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ISSUES OF INTEREST
VOLUME NO. 40

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Calumbi• 1 V6R 4J5

c

ISSUES OF INTEREST
VOLUME NO. 40

Written by John M. Post
February 1992
TABLE OF CONTENTS
Page#

CONSTITUTIONALITY OF ROADSIDE SOBRIETY TEST
TO GAIN REASONABLE AND PROBABLE GROUNDS FOR
DEMAND FOR SAMPLES OF BREATH
Regina v. Kreutzer - Supreme Court of BC,
Vancouver No. CC901652, May 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

IS THE CROWN, IN A CRIMIINAL PROSECUTION ALLOWED TO
INTRODUCE IN EVIDENCE THE STATEMENT AN ACCUSED WAS
COMPELLED TO MAKE TO AN I.C.B.C. ADJUSTER?
Regina v. Spyker - Supreme Court of BC,
63 C.C.C. (3d) 125, November 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

DOES THE "BUY AND BUST" OPERATION AMOUNT TO
ENTRAPMENT?
Regina v. ·Barnes - Supreme Court of Canada,
63 C.C.C. (3d) 1, February 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ACCUSED PROMPTLY REFUSING TO BLOW UPON DEMAND. WAS
REFUSAL CONDITIONAL TO HAVING CONTACT WITH COUNSEL?
SHOULD OFFICER HA VE' REPEATED OR REMINDED ACCUSED OF THE
DEMAND?
Regina v. Sullivan - Court of Appeal for BC,
Vancouver CAl 1073, June 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

INTERCEPTION OF PRIVATE COMMUNICATION, ACCESS TO
SEALED PACKET - VALIDITY OF AUTHORIZATION PROTECTION
OF INFORMERS - EDITING - CROSS EXAMINATION OF AFFIANT
Regina v. Garofoli - Supreme Court of Canada,
[1990] 9 S.C.R. 1421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-i-

.l .SSUES

oF XA!rER.E~:r

Va/. Alo. 4-0
PROTECTING IDENTITY OF INFORMER
Regina v. Scott - Supreme Court of Canada,
[1990] 5 S.C.R. 979, December 1990 . . . . . .. . . . . . . . . . . . . . .... . . . . . . . . 12
DOGMASTER INTERPRETING AND DRAWING CONCLUSIONS
FROM HIS DOG'S BEHAVIOUR - ADMISSIBILITY AND WEIGHT
OF SUCH EVIDENCE
Regina v. Pawluk - Supreme Court of BC,
Vancouver 20236DC, October 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VALIDITY OF PREVENTATIVE LEGISLATION "WHERE INJURY
OR DAMAGE IS FEARED"
Chester v. The Queen - Supreme Court of BC . . . . . . . . . . . . . . . . . . . . . . . . . . 17
VALIDITY OF DETENTION FOR INVESTIGATIVE PURPOSES ~
WARRANTLESS SEARCH OF A CAR - ADMISSIBILITY OF REAL
EVIDENCE
Regina v. Klimchuk - Court of Appeal for BC,
Victoria V01083, October 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

POSSESSION- "ACTUAL'' VIS A VIS "CONSTRUCTIVE"
Regina v. Samardzich - Court of Appeal for BC ~
Vancouver CA013028, July 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
CREDIBILITY OF INFORMATION SERVING AS REASONABLE AND
PROBABLE GROUNDS FOR SEARCHING A CAR
Regina v. Fee - Supreme Court of BC,
Victoria 58862, June 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 26
PROHIBITED WEAPONS - APPLICATION OF DEFINITION
OF "WEAPON" NOT APPLICABLE - POSSESSION IS OFFENCE
REQUIRING MENS REA
Regina v. A.K. (Young Offenders Act) - Court of Appeal for BC,
Vancouver CAOl 1638, October 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

-11-

VOIR DIRE, ADMISSIBILITY OF A VARIETY OF EVIDENCE
UTTERED IN THE INVESTIGATION OF .A MURDER - STATEMENTS,
REENACTMENTS - REAL EVIDENCE AND BWOD SAMPLE
Regina v. Robert - Supreme Court of BC,
Nanaimo CR 4191, August 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

DOES S. 214 M. V .A. APPLY WHEN CAR OF SUSPECT IS
INOPERABLE?
Regina v. Berlin - Supreme Court of BC,
Quesnel No. 14482, August 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

LACK OF EVIDENTIAL COHESIVENESS CAUSING LACK OF
GROUNDS TO EFFECT AN ARREST - ORDERING A
SUBORDINATE TO MAKE A DEMAND
Regina v. Lulu - Supreme Court of BC,
Kamloops 37428, August 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

USE OF SIMILAR FACT EVIDENCE IN SEX RELATED CRIMES
Regina v. A. - Court of Appeal for BC,
Vancouver, CA011662 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IS THE CARELESS HANDLING OF A FIREARM AN
OFFENCE INCLUDED IN POINTING A FIREARM?
Regina v. Morrison - Court of Appeal for BC,
Vancouver CA013197, August 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

WHY OUR "RAPE SHIELD LAW" WAS FOUND WANTING AND
THE SUPREME COURT OF CANADA'S SUBSTITUTION
Regina v. Seaboyer and Regina v. Gayme - Supreme Court of Canada,
66 C.C.C. (3d) 321 , August 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

TIDBITS:
CROWN MUST PROVE SEAT BELT IS PROPERLY ATTACHED TO
THE MOTOR VEHICLE
Regina v. Sara - Supreme Court of BC,
Vancouver No. CC901576, June 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
-111-

CONSTITUTIONALITY OF ROADSIDE SOBRIETY TEST
TO GAIN REASONABLE AND PROBABLE GROUNDS FOR
DEMAND FOR SAMPLES OF BREATH

REGINA v. KREUTZER - Supreme Court of BC, Vancouver No. CC901652, May 1991

In November of 1987 the BC Court of Appeal held that having a suspected impaired driver
perform basic sobriety tests at the scene amounts to detention and requires the investigating
officer to make the suspect aware of his right to counsel1 •
In January of 1989, a rare five person (usually three) division of the BC Court of Appeal
reversed this decision and joined other Courts of Appeal in saying that though the suspect is
detained while performing the test the suspension of Right to Counsel until the demand is made
is justified. The investigating police officers must have some means to elevate their suspicion
to reasonable and probable grounds2 • The defence had also argued that the rules of evidence
respecting statements apply to the roadside sobriety test. After all one is not obliged to carry
out the test and it should be voluntary. The BC Court of Appeal rejected this notion.
In June of 1990 the Supreme Court of Canada decided a case where Mr. Hebert, a robbery
suspect, decided to remain silent after he spoke to his lawyer. An undercover cellmate did get
an inculpatory statement from him3 • The Supreme Court of Canada held the State was obliged
to allow Hebert to make an informed choice whether or not to speak to authorities. Objectively
the undercover officer was a person in authority. The State therefore obtained surreptitiously
what it could not obtain openly. Hebert had thereby been deprived of this right to choose
whether or not to give the State self incriminating evidence. The evidence obtained by means
of the cell mate approach, was ruled to be inadmissible. This ruling, according to Kreutzer's
defence counsel, links the rules of evidence respecting statements with any police action
(including a roadside sobriety test) where a person is asked to criminate himself and is not aware
that he in fact has a choice. This unawareness, he argued, deprives a person who is subjected
to a roadside sobriety test of the right to choose as much as Hebert was deprived of that choice
when he unknowingly spoke to a person in authority. In other words, not all of the Bonin
decision did survive the Hebert case.
Ms. Kreutzer, the accused, was stopped by police and was told of her right to counsel. Without
the "usual police warning" that she could remain silent she was made to (asked to?) perform a
roadside sobriety test. Then a demand was made of her to supply samples of her breath and she
subsequently refused to blow. The trial judge dismissed the charges of refusing and impaired

1

R. v. Bonogofki - Volume 29, page 1 of this publication.

2

R. v. Bonin - Volume 34, page 1 of this publication.

3

R. v. Hebert - Volume 37, page 16 of this publication - 57 C.C.C. (3d)

2
driving holding that the Hebert decision overshadows the Bonin case. The lack of awareness
that she had a choice, caused the suppression of the evidence of the roadside test which gave the
officer the grounds to make the demand and was part of his evidence of impaired driving. The
Crown appealed the acquittal claiming that the trial judge was wrong to hold:
1.

That absence of the police warning that the accused was not obliged to say or do
anything was a violation of s. 7 of the Charter;

2.

that the statement by means of which the accused refused to blow, were part of the
prohibited act (refusal) and should be included in the evidence that was suppressed; and

3.

that the wrong test was used to determine if there was enough evidence to prove impaired
driving.

