ISSUES

ritish

l)J.UW.Olo

OF
INTEREST
VOLUME NO. 18

POLICE ACADEMY
Written by John M. Post

Feb. 1986

4180 West 4th Avenue
Vancouver, B.C.
V6B4J5

ISSUES OF INTEREST
VOLUME NO. 18
Written by John K. Post
February 1985
TABLE OF CONTENTS
Page

...........

l

BE tlC>HITORED • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

3

DEFENCE PRACTICE AMOUNTING TO OBSTRUCTION OF JUSTICE
Regina v. Doz - 12 C.c~c. (3d) 200
Alberta Court of Appeal, April 1984.

INTERCEPTING A PRISONER'S TELEPHONE OOHVERSATION PRIVATE COMMUNICATION - WARNING POSTED '!BAT CALLS MAY
Regina v. Rodney - 12 C.C.C. (3d) 195
British Columbia Supreme Court, April 1984.

CONSTITUTIONAL PIWPRIETY OF PRESUMPTION '!BAT GOODS
OBTAIHED BY N.S.F. CHEQUE VERE BEGO'ITEN BY A FALSE PRETENCE
Regina v. Bunka - 12 C.C.C. (3d) 437

....

4

THE DEFENCE OF BECESSITY - CAN ONE BE EXCUSED Fil.OK
HAVING COMMITTED AN OFFENCE IF BE FELT IT VAS BECESSAK.Y
IN l'HE CllCOMSTANCES TO COMMIT THE OFFENCE? • • • • • • • • • • • • • • • • • • • •

5

Saskatchewan Court of Appeal.

Perka, Nelson, Hines, Johnson and The queen, Supreme Court
of Canada, October 1984.

IS AN ADOPTED DAUGHTER '1'HE EQUIVALENT OF A STEPDAUGHTER,
FOSTER DAUGHTER. OR FEMALE WARD? - DISCllKINATION •••••••••••••••
Regina v. Mcintosh - 13 c.c.c. (ed) 130

10

Manitoba Court of Appeal, May 1984.

CHARTER OF RIGHTS AND FKEEDOKS ABOUT •UNKEASONABLE SEARCH• • • • • •
Hunter v. Southam Inc., Supreme Court of Canada, October 1984.

12

- ii -

IMPLIED THREAT AND ROBBERY • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Regina v. Tardiff, County Court of Vancouver,
Registry No. CC840163 - October 19'84.

16

ARBITRARY DETENTION- NOT RELEASING AN IMPAIRED DRIVER
WHEN THERE IS NO APPARENT FURTHER NEED FOR aJSTODY • • • • • • • • • • • • •
The Queen v. Mcintosh, B. C. Court of Appeal, B.C.C.A. 002074,
September 1984.

19

ADMISSIBILITY OF .EVIDENCE OF BREATH AllALYSES WITHOUT EVIDENCE
OF SUSPECT HAVING BEEN INFORMED OF RIGHT l'O <X>UNSEL • • • • • • • • • • • •
Regina v. Copley, County Court of Vancouver, No. CC 830036.

23

................... 27

"'AS SOON AS PKACTICABLE"' and llUMANITAIUANISM
Regina v. Robinson, County Court of Westminster, New Westminster
Registry No. X81-7085.
UNREASONABLE SEARCH - GOOD FAITH•••••••••••••••••••••••••••••••
R. v. Leveillee, B. C. Court of Appeal, No. 831359,
September 1984.

28

ADVERSE VITRESS PROCEDUllE ••••••••••••••••••••••••••••••••••••••
Regina v. Booth, B. C. Court of Appeal,
Vancouver Registry C.A. 001743.

29

HOW l'O PROVE THAT THERE IS 15 HlliOTES
BETWEEN 'l1IE TAKlHG OF SAMPLES OF BREATH
Regina v. Moore, B. C. Court of Appeal, No. 001604, 1984.

........................ 32

CONSTITUTIONALITY OF PRESUMPTION OF DiOWLEDGE
THE DRIVER'S LICENCE IS SUSPENDED (K.V.A.) ••••••••••••••••••••• 34
The Queen and Johnson, B. C. Supreme Courts Vancouver Registry No.
CC840173, July 1984.
DOES AN AUTHORIZATION l'O :urrERCEPT PRIVATE a>MMIJNICATIONS DICWDE
THE POWER TO ENTER PLACES TO INSTALL l'BE HECESSAK.Y EQUIPHEHI? •• 35
THE WRONG DEAL? - AGENT PIWVOCATEUR. BOT AVAILABLE TO TESTIFY •• •
Regina v. Ross - County Court of Westminster, No. X829640 New
Westminster Registry.

36

- 1 -

DEFENCE PRACTICE AMOUNTING TO OBSTRUCTION OF JUSTICE
Regina v. Doz - 12 C.C.C. (3d) 200
Alberta Court of Appeal, April 1984.
A Mr. Woitt was arrested for driving while his ability to do so was
impaired by alcohol. He had no identification on him and wishing to
avoid the consequences of other outstanding traffic matters, he gave
the name and address of a friend as being his. He was later released
on a promise to appear. The document was made out for Mr. Hutchinson,
the friend, and Mr. Woitt signed that name to the document.
This
false identity was continued when Woitt was photographed and fingerprinted under the provisions of the Identification of Criminals Act.
Mr. Woitt went to see the accused, a lawyer who primarily practises
criminal law.
Mr. Woitt told all and a meeting of the accused, Mr.
Woitt, and Mr. Hutchinson was arranged.
This resulted, despite the
total conflict of interest, that both signed a retainer for the
accused to represent them.
The accused, fully aware of all facts,
presented Mr. Hutchinson as the man charged with impaired driving and
represented him at a trial at which all facts as they occurred in
regards to Mr. Woitt's arrest were adduced in evidence.
The
constable, when asked to identify the impaired driver he had
encountered, said he recognized no one in the Courtroom as the person
he apprehended.
The judge then asked defence counsel, the accused:
"Is your client here Mr. Doz?" The accused replied: "Mr. Hutchinson
is here" (of course, Mr. Hutchinson's name appeared on the
information).
In cross examination the accused asked the police
officer, while pointing at Mr. Hutchinson: " ••• was that the man you
charged that evening?" The officer repeated that he did not recognize
Hutchinson as the person he arrested. The accused then addressed the
Court and said if the Judge found there was sufficient identification
to convict Hutchinson, he would call his client who would tell the
Court where he was on the evening in question. When the trial judge
said: "tell it to the Court of Appeal, I find the accused guilty", the
accused changed his mind and said he wanted to adduce evidence in
defence. He called Mr. Hutchinson who, of course, testified that he
was on the evening in question at a place other than where Mr. Woitt
was arrested. When Mr. Hutchinson was asked how he learned of these
proceedings he said that his sister had "reemed him out" at a party
for being on the Court docket for impaired driving.
He then had
retained Mr. Doz, the accused, who had confirmed that his sister was
correct.
The prosecutor showed Mr. Hutchinson the mug shot of Mr.
Woitt and asked if he knew who that was. He replied: "It's not me
anyway". Despite the fact that Hutchinson and Woitt were friends he
answered: "No, not that I recall" when asked if he ever had seen the
individual before.
Defence Counsel (the accused) lamented how
unfortunate it was that Mr. Hutchinson had been compelled to present a
defence, and the Judge dismissed the case but suggested that an
investigation should be conducted.

- 2 -

Hutchinson told his parents what he had done.
They made him aware
that he had committed perjury and retained counsel for their son.
Consequently Hutchinson told police the whole distorted story. When
Woitt was interviewed he confessed also.
Woitt was charged with personation and failing to appear on the
impaired driving charge. He was sentenced to four months. Hutchinson
was not charged with anything. Mr. Doz, the lawyer, was convicted of
being a party to the offences of:
1.
2.
3.

Personation;
Obstruction, perversion or defection of the course of justice;
and
Perjury.

He appealed the convictions.
The Alberta Court of Appeal held that when the trial was conducted in
which Hutchinson acted the part of the person charged with the
offence, the "motorist" who was apprehended on the night in question
was, for all intents and purposes, the accused; not Hutchinson. This
as Doz and Hutchinson as well as Woitt (the motorist) knew of the
charade.
Doz claimed that his legal ethics had precluded him from
stating what he knew, namely, that the accused (the motorist) was not
in the courtroom.
These assertions, said the Court of Appeal, were
unbelievable and incredible.
As an officer of the court, Doz' s
primary duty was not to deliberately mislead the court.
Said the
Justices in respect to obstruction of justice:
"By his conduct he (Doz, the defence lawyer) was not
only guilty of conduct unbecoming a barrister, but also
of the criminal offence of attempting to obstruct
justice as charged".
The Court of Appeal held that all of the elements that led to a
conviction of obstructing justice were the same as those adduced to
seek convictions of personation.
Therefore, a conditional stay of
proceedings was directed on the charge of personation. Should Doz win
a further appeal on the obstruction charge the judicial stay in
personation would be lifted.
In respect to the conviction on the perjury charge, Doz' appeal was
dismissed. Although Hutchinson was called to testify "on the spur of
the moment" he lied as Doz expected him to do.
Appeal allowed in part only.

