under s.! 28 of British Columbia’s
Mental Health Act. During the 30-minute drive to
the hospital, the accused said two men had invaded
his home, and that people were trying to harm

him.! He pointed to people in the vicinity, alleging
that they were from the same group as the people
who had gone to his home.! He also said that people
were shooting at him from passing vehicles. He
asked police to drive quickly, not to stop at
stoplights, and ducked down when they passed
other vehicles.! He said that he was scared to go
back to his house and would not do so until it was
safe.
Police decided to go to the accused’s home to make
sure there were no intruders.! They also had a prior
suspicion that he had a marihuana grow operation
in it. An officer arrived at 11:50 a.m. and, while
waiting for backup, spoke to a neighbour who said
he was not aware of any incident having occurred at
the accused's house.! There was no sign of forced
entry at the house and police could not see any
indications that a home invasion had occurred (or
was in progress). Nor was any activity or motion in
the house detected. When back-up arrived at 12:25
p.m. officers found a sliding glass door unlocked
and entered the house, announcing “Police” several
times.!There was no answer, no unusual sounds, and
no signs of movement in the house.!Police searched
all three levels of the house.! They found no one in
the dwelling, and saw no evidence of forced entry,
no blood stains, no furniture or other articles that
appeared disturbed, and no other signs of a
struggle.! After locating a marihuana grow operation
in the basement on the initial search, the police
obtained a warrant, and conducted a second search
pursuant to it.
At trial in British Columbia Provincial Court the
officers testified that their purpose in going to the
accused’s home was solely to determine whether
there was evidence of an assault and whether
anyone who may have perpetrated the assault
remained on the premises. The judge found that the
warrantless entry into the home was lawful under
the common law police power to protect public and
individual safety.! Not only did the police have a
subjective belief that there might have been a home
invasion and the perpetrators might still be inside,
the belief was objectively reasonable. “The police
officers clearly had a subjective, reasonable belief
that they should enter the residence in order to
investigate the claim of a home invasion and

PAGE 17

Volume 11 Issue 6 ! November/December 2011
whether or not it had occurred; furthermore, to
determine if an assault had occurred, to determine if
anyone was in the house, and to determine if there
was any public safety concern and concerns that
related to the safety of [the accused],” said the
judge. “From an objective perspective, the
perspective of a reasonable informed person, I find
that the standard has … been met in this case.! ... I
make that finding in spite of the obvious behaviour
of [the accused] and his claims that people were
shooting at him, when clearly that was not accurate
or correct.! But nevertheless, taking into account the
constellation of evidence that was presented to the
police at the scene here, I find their actions were
reasonable.” Since the warrantless search was
lawful, the subsequent warrant, issued on the basis
of evidence uncovered during the initial warrantless
search, was valid. The accused was convicted of
producing marihuana and he was sentenced to a 12month conditional sentence.

the opinion for the two member majority. “Where a
warrantless search is conducted in a person’s
residence, the Crown has the onus of showing that
the search was lawful.” In deciding whether the
police conduct in this case was lawful, the Court
needed to determine the following:
1.

whether the police conduct fell within the
general scope of any duty imposed by statute
or recognized at common law, and

2.

whether the police power that was used was
justified.

The Initial Investigation
Justice Groberman found that the police had the
duty to investigate the accused’s report of a home
invasion. He stated:
The accused was obviously delusional at the
time of his apprehension, and the police were,
no doubt, alive to the possibility that his report
of a home invasion was not based in reality.!
That said, it was entirely possible that [the
accused] had been the victim of a home
invasion as he reported.! Indeed, his paranoid
delusions might have been triggered by such an
experience.! ... The veracity of the report was
difficult to gauge, and there was reason to
believe that the report might be
false.! Nonetheless, the police were justified in
investigating the reports. [para. 37]