Firstly, the BC Supreme Court Justice held that there is a considerable difference between a
person saying, "I did it" and a person under demand saying, "I won't blow". The former is a
confession where voluntariness is one of the prerequisites to admission in evidence and the latter
is the gravamen, the very act that is the offence of refusing. Voluntariness simply plays no part.
The Court did acknowledge the apparent broad scope of the Hebert decision but was seemingly
reluctant to hold that the defence's version, that the roadside sobriety test is in law
indistinguishable from statements respecting principles of justice regarding incrimination. He
also found that no warning of voluntariness needs to precede a roadside sobriety test. (see R.

v. Heal4).
If the Supreme Court of Canada decision overruled the decisions by the BC Court of Appeal,
it is for them (B.C.C.A.) to say so.

Crown's appeal was allowed
New trial was ordered

4

R. v. Heal - Volume 35, page 18 of this publication.

3
IS THE CROWN, IN A CRIMINAL PROSECUTION ALWWED TO
INTRODUCE IN EVIDENCE THE STATEMENT AN ACCUSED WAS
COMPELLED TO MAKE TO AN I.C.B.C. ADJUSTER?

REGINA v. SPYKER - Supreme Court of BC, 63 C.C.C. (3d) 125, November 1990
The accused was involved in an accident and was consequently charged with dangerous driving
causing death. In compliance with the Insurance Motor Vehicle Act he gave an I.C.B.C.
adjuster a statement that apparently was helpful to the Crown in prosecuting the accused for the
dangerous driving charge. Without an explanation how this statement (despite statutory
provisions that such statement may not be made public) came in possession of Crown Counsel,
it was adduced in evidence via the subpoenaed adjuster. The accused claimed that the Crown
could not introduce the statement into evidence. The question of law that arose, appeared to be
not whether or not the statement was admissible but whether it could be introduced. "The
accused ..... was obliged by law to give the statement. Can it now be used against him?"
The evidence (the statement) had not been obtained in a manner that violated the Charter,
consequently the exclusionary rule (s. 42(2) Charter) did not apply. Neither did the provisions
of s. 11 of the Charter, as they only apply where a person has been charged with a criminal
offence. At the time the accused gave a statement he had not been charged. Yet the actions of
the Crown are clearly within the authority of Government and consequently the Charter does
apply (sees. 32 Charter).
The Court found that if the Crown would be allowed to adduce the statement into evidence the
accused (who was by statute compelled to make the statement), in essence, was conscripted to
provide testimony against himself. That would violate s. 7 of the Charter as such practice is
contrary to the principles of fundamental justice. That one is compelled to make a statement for
insurance purposes is appropriate, but to then use that statement in a criminal prosecution is
inappropriate for reasons stated above. This balancing of interests should be provided by the
Courts under s. 24 (1) of the Charter as a remedy that is fair and just. The Court consequently
ruled, not that the statement was inadmissible but that the Crown is prevented from introducing
the statement into evidence.

4

DOES THE "BUY AND BUST" OPERATION
AMOUNT TO ENTRAPMENT?
REGINA v. BARNES 5 - Supreme Court of Canada, 63 C.C.C. (3d) 1. February 1991
Statistics showed that 25 % of all drug related charges were committed in a six block stretch of
a pedestrian mall in Vancouver. Consequently police launched a "buy and bust" operation. The
accused had been approached by an undercover policewoman and was asked, "Got any weed?".
The accused's answer was "No". Encouraging remarks from his companion made her ask again.
She was refused once more but then provided with $16.00 worth of Hash. The accused was
arrested and his "stock" was seized.
The trial judge had found that the accused had committed the offence of trafficking but stayed
the proceedings, thereby preventing a conviction. The policewoman did not know the accused
and had only selected him as a target on "a hunch, a feeling ...... " based on demeanour and
appearance of the accused. This had amounted to random virtue testing6 amounting to
entrapment, held the trial judge.
The Crown successfully appealed the trial judge's decision to the Court of Appeal for BC. It
ordered a new trial holding that the issue was not one of random virtue testing but whether the
policewoman had induced the commission of the crime by having gone beyond providing him
an opportunity to do so. She had not. The accused appealed this decision to the Supreme Court
of Canada.
In a majority (7 to 2) decision the Supreme Court of Canada (S.C.C.) held that the accused had
not been entrapped. Entrapment (an aspect of abuse of the process of the Court) is viable where
the accused shows that the authorities provided him with an opportunity to commit an offence
without acting on a reasonable suspicion that he was already engaged in criminal activity or
where the authorities were engaged in a bona fide inquiry. It can not be said that the
policewoman had a reasonable suspicion that the accused was already engaged in drug related
criminal activities. The question remaining was whether the policewoman had extended the
accused an opportunity to sell her cannabis while engaged in a bona fide inquiry.
The rule, basic to entrapment, is that the police may only give persons an opportunity to commit
an offence if they have a reasonable suspicion that they are already engaged in that particular
criminai activity. However, of self explanatory necessity, there is an exception to that rule
where police conduct a bona fide investigation in an area where it is reasonably suspected that

5

See R. v. Barnes - Volume 36, page 23 of this publication.

6

See Mack v. The Queen - Volume 33 page 48 of this publication.

5
criminal activity is taking place. When such an area has been adequately defined, then police
may extend an opportunity to anyone found within that area to commit the criminal activity they
have identified is occurring there.
Mr. Justice Macintyre (as he then was) wrote the reasons for judgment in the landmark Mack
decision that allowed the judiciary to stay proceedings as an aspect of the abuse of the process
of the Court, where it was established by plea or trial that an accused had committed the offence
alleged against him, but had been entrapped. He gave a down to earth example that befits the
circumstances of the Barnes case. If police would put a purse at a bus station to see if anyone
will steal it, is random virtue testing and amounts to entrapment. However, if purse or baggage
thefts were occurring at that bus depot and if the placing of the purse was consequently part of
a bona fide investigation, then the providing of the opportunity to steal that purse does not
amount to entrapment.
In this case statistics showed that police had cause to repress the drug trade in that pedestrian
mall. Hence they were involved in a bona fide inquiry in an area where those offences were
occurring and were entitled to give anyone found in that mall the opportunity to commit a drug
trade offence.
As this decision rendered the BC Court of Appeal reasons for ordering a new trial superfluous,
the Crown suggested the S.C.C. set aside the order and convict the accused.
The S.C.C. held it had no jurisdiction to do so. It was the accused's appeal with the objective
that the "new trial order" be quashed. The S.C.C. could only allow that appeal or reject it.
This means that the accused must, despite the issue of entrapment being settled, be tried again
despite the fact that guilt was already established at the conclusion of his first trial.

Accused's trial dismissed
Order for new trial upheld

6
ACCUSED PROMPTLY REFUSING TO BLOW UPON DEMAND. WAS
REFUSAL CONDITIONAL TO HAVING CONTACT WITH COUNSEL? SHOULD
OFFICER HA VE REPEATED OR REMINDED ACCUSED OF THE DEMAND?
REGINA v. SULLIVAN - Court of Appeal for BC, Vancouver CA011073, June 1991
According to the accused the accident he was involved in was not his fault due to the driver of
the car he collided with being of the opposite sex and of a descent (a visible minority) that
should not be allowed on the road. Consequently he advised the constable who demanded a
breath sample from him, that he was not giving any such samples. Furthermore, the accused
had "the best lawyer around" for a brother-in-law. He implied that remedial legal action would
follow upon this brother-in-law hearing about this.
This statement by the accused took place on route to the police station. The officer responded,
"Are you refusing to provide me with a sample of your breath now, Sir?" The accused
answered, "You got that right, I'm not blowing".
Upon arrival at the police station the accused spoke for at least fifteen minutes to his lawyer.
At the end of that conversation the officer upon request of the accused, spoke to the lawyer.
Consequent to this the accused was issued an appearance notice for refusing to provide breath
samples. The whole procedure at the police station had taken approximately 30 minutes and the
accused was not asked again nor was given an opportunity to provide samples of his breath. The
accused had not at any time indicated that he had changed his mind about his refusal to blow.
An interesting issue was raised in the accused's appeal from his conviction for refusing. His
counsel submitted that the initial refusal in the police car was conditional. The tenor of what
the accused had said to the officer was, "I'm not doing anything until I talk to my lawyer".
That was part of his right to counsel and his refusal at this stage did not make the offence of
refusal complete. He had not waived that right and did exercise it. If the officer had reminded
him of the demand after the consultation with the lawyer and had then refused, the offence
would have been completed. To accept his refusal when he wanted still to consult counsel
amounts to a violation of the accused's right to counsel, he argued. At the time he refused he
did so to firstly gain legal advice. Considering his rights he had a reasonable excuse to refuse
at the time he did so.
The Court of Appeal for BC said that there had to be proof that the accused had refused by the
time he left the police building upon his release. His conviction had been based on that premise.
Indeed, the offence of refusal was not complete when he told the officer in the police car that
he would not blow.
There was no doubt that a proper demand had been made. This demand continued in full force
and effect from the time it was made at least until the officer released him on an Appearance

7
Notice. Said the Court:

"Once the demand has been made, the accused cannot either by the
words he speaks or tight-lipped silence, thrust upon the peace
officer any further obligation to speak."