*** **

- 3 -

INTERCEPTING A PRISONER'S TELEPHONE CONVERSATION PRIVATE COMMUNICATION - WARNING POSTED THAT CALLS MAY BE MONITORED
Regina v. Rodney - 12 C.C.C. (3d) 195
British Columbia Supreme Court, April 1984.
The accused was in a provincial correctional institute awaiting to be
tried for murder. A correctional officer saw the accused using the
telephone on one ot' the tiers. As he seemed unusually agitated the
officer went to the director's office and listened in on the accused's
conversation on the monitoring system.
The officer recognized the
accused's voice but not that of the woman he was having a conversation
with. The woman spoke a German type language while the accused's part
of the communication was in English. The conversation was monitored
but not taped and the officer made notes of what the accused said.
Whatever that was, it must have been of interest to the Crown as it
was adduced in evidence at the murder trial. The defence, of course,
objected to the admissibility of the evidence despite the fact that
above the telephone the accused used, was a warning saying: "All
personal calls may be monitored". The Crown claimed that the accused
was the originator of the monitored communication that was adduced in
evidence (only what he said was presented) and the sign made it
reasonable for him to expect that his communication would be intercepted. Therefore, the communication was not private (see definition
in s. 178.1 C.C.) and its admissibility in evidence not subject to the
provisions of the Privacy Act contained in the Criminal Code.
The
defence, of course, argued that the communication was private, the
interception therefore unlawful and that without the consent of the
accused or the woman he spoke to the evidence given by the correctional officer was inadmissible.
The test whether it was reasonable for the accused to believe that his
call was going to be intercepted is an objective one. That means that
it is not what the accused believed at the time but what a reasonable
person may have thought in the circumstances. The Crown attempted to
persuade the Court to hold that ••• "a reasonable inmate standing in
the shoes of the accused would have read the signs" that all phones
are subject to monitoring.. The Court did not agree and held:
"On the whole of the evidence, I am not satisfied that
the Crown has established beyond a reasonable doubt that
it was reasonable for the accused, using an objective
test of reas~nableness to expect that his telephone conversation with the woman to whom he was speaking would
be listened to by any person other than the woman to
whom he was speaking".
Communication ruled inadmissible.

*****

- 4 -

CONSTITUTIONAL PROPRIETY OF PRESUMPTION THAT GOODS
OBTAINED BY N.S.F. CHEQUE WERE BEGOTTEN BY A FALSE PRETENCE

Regina v. Bunka - 12 C.C.C. (3d) 437
Saskatchewan Court of Appeal.
The accused issued an N.S.F. cheque for goods he purchased.
The
cheque was presented for payment within a reasonable time and in
accordance to s. 320(4) C.C. it was presumed that the goods were
obtained by a false pretence.
The accused appealed the conviction
claiming that the presumption violates s. 11 and 7 of the Charter,
which spell out respectively the well-known presumption of innocence
and that we cannot be deprived of life, liberty and security of the
person except in accordance with the principles of fundamental
justice;,
The Saskatchewan Court of Appeal applied the test suggested by their
Ontario counterpart to determine the propriety of statutory and common
law presumptions of guilt. The Justices held that the presumed fact
(that the goods were obtained by a false pretence) and the facts
prerequisite to the presumption (presentation of cheque within a
reasonable time; dishonoured due to insufficient funds; absence of
evidence that accused had reasonable grounds for believing that cheque
would be honoured) had a logical connection and relationship.
The
prerequisite grounds made the presumed fact more than probable.
Appeal dismissed.
Presumption not contrary to Charter.

*****

- 5 -

THE DEFENCE OF NECESSITY
CAN ONE BE EXCUSED FROM HAVING COMMITTED AN OFFENCE IF HE FELT IT WAS
NECESSARY IN THE CIRCUMSTANCES TO COMMIT THE OFFENCE?
Perka, Nelson, Hines, Johnson and The Queen, Supreme Court of Canada,
October 1984.
The accused were on the Pacific Ocean en route to Alaska with a cargo
of $7 ,000,000 worth of marijuana.
They were sailing outside the
Canadian 200 mile limit, when, according to their testimony, they
encountered mechanical problems and heavy weather.
The captain
decided to put in a bay on the west coast of Vancouver Island, offload
and make repairs. Police moved in, made arrests and seized ship and
cargo. The accused successfully raised the defence of necessity and
were acquitted of importing a narcotic and possession for the purpose
of trafficking. The B. C. Court of Appeal ordered a new trial and the
accused appealed that decision to the Supreme Court of Canada.
There were several grounds for appeal but the kernel one was whether
or not there exists in Canada a defence of necessity and, if so, when
is i t available.
This case seems a landmark decision in that it was not certain whether
the defence of necessity existed in Canada.
The British common law
was of no help as legal scholars and authors cannot agree if in
England such a defence is recognized. Yet, for centuries the courts
have responded that a man may be excused from committing a crime if he
had no choice in rejecting a greater evil.
One crucial aspect of this "ill defined and elusive" defence has
always been whether we can afford such a legal luxery.
One can
imagine all the innovative fabrications that could "very easily become
simply a mask for anarchy". On the other hand when a man commits a
crime to prevent a more serious wrong or harm, should he then not be
at least excused from committing the less pernicious one?
When Dr. Morgentaler raised this defence, he argued that procuring a
miscarriage contrary to the Criminal Code was an act of necessity to
prevent
graver evil to the woman.
When this issue reached the
Supreme Court of Canada in 197 6*, the defence of necessity was no
longer the kernel issue. The Supreme Court's opinion was, that if the
defence existed, it was not available to Dr. Morgentaler in the
circumstances. Said the Court about the defence of necessity:
"If such a principle exists, it can go no further than
to justify non-compliance in urgent situations of clear
and imminent peril when compliance with the law is
demonstrably impossible".

*

1 CSRX (1976)

- 6 -

These words apparently triggered a belief that the defence exists and
it was since successfully raised in.four cases.
The Supreme Court of Canada blamed all the ambiguity about this
defence on the Courts having failed to determine the distinction
between two related principles. The one is where a person for practical reasons in an emergency situation, is justified to break the
letter of the law to avoid a greater harm.
The other is where for
humanitarian reasons, it is, in an emergency, excusable to break the
law if compliance would impose an intolerable burden on the accused.
In criminal theory there is a distinction between "justification" and
"excuse".
"A justification challenges the wrongfulness of an
action which technically constitutes a crime •••• " "In
contrast, an excuse concedes the wrongfulness of the
action but asserts that the circumstances under which it
was done are such that it ought not to be contributed to
the actor".
Police may be "justified" in shooting a hostage-taker. The action is
in certain circumstances rightful.
"The concept of punishment often
seems incompatible with the social approval bestowed on the doer".
Necessity goes to excuse conduct, not to justify it.
When a person comm.its a crime while drunk, mentally ill, or sleep
walking, no matter how we disapprove of his criminal act, the law may
consider it an "excuse" sufficient not to impose punishment.
For a
criminal
act
to
be
"excused",
it
must
be
one
of
"moral
involuntariness".
If one goes through the Criminal Code, a number of "excuses" and
··justifications" for the commission of offences can be found.
These
are comm.only raised as a defence or the wording of the codified
definition of the crime may exclude "justification" or the defence of
"excuse". However, in terms of the defence of necessity the statutes
are not exhaustive.
Those that are valid ··excuses" but not on our
statute books, are labelled the "residual defence of necessity".

Having said this, the Court dealt with the limitations of the "greater
good theory" with the obvious objective to prevent exploitation of
this defence.
The Court prefaced that part of the judgement by
saying:
• • • I retain the skepticism I expressed in Morgentaler.
It is still my opinion that, no system of
positive law can recognize any principle which would
entitle a person to violate the law because on his view
the law conflicted with some higher social value".