The accused challenged the trial judge’s ruling to the
British Columbia Court of Appeal arguing the police
had no common law or statutory duty to investigate
his allegation that he had been the victim of a home
invasion.! He asserted that the police ought to have
known that his allegations were the product of a
paranoid delusion and were baseless because of his
condition when apprehended. Since the warrantless
search was unlawful, the search warrant based on
the information obtained from this initial search
rendered the warrant invalid and unreasonable
under s. 8. In the accused’s view, the evidence
The Search
should have been excluded under s. 24(2). The
Crown, on the other hand, submitted that the police
The warrantless search, however, was a different
had reason to believe that entry without a warrant
matter. “A search that is conducted for
was necessary to protect the
the
purpose of investigating crime
lives or safety of the occupants
“Without consent, a
requires
a warrant,” said Justice
and that there was no effective warrantless search is prima
Groberman.!
“Only where there are
alternative to the warrantless
facie an unreasonable one. concerns of a threat to life or personal
entry.
Where a warrantless search safety will a warrantless entry and
search be justified.” In this case, the trial
In this case, the accused did
is
conducted
in
a
person’s
judge
cited reasons for entry related to
not consent to the search of his
only investigating a completed crime home. “Without consent, a
residence, the Crown has
“to
investigate the claim of a home
warrantless search is prima
the onus of showing that
invasion
and whether or not it had
facie an unreasonable one,”
the
search
was
lawful.”
occurred”
and “to determine if an
said Justice Groberman, writing
assault had occurred.”

PAGE 18

Volume 11 Issue 6 ! November/December 2011
As for safety concerns, the officers did not suggest
that they suspected that victims of crime remained in
the house.! Instead, the only people who police
believed possibly might be in the house were the
perpetrators of the home invasion. On this point, the
Court of Appeal stated:
It is difficult to understand how the search could
have been based on such considerations.! There
does not appear to be any objective basis for
their belief that people might remain in the
premises.! Some two hours had passed between
the latest possible time for the home invasion
and the moment the police entered the
house.![The accused] had not suggested that the
home invaders had expressed an intent to
become an occupying force in his home.!Rather,
he claimed that they were after him personally.
The police did have a suspicion that [the
accused] had a marihuana grow operation at his
home, and this might have been a plausible
motive for people to invade his home.! It is
entirely unlikely, however, that any invaders
would have remained in the home for two hours,
particularly given that [the accused] would have
had knowledge of their entry into the premises,
and would have had escaped them.
The unlikelihood of the invaders remaining in
the home was heightened by the fact that the
police did not detect any movement, noise, or
disturbance in the home when they waited
outside, when they peered in the windows, and
when they first entered through an unlocked
door.! The possibility that there were people in
the home at that point was very remote.! No
basis for the suspicion that people were holed
up inside was put forward, other than the fact
that [the accused] had said that he did not know
whether the invaders had remained at his
premises or not.
It is also difficult to articulate what “public safety
concerns” or “concerns that related to the safety
of [the accused]” were present.!Even if there was
some remote possibility that invaders were in the
house, the police did not, in their testimony,
suggest any mechanism by which the purported
home invaders endangered life or personal
safety.! [The accused] had, by the time police
entered his home, been admitted to hospital,
some considerable distance away.!There was no

“A search that is conducted for the purpose
of investigating crime requires a warrant.
Only where there are concerns of a threat to
life or personal safety will a warrantless
entry and search be justified.”
possibility that he would be returning home
imminently, so there was no immediate risk to
his personal security.!Police had attended at the
house, and could easily observe the absence of
any immediate threat to persons outside of the
home. [paras. 44-47]

There was no objective support for the police
officers’ subjective belief that it was necessary to
enter the home in order to protect the accused or the
general public. The Crown did not suggest that there
were grounds for entry into the dwelling based on
“exigent circumstances” connected with the
preservation of evidence or to apprehend criminals,
such that a warrantless entry under ss.! 529.3(1) or
529.3(2)(b) of the Criminal Code would be
authorized. The police could also have interviewed
the accused after his paranoid symptoms had
subsided, to determine whether his allegation of a
home invasion continued to be of concern, or could
have sought his consent to entry.!The police did not
consider either of these alternatives to warrantless
entry. Since the initial search was unlawful, the facts
gathered by the police in the course of this
warrantless search were excised from the
information to obtain and there was no basis on
which the warrant could properly have been issued.
The evidence was excluded under s. 24(2), the
accused’s conviction was overturned, and an
acquittal was entered.