After the accused had spoken to his lawyer and did not make himself (of his own initiative)
available to fulfil the obligation the demand had placed on him, the refusal he uttered did convert
from a conditional to a non-conditional refusal.
The evidence did not reveal the officer/lawyer conversation - not even a glimpse of its tenor.
It may well have confirmed the accused's refusal and caused the officer not to extend a
reminder, invitation or even a renewed demand (with the information that refusing constitutes
an offence) to the accused. The BC Court of Appeal rejected the suggestion that the officer was
in the circumstances obliged to do so. Instead the accused should have disabused the officer of
her view that the refusal was non-conditional and stood. The common sense thing to do would
have been for the accused to say, "Okay, where do I go to blow." Then if the officer would
have said, "Too late" his defence arguments would have been valid.
The closing words of the Court on these issues were:
"He did not do the perfectly obvious and common-sense thing.
Why should he be heard to complain about an imagined violation
of rights? Complaints of Charter violations must still have an air
of reality about them. In these circumstances, there is none".

Appeal dismissed
Conviction upheld

8
INTERCEPTION OF PRIVATE COMMUNICATION
ACCESS TO SEALED PACKET - VALIDITY OF AUTHORIZATION
PROTECTION OF INFORMERS - ~DITING - CROSS EXAMINATION
OF AFFIANT
REGINA v. GAROFOLI - Supreme Court of Canada, (1990] 9 S.C.R. 1421, November 1990.
Garofoli and four others were convicted of conspiracy to import cocaine from Florida. There
were four authorizations to intercept Garofoli' s and the private communications of others. The
admissibility of the evidence obtained by means of these judicial licences to listen in, was at the
heart of the grounds for appealing Garofoli' s conviction to the Supreme Court of Canada
(S.C.C.).
During Garofoli' s trial a voir dire was conducted to determine the admissibility of the wiretap
evidence. The trial judge refused to open the "packet"; disallowed cross-examination of the
affiant and held that the evidence was admissible. The next day, Garofoli did not show up for
the continuation of his trial. He was no where to be found. Crown evidence showed that, "he
voluntarily absented himself from his trial for the purpose of frustrating or avoiding its
consequences". The trial judge then ordered continuation of the trial. Garofoli was convicted
and sentenced in absentia with his lawyer conceding at the latter stage that Garofoli indeed had
absconded. S.C.C. found no fault with what the trial judge did in this regard.
All but one of Garofoli's grounds for appeal were dismissed. The S.C.C. granted him a new
trial as it found that he should have been permitted to cross examine the applicant for the
authorizations.
This, and some other cases recently heard by the S.C.C. shed considerable light on post-charter
and post-amendment interpretations of the Invasion of Privacy Act contained in the Criminal
Code of Canada.
The issues addressed are:
1.
2.
3.
4.

5.
6.
7.

What is the entitlement of an accused person to the content of the sealed packet?
Upon what grounds and in what Court can an accused person challenge an authorization
for a wiretap?
If errors, flaws or improprieties have occurred, then what is the appropriate remedy?
When the information relied upon to obtain an authorization, comes from an informer,
then what special requirements apply?
What procedure and what principles apply to the editing of the sealed pack content?
Is an accused person entitled to cross examine on the affidavit upon which the
authorization was granted?
If the authorization does not contain a minimization clause, does it then amount to a
judicial licence to conduct an unreasonable search and seizure (s. 8 Charter).

9

Question 1:

Access to sealed packet.

The S.C.C. held that all the precedents restricting access to the content of the sealed packet no
longer apply. An accused is, due to the provisions of s. 7 and 8 of the Charter, entitled to have
the packet opened and, subject to editing, have its content produced. It is a principle of
fundamental justice that an accused person be enabled to give a full answer and defence to
criminal allegations.
Question 2:

Grounds for challenging authorization - What Court has jurisdiction?

The S.C.C. conceded that the law to test admissibility of wiretap evidence has become a
procedural quagmire. At least three different procedures have been developed with jurisdiction
varying from the issuing judge to the trial judge with variations depending on the issues.
Consolidation of these cases is necessary held the S.C.C. However, the court was prevented
from streamlining it as much as they wanted to, due to Parliament's enactments. It seems that
if the S.C.C. could have its way, it would hold that any judge competent to preside over the
criminal proceedings in which authorizations are challenged, should have jurisdiction to open
the sealed packet, edit its content, disclose it to the defence, and deal with the admissibility of
the evidence. However, only designated or an issuing judge may open the packet (this does not
include reviewing the content) according to the C.C. But, the Charter being part of the supreme
law, provides a clear alternative basis for resort to the court and with it the appropriate grounds
for determination whether there has been a breach of s. 8 of the Charter (unreasonable search
and seizure). Consequently applications for review of the content of the packet for this purpose
must be made to the trial judge, leaving the determination of the admissibility of the evidence
thereby obtained to that judge. Although this gives in some circumstances, the appearance that
a judge of an inferior court reviews an authorization issued by a superior court, it in essence is
not so. According to s. 24 of the Charter the trial court is. A court of competent jurisdiction
to determine the admissibility of evidence.
Question 3:

What are the appropriate remedies if flaws, or improprieties have occurred.

In 1983, in Wilson v. The Queen1 the Supreme Court of Canada held, that unless it was shown
that the application for an authorization had been obtained by misleading the designated judge,
by fraud or lack of total disclosure, a trial judge is precluded from reviewing the authorization.
Since then the S.C.C. has held that the interception of a private communication is a search and
seizure. To examine if a search is reasonable a trial judge must determine if the Code
requirements have been satisfied. This, since the statutory conditions are identical to the
requirements under s. 8 of the Charter. When the trial judge concludes that, based on the
record, the authorizing judge could have granted the authorization, then he should not interfere.

7

Wilson v. The Queen - [1983] 2 S.C.R. 594

10
If the trial judge finds that the interception is unlawful, then due to the strict exclusionary
provision contained in the invasion of privacy laws of the Code, the evidence thereby obtained
is inadmissible. The conditional exclusionary provision in s. 24(2) of the Charter cannot have
the effect of making the evidence admissible because it would not bring the administration of
justice into disrepute. Accordingly an accused who has invoked s. 24 of the Charter and
establishes that an authorization was unlawfully obtained is entitled to have the evidence
excluded under the strict exclusionary rule of the Privacy Act [s. 189 (1) C.C.].

Question 4:

What special requirements apply if the information in an application comes from
an informer?

The S.C.C. acknowledged that information from an informer can provide the reasonable and
probable grounds for a search (interception of private communication). However, by itself such
information is incapable to provide such grounds unless the reliability is assessed considering
all the circumstances. The fact that the search proves that the informer's tip was reliable (what
was discovered by the search proved the informer's tip to be accurate) cannot be used as
evidence to show reliability of that information at the time the application for the authorization
in question was made.
Question 5:

What procedures and principles apply to the editing of the sealed packets?

Due to the Court having inherent jurisdiction to supervise and exercise "protecting" powers over
their own records, the judges are authorized to edit the content of the sealed packet. One of the
main objectives in editing th~ application depositions is compliance with the rule against
disclosure of the identity of police informers save where such disclosure can show innocence on
the part of an accused. This creates a balancing act in each case, weighing the revealing of the
informer's identity to the accused, against the prejudice to the informer and public interest in
law enforcement. 8
Question 6:

Is the defence entitled to cross examine the applicant of an authorization?

The S.C.C. adhered to its consistent protection of the right to cross examine. It reiterated
however, its equally consistent stance on protecting police informers. It held that there simply
is no right to cross-examine police informers as they are not witnesses (as long as their activities
did not make them "agents" of the police) unless such disclosure could show innocence on the
part of the accused. This, of course, eliminates from the cross-examination, probing questions,
the answers to which would directly or indirectly divulge that identity.

8

See Bisaillon v. Keable et al - 7 C.C.C (3d) 385 [1983 2 C.S.R. 60] and Volume 15,
page 3 of this publication, on protection of police informers - Supreme Court of
Canada.