- 7 -

Reiterating the meaning of "the excuse of necessity" the Court said
that
humane criminal law cannot hold people to the strict
obedience of laws in emergency situations where normal human
instincts, whether self preservation or of altruism, overwhelmingly
impel disobedience". Although the act is still a crime in the circumstances, it is excusable.
There cannot be praise for the act, but
only pardon. After all, despite the overwhelming urge to commit the
offence, in the circumstances the act was voluntary.
The Court gave a very vivid example of this theory. A man can find
himself lost in the elements and come upon a dwelling.
To avoid
freezing to death he breaks in.
He may well help himself to
provisions and damage the house or its content to make a fire. Though
he voluntarily broke in and committed mischief, "realistically his act
is not a voluntary one".
His choice was not a true choice at all,
said the Court. It simply amounts to "moral or normative involuntariness".
Then the Court established the limitations of this defence of necessity. The Supreme Court, probably concerned that the defence would be
abused prefaced this part of their reasons for judgment by emphasizing
that it must "be strictly controlled and scrupulously limited to
situations that correspond to its underlying rationale". Again the
Morgentaler case was used as an example where the defence of necessity
was not available. Said the Court:
"At a minimum the situation must be so emergent and the
peril must be so pressing that normal human instincts
cry out for action and make a counsel of patience
unreasonable".
The wrongful act must be unavoidable and there must not be a legal way
out. Having established that, a Court must consider the proportionality of the offence to decide if the defence is available.
"No rational criminal justice system, no matter how
humane or liberal, could excuse the infliction of a
greater harm to allow the actor to avert a lesser evil".
Then the court dealt with the inevitable question about the
availability of this defence for a person who got into the predicament
(where he of necessity committed an of fence) because of his own
negligence; or if one can have the benefit of this defence when he,
like in this case, was or was about to commit a crime. The accused
claimed that when they decided to head for shore to preserve their
lives, they were outside Canadian waters.
Therefore, as far as
Canadian law is concerned, they were, when the necessity arose not
doing anything illegal.
The ref ore, the Crown's argument that the

- 8 -

defence of necessity was not available to the accused on account of
their criminal activity at the time, did not receive too much
attention.
Nevertheless the Court answered the question and offered
an opinion that it had grave doubts that illegal activities of a
person at the time the necessitous circumstances arise deprive that
person of the defence of necessity for his responsive criminal
action. The two acts are separate. After all, the original unlawful
behaviour is punishable. Said the Court:
"Necessity goes to excuse conduct, not to justify it.
Where it is found to apply it carries with it no
implicit indication of the deed to which it attaches.
That cannot be over emphasized".*
The only time that "fault" on the part of an accused for the emergent
situation is relevant to the availability of the defence of necessity,
is when it was "clearly foreseeable to a reasonable observer". Then
what confronted the accused was not the kind of emergency intended to
excuse responsive action. If he ought to have known that his actions
were likely to create an emergency to which he would have to react
unlawfully, then his reaction is not "moral involuntariness".
Now that we seem to have the defence of necessity, is there an
additional burden on the police and Crown to prove in all cases that
what the accused did was not in response to an emergent situation
which would excuse his wrong doing? Does the absence of such evidence
in the Crown's case result in an acquittal?
The Court responded that normally, voluntariness may be presumed. In
regards to the defence of necessity, the accused needs not· to prove
anything.
However, should an accused through his own witnesses or
cross-examination of Crown witnesses place sufficient evidence before
the Court to raise an issue that an emergent situation caused him to
act, then the onus is on the Crown "to meet that issue". Where the
charges are under the Narcotic Control Act the same principle applies,
despite section 7(2) of that Act.
This Supreme Court of Canada's decision on the defence of necessity
can be summarized as follows:
1.

The defence of necessity should be recognized in Canada as an
excuse (not justification);

* This view contradicts the views expressed by the Nova Scotia Court
of Appeal in the nearly identical case of R. -v. Salvadore (1981) 59
c.c.c. (2d) 521 and of the U. S. National Commission on Reform of
Federal Criminal Laws.

- 9 -

2.

The moral involuntariness, which is the criterion, implies no
vindication of the wrongful act;

3.

The moral involuntariness must be measured on society's expectation of normal resistance to pressure;

4.

Negligent, criminal, or immoral activities at the time the
emergent situation arose, does not disentitle an accused to the
defence of necessity;

5.

Any activities or evidence that the wrongful act was not truly
involuntary or the existence of a legal alternative does disentitle an accused to the defence of necessity;

6.

The involuntary wrongful act must be inevitable, unavoidable and
afford no reasonable opportunity for lawful alternative action;

7.

The wrongful act must have been taken to avoid an immediate
peril; and/or

8.

When the accused adduces sufficient evidence to raise the issue,
the onus is on the Crown to melt it beyond a reasonable doubt.

In this case, the trial judge did not instruct the jury to consider if
there was a legal way out of the predicament the accused found themselves in and which they claimed caused them to enter Canadian
waters. Although the Court did not say so, they had for instance the
opportunity and equipment to call the Coast Guard for assistance but
chose not to do so.
Appeal dismissed.
Order for a new trial upheld.

*****

- 10 -

IS AN ADOPTED DAUGHTER THE EQUIVALENT OF A STEPDAUGHTER, FOSTER
DAUGHTER OR FEMALE WARD? - DISCRIMINATION
Regina v. Mcintosh - 13 c.c.c. (ed) 130
Manitoba Court of Appeal, May 1984.
The accused married a woman who had, at the time of their marriage, a
The accused was not the
two year old girl born out of wedlock.
natural father.
Shortly after the marriage the accused adopted the
girl. When the girl reached the age of sixteen he had sexual intercourse with her on several occasions. When she was 18 years of age
the accused was charged under section 153 C.C. which prohibits a male
person to have illicit sexual intercourse with his step or foster
daughter or his female ward. The Crown selected to call the complainant a foster daughter in the indictment.
The trial judge acquitted
the accused holding that the girl was not a foster daughter.
The
Crown appealed this decision.
The Manitoba Court of Appeal dealt firstly with the application of
"the narrow construction doctrine".
In 1951 already, the Supreme
Court of Canada* held that the rigorous pursuit to apply the letter of
penal laws, had lost its force. The Court instructed the judiciary to
consider not the semantics of statute but to interpret the language of
the legislature "honestly and faithfully" and in such a way that it
can remedy what it was intended to remedy and to promote its object.
Section 11 of the Interpretation Act gives similar instructions to our
Courts as it says:
"Every enactment shall be deemed remedial and shall be
given such fair, large and liberal construction and
interpretation as best ensures attainment of its
objects".
The Manitoba Court of Appeal, after examining also the French version
of section 153 c.c., concluded that the section intends to provide to
an entire class of female persons "protection from their male
guardians, be they permanent, temporary or adoptive guardians". The
mischief the section prohibits is an act of sexual intercourse by a
male guardian or parent.
The most interesting submission in this case was the claim by defence
counsel that section 153 c.c. is contrary to the Canadian constitution
(s. 15 Charter**) as it discriminates against "male persons".
The
Criminal Code section protects female persons only and creates a
criminal liability for male persons only. Unless nature dictates that
only one sex is able to commit the offence or that because of such
* R. v. Robinson et. al. 100 c.c.c.
** See s. 32(2) of the Charter.

- 11 -

dictate only one sex is in need of protection, then the law prima
facie discriminates and should be declared invalid.
The Manitoba Court of Appeal in rejecting this submission, said that
the law does discriminate not from an Act of Parliament but from an
act of mother nature. Also:
"A male person can force himself into a female person to
the extent of penetrating her body with his penis".
The reverse is quite impossible concluded the Court. All a woman can
do is seduce a male person to do so to her. Therefore, the defence
position was labelled a "vein attempt" to force equality by mixing
"apples with oranges".
Crown's appeal allowed.
Comment: Other Courts may well respond differently to the question of
section 153 c.c. being discriminatory.
The repeal of the "rape" section and including such act in sexual
assaults, was likely part of cleaning up apparent discriminatory law.
Rape could, in terms of being the principal offender, only be committed by a male person. To say that this was the result of an act of
"mother nature" was a sound argument where it involved sexual intercourse without consent.
However, if one examines the means that
rendered a man to be criminally liable for having sexual intercourse
with a female person with her consent, one cannot help but conclude
that a woman was equally capable of forcing the act upon a nian by the
same means. Although submissions of discrimination in regard to the
definition of rape did fail, it seems fair to say it was only a matter
of time before "rape" as it was, would have been found discriminatory.
Apparently the Manitoba Court of Appeal found that section 153 c.c.
does not discriminate in that a man only is capable of an act which
previously was known as rape. Is it not fair to say that if a male
guardian "rapes" his step or adopted daughter the appropriate charge
would be one of sexual assault? Rape, as we have learned to understand the meaning of that act, appears not to be the gravaman of the
offence created by section 153 C.C. It
that the illicit sexual
intercourse with a step or adopted daughter is the kernel of the
offence whether outright consent, seduction or intimidation is
involved.
If that is so it should be noted that a stepmother is
equally capable to seduce or intimidate a stepson or adopted son. One
wonders if Parliament, by enacting section 153 c.c. intended to create
surrogate incest. If so, male children ought to be protected equally
to those of the female pursuasion, while it matters not if it is a
step-father or step-mother who sexually exploits the child placed in
their charge.
It seems not unlikely that section 153 C.C. will be
"nutured" by Parliament in the not too distant future. If not, it may
eventually be ruled inconsistent with section 15 of the Charter of
Rights and Freedoms.