A Different View
Justice Smith disagreed with the majority. In her
view the entry by police without warrant was
justified. “Prudence dictated that the police not
ignore [the accused’s] report,” she said. “For the
police to decide that, because they could see no
activity from outside the home, there were no public
safety concerns – by which I mean concerns about
the safety of people inside the home, including the

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Volume 11 Issue 6 ! November/December 2011

alleged assailants – would leave open the risk that
medical aid would not be made available
immediately to someone who needed it.! It is
unrealistic to suggest that the police could have
sought [the accused’s] consent to entry, given that he
was suffering from delusions at the time; or that the
police could have waited until his delusions had
subsided.! There was no way of knowing how long
[the accused] would have taken to return to
normalcy, if indeed he was expected to do so.”
Justice Smith would have dismissed the accused’s
appeal.
Complete case available at www.courts.gov.bc.ca

POLICE MUST WAIT A
REASONABLE TIME AFTER
KNOCKING BEFORE ENTRY
R. v. Truong, 2011 BCSC 1483,
A police officer, with 10 months
experience, detected an odour of
vegetative marihuana while
patrolling. Six days later she attended
with other, more experienced officers
and, by walking the fence lines of properties in the
area, determined that the odour was coming from a
two story house with an attached garage. The police
obtained a telewarrant under the Controlled Drugs
and Substances Act to search the residence. Officers
approached the front door, knocked three times, and
stated “Police.” When there was no reply, police
knocked and announced again. An officer said she
saw a slight movement of the blinds in a window
next to the door. A battering ram was then
immediately used to break open the door and the
time from the first knock to the use of the battering
ram was at most 45 seconds. Police entered and
found more than 500 marihuana plants, fans, lights,
and other equipment. The accused, who was the sole
occupant of the home, was arrested upstairs near a
bathroom and subsequently charged with producing
marihuana and possession for the purpose of
trafficking.
!

At trial in British Columbia Supreme Court a police
corporal testified that the movement of the blinds

indicated that someone was inside and, for reasons
of officer safety, it was not prudent for police to
remain standing outside. He also said he was
concerned about the general risks inherent in
marihuana grow operation raids, such as weapons or
booby traps. In spite of these police concerns, the
accused alleged, among other grounds, that his
rights under s. 8 of the Charter were breached
because of the manner of police entry.
Justice Smith agreed. “In the absence of exigent
circumstances, police executing a search warrant are
required to knock first, announce their presence and
purpose, and allow a reasonable time for any
occupants to respond,” said the judge. “There could
be no magic period of time after which forced entry
is deemed reasonable in all cases and the police are
not expected to execute a search warrant with a
stopwatch in hand. What is reasonable will depend
on the circumstances of each case including the
nature of the property and the amount of time an
occupant might need to come to the door.”
!

In this case, the judge noted that it was significant
that this involved a two-story house, which may
require a longer wait for a response than would a
smaller home. As for the officer’s safety concerns, he
noted that the police had “no information to indicate
any risk associated with this property” nor had they
“engaged in surveillance prior to executing the
warrant.” The judge was also troubled that the
movement of the blinds was inconsistent with the
accused being found upstairs and the fact the officer
who said she saw the blinds move made no notes
about it. In finding a violation of the accused’s rights,
Justice Smith stated:
!

On all of the evidence, I conclude that the
police in their eagerness to execute the warrant
treated the "knock and announce" rule as a
formality to get out of the way as quickly as
possible rather than as a sincere attempt to give
any occupants a reasonable opportunity to
respond and cooperate. [para. 24]
!

The evidence was excluded and the charges were
dismissed.
Complete case available at www.courts.gov.bc.ca

PAGE 20

Volume 11 Issue 6 ! November/December 2011

FINGERPRINT CONSISTENT
WITH OTHER CONCLUSION:
ATTEMPT B&E OVERTURNED

on the other hand, submitted that the trial judge’s
verdict was supported by the evidence.

Justice Lowry, delivering the Court of Appeal’s
decision, found the trial judge’s reasoning flawed.
R. v. Ricketts, 2011 BCCA 402
“Once it was determined the evidence does not
establish (beyond a reasonable doubt) it was the
A 41-foot motor vessel moored in a
[accused] who broke into the vessel, his fingerprints
public marina was broken into and a
establish only that he was on board at some time
large tackle box and toolbox were
after the cabin structure was cleaned, when any
stolen.! The vessel was for sale and
fingerprints would have been removed,” said Justice
had been cleaned some six weeks
Lowry. “I see no evidentiary basis for the conclusion
prior to the break-in. Entry was gained through an
that the only rational explanation for the
unlocked sliding window
[accused] having applied pressure to the
on the starboard side of
“Once it was determined the
fixed pane of the port-side window
the cabin.! Prints from
evidence
does
not
establish
...
whenever he was on board was, in the
three fingers of the
judge’s words, ‘for the purpose of
it
was
the
[accused]
who
broke
accused’s left hand were
lifted from a fixed pane of into the vessel, his fingerprints breaking and entering the vessel to
commit an indictable offence therein, i.e.
glass on the port-side
establish
only
that
he
was
on
theft’.! Clearly, the [accused] was
cabin window.! The prints
trespassing but it cannot follow from that
formed the impression of
board at some time after the
he had to be attempting to break into the
the accused’s left hand
cabin structure was cleaned.”
vessel when he pressed his hand against
being placed against the
the window.” The evidence of the
glass from above and,
accused’s
fingerprints
was at least as consistent with
with minor slippage evident, were indicative of his
his
looking
into
the
cabin
from the port side as it is
having pressed downward and to the left on the
with
his
having
attempted
to open the window to
glass to some extent.! These were the only prints
break in:
found anywhere on the vessel except for some
!