11

Leave to cross-examine is at the discretion of the trial judge, who may impose limitation on its
scope. He or she must be satisfied that cross-examination is essential to afford the accused
person to make a full answer and defence and only where the accused has established that the
cross-examination will assail one of the prerequisites for the authorization. In this Garofoli case
the trial judge had not allowed cross-examination of the affiant while the police had to a large
degree relied on the tips they received from their informer. In view of the S.C.C. 's response
to question 4 above, credibility of the informer is established by the police assessing the
reliability of the information they received from the informer, as a precondition to the
authorization. The accused was consequently entitled to discover by cross-examination if
adequate assessment by police had taken place, for the Court to determine if that information
was capable to serve as a precondition to the authorization. For this reason alone the accused
is entitled to a new trial, held the S.C.C.
Question 7:

Does an authorization without a minimization clause, amount to a judicial licence
to conduct an unreasonable search or seizure?

The defence had argued that the authorization licensed police to intercept all private
communications on the accused's telephone, whether or not they were relevant to the police
investigation. Such openendedness amounts to an unreasonable search, the defence argued, and
invalidates the authorization. The S.C.C., responded that the minimization clause the defence
claimed to be an essential element of a valid authorization would force police to "live monitor"
all interceptions. Such an absolute requirement would simply cause an unreasonable and too
heavy a burden on law enforcement officials. The Court reiterated that live monitoring and
visual confirmation is generally appropriate where police is authorized to intercept telephone
calls made by using public pay phones. The S.C.C was of the view that the same considerations
do not apply to telephones in the private residence of a person named in the authorization.
Unless the defence can show special circumstances for live monitoring of residence or private
office telephones, the absence of a minimization clause does not affect the validity of an
authorization.
Accused's appeal allowed.
New trial ordered.
~:

The S.C.C. judgment was lengthy and thorough and a wide range of complex
issues were considered. These few pages are a· more synopsis, in which I have
attempted to extract what I perceived to be issues of interest to law enforcement
officers.

12
PROTECTING IDENTITY OF INFORMER

REGINA v. SCOTT - Supreme Court of Canada - [1990] 5 S.C.R. 979, December 1990.

The accused, while in custody for other matters, was tried for possession of narcotics for the
purpose of trafficking. When police testified, defence counsel, in cross-examination posed a
question the answer to which would have revealed the identity of an informer. Instead of taking
a chance on the response from the trial judge on this issue, Crown Counsel stayed the
proceedings and commenced a new trial a short time later. Defence Counsel unsuccessfully
moved for a judicial stay of proceedings claiming that the Crown's manoeuvring amounted to
an abuse of the process of the court. Defence counsel did again pose the same question to the
investigating officer submitting that it was relevant to the matter of entrapment. As there had
been no evidence of any kind that suggested that entrapment was involved, the question was in
compliance with binding precedents9 disallowed.
Upon the Crown closing its case, the accused was granted an adjournment to locate and
subpoena a defence witness. This witness was served but failed to show when the trial
continued. The trial judge refused to issue a warrant apparently as the defence failed to show
that this witness (possibly the person the defence suspected to be the police informer) was likely
to give material evidence. When the Crown and defence had finished their submissions and the
trial was coming to a close, the witness entered the courtroom. A defence motion to re-open
the proceedings so the witness could testify, was unsuccessful. This, again, as no foundation
had been laid for entrapment. The accused was convicted of five narcotic charges and his appeal
to the Ontario Court of Appeal was dismissed.
The accused then took his plight to the Supreme Court of Canada (S.C.C.) claiming the
following :
1.

The Crown had abused the process of the Court by staying proceedings exclusively for
the purpose of avoiding an unfavourable ruling by the Court that could have compelled
the police witness to reveal the identity of his informer;
The delay caused by the stay had prejudiced the accused;
The judicial ruling during the continuation of the trial, that the defence question that
jeopardized the identity of the informer was improper and disallowed, is erroneous;
The trial judge erred in refusing to issue a material witness warrant;
The trial judge erred in disallowing the procedures to be re-opened to accommodate the
late arriving defence witness to testify.

2.
3.
4.
5.

9

Bisaillon v. Keable - [1983] 2. S.C.R. 60; also Volume 15, page 3 of this
publication.

13

The Supreme Court of Canada answered respectively:

1.

The Crown had acted properly to protect the identity of the informer. It re-opened
proceedings at the first reasonable opportunity. This is a Crown prerogative and does
not amount to (in the circumstances) an abuse of the process of the Court;
The accused was in custody and the delay had not prejudiced him in any way;
No exemption to the stringent rules that protect the identity of informers, did apply. The
accused had not shown that revealing the identity of or testimony by the informer would
render him innocent of the charges or lay a foundation to the issue of entrapment;
The defence failed to show that the witness's evidence would be material;
As no explanation was given to the Court in what way the testimony of the witness would
be relevant and as it was the judge's obligation that the trial was expeditious and orderly
it was at her discretion whether to re-open the proceedings.

2.
3.
4.
5.

The evidence made it clear that the accused could not show on the balance of probabilities that
he had been entrapped. That burden of proof was on him.
Accused's Appeal Dismissed
Convictions upheld

Note:

There were two judgments rendered. One supported by five Justices and a
dissenting judgment supported by the remaining four Justices. The dissenting
Justices thought that the Crown had acted inappropriately by staying the
proceedings only to re-open the trial later only to avoid a possible adverse ruling
on an issue. This constituted an abuse of the process of the Court, they said.
The proper procedure would have been for the Crown to call no further evidence
and then appeal the resulting acquittal in the hope that the contentious issue would
be answered and a new trial is ordered. Legalities aside, the latter seems a far
more cumbersome process than staying the proceedings and re-opening the trial.
It also appears that this is the least inconvenient for the accused.

Comment:

There are two interesting matters involved in this case; one arises from the
majority judgment and the other from the dissenting one. Entrapment is not a
defence10 and has only received an extraordinary process to discover if an
accused had been entrapped. Entrapment does not infringe a Charter right but is
an aspect of the abuse of the process of the Court that may result in a judicial
stay of proceedings when and if an entrapped accused is found guilty of the
offence alleged. This stay will prevent a conviction if an accused can show (after
the verdict of guilty) on the balance of probabilities, that he had been entrapped.
Only for the purpose of an appeal, such a stay is the equivalent of acquittal.

10

R. v. Mack [1988] 2 S.C.R. 903, Also see Volume 33, page 48 of this publication.

14
Despite the fact that the entrapment issue cannot be tried until after a verdict of
guilty, the defence may lay the foundation for entrapment during the trial proper.
Usually this is done by means of cross-examination of the Crown witnesses. It
seems that the issue of entrapment was dismissed before a verdict in this case.
It is not clear whether the defence was prevented from having the matter tried
after the verdict due to not having laid that foundation. If so, the trial judge did
not follow the stringent rules established in the Mack decision.
The other issue of interest is that the dissenting Justices seem to suggest that
parties to criminal proceedings can withdraw their witnesses in the middle of
cross-examination - or, at least, the Crown can. The Crown adduced evidence
by means of the investigating officer. When, in cross-examination, a question
was put that jeopardized the Crown's interest (the identity of the informer), the
dissenting Justices seem to suggest that at that point the Crown could have
announced not to call any further evidence. This would have resulted in an
acquittal the Crown could have appealed. That appeal process is the means of
correcting judicial errors. The disputed question had been put and the Crown
objected. Rather than waiting for a ruling the Crown entered a stay. One
wonders, that if the Crown had the right to have its witness step down at this
point, as part of its decision not to call further evidence, what grounds that would
produce for an appeal. One supposes, the error of allowing the question to be put
to the witness. After all, the ruling that could have jeopardized the informer's
anonymity, was not whether the question should have been put, but whether the
witness was compelled to answer it.