seems

- 12 -

CHARTER OF RIGHTS AND FREEDOMS
ABOUT "UNREASONABLE SEARCH"
Hunter v. Southam Inc., Supreme Court of Canada, October 1984.
In the last volume I welcomed the views of the B. C. Court of Appeal*
on "unreasonable search", but warned that these views could be superseded by the Supreme Court of Canada. This Court of the last resort
has now interpreted some fundamental aspects of section 8 of the
Charter (unreasonable search) and they do not coincide with the views
of the B. C. Court of Appeal. What is to be remembered is that the
two cases (Hamill and Hunter v. Southam) are in terms of circumstances
distinct in that in Hamill the constitutionality of writs of assistance and section 10 N.C.A. were challenged while in the Hunter case
the statutory provision for, in essence, a warrantless search by the
Combines Investigation Branch became subject to an application for an
injunction. Both challenges were argued in light of the constitutional right to be secure against unreasonable search and seizure.
However, despite the distinction in circumstances, should the views of
the Supreme Court of Canada as expressed in Hunter have preceded the
Hamill case the decisions of the B. C. Court of Appeal would likely
have been different. As a matter of fact on some points explicitly
made by the B. c. Court of Appeal the Supreme Court was equally
explicit in expressing different views.
One major point in
particular, was seen differently by the Supreme Court of Canada. The
B. c. Court of Appeal steered clear from law that has resulted from
the Fourth Amendment to the u. s. Constitution; the Supreme Court of
Canada, however, held that in view of the objectives of section 8 of
the Charter and the U. S. Fourth Amendment, that the U. S. approach
"is equally appropriate in construing the protections in s. 8 of the
Charter of Rights and Freedoms".
This could, particularly i f the
Charter is considered to be complementary rather than supplementary,
open a can of legal worms (whatever way you want to take this, the
expression seems to fit).
Members of the Combines Investigation Branch conducted a rather
thorough search of the offices of the Edmonton Journal, a newspaper
owned by Southam Inc.
Their objective, of course, was to find
documentary evidence of of fences under the Combines Investigation
Act.
This Act provides that the Director of the Branch or any
representatives authorized by him, may enter any premises on which he
believes there may be evidence relevant to an investigation.

* The queen v. Hamill Page 26 Volume 17 of this publication.

- 13 -

Apparently to prevent abuses and arbitrary searches the director or
his representatives must produce before searching, a certificate from
a member of the Restrictive Trade Practices Commission, which can be
granted, like a search warrant, on an ~ parte application by the
Director.
The lawyers for Southam Inc. argued that the search was, for all
intents and purposes a warrantless search. The procedures prescribed
in the Combines Investigation Act to have a search authorized, is
proscribed by the Charter, which guarantees us, within reasonable
limits, the right to be protected from unreasonable search and
seizure.
The provisions under the
Combines Investigation Act, to
carry out searches, hardly ensures appropriate consideration for
authorization for such search the Southam lawyers argued.
They had
applied for an injunction which appeal ended up in the Alberta Court
of Appeal. This court ordered that the seized documents be sealed in
containers pending this appeal to the Supreme Court of Canada.
The Supreme Court of Canada firstly addressed how the Courts must
approach the Charter. The Court recognized that there has always been
growth in terms of law protecting the rights and freedoms of individuals. However, now that we have entrenched those rights and freedoms
in our constitution and have declared that they are the supreme law of
Canada, they must receive greater attention and consideration.
We
have not reached the ultimate of civilization and we must encourage
and allow growth and development over time.
This constitution was
"drafted with an eye to the future" said the Court. It is not to be
seen like Canada's last will and testament, the end of something, but
rather as a framework for the legitimate exercise of governmental
power s . It is simply a firm commitment and a most significant stage
in the continued building of constitutional evolutionary process.
To best explain the views of our Supreme Court, their findings are, in
point form, as follows:
1.

In Canada we have been inclined to use the provisions of the
trespass laws to weigh the propriety of governmental searches and
seizures of property. In other words, if one (if it was not for
the warrant) would be a trespasser at the location to be
searched, the document is a necessary ingredient. Section 8 of
the Charter has not destroyed this concept but broadened it.
Holding like their u. S. counterparts, the Justices of our
Supreme Court were unanimous in saying that section 8 does not
just protect places, but people and their privacy. This creates
and describes the scales on which we must from hereon in weigh
the propriety of a warrant or the search and seizure of any
property. The reasons for judgment record:
"The guarantee of security from unreasonable search and

- 14 -

seizure only protects a reasonable expectation. This
limitation on the right guaranteed by Section 8,
whether it is expressed negatively as freedom from unreasonable search and seizure, or positively as an
entitlement to reasonable expectation of privacy,
indicates that an assessment must be made as to whether
in a particular situation the public's interest in
being left alone by government must give way to the
government's interest in intruding on the individual's
privacy in order to advance its goals, notably those of
law enforcement".
2.

Whether a search or seizure was reasonable is usually determined
after the fact, when it is deliberated at trial if there was an
infringement of a person's rights or freedoms. However, there is
now an obligation placed on us by section 8 of the Charter to
prevent such unreasonable intrusions.. By means of a warrant the
judiciary certify that it was demonstrated to them that the state
interest superseded that of the person and his privacy. Therefore, wherever feasible such validation should precede a search
or a seizure. Fully cognizant of the fact that it is not in all
circumstances practical to insist that a warrant be firstly
obtained the Supreme Court of Canada nevertheless held that a
search or a seizure without a warrant is ipso facto (automatically) unreasonable. In addition, the Court held that a warrantless
seizure places an onus on the Crown to show that the search for
it and the seizure itself were "reasonable" within the meaning of
s. 8. of the Charter.

3.

The Supreme Court of Canada held that the Charter being supreme
law means that the validity of legislation that empowers investigators to search without warrant or on the authority of persons
who hold a certain office, can be tested. Whether the person who
is empowered to authorize a search is a member of the judiciary
is not important, as long as he is in a position to act judicially. That means he or she must be impartial in the matter. If
that person is part of the investigative branch which is seeking
the authorization that hardly meets that test. In other words,
he or she must be neutral and detached.
Therefore a search
authorized by the provisions of the Combines Investigation Act
(as explained above) is unreasonable and those provisions are
inconsistent with section 8 of the Charter and are, therefore, of
no force and effect.
Any statutory scheme for prior authorization must not only allow
the issuer of the authorization to investigate the probability
that the property to be searched for is at the location to be
searched, but must compel him to do so.
The question asked of the Supreme Court of Canada was if the
provisions of the Combines Investigation Act under which the
search of the Edmonton Journal was authorized were of no force or
effect. The answer was a unanimous and resounding "Yes".

- 15 -

Comment:
This judgement will undoubtedly have a considerable ripple effect. It
is a quantum departure from what was established at common law and
from what the Courts had to say about section 8 up until now.
I
hardly know where to begin my speculations and predictions. Firstly,
I believe that all the theories that s. 8 did not apply to the Privacy
Act and the interceptions of private communications may have been
erroneous.
If the section is intended not only to protect property
but persons and/ or their privacy, this, no doubt, includes their
communication.
Furthermore warrants under the Criminal Code can be
issued for buildings, receptacles and places. The latter means geographical places and there seems nothing to prevent warrants from
being issued for a street or any other public place. Since a warrantless search or seizure is by its very nature unreasonable unless the
Crown shows otherwise, this leaves one pondering if warrants must now
be obtained for seizures police have customarily made without a
warrant. It also leaves one wondering if proof of reasonable search
is now an ingredient to the crime alleged against an accused?
It must be remembered that the Supreme Court of Canada did not deal
with the exclusionary rule (s. 24(2) Charter), but did simply say that
no warrantless search is reasonable unless the Crown shows it is.
This means that what the B. c. Court of Appeal established in Collins*
in respect to infringements of rights vis-a-vis the exclusionary rule
is now no longer valid, where the infringement is an unreasonable
search on account of it being warrantless. The Supreme Court did not
go so far as to say that the Crown has to prove in criminal prosecutions that there were no infringements of freedoms or rights during
the investigation. In cases other than those in which a warrantless
search is involved, we should assume that the Collins precedent still
stands, that is that the accused, to trigger consideration under the
exclusionary rule, must show on the balance of probabilities that his
rights or freedoms were inf ringed.
The Supreme Court of Canada said that if there are statutory provisions for a person to authorize a search, then the test of validity
of those provisions depends on whether that person can act judicially.
This may well be the judicial death blow** to the writs of
assistance issued under the Narcotics Control Act and the Customs and
Excise Act.
These documents "shall" be issued by the Federal Court
upon the application of the competent minister. This means that the
Judge is acting administratively and not judicially when he issues
this licence to search. After all, the judge has no discretion in the
matter.

*****

*
**

See Volume 12, page 1 of this publication.
A legislative one is promised by the Minister of Justice.