unidentifiable smudged prints on the starboard-side
window. The accused was charged with breaking
and entering the vessel and committing theft.

His purpose may have been to ascertain whether
there was anything in the cabin he might take,
but even that does not mean he was intending to
break into the cabin at the time he pressed his
hand against the fixed pane of the window.!
Evidence which establishes that at some time the
[accused] was on the vessel and pressed his
hand against a part of a cabin window that was
not even the part that opened, does not prove
beyond a reasonable doubt that, at that time, he
had formed the intention to break into the cabin
and had actively taken steps to do so.! I do not
consider it reasonable to conclude
otherwise.! The evidence of the [accused’s]
fingerprints cannot be said to be inconsistent
with any conclusion other than guilt. [para. 12]

At trial in British Columbia Supreme Court the
accused did not testify. The judge was not satisfied
the fingerprint evidence proved the accused was the
person who actually broke into the vessel through
the starboard-side window and committed the theft,
but he found the accused had attempted to break in
and enter the vessel through the port-side cabin
window.! Although the evidence was entirely
circumstantial, the judge found there was no other
rational conclusion. The accused was found guilty of
the lesser included offence of attempting to break
and enter to commit an indictable offence.
The accused appealed, arguing that the trial judge’s
verdict was unreasonable and should be set aside. In
his view, the evidence went no further than to raise a
suspicion that he committed the offence. The Crown,

The accused’s appeal was allowed, the guilty verdict
was set aside, and a not guilty verdict was
substituted. !
Complete case available at www.courts.gov.bc.ca

PAGE 21

Volume 11 Issue 6 ! November/December 2011

POLICE HAD REASONABLE
SUSPICION OF DRUG ACTIVITY:
ENTRAPMENT NOT PROVEN
R. v. Faqi, 2011 ABCA 284
!

As part of a drug investigation known
as Operation Shot Glass, undercover
police officers would enter bars in
downtown Calgary. They had no
particular target in mind but wanted
to observe who was contributing to the drug trade
within the bar. Having advance information of drug
activity in the Melrose Cafe (tips), undercover
officers entered and approached the accused and his
friend. Although they had no information the
accused had been selling drugs, he and his friend
were playing pool and their clothing stood out. They
were more casually dressed than the business dress
of other bar patrons. The officers initiated contact
with the two men, which led to games of pool as
well as eating and drinking alcohol with them. After
about an hour, an officer pretended to make a
telephone call away from the accused and then told
his fellow undercover officer that he was having
trouble “getting”. Overhearing this conversation, the
accused’s friend offered to get drugs for the officers.
The officer said he wanted to purchase $100 worth
of powder cocaine. But the accused’s friend
unsuccessfully made several calls in an attempt to
get some. When the officers indicated they would
accept crack cocaine, the accused! interrupted,
stating! that he could call “his guy” instead. He
contacted a drug dealer who ultimately refused to
sell the officers anything, suspecting they were
police. The accused then volunteered that he could
remedy the situation. He left the bar, returning
shortly to pass one of the officers a rock of crack
cocaine under the table. He received $100 from the
officer which he then took outside to pay the dealer.
He was subsequently charged with trafficking in
cocaine and possessing proceeds of crime.
!

At trial in Alberta Provincial Court the judge found
the Crown had proven its case beyond a reasonable
doubt. However, she granted a stay of proceedings
because the police had inadequate grounds to
approach the accused in the bar and had entrapped

him in doing so. The police had no reasonable
suspicion that the accused was already engaged in
drug trafficking and they were not engaged in a bona
fide inquiry when they bought drugs from him. She
concluded that the evidence did not support a
reasonable suspicion that criminal activity was
occurring throughout all of the bars in downtown
Calgary, even though she held that when police
entered the bar in question they had reason to
believe drug trafficking may be occurring.
Alternatively, she found the police went beyond
providing an opportunity to commit the offence and
actually induced its commission through a strategy
which exploited the bonds of friendship fuelled by
alcohol.
!