15
DOGMASTER INTERPRETING AND DRAWING CONCLUSIONS FROM
HIS DOG'S BEHAVIOUR - ADMISSIBILITY AND WEIGHT OF SUCH EVIDENCE
REGINA v. PAWLUK - Supreme Court of BC, Vancouver 20236DC, October 1991

The accused testified at his trial for breaking into a restaurant. He told how he and his friends
had been celebrating his birthday for several days. The party came to an end in the early
morning hours and the accused (who had consumed quite a bit of liquor and had smoked
narcotics during the festivities) was walking in the dark at 5:30 a.m. towards a transit station
to take a train home. A van entered the street at a high speed. Right in front of the accused
the occupants had jumped out and scattered. Immediately after the police were on the scene.
The accused had a record for break and enter and at the time there were criminal warrants with
his name on them, outstanding in Alberta. The accused did not want to face the charges in
Alberta and felt that talking to the police in these circumstances would make an arrest on these
warrants a distinct possibility. He therefore went a distance of about 50 metres and hid under
some shrubs. Everything would have been fine if it was not for Brutus a nosy police dog.
The van had been used in the break-in of a restaurant about 15 minutes before. It was seen
backed to a door of the premises. The driver had stayed behind the wheel while two men loaded
the van. Police had been alerted by a witness and the van was spotted a short distance from the
scene of the crime. After a chase the van had slowed and two men had jumped out and ran.
The driver had continued for a short distance and then jumped out of the van leaving it to
continue on its own until it came to rest up against a concrete wall. The driver had fled in the
opposite direction from his companions.
Shortly after this, Brutus and his master arrived on the scene. The dog was familiarized with
the scent around the driver's seat in the van and an "area search" was commenced rather than
a "tracking" mode search. This as the van had travelled an estimated distance of 25 metres after
the driver exited. Brutus was to pick up the scent at the point of exit and then switch to
tracking. The demeanour of the dog indicated to his master that he found the scent some
distance from where the van had come to rest and from there on stayed on that scent until he
found the accused under the bushes. Needless to say, the defence to the charge of break and
enter was one of identity.
The issue, of course, was the credibility of the evidence given by the dogmaster. Was the
dogmaster's interpretation of Brutus' demeanour accurate and sufficiently reliable to prove
beyond a reasonable doubt that the accused was an occupant of the van which was involved in
the break and enter and contained the proceeds of that crime.
The first hurdle was the admissibility of the dogmaster's interpretation of his dog's conduct and
behaviour. Old Brutus is the only Crown witness who knows for sure if the accused was in the

16
van. He told his master by means of his conduct that this was so. At best his master's
testimony was an interpretation of perked ears and erect tail. In essence defence counsel
advocated a hearsay approach to the dogmaster's evidence.
The BC Supreme Court held that the evidence of Brutus' handler was admissible. He had
testified about the training of the dog and how he consistently reacts to given scenarios and
situations. Each time the dog's reactions were identical not just in circumstances encountered
in practice but also where, in exercises, the events and settings were controlled. The dog had
proven to be reliable and accurate. Such evidence is weighty and allows conclusions of facts
to be drawn from it.
In this case the performance of the dog was the only identification evidence against the accused.
Defence counsel took the position that although the evidence is admissible it is unsafe to convict
the accused on that evidence alone. Brutus is only an animal and could have been distracted by
other scents, or, due to the accused's high level of anxiety had zeroed in on the strong human
scent that results. This scent may have been stronger than the scent the dog was familiarized
with at the outset of the search. This, at least, raises a reasonable doubt, argued counsel for the
defence.
The Court had not believed the accused and held that the absence of any other person in the area
was sufficiently corroborative pf Brutus having found the driver of the van when he located the
accused under the bushes.

Accused convicted

17

VALIDITY OF PREVENTATIVE LEGISLATION
"WHERE INJURY OR DAMAGE IS FEARED"

CHESTER v. THE QUEEN - Supreme Court of BC

A complainant swore an information under s. 810 C.C. claiming that she had reason to fear that
Mr. Chester would inflict personal injuries on her. A warrant did issue and Mr. Chester was
arrested. Upon a hearing the Provincial Court Judge imposed conditions and an undertaking
from him to prevent further threats or harm to come to the complainant.
The preventative intent of s. 810 C.C. is derived from the common law which used to give the
judiciary jurisdiction to prevent breaches of the peace where circumstances and events gave
someone reasonable grounds to believe that harm would befall him or her. The section actually
is a codified version of that common law. Obviously it has been difficult for the drafters of this
legislation to fit this oddity into a penal code. The person who is the threat is not an accused
as the section does not define or create an offence. Nor are the consequences of being a threat
to the safety and comforts of privacy of the complainant a penalty or punishment. It in essence
is a means of saying to that person, "Don't do that anymore and if you do not want to promise
to cease and desist you can be imprisoned for a period not exceeding a year". This procedure
is as out of place in our criminal procedures as a canoe in a yacht club. It cannot be said that
the person complained about is not in jeopardy of consequences akin to criminal sanctions and
there should be some safeguards and provisions of natural justices that apply. This was
accomplished originally by providing that procedural provisions for compelling the appearance
of an accused and those of a preliminary hearings apply to procedures under this section mutatis
mutandis (with the necessary minor changes). The Courts held in 198311 that since there is no
"accused" and "no offence" involved "mutatis mutandis" is inadequate to hold that a warrant can
be issued for the person complained about or that the adoption of criminal hearing procedures
apply. The Ontario Court of Appeal was a couple of years later of the opposite opinion 12 •
Mr. Chester asked the BC Supreme Court to review the order imposed on him by the Provincial
Court judge. He claimed that his aITest had been unlawful as is the order for him to be of good
behaviour towards the complainant. There simply was no jurisdiction for the issuance of the
warrant or to impose conditions upon him by having him enter into a recognizance.
Since the cases cited above, were decided, the words mutatis mutandis were removed from the
impugned section and the words, "with such modifications as the circumstances require" were

11

R. v. Forrest (NO: S.C.100 1983) BC Supreme Court

12

R. v. Allen - 18 C.C.C. (3d) 156

18
substituted. The Supreme Court of BC held that this had changed nothing and had not remedied
the reasons for which the legal validity of this legislation is and was attacked. He saw no
difference between the meaning of the latin words and the phrase substituted.
Yet the Supreme Court of BC held that the section and its adopted procedures as well as the
mode of that adaptation are adequate and proper.
Mr. Chester's
dismissed

application

was

19
VALIDITY OF DETENTION FOR INVESTIGATIVE PURPOSES - WARRANTLESS
SEARCH OF A CAR - ADMISSIBILITY OF REAL EVIDENCE

REGINA v. KLIMCHUK - Court of Appeal for BC, Victoria V01083 - October 1991.
A service station attendant arrived at work very early in the morning while it was still dark. He
saw a car on the station lot with a person behind the wheel and spotted another person running
behind the office booth. He went to a telephone at a nearby coffee shop and reported the
incident. While on the phone he saw the car leave and reported what he saw and gave police
the direction of travel.
A constable attended and checked around. He spotted a car of similar description parked in a
McDonald's parking lot. The accused was behind the wheel apparently asleep. The officer
established the accused's identity and learned from the dispatcher that the accused was suspected
of raiding vending machines. When asked what he was up to, the accused said to be waiting
for the restaurant to open for business so he could get a cup of coffee. The officer who did not
believe to have the grounds for searching the car told the accused where a little further up the
road, he could get coffee and told him to move on. After the accused left the officer learned
from a person who was inside the McDonald's restaurant that there had been another person in
the car who had gone behind a hedge at the rear of the parking lot. A search resulted in finding
a bag with $186.00 in change.
The officer went to the coffee shop he had told the accused about and found him and the car at
that location. He was of the opinion that the information he received from the dispatcher and
the bag of coins he found were not sufficient for him to arrest the accused. A1marently, he
could not say that the car seen at the service station and the one the accused had in his
possession were one and the same. Furthermore, the officer had found "nothing of interest" at
the service station. He did therefore, not effect "an outright arrest" but instead detained the
accused for "investigation into stolen monies".
The officer requested a colleague to search the accused's car on the coffee shop's parking lot
while he took the accused to the police station. The other officer did find vending machine keys
in a heater vent of a kind that would have given access to the cash boxes in the machines at the
service station. He also found loose coins and coin wrappers.
The trial judge had agreed with the defence's position that, the "arrest" had been unlawful and
the accused's detention arbitrary and that the warrantless search of the car had been
unreasonable. He held however, that the "real" evidence that had resulted should not be
suppressed as admitting it would not bring the administration of justice into disrepute.
Consequently the accused was convicted of having in his possession instruments suitable for
breaking into a coin operated device in circumstances from which it can be inferred that they
had been or were intended to be used. He appealed his conviction to the Court of Appeal for
BC claiming the trial judge had erred. The Crown also claimed that the trial judge had been