- 16 -

IMPLIED THREAT AND ROBBERY

Regina v. Tardiff, County Court of Vancouver, Registry No. CC840163 October 1984.
The accused who visibly wore a sheath knife on his hip, went into a
store, ordered the cashier to open the till, and give him a paper
bag. The victim complied and the accused grabbed approximately $370
after which he fled on foot while followed by the store owner to an
apartment block.
Defence counsel argued that what the accused did amounts to theft but
not robbery, in that there was no violence or threats of violence to
the victim.
In support of his submission he drew the Court's
attention to a case* where a charge of robbery was reduced to the
included offence of theft.
The perpetrator in that case had put an
empty shopping bag in front of the teller and said, "Put the money
in.
This is no joke". The teller had simply replied that she, the
accused, was at the wrong wicket. She, saying "I don't care", moved
to a different wicket where she was successful because the teller felt
threatened and did comply.
Another Ontario case** with similar
results in respect to the Court's decision, was discussed.
The
accused, wearing ski-mask said to a laundromat attendant, "Give me all
the money in cash".
She promptly started to cry out of fear. The
accused had then in a polite way and in a normal tone of voice assured
the victim that he had no intention of hurting her and that all he was
after was the money.
Defence counsel in this case argued that since the visible sheath
knife was not referred to or touched, the coincidence that the accused
was wearing this implement (which is not unlawful) ought not to be of
any consequence in respect to the alleged offence. The knife was in
the circumstances not a "weapon" and therefore the accused was not
armed.
Crown Counsel argued that when the accused committed the theft of
money he was armed with an offensive weapon as he had equipped himself
with the knife and wore it visibly to intimidate and threaten his
victim. He asked the Court to follow a decision by the B. c. Court of
Appealt.
In relation to the issue whether a person is armed at the
time of a theft the court had held that conduct is a significant
factor. The accused in that case had "played out a pantomime to give

*
**
t

R. v. Thierbault (1981) 61 CCC (2nd) 175
R. v. Letourneau and Rochon - Unreported - April 1982
R. v. Sloan (1974) 19 CCC (2d) 190

- 17 -

the impression that he had a weapon" and as a consequence he was
charged with robbery in that he couunitted theft while armed with a
weapon.
The Court held that he could not be convicted as charged
although his conduct might have justified a conviction of robbery
using threats of violence or assaulting his victim (see definition of
assault).
In this case the accused, like the accused in the case decided by the
B. c. Court of Appeal, was charged with theft while armed with an
offensive weapon. The accused visibly wore a knife while his historical counterpart only made his victim believe he was armed.
This
begged the question if (considering that many items may and can be
used as a weapon) any tool or piece of clothing may be considered to
be an offensive weapon when worn by the perpetrator during the
couunission of a theft.
The most frequently referred to case when defence counsel attempts to
argue that there is doubt that theft amounted to robbery, is that of
a man giving a bank teller in Victoria, B. C. a paper bag with the
words "empty your till" written on it. The trial judge held that the
words amounted to a demand that, coupled with the man's conduct,
should be regarded as a threat. What in essence was said was "empty
your till - or else".
In other words, the conduct is of utmost
importance.
The "or else" was also strongly implied in this case.
Accused convicted of robbery.
Comment:
The County Court Judge obviously stayed away from finding
that the accused was armed despite the fact that the charge alleged
stealing while armed. He simply found as a fact that the knife was
visibly worn. The knife, the words spoken, and the general conduct of
the accused had given the victim reasonable and probable grounds to
fear from the implied threat. In a way the knife became part of the
conduct.
It seems that the question whether the accused was armed is a dif ficult one; as difficult as determining whether a person commits assault
by being armed (see section 244(l)(c) C.C.). To beg, accost or impede
anyone while openly carrying a weapon amounts to assault. This subsection was inserted in the mid seventies to discourage aggressive
begging.
I cannot recall reading a case where someone was charged
with assault as defined in this section. It is obvious what Parliament attempted to remedy, but I believe it will fail to be remedial.
The definition of "weapon" is predicted to cause the problem.

- 18 -

What intimidates the victim of this sort of assault are the knives,
chains, belts and buckles and whatever other paraphernalia is worn by
persons the section is aimed at. However, by definition, a weapon is
something designed to be a weapon or anything intended to be used as
such.
What persuades the "beggee" to give an alm is what he or she
believes may be used as a weapon while the law refers to what is in
the mind of the "beggar". What is a kitchen utensil, a pants-holderupper, or an ornament to the rambler and beggar is a weapon to the
"beggee".
It seems from the cases explored in this case, that when
this section 244(l)(c) c.c. fits the scenario the act amounts to
robbery.
In essence, this definition of assault attempts to remedy something
that is "in the eye of the beholder" while the definition of weapon
addresses what is in the mind of the perpetrator.
It seems that when an alm is obtained because of ••the weapon" worn by
the begger, the so-called begging amounts to robbery. If this is not
so then, facetiously speaking, all the accused in this case had to do
was add "please" to the words he spoke to the teller and his act would
have amounted to no more than assault.

* * * * *

- 19 -

ARBITRARY DETENTION
Not Releasing an Impaired Driver when There is no
Apparent Further Need for Custody
The Queen v. Mcintosh, B. C. Court of Appeal, B.C.C.A.
September 1984.

002074,

The accused was, on appeal, acquitted in County Court of "over 80
mlg." (see page 20 of Volume 16 of this publication).
He was
considered to have been co-operative all through the investigation and
had requested, at its conclusion, to be permitted to make arrangements
for transportation home. Although he had apparently no grounds for so
believing, the officer testified that the accused just might have
returned to his car and driven again. He, therefore decided to place
the accused in cells where he was held from 22:30 hours until 9: 10
hours the following day. Expert testimony showed that considering the
reading obtained, the accused was considered sober at 3:00 hours, and
it was clear that none of the other grounds under s. 450(2)(d) c.c.
existed to continue the custody of the accused.
The County Court Judge had found that the accused had been arbitrarily
detained and had concluded that acquittal was the appropriate remedy
for this infringement of the accused's right (s. 24(1) Charter). The
Crown appealed this decision.
Regrettably the B. c. Court of Appeal did not get to deal with the
propriety of acquitting the accused as a remedy to the infringement.
To do so the Court had to find firstly that there was an infringement
of the accused's right.
Surprisingly, the justices found that in
these circumstances, there was no such violation.
Furthermore the
application of the circumstances as ~elated in the reasons for
judgement by the B. C. Court of Appeal is less slanted towards arbitrary detention than that by the County Court.
Firstly, everyone including the accused was complimentary about the
Constable's handling of the investigation. He had been fair, polite
and treated the accused well; he had been forthright in his evidence
and was described as a credible witness with impressive experience in
apprehension of impaired drivers.
When cross examined why he had not allowed the accused to go home by
taxi or to be picked up by his wife, the Constable had responded:
" ••• most drivers who find themselves in this situation will say
anything to get out of the police office";

- 20 -

a person has
appearance notice";

to be reasonably sober to understand the

"... accused persons under similar conditions and the person
released has gone back to the vehicle and committed the same
offence";
accused persons fail to appear in accordance with the
provisions of the appearance notice and the court has held the
person was too drunk to understand the appearance notice";

... I could not convince myself he would not have driven";
...

I had doubts he would try other means to get home and would
drive".
When asked more specifically why he had locked the accused up the
constable had testified:
"The accused
offence";

was

retained

to

prevent

a

repetition

of

the

"Solely because he was drunk";
"I could not release him in that condition";
"I do not know what he would have done.
chance".

I would not take that

The County Court Judge had labelled these reasons as mere speculation
on the part of the officer and falling short of continuing the custody
on reasonable and probable grounds that the public interest was not
satisfied.
The B. c. Court of Appeal, as stated above, only addressed whether the
test of public interest under section 452(l)(f) c.c. had been met. As
they found that it had been, the justices needed not to answer the
more interesting Charter questions. The Justices' views can best be
related by quoting the highlights of their reasons for judgement.
Acknowledging that the onus is on the Crown to establish that the
conditions prerequisite to continued custody have been met, the Court
said:
"The fact is that the constable was faced with a man who
admittedly was drunk and unfit to drive, and starting from
that point it was reasonable for him to view the matter by
asking whether he could meet the conditions which make it in
the public interest for him to be released".