The Crown appealed the stay of proceedings to the
Alberta Court of Appeal.
!

Entrapment
!

The defence of entrapment may only be raised after
the Crown has proven beyond a reasonable doubt
that an accused committed the crime. A stay of
proceedings should then only be entered in the
“clearest of cases,” where the conduct of police
offends the basic values of community. The
entrapment defence is available when:
•

Police provide a person with an opportunity to
commit an offence without acting either on a
reasonable suspicion that the person is already
involved in a criminal activity or pursuant to a
bona fide inquiry; or

•

Although having such a reasonable suspicion or
acting in the course of a bona fide inquiry, they
go beyond providing an opportunity and
induce the commission of an offence.

!

A bona fide investigation?
When the police do not have a reasonable suspicion
about a specific individual involved in a crime, they
may nonetheless be engaged in a bona fide
investigation and present an opportunity to commit
a crime where it is reasonably suspected that certain
criminal activity is occurring at a particular location
or area (which could include a building or
premises). In such a case, the police may provide

PAGE 22

Volume 11 Issue 6 ! November/December 2011

opportunities in a random way to
the Court noted the accused
“[D]rug trafficking is
people associated with the
volunteered to commit the crime,
notoriously difficult to
location under suspicion, even if
having overheard a conversation in
those people are not themselves detect without some aspect which the undercover officers
under suspicion. If the
of undercover involvement.” ! indicated an interest in buying
investigation is not bona fide, the
cocaine from his friend:
actions of the police will amount
[D]rug trafficking is notoriously difficult to detect
to impermissible random virtue testing and
without some aspect of undercover involvement.
constitute entrapment.
Further, the police did not make any request of
!
[the accused] whatsoever; their interest and
In this case, the Court of Appeal ruled that the trial
communication relating to the drug sale was
judge “erroneously concluded that the potential
d i r e c t e d t o h i s f r i e n d . [ Th e a c c u s e d ]
geographic scope of this inquiry was all the bars in
spontaneously interposed himself into the
downtown Calgary and that the evidence did not
transaction. No reward was offered to him. Any
support a reasonable suspicion that criminal activity
concrete benefit to him would, conceivably,
was occurring throughout that large geographic
come only by way of commission paid to him by
the drug trafficker for acting as a middle-man.
area.” The police had the necessary reasonable
No threats were made and no illegal action was
suspicion attaching to the Melrose Cafe that drug
taken by the police. [para. 25]
trafficking may be occurring. They were therefore
!
acting in the course of a bona fide investigation.
The police conduct in this case was not entrapment
“The trial judge made an error of law in failing to
and undercover officers did not induce the accused
appreciate that the scope of the inquiry into whether
to commit the crime of drug trafficking. The Crown’s
police were engaged in a bona fide investigation
appeal was allowed, the stay of proceedings was
may be a much smaller area under a widespread
lifted, convictions for cocaine trafficking and
drug investigation, and that the bona fide analysis
proceeds of crime were entered, and the matter was
should address whether police had reasonable
remitted back to the trial judge for sentencing.
suspicion that criminal activity was occurring in that
specific area,” said the Court.
Complete case available at www.albertacourts.ab.ca
Since the police were engaged in a bona fide
!
investigation, it was not necessary for the Court of
Appeal to determine whether police had a
reasonable suspicion that the accused was drug
trafficking prior to the time he was presented with
Entrapment
the opportunity to sell the drugs.
23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+

!"#$!!%&'("$)*+#
LEGALLY SPEAKING:
!"#$%&'()#'%*+,-.'-/+0#)*1)&1

!

Inducement
Even if the police were acting within the course of a
bona fide investigation, entrapment could still be
established if the police induced the accused to sell
drugs to them. The trial judge had concluded that
inducement occurred because the police engaged in
and exploited the bonds of social friendship, fuelled
by alcohol and food, during the hours they spent
with the accused in the bar. After considering a
number of factors, the Court of Appeal disagreed
and found the police did not induce the commission
of an offence as suggested by the trial judge. Instead,

“Entrapment recognizes that there are
'7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+
limits on what the police can do in the
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suppression of criminal activity. Those
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