20
wrong. It argued that in the circumstances the accused's Charter rights had not been infringed.
The detention was nQt arbitrary and the search was incidental to a lawful arrest and therefore
IlQ1 unreasonable. The Crown took the position that the police had common law powers to
search the accused's car and consequently the evidence of the keys was not subject to exclusion.
In the trend setting case on unreasonable search and seizure (Hunter v. Southam Inc.) the
Supreme Court of Canada gave a simple definition of "reasonable search":
"A search will be reasonable if it is authorized by law, if the law
itself is reasonable and if the manner in which the search was
carried out is reasonable".
The Supreme Court of Canada also reiterated (in Cloutier v. Langlous et al) that police
incidental to a lawful arrest, have the common law power to conduct a primary search of the
arrested person (a frisk search) to preserve evidence, or detect any object which might be used
to make good his escape or endanger the safety of the prisoner or endanger the safety of the
arresting officer and personnel who will subsequently be responsible for his custody. This
common law does not only empower police to frisk the prisoner but also to search the motor
vehicle from which he emerged at or shortly before the time of his arrest. This means that if
the officer had lawfully arrested the accused the search of the car was lawful and likely
reasonable.
The officer had testified that he had been doubtful about having sufficient grounds to effect an
arrest. At the time he did not know about the vending machine keys and only had the
information as explained above. He felt he was not in a position to arrest the accused, neither
did he want to let him go. He therefore chose some middle road and detained the accused for
"investigation into stolen monies". The Courts and the Crown agreed with the defence position
that there is in law no provision for detention for the purpose of investigation. This is simply
a prevailing misconception that has various sources, some of which are misinterpretations of
Criminal Code provisions. For instance, it used to be a popular but erroneous belief that the
"24 hour" limit to have an arrested person appear before a justice was an indirect authorization
to hold a person for investigative purposes.
The Crown argued, however, that although the officer testified that he had a reasonable belief
and suspicion that the accused had committed an indictable offence and apparently believed he
was therefore empowered to detain the accused for investigative purposes, this should not be
determinative of the issue whether the detention was lawful. The Court should apply an
objective test to determine the lawfulness of the detention. In other words, if the circumstances
were such that the officer could have effected a lawful arrest (if the circumstances amounted to
reasonable and probable grounds for him to believe the accused had committed an indictable
offence) then the detention was lawful.
The Court of Appeal for BC agreed with the Crown's position and held that the status of the
accused or his detention did not depend on the label the officer attached to it. It held that the

21
distinctions between detention and arrest were subtle and matters of semantics. Since these
issues were not argued at trial or before this Court of Appeal it was prepared to assume, "for
the purpose of the argument only" that in fact the officer had arrested the accused and it then
explored the propriety of that arrest.
The Court zeroed in on the part of s. 495 (l)(a) C.C. it deemed applicable:
"A peace officer may arrest without warrant a person ..... who on
reasonable and probable grounds he believes has committed or is
about to commit an indictable offence".
When in Court proceedings the lawfulness of a warrantless arrest is in question, the existence
of the prerequisite grounds must be objectively established, meaning:

" .... a reasonable person, standing in the shoes of the police
officer, would have believed that reasonable and probable grounds
existed to make the arrest".
However. when the peace officer effects the arrest. he or she must subjectively have reasonable
and probable 2rounds on which to base the arrest.
The latter was the threshold the Crown had to overcome. According to the arresting officer's
testimony he did not subjectively believe that the accused had committed or was about to commit
an indictable offence. Had he believed that there were such grounds, the Court could then
determine by means of the objective test described above, if by what the officer knew there were
in fact such grounds. Therefore the "assumed" arrest of the accused was unlawful, and
consequently there were no ancillary common law powers for a warrantless search of the
accused's car.
The Court of Appeal for BC explored if a reasonable warrantless search of the accused's car
could be demonstrated in any other way. The Court observed that even where statutes authorize
warrantless searches, they are unreasonable where the Crown fails to show that circumstances
made it impractical to obtain a search warrant. After reviewing numerous cases on this point
the Court concluded that there simply is no common law power (other than incident to a lawful
arrest) for a warrantless search of a motor vehicle in circumstances where it is not feasible for
an investigating officer to obtain prior authorization in the form of a warrant. At best, the Court
seems to say, where evidence is found by means of a warrantless search of a motor vehicle
where it was impractical to firstly obtain a search warrant, it may well serve as a consideration
whether excluding the proceeds of the unreasonable seizure of evidence would bring the
administration of justice into disrepute. In this case, however, the presumption that a
warrantless search is prima facie unreasonable had not been rebutted by the Crown.

22
On the issue of a distinction, if any, between an unlawful and arbitrary detention the Court
declined to respond. Needless to say the one is a matter of statute law and the latter is an
infringement of an entrenched right. Does this mean that the two are mutually inclusive? The
trial judge had without the matter having been specifically argued, held that the accused had
been arbitrarily detained (s. 9 Charter). The defence nor the Crown had presented cogent
arguments on this point, hence the Court's reluctance to answer this question.
The evidence of the keys was "real" and was obtained "without having compelled or instigated
any conduct on the part of the accused". In R. v. Collins, the Supreme Court of Canada said
that in such circumstances there is rarely reason to exclude real evidence, particularly evidence
that existed already. Furthermore, had the officer acted in good faith? Another matter that must
be considered for the evidence of the keys to be admitted is whether it would effect the fairness
of the trial.
As the evidence of the keys existed irrespective of the accused's Charter rights the fairness of
his trial would not be affected by admitting them into evidence. However, the Court held that
the violation of the accused's right to be secure against unreasonable search or seizure was
deliberate in that it was the product of a prevailing policy adhered to by both investigating
officers. They had admittedly acted upon suspicion only, and there was in the circumstances
nothing that made the obtaining of a search warrant impractical. They knew that a search
warrant was obtainable in terms of what they were aware of and that a Justice of the Peace was
available. This meant that police did not act in good faith. The violation was also serious in
that they on mere suspicion had invaded the privacy of the accused.
The absence of good faith does not connote bad faith or that the actions of the police were
prompted by unworthy or unlawful motives. Good faith usually applies where an officer does
something that at the time, was a lawful practice despite the fact that at the time of trial it has
been found to be constitutionally unacceptable or invalid. That simply was not the case here.
The officer had acted on an erroneous belief that a search warrant was "at the time" not
required. In essence the Court warned that police officers should be aware of the evolution of
law in as far as it affects their investigative practices. Reasonable search was defined and
explained by the Supreme Court of Canada some years ago. Said the Court:
"Even if Constable C and his colleagues did not know of or
understand, those principles, they cannot now be heard to say that
they relied upon an honest but mistaken belief in the legal
requirements of a reasonable search".
The crime alleged against the accused is at the lower end of the spectrum of severity. The entire
Crown's case depended on the admission of the keys in evidence. No conviction was possible
without that real evidence. The Supreme Court of Canada also said in Collins, that to admit~
evidence despite it being obtained by means of a Charter violation requires to weigh the balance
between the severity of the crime alleged and the damage admitting the evidence may do to the
reputation of the administration of justice.

23
Said the Court:
For the sake of the community at large, it is both desirable and
important that the police have every reasonable opportunity to
investigate crime and apprehend criminals. But for the sake of
each of us, who collectively are that community, it is equally
important that they achieve that goal in a manner consistent with
constitutional values, indeed, it is the very essence of the social
contract that they do so. To countenance the long-term wilful
disregard of those values in the name of effective law enforcement
would not just bring the administration of justice into disrepute, it
would render the Charter meaningless:
The evidence of the keys, was inadmissible.
Accused's appeal allowed
Conviction set aside and
acquittal substituted
Main cases referred to:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

Hunter v. Southam inc. [1984] 2 S.C.R. - Volume 18, page 12 of this publication
R. v. Collins [1987] 1 S.C.C. - Volume 27, page 1 of this publication
R. v. Mccomber [1988] 44 C.C.C. (3d) 241
R. v. Dyment [1988] 2 S.C.R. 417 -,Volume 34, page 24 of this publication
R. v. De Bot [1988] 2 S.C.R. 1140 - Volume 36, page 27 of this publication
R. v~ Kokesch [1990] 61 C.C.C. (3d) 207 - Volume 39 of this publication
Cloutier v. Langlois et al [1990] S.C.R. 158 - Volume 37, page 5 of this publication
R. v. Young (unreported) - Volume 36, page 25 of this publication
R. v. Genest [1989] 1 S.C.R. 59 - Volume 34, page 12 of this publication
R. v. Greffe [1990] 1 S.C.R. 755 - Volume 37, page 2 of this publication
R. v. Jones 44 C.C.C. (3d) 248 - Volume 34, page 5 of this publication

24
Comment:
At one stage in these reasons for judgment the Court of Appeal for BC commented on persistent
police practices despite Court rulings which have clearly indicated that they were no longer valid
and acceptable in law. It implied unawareness on the part of the police and hence the list of
cases above in which these issues were explored. One example of this was the practice of the
"roadside sobriety test and right to counsel" issue. In the fall of 1987 the BC Court of Appeal
held in R. v. Bonogofski, that the test triggered detention and that there was full right to counsel
before the test was conducted. Any infringement of that right could cause the reasonable and
probable grounds for a demand for breath samples gained by the test, to be inadmissible.
Judging by the numerous cases in the wake of that decision clearly indicated that there was an
unawareness of this case in the police community. About two years later the BC Court of
Appeal changed its mind in the R. v. Bonin decision (Volume 34, page 1 of this publication) and
the problem with this issue simply faded away. It seems that this investigative practice
continued from before Bonogofski, to Bonin and due to the latter cancelling the former the
whole matter, for many, passed by unnoticed.