- 21 -

The B. C. Court of Appeal said that the County Court Judge had erred
in law when he held that the reasons given for not releasing the
accused amounted to mere speculation and that therefore the custody
was arbitrary. The Justices said:
"The constable had regiird for the facts, particularly to the
condition of the accused and to his own experience and that
of other officers in dealing with similar cases •••• Indeed,
it was open to him to draw on the knowledge which all of us
have with regard to these matters".
In addressing the submission that the accused had been co-operative
and had not in words or demeanor given the constable any grounds for
believing that he would drive again that night and that frequently
experienced propensities on the part of impaired persons could not be
considered grounds for keeping this accused locked up, the Court said:
"That was irrelevant to the question of whether he could,
with due regard to the public interest be released.... The
implication seems to be that the Provincial Court Judge
could have regard only to the conduct and words of the
accused in determining whether the officer was justified in
reaching the conclusion he did under section 452. That too,
in my view, is wrong in law".
Relating what, in their view, the accused himself had provided to the
constable's grounds justifying the continuation of the custody was his
drunkenness and his being "adamant" to get home. Said the Court:
"That was most germane to the question whether there was a
risk of him repeating the offence".
The B. C. Court of Appeal explained their reference to "a risk" of a
repetition of the offence.
That question must be viewed on whether
there is a risk of that occurring or that the officer could be certain
that it would not occur.
~
"It does not matter that the risk in statistical terms may
be small. The risk which the Constable had to be concerned
about was not merely that of the repetition of the offence.
The more important risk was that of the serious consequences
which might have ensued had the accused resumed control of
his vehicle on that night".
Having explored the possible consequences, including the loss of life
of an innocent bystander, the Court of Appeal said:
"Would it then have seemed reasonable for the officer,
perhaps in defending himself in disciplinary or civil

- 22 -

proceedings that would surely have ensued, to say that he
was doing his duty under the . Charter.
T think not.
The
Constable was carrying out his clear duty in ensuing that
such disaster could not occur. The Charter in protecting
individual rights, does not require that the public interest
be neglected".
The issue of the custody being extended beyond the time at which, by a
simple calculation it is reasonable to assume the accused was sober
again was not raised at the accused's trial.
Therefore there was
insufficient facts known to make the decision that the custody after
that point in time was arbitrary.
Crown's appeal allowed.
Conviction restored.
Comment: It would seem quite impertinent for me to write reasons why
I think this binding precedent for B. c. will have a life span equal
to this case or another like it, reaching the Supreme Court of
Canada. In other words, I am predicting that these welcomed views of
our B. c. Justices will not survive an appeal. For one thing, I do
not believe that the propensities of some fellow citizen are reasonable and probable grounds to keep another citizen in custody where he
personally has not indicated to do anything contrary to the public
interest. With due respect, I think the Supreme Court of Canada would
reason similarly to the County Court Tudge who dealt with the first
appeal and said there were no such grounds in relation to the
accused. He had held that there was nothing more than suspicion and
conjecture. However, the case raises numerous interesting questions
in respect to arbitrary detention. The most basic one of which is its
meaning. However, finding that the constable's reasons for continuing
the accused's detention withstood the test of "public interest" as
defined in the Criminal Code, the Court did not have to deal with that
issue.

*****

- 23 -

ADMISSIBILITY OF EVIDENCE OF BREATH ANALYSES WITHOUT EVIDENCE
OF SUSPECT HAVING BEEN INFORMED OF RIGHT TO COUNSEL
Regina v. Copley, County Court of Vancouver, No. CC 830036.
The accused was acquitted of "over 80 mlg.". Breath samples had been
taken on demand but no evidence was adduced by anyone that the accused
had been informed of her right to counsel. The trial judge had taken
the position that the Crown's failure to show that section 10 of the
Charter had been complied with, was evidence of an infringement of the
accused's right which was fat al to the acceptance of the analyses
evidence (s. 24(2) Charter). The Crown appealed the acquittal on the
grounds that:
(l)
the accused was not "detained" at the time the
samples were taken; (2) there was no infringement and in any event the
accused should have shown on the balance of probabilities that there
was an infringement; and (3) if there was an infringement the
admission of the evidence would not bring the administration of
justice into disrepute.
The first question the Court had to deal with, of course, was whether
the accused, when she gave the breath samples, was "detained". If so,
the officer had been obliged to inform the accused of her right to
counsel.
The officer had testified that as far as he was concerned
the accused was detained. He came to this conclusion as he would not
have let her leave if she had been so inclined, and the fact that he
had to use "verbal force", to get her to accompany him. He had not
arrested her.
The appropriate answer to the question whether a person · in these
circumstances is detained, still "floats" among the judiciary.
On
this issue, many apply or find comfort from a decision by the Supreme
Court of Canada in 1980*. In that case the suspect was demanded to
give a sample of breath in a roadside screening device and was
therefore not obliged to accompany the officer. Some judges feel that
that distincts that case from those where one must accompany police.
Others express the opinion that the case is no longer a valid test to
determine if the suspect was detained as it was argued under the Bill
of Rights.
Although the wording in regard to right to counsel is
nearly identical to that in the Charter, they feel that the latter
being the supreme law of Canada, must receive greater consideration
than the provision under the Bill of Rights. The 1980 Supreme Court
of Canada decision was that a person is not detained by simply
complying with a legal obligation, but that detention is determined by
the physical restraint placed on the person.
Yet judges have found
that handcuffed impaired driving suspects, transported in secured
police vehicles were not detained as long as they had not been
arrested, but were only under demand to provide samples of breath.

*

R. v. Chromiac 49 c.c.c. (2d) 257 - Also see page 3 of Volume l
of this publication.

- 24 -

The Saskatchewan Court of Appeal* held in 1983 that a person who is
under demand to accompany a police officer, is detain~d. The Ontario
and Alberta Courts of Appeal seem to have disagreed with their
Saskatchewan counterpart.
In B. c., the matter has not reached (to the best of my knowledge) the
Court of Appeal yet and this County Court Judge was pretty well
obliged to follow the precedent he himself set on this issue, in R.
v. Leemhuis**.
He had followed the reasoning by the Saskatchewan
Court of Appeal.
This County Court Judge expressed the view that to consider that there
is no "detention" until there is a form of custody that is reviewable
by means of habeas corpus would mean that detention is the equivalent
of a custody after arrest. Said the Judge:
"With respect to state that detention means some form of
compulsory restraint by process of law is not realistic".
He concluded that the accused was "detained" when she gave her samples
of breath.
As stated above, there was no evidence that the accused was informed
of her rights and from this the trial judge had concluded that she had
not been informed and hence her rights had been inf ringed. The Crown
objected to this logic and submitted that the onus is not on the Crown
to show that the Charter had been complied with.
The County Court
responded that there was no evidence of compliance with the Charter
and the onus was on the police officer to do so.
It was concluded
that the accused's right had been infringed.
Then the County Court considered i f the administration of justice
would be brought into disrepute i f the evidence obtained by this
infringement was admitted. The Court instructed itself that the onus
is on the accused to prove on a balance of probabilities that such
disrepute would result and held that the accused had failed to do so.

*
**

R. v. Therens 5 CCC (3d) 409
R. v. Leemhuis X010247 New Westminster Registry

- 25 -

This case was one of "inadvertence" ·on the part of the police and "the
community would not be shocked" by the conduct of the police in this
case . No unfair advantage was taken.
Crown's appeal allowed.
New trial ordered.
Comment:
This case was decided long before the Supreme Court of
Canada gave reasons for judgement in Hunter v. Southam (See page 12).
Therefore, the Court's decision that the absence of evidence to the
contrary by the Crown was sufficient to show that a detained person's
rights were violated, could not have derived from the decision by the
Supreme Court of Canada.
It dictates that any warrantless search is
unreasonable unless the Crown shows that it was otherwise. One could
advance an argument that the Southam decision means that the Crown is
obliged to show that there were no infringements of any rights or
freedoms during an investigation and that in the absence of such proof
(the burden of which may well be beyond a reasonable doubt) all evidence derived from such presumed infringements is subject to the test
on whether admission would bring the administration of justice into
disrepute.
Legal opinions are that the Supreme Court of Canada did
only deal with warrantless searches and did not say that proof of
absence of violation of rights or freedoms is prerequisite to the
Crown's case being prima f acie.
In any event this County Court
decision was prior to the Southam decision and it seems the judge
applied what would be the interpretation of that case most adverse to
the Crown.
The procedure established by the B. c. Court of Appeal*
was apparently not followed. Assuming that these decisions are still
binding in B. C. in relation to violation of rights or freedoms other
than in cases of warrant less searches, then they stipulate that to
trigger consideration for the exclusion of evidence the accused must
show that on the balance of probabilities his rights or freedoms were
infringed.
The "detention debate" will no doubt continue until an appropriate
post Charter case reaches the Supreme Court of Canada.
However, I
will try my hand at a prediction.
The Court will hold that being
under a legal obligation to do something, does not, by itself render a
person being detained.
The measure of physical restraint and being
held in custody will determine whether or not there is detention.
Actually this is not much of a prediction as it is the pre-Charter
Chromiac decision in a nutshell. Many Courts have continued to apply
this test to determine whether a person should have been informed of
his right to counsel.
*

Regina v. Collins and Regina v. Cohen CA 821232 and CA821475
respectively 1983. Also see page 1 of Volume 12 of this publication.

- 26 -

Police officers are inclined to apply a pretty safe test themselves .
The officer testified that he would not have let the accused go if she
had been inclined to leave.
He determined by that test that the
accused was detained and did so testify.
This test is safe but
probably not conclusive. It may also depend on whether the matter of
detention will receive an objective or subjective test.
It will,
regardless of the officer's opinion, remain a matter for the Court to
decide on.

** ***

- 27 -

"AS SOON AS PRACTICABLE" and HUMANITARIANISM

Regina v. Robinson, County
Registry No. X81-7085.

Court of Westminster,

New Westminster

The accused appealed his conviction of "over 80 mlg."
The accused was involved in an accident in which his wife was
injured. The attending constable had, immediately upon arrival at the
scene, observed all the symptoms of impairment but failed to make the
demand as the accused was seemingly sincerely concerned about his
wife's condition.
The officer stood by while he conversed with the
ambulance crew and then drove the accused to the hospital allowing him
to be with his wife for about 20 minutes. When he was assured his
wife would be alright, the constable made a demand of the accused for
samples of his breath.
The accused now argued that the delay in making the demand was fatal
to accepting the certificate of analyses. He claimed that the demand
should have been made at the scene and that humaneness could not be
allowed to interfere with a strict compliance of the law. The demand
simply had not been made as soon as practicable as s. 237 c.c.
dictates .
Said the County Court Judge :
"Police Officers, in doing their duty, should not be
discouraged from a reasonable and humane concern for the
feelings of others by a necessity for servile adherence to
absolute technicality and justice should not be thwarted by
their having done so".
He agreed with the trial judge that the delay had been explained
satisfactorily.
Appeal dismissed.
Conviction upheld.

*** **

- 28 -

UNREASONABLE SEARCH - GOOD FAITH

R. v. Leveillee, B. C. Court of Appeal, No. 831359, September 1984.

The accused was stopped for speeding.
The officer who did not know
him thought that the accused just may have drugs on him and asked:
"What is your record for"?
The accused answered to be on probation
for possession of hash for the purpose of trafficking.
The questioning continued and the accused assured the officer he had
nothing on him he should not have.
The inevitable question:
"You
don't mind then i f I take a look, do you?" was replied to in silence
by taking his hands out of his pockets and holding them out in front
of him.
This was taken as not only a consent but also an invitation
to a body search. A small ball of foil was found in a film cannister
in the accused's pocket.
When asked what the ball contained the
accused said: "Hash, it's mine".
The accused testified that his gesture was in no way intended to
convey consent, but exasperation with what was happening.
This had
not been accepted by the trial judge and the accused's defence that
the search was done without the prerequisite reasonable and probable
grounds for the officer to believe that he had a narcotic in his
possession and without his consent, rendered it unreasonable.
He
claimed the search amounted to an infringement of his right to be
secure against unreasonable search and seizure and the narcotic found
on him should not be admitted in evidence.
As his gesture was
accepted as giving consent to the search, the trial judge had held
there was no infringement of rights and the evidence was admitted and
the accused convicted. He appealed the conviction.
The B. C. Court of Appeal said that it was not important i f the
accused consented to the search. His gesture was in good faith interpreted as giving consent to the search.
The officer had not "acted
carelessly, maliciously or in deliberate defiance of the rights of the
accused person".
Therefore, assuming the search was in fact without
the accused's consent, the administration of justice would, because of
good faith on the part of the officer, not be brought into disrepute.
Appeal dismissed.
Conviction upheld.

*****

- 29 -

ADVERSE WITNESS PROCEDURE

Regina v.
001743.

Booth,

B.

C.

Court of Appeal,

Vancouver Registry C.A.

This case is about thieves who sold their ill-gotten goods to the
accused who painted the tools so they could not be readily recognized. When one of the thieves was in the stand to testify for the
Crown, he seemed to struggle with premature senility as he could
remember hardly anything that was inculpatory in regards to the
accused.
To say the least, the Crown had an evasive witness on its
hands and applied under the provisions of the Canada Evidence Act
for permission to cross examine its own witness. The trial judge, in
response, directed the witness to read the written statement he had
given to the police during the investigation, and asked some specific
questions from the witness. He concluded:
"It was lack of recall"
and expressed the opinion that the witness would have been entitled to
read his statement to refresh his memory prior to testifying, so why
should he not be allowed to read it while in the stand for the same
purpose?
The judge then said to Crown counsel "... carry on from
there, Mr. Goodfellow". This resulted in testimony which incriminated
the accused.
What may be of interest for police investigators is the use of
statements from witnesses during a trial.
When testimony is
inconsistent with a statement the witness gave previously, the
question is whether the cause is "flurry or forgetfulness". If there
is an honest inability to recall, the crown witness is not legally
adverse and the prosecutor should be allowed to put the witness back
on the tracks by either a leading question or allowing the witness to
read their previous statement.
In such circumstances, there is no
need to discredit one's own witness.
When the lack to recall is
suspected to be derived from being adverse to the interest of the
party who called the witness (can also be the defence) the party may
apply to the trial Court (section 9(2) Can. Evidence Act) to cross
examine his or her own witness.
By judicial law-making a procedure
for this was established in 1971*.
1.

The party who wishes to cross examine their own witness must make
the court aware that they intend to make the appropriate application;

2.

If

*

R. v. Milgaard 2 c.c.c. (2d) 206

there is a jury, it must retire and a voir dire must be
conducted to determine whether or not the witness is adverse;

- 30 -

3.

The applicant must then make the court aware what in particular
between the testimony and the previous written statement, is
inconsistent;

4.

The trial judge must read the statement and rule whether there is
an inconsistency;

5.

If he finds there is not, that ends the matter; if he finds there
is an inconsistency he must call on the applicant to prove that
the statement was made by the witness which must be done by
calling witnesses in the event the witness refuses to admit
having made the statement; and

6.

If at the conclusion of the voir dire the trial is satisfied that
it was indeed the witness' statement, he must recall the jury and
he may allow the applicant to cross-examine his or her own
witness.

In this case that procedure was not followed.
Defence counsel had
objected when the trial judge, in response to the Crown's application
allowed the witness to read his statement and then carry on with the
trial.
This was the ground for appealing the accused's conviction.
Crown counsel, can assumed to have claimed that the trial judge had
decided the witness was not adverse but simply had a lack of recall
and remedied the situation by letting the witness read his previous
statement. However, it is not too clear what was held.
The Court of Appeal reminded that the witness was an accomplice and
that the evidence he gave was inconsistent with his previous statement. Therefore, the trial judge should have made a decision if the
witness was adverse. Resolving the doubt in favour of the accused the
Court of Appeal held that the trial judge probably held the witness
was adverse and used the wrong procedure.
In any event he did not
have a fair trial.
As the Crown was not interested in a new trial, the Court quashed the
conviction for possession of stolen property.
Comment: Some refer to an adverse witness as a hostile witness. Some
of our judiciary claim that for all intents and purposes there is no
difference but others have held that they are quite distinct from one
another.
For instance, if on a certain issue a witness is apparently adverse to
the interest of the party that called him, and the testimony is inconsistent with a previous statement, then if the trial judge concludes
that the witness is indeed adverse, he may be cross-examined by the
party that called him.
However, such examination is restricted to
that portion of the testimony that is inconsistent with the previous
statement.

- 31 -

If the witness in addition, does show in his general demeanor and/or
deportment that he is hostile towards the party that called him, then
all of his testimony is subject to cross-examination.
It should also be remembered that a witness who did not make a
previous statement does testify that he does not recall anything he
may well be adverse to the interest of the party that called him, but
that by itself does not make him an adverse witness.

*****

- 32 -

HOW TO PROVE THAT THERE IS 15 MINUTES
BETWEEN THE TAKING OF SAMPLES OF BREATH
Regina v. Moore, B. C. Court of Appeal, No. 001604, 19'84.
In May of 1983, the Ontario Court of Appeal held* that a certificate
of analysis under s. 237 c.c. that records two points in time that are
more than 15 minutes apart in respect to the taking of breath samples
is no proof that they were taken "with an interval of at least fifteen
minutes". The Ontario Court of Appeal reasoned that the words mean
that there must be at least 15 clear minutes between completing the
first analysis and commencing the second one, and it should be so
certified.
Unless this was clearly stated, no certificate can be
accepted held the Court, not even if the times that the suspect blew
is certified to be apart in excess of 15 minutes.
Some courts in B. c. and other provinces have felt obligated to follow
the opinion expressed by the Ontario Court of Appeal even though the
ruling was not binding on them (with the exception of these Courts in
Ontario, of course). Acquittals have resulted. However, the Alberta
Court of Appeal expressed disagreement with its Ontario counterpart**;
now in the Moore case the B. c. Court of Appeal joined the view of
their Alberta brothers.
They reminded that s. 237(l)(d) c.c.
stipulates that the analyst's certificate is evidence of its
contents.
Quoting from the Alberta decision, the B. c. Court of
Appeal said:
"Therefore, a statement in the certificate that one sample
was taken at a certain time and a second sample was taken 15
minutes later is conclusive and final ••• ".
"The Criminal
Code does not require that the certificate of analysis
'should clellly state the time in which the taking of the
first sample was completed and the time at which the taking
of the second sample was commenced'".
(Emphasis is mine).
Accused convicted.
Comment:
The Criminal Justice Branch of the B. C. Ministry of
Attorney General did taylor our certificates to the Taylor decision.
This is now excessive but safe. It is not believed that a certificate
that states, for instance, that samples were taken at 03:00 and 03:15