25
POSSESSION - "ACTUAL" VIS A VIS "CONSTRUCTIVE"
REGINA v. SAMARDZICH - Court of Appeal for BC - Vancouver CA013028, July 1991

The accused leased a house and occupied it. The previous tenant had left (with the accused's
consent) some of his possessions in the house until he would find a place to store it. Four
months after the accused moved in he was arrested in the home, for an outstanding warrant in
Ontario. Police found a Mr. C. sleeping in one bedroom and from evidence concluded that a
couple used another bedroom.
Instant to the arrest police found approximately a quarter of a million dollars worth of US
$20.00 counterfeit bills in the bedroom in which Mr. C. was napping. Acting upon directions
by the accused, police found a handgun and silencer in the same bedroom. They also found the
accused's wallet and his cheque book in that room.
The accused was convicted of possessing the counterfeit currency. He appealed arguing that the
trial judge had convicted him on the basis of constructive possession while the Crown relied on
actual possession.
Where a person has something on his person or by other means in his "personal possession" then
he actually does possess that something. However, where he with his knowledge (not only
knows the whereabouts but also what it is) has given it to another to have joint custody or
custody exclusively on behalf of himself or has that "something" any place (whether or not he
knows or occupies that place) then he "constructively" possesses that something. The essential
elements of constructive possession are, of course, knowledge, consent and a measure of control.
The trial judge had concluded that the arrangements in the house with the previous tenant and
apparent other occupants was such that there was a reasonable doubt that the accused possessed
the handgun and silencer. However, he found that "the accused must have known that the
counterfeit money was on the premises". He had knowledge and possession the judge concluded
from the circumstances.
There was no doubt held the Court of Appeal for BC, that the Crown adduced evidence of and
relied on "actual possession". That is what the accused was to respond to at trial. The trial
judge reached beyond that and convicted him because of "constructive possession".

Appeal Allowed
New trial ordered

26
CREDIBILITY OF INFORMATION SERVING AS REASONABLE AND
PROBABLE GROUNDS FOR SEARCHING A CAR
REGINA v. FEE - Supreme Court of BC, Victoria 58862, June 1991.
A police officer received a phone call from an informer that the accused driving a certain car
containing narcotics would board a ferry. The informer said the accused was a courier for a
group of traffickers. The officer had previously received three tips from this informer and,
when he acted on the information, had found it to be accurate in detail and reliable in each
instance.
The officer and a partner did find the accused in the line-up to board the ferry. The car he
drove matched in detail the description the informer gave the officer.
The officers placed the accused under arrest for reasonable and probable grounds that he was
in possession of narcotics. He was given his rights and notice that they were going to search
the car under the provisions of the Narcotic Control Act. The search yielded a considerable
amount of "white chunky substance". At trial the admissibility of this substance and its analysis
became an issue.
The defence claimed that there were no reasonable and probable grounds for conducting the
search as the officer had not investigated the reliability of the information. Therefore the
grounds were those of the informer and not the officers. 13 The Supreme Court of Canada held
recently that police must through investigation corroborate the reliability of tips they receive
before they can claim to have the prerequisite grounds to exercise their authority. However, the
Court also observed that the totality of circumstances can meet the standard of reasonableness.
The trial judge found that in this case the circumstances were such that the totality of it gave the
officers the grounds required to lawfully conduct the search. Besides the reliability of the
informer, the details of the information he supplied matched the facts they found, before
conducting the search i.e.: the very ferry to be taken by the accused; the detailed description
of the car he would drive (colour, model, year and licence number) all matched. The search
was reasonable and the results of the analysis of the substance seized from the accused was
admitted in evidence.

13

Regina v. Debot - 52 C.C.C. (3d) 193 - Also see Volume 36, page 27 of this
publication.

27
PROHIBITED WEAPONS - APPLICATION OF DEFINITION
OF "WEAPON" NOT APPLICABLE POSSESSION IS OFFENCE REQUIRING MENS REA

REGINA v. A.K. (Young Offenders Act) - Court of Appeal for BC, Vancouver CA011638,
October 1991.

Under the authority of the Narcotic Control Act the accused youth was searched on a public
street. Nunchaku sticks were found concealed under his jacket. He told police he was unaware
that the sticks were a prohibited weapon. He was aware, that if correctly used they can cause
serious harm to a person. However, he said that he used the sticks as an exercise apparatus to
increase forearm strength and hand-eye coordination. He said he never had used them as a
weapon and had no intentions to do so in the future.
The Provincial Court trial judge acquitted the youth of possessing a prohibited weapon as the
Crown failed to show that the possession was for a criminal purpose or included a criminal
intent. The trial judge had believed the accused and held that the possession was for recreational
purposes only. He held that the offence alleged amounts to a crime and therefore mens rea is
an essential element of the offence.
The Crown appealed this decision to the Supreme Court of BC. The Justice of that Court
held ....
" .... that the offence of possession of a prohibited weapon involves
absolute liability. "14
This means that there is no requirement to show criminal intent on the part of the possessor.
Consequently the Supreme Court ordered a new trial.
The accused youth appealed that order to the Court of Appeal for BC which considered this
confusing issue apparently important enough to assign five judges to the division of that Court
to hear this appeal~ (This Court's divisions nearly always consist of three judges). One can
nearly say that there are as many judicial interpretations of the weapon provisions in our
Criminal Code as there have been appeals on the numerous issues that surround the lawmakers'
efforts to control an ever increasing desire in our society to be armed.

14

For the definition of these criminal liabilities see page 32 of Volume 39 and The
Queen v. The Corporation of the City of Sault St. Marie [1978] S.C.R. 1299.

28
The Court of Appeal for BC reviewed numerous decisions by Courts of superior jurisdiction and
only agreed with some of them but rejected pretty well the legal reasoning by which they arrived
at a verdict15 • Some of these cases are in outright conflict with one another.
In this case the Crown proved that the accused youth was in possession of a prohibited weapon
and that he knew it was capable of causing serious bodily harm. That the youth did not realize
that it was unlawful to possess this weapon and that he had no intention to use it as a weapon
were no excuses or defence for possessing a prohibited weapon.
In s. 84 (1) Parliament defined, "prohibited weapon" and enacted that silencers, switchblade
knives, automatic firearms, sawed-off rifles or shotguns are such weapons. It then went on to
authorize the executive branch of government (the Cabinet and the Governor General) to declare
"a weapon of any kind" a prohibited weapon. This leads one to believe that only implements
that fit the definition of weapon found in s. 2 C.C. are subject to be declared a prohibited
weapon by such order of the Governor in Council.
The applicable portion of the definition of "weapon" is s. 2 C.C. is "anythine intended for use
in causine death or injury to persons whether desiened for the purpose or not".
By means of Order of the Governor in Council No. 2 "any instrument or device commonly
known as 'nunchaku'. beine two hard non-flexible sticks. clubs. pipes. or rods connected by a
rQpe cord. wire or chain" was declared to be a prohibited weapon.
This construction of the applicable law is truly troublesome. If only a weapon as defined in s.
2 C.C. may be declared a prohibited weapon, then intent seems to be a kernel element. The
first portion of that definition seems to connote that it is the intent of the manufacturer that
determines whether the instrument is a weapon (intended for use ... etc.). However, the last
portion of the definition seems to dispel that notion (whether designed for the purpose or not).
That seems to mean that the intent of the possessor is referred to. Oddly enough, the definition
of the nunchaku fits the description of the home-made device used by the meticulous gardener
who insists that his rows of beans are straight. The definition has the apparent intent to capture
anything a person will arm himself with to cause injury to another, whether that is a kitchen
chair or a wrench. If the legislation is applied by the means described above anything may be
declared a prohibited weapon, provided of course, the possessor intended to use it to cause death
or injury with it. One cannot imagine that that was the intent of the lawmaker,
The Court of Appeal for BC held that there is no necessity to consider .the definition of
"weapon" in s. 2 C.C. The Federal Interpretation Act states that where a statute contains a
definition of something, then that definition shall be applicable to all of the content of that

15

R. v. Murray (1985) 24 C.C.C. (3d) 568 - Volume 24, page 50 of this publication is
an example

29
Statute "unless a contrary intention" is apparent. If only instruments that fit the definition of
"weapon" ins. 2 C.C. are subject to be declared "prohibited weapons" then for obvious reasons
the jurisdiction given to the Governor in Council is rendered restrictively useless or excessive,
depending on the interpretation one give to the "weapon" definition in s. 2 C.C.
Said the Court of Appeal for BC on this issue:

"It is our opinion that those three words of any kind indicate an
intention to the contrary justifying an interpretation of that word
weapon as something broader and different from the defined term
ins. 2."
The Court held that the normal, everyday meaning of the word "weapon" was intended when
Parliament used the words, "weapon of any kind". Consequently the Order in Council declaring
nunchaku a prohibited weapon is valid. This as the authority Parliament granted the Governor
in Council is to declare any instrument a prohibited weapon "that' can on occasion be used to
inflict injury, harm or death to a person whether used offensively or defensively."
For these reasons, and not those given by the Supreme Court of BC,
The order for a new trial was
upheld

30
VOIR DIRE
ADMISSIBILITY OF A VARIETY OF EVIDENCE UTTERED
IN TIIE INVESTIGATION OF A MURDER - STATEMENTS, REENACTMENTS REAL EVIDENCE AND BLOOD SAMPLE

REGINA v. ROBERT - Supreme Court of BC, Nanaimo CR 4191, August 1991.