*

R. v. Taylor 7 c.c.c. (3d) 293.
this publication.

**

R. v. Karnak (1984) 51 A.L.R. 93.

Also page 26 of Volume 14 of

- 33 -

hours is evidence of a 15 minute interval . There are still the cases
that deal with the calculation of time* and establish that "3 o'clock"
is a time of no duration. In other words it does not stay 3 o'clock
until 03:01 hours.
Therefore, seconds are of importance and a
certificate, as they used to be, should indicate times calculated on
that basis.
Without such evidence the presumption that the blood
alcohol level at the time of driving and a t the time of analys es is
the same, is simply lost.**

* * * * *

R. v. Davis 32 C.C.C. (2d) 459 - R. v. Steiger 32 C.C.C. (2d) 461
- R. v. Tremble 1 W.W.R. [1977] 575.

**

R. v. Chapman 24 M.V.R. 290

- 34 -

CONSTITUTIONALITY OF PRESUMPTION OF KNOWLEDGE
THE DRIVER'S LICENCE IS SUSPENDED (M.V.A.)
The Queen and Johnson, B. C. Supreme Courts Vancouver Registry No.
CC840173, July 1984.
The accused was found driving his car on a day the Superintendent of
Motor Vehicles certified was included in a period of time the accused
was prohibited from driving a motor vehicle.
The accused plead not guilty and did not adduce any evidence in his
defence. The Crown introduced evidence of the driving and presented
the Superintendent's certificate to prove the prohibition and the
accused's knowledge of it.
In regards to the latter the prosecutor
depended on the presumption of knowledge under section 88(2) of the
B. c. Motor Vehicle Act. This subsection provides that the Superintendent's certificate is proof of knowledge on the part of the accused
that he was so suspended or prohibited, unless he proves on the
balance of probabilities that he did not know.
Defence counsel unsuccessfully submitted that the presumption of
knowledge was contrary to the Charter of Rights and Freedoms, particularly in respect to the presumption of innocence.
The accused
appealed by means of stated case and was successful.
The Supreme
Court Justice applied the constitutional test to this presumption of
knowledge. The Courts have reasoned that the prerequisite facts and
the presumption must be a natural flow.
In other words, if the
prerequisite circumstances or facts exist, then the fact to be
presumed must be a probability. For instance, when the presumption of
care or control (section 237 C.C.) was tested, the Courts held that it
is probable that someone who occupies the driver's seat of a car has
the care or control of it.
The Court held that it hardly, naturally flowed from the fact that the
Superintendent of Motor Vehicles signed a suspension certificate that
the person mentioned in that certificate has knowledge of the suspension. Therefore, s. 88(2) of the Motor Vehicle Act, which allows that
presumption is arbitrary and inconsistent with the Charter of Rights
and Freedoms (s. ll(d)).
Appeal Allowed.
S. 88(2) M.V.A. struck down.
Accused acquitted.

•••••

- 35 -

DOES AN AUTHORIZATION TO INTERCEPT PRIVATE COMMUNICATIONS
INCLUDE THE POWER TO ENTER PLACES TO INSTALL THE NECESSARY EQUIPMENT?
In synopses of opposing reasons for judgement by the Alberta and
Ontario Courts of Appeal, I have explained why the former said "No"
and the latter "Yes" to this important question*.
Apparently a majority decision on this issue was handed down by the
Supreme Court of Canada (believed to be an appeal of the Alberta
decision).
It held that an authorization to intercept a private
communication includes authority to enter places for the purpose of
installing, repairing, removing or monitoring the necessary equipment.
I have not yet received a copy of the reasons for judgement.
an explanation in our next volume.

*****

*

Volume 17, page 11 of this publication.

Look for

- 36 -

THE WRONG DEAL?
AGENT PROVOCATEUR NOT AVAILABLE TO TESTIFY
Regina v. Ross
County
Westminster Registry.

Court

of

Westminster,

No.

X829640

New

The accused was charged with trafficking heroin as a result of a sale
to a Cst. L. and a Ms. W. At his trial the following was cited as the
facts: Police, in a drug enforcement operation, brought Cst. L. from
the east to work undercover. A Ms. W., a drug addict, was recruited
by the N.C.o. in charge of the operation to play the part of Cst. L.'s
girlfriend.
Cst. L. was "kept in the dark" about the arrangement
between his Force and Ms. W. which was that she received a per diem
rate and, for lack of a better word, a commission for each purchase of
illicit drugs she arranged. She was at the conclusion of the operation to "absent herself" from the area and it was understood that she
would not ever be required to testify. She did absent herself and she
was not subpoened by the Crown.
What is important to remember here is that Ms. W. was not an informant
but an agent provocateur and a compellable witness for either side in
this criminal dispute. The defence wanted the Crown to produce Ms.
W. so she could be cross-examined or in the alternative subpoena her
for the defence. The trial was adjourned and the Crown was instructed
to provide defence counsel with all the available information on Ms.
W.'s whereabouts.
However, no information to locate her was
available. She had phoned police six months prior to the trial to say
she was living in the U. S., had kicked the habit and had .begun a new
life.
Ms. W. usually worked alone when persuading suppliers to make a sale
to Cst. L.
Due to the arrangement to pay a commission, it must be
presumed, claimed defence counsel, that Ms. W. was extremely
persuasive and anxious.
The accused's testimony supported such
importuning. Evidence showed that the accused Ross was originally not
a target.
However, Ms. W. was friendly with him years ago.
Their
friendship had a "certain degree of intimacy". He was then involved
in trafficking and she decided to solicit him.
She phoned him and
suggested she'd come over to his apartment the following night to pick
up where they had left off. The accused who claimed that he had been
rehabilitated accepted the offer and was looking forward to the visit
only to be disappointed as she brought Cst. L. with her.
She asked
the accused to arrange a supply of "a bundle" (25 caps of heroin)
while L. was in the bathroom.
The accused had refused and said he
simply could not do so. A few days later the three met again and this
time, according to the Constable, Ms. W. asked for "a bundle" in his
presence.
The accused said, "he'd look around" to see if he could
find someone.
The accused denied this and said Ms. W. had, by

- 37 -

herself, persisted he supply the caps. This pressure and his feeling
of guilt for not helping her had made him contact some types from his
previous lifestyle.
There was evidence from defence witnesses that
Ms. W. bothered the accused and would not leave him alone. A few days
later Cst. L. and Ms. W. met the man who supplied "the bundle" to the
accused who in turn sold it to Cst. L. Shortly after, in subsequent
attempts for more purchases it became obvious that the underworld knew
L. was a policeman and the operation was stopped.
The accused claimed he was entrapped and was deprived of a fair trial
as he could not cross examine or subpoena the party who had played a
major role in the transaction that was the basis of the charge.
The Court held that the Crown's lack to keep in touch with and produce
as a witness Ms. w., infringed the accused's right to a fair trial.
He was incapable to give a full answer to what the Crown alleged and
that a stay of proceedings was an appropriate remedy for this
infringement (s. 24(1) Charter).
Secondly, the Court held that entrapment is now* a defence known to
law, and that Ms. W. may well have entrapped the accused.
Comment: Whether there exists a defence of entrapment in Canada has
been an issue of debate.
Our Courts have not hesitated to define
entrapment to mean ensnaring, calculated inveigling or persistent
importuning by authorities for a person to commit a crime he was not
predisposed to commit. This does not include creating an opportunity
for or persistent solicitation of a person who is predisposed to
commit the crime. Flagrant cases of entrapment never used to result
in acquittals but in judicial stays of procedure.
Charges arising
from entrapment are seen as an abuse of the process of the Court.
In December of 1981 a Nova Scotia District Court Judge held that there
exists a defence of entrapment** and acquitted a person charged with
trafficking in marihuana.
In August of 1982, the Supreme Court of
Canada (in a 5 to 4 decision) reiterated in Amato v. The Queen the
definition of entrapment but upheld Amato' s conviction as there had
been no more than "persistent solicitation" on the part of police.

*

Amato v. The Queen (1982) 69 c.c.c. See also page 34 of Volume l
and page 32 of Volume 8 of this publication.

**

R. v. Rippley 65 C.C.C. (2d), 158.

- 38 -

Said the Court:
"In my view, it is only where police tactics are such as to
leave no room for the formation of independent criminal
intent by the accused that the question of entrapment can
enter into the determination of his guilt or innocence".
Some are of the opinion that the Amato judgement has recognized
entrapment as a defence.
Others feel the Supreme Court of Canada
simply reiterated its definition and held that the circumstances in
Amato did not amount to entrapment and that the process of the Court
was not abused.
Obviously the Judge of the County Court of Westminster who decided on
this Ross case is of the opinion that there is now a defence- of
entrapment. Yet he stayed the proceedings instead of acquitting the
accused.

*****