The dead body of a woman was found in a hotel room on January 25. In another room of that
hotel a red jacket was found containing the papers of a car owned by the accused. Two
members of the local detachment attended in the afternoon of January 26 at the accused's home
to make inquiries about an impaired driving incident involving the accused's car. The accused
was not then a suspect in relation to the murder of the woman. He was asked some questions
about the jacket, and being aware of the murder investigation, they also attempted to get some
possible leads. . The accused would not offer explanations about the jacket or the documents.
The trial judge held, the accused was not detained; there were no violations of his rights and the
statements he made were voluntary and admissible.
On January 27, two investigators of the Serious Crime Section attended at the accused's home
and they again questioned the accused to gain some leads. They asked him who was with him
on January 25 when he was stopped in a town some 60 km. away. He identified the person.
He was asked again about the jacket and the papers and could not offer an explanation other than
that he had had two red jackets and had lost both of them. He was then asked if he would
accompany the officers to the detachment to look at the jacket and see if it is one he lost. He
agreed and voluntarily went along. He, in the process, gave an account of his whereabouts on
the evening in question. Again the Court found that the accused was not a suspect at the time;
was not detained; there were no infringements of his rights and what he said was voluntary. His
statements were admissible in evidence.
After they arrived at the detachment there was a 36 minute interview that was taped with the
accused's consent. He was not warned or made aware of his rights to counsel. Five minutes
into the interview things changed. One officer passed a note to his partner, the text of which
was, "His shoes are almost perfect" (referring to prints found at the murder scene). The partner
crossed out the word "almost" and returned the note. The accused was then asked to give police
his shoes and he complied. Due to questioning resulting in inconsistent replies and inquiries
about cuts on his hands the accused's attitude changed. The accused commented, "You are
scoring me". Eighteen minutes into the interview the accused was told of his right to silence
and counsel. This came 13 minutes (±) after he had changed his status, from witness to
suspect. The accused then inquired if he was under arrest. He was told, "Not at this point."
Despite the fact that the officers testified that the accused was not a suspect in the murder as
they assumed that the perpetrator had left the jacket in the hotel and had an injured hand, the
Court held that the accused had been detained from the time the note was written about the
footwear. The accused had not been told that he was a suspect and was not made aware of his

31
rights until 13 minutes after he reached that status. The Court held that any statement made by
the accused after the "point of demarcation" (the note) was obtained as a result of a breach of
the accused's rights and was inadmissible.
About 20 minutes after the interview ended the accused was formally arrested for the murder
and again told of his rights. He said he understood. He made no requests to consult a lawyer
and made no further statements.
Approximately two hours after he was arrested two other officers conducted a tape-recorded
interview of the accused. Nearly all questions put to him remained unanswered and very few
pleadings for an explanation resulted in a reply. At one point one of the officers said, "Do I
have to get on my knees and beg you to talk to me?" The accused wrote a note to the officers,
"I feel I would rather have a lawyer." This ended that interview. The accused by his
demeanour demonstrated clearly reluctance to talk to the officers and to want to exercise his
right to remain silent. 16 They should have ceased questioning him when this became apparent
early in the interview and they should have given him then (and not upon receiving the note) a
reasonable opportunity to exercise his right to counsel. Their assistance in this regard was too
late and too little. The conduct of the officers was not inadvertent, consequently all of this
interview was inadmissible.
When the accused indicated he wanted the assistance of a lawyer, the tape recorder was turned
off, he was given a phone and phone book and offered total privacy. The accused said he
wanted to contact a B. G. He was told that this person was not a lawyer but that he could speak
to him if he wished. With that the accused said, "No" and closed the phone book. This the
Court held was not a waiver to the accused's right to counsel. 17
After the tape recorder was turn~ off, the two officers had an "unrecorded" conversation with
the accused for two and a half hours. Much was made of the reasons beneficial to the accused
for not recording this lengthy session. It was believed by the officers that the taping intimidated
the accused and that he would feel more at ease knowing not every word was forever on record.
This questioning in terms of investigative probing had no better results than when the tape
recorder was on. The officers then appealed to the accused's emotions and conscience. They
asked him to consider the pain the deceased's parents endured; that writing them an apology
could possibly ease his conscience; that his motives for killing her were possibly only to take
her possessions; "Don't you believe in a supreme being"; and "All we want is the truth", etc.

16

R. v. Manninen (1987) 58 C.R. 97 - Also Volume 28, page 1 of this publication.

17

Clarkson v. The Queen (1986) 25 C.C.C. (3d) 207. Also Volume 24, page 38 of this
publication.

32
The only admission that resulted from this interview was that. the accused conceded that he had
taken the wallet of an occupant of a room across from the deceased's room. This admission
placed the accused at the scene.
Approximately one hour and fifty minutes into this interview one of the officers raised his voice
and indicated to have lost his patience. He said, he had no alternative but to get a warrant and
search the accused's home. "If that's the way you want your wife to find to out, fine", said the
officer. The accused asked the officers not to get a warrant and promised to tell what happened
in the 'deceased's room. He then gave a recorded 50 minute statement as to why and how he
caused the death of the deceased. Considering the evidence found on the scene the accused
undoubtedly told the truth.
The Supreme Court decided to consider as one statement utterances by the accused in the
interview that started about two hours after having been officially arrested till the end of his
confession. Police knew the accused wished to remain silent. He made this abundantly clear
in words and demeanour. Yet an aura of oppression was created. Consequently all utterances
were made involuntarily, and made it unnecessary to deal with the issue of right to counsel.
Of the four isolated issues cited by the Court, one stood out as the most important. That was
the threat of telling the accused's wife when attending at his home with a search warrant. The
other three points are somewhat surprising in view of binding precedents in regard to this issue
of voluntariness. In any event, the statements were held to be inadmissible due to the
cumulative effect of suggestions by police.
The exclusion of evidence included the videotaped re-enactment by the accused of the events of
what occurred at the hotel on the night in question. It was a direct consequence and continuation
of his verbal confession.
The evidence of the accused's shoes and the results of the forensic evidence of the comparison
of those shoes and the prints found at the scene were admissible. The shoes were physical
evidence in plain view of police when they were seized.
After his confession police requested the accused to put a pin in his finger and smear the
resulting drop of blood on a piece of paper. This conscripted him to give evidence against
himself and therefore it and its analysis were inadmissible in evidence.
The accused also took police to some bushes behind the hotel and pointed to where he had
discarded the deceased' s wallet. The Court quoted the Supreme Court of Canada on this issue:

33
".... Real evidence that was obtained in a manner that violated the
Charter will rarely operate unfairly for that reason alone. "18
and
" .... that those portions of an inadmissible confession proven true
by the acquisition of derivative evidence are rendered
admissible .... 19
On the basis of these precedents by our highest court the wallet was admitted in evidence.

18

Collins v. The Queen (1987) 33 C.C.C. (3d) 1 - Also Volume 27, page 1 of this
publication.

19

R. v. Hebert (1990)- Supreme Court of Canada - Volume 37, page 16 of this
publication.

34
DOES S. 214 M. V .A. APPLY WHEN CAR OF
SUSPECT IS INOPERABLE?

REGINA v. BERLIN - Supreme Court of BC, Quesnel No. 14482, August 1991.

The accused was involved in a single vehicle accident. He was identified as the driver and only
occupant of the truck involved. The attending officer testified that the accused was standing. on
the side of the road uttering profanities and being a little unsteady on his feet. The officer asked
the accused to blow in his face and also to follow the light of his flashlight. He respectively
detected a slight smell of alcoholic beverage and very slow eye movement. Where the officer
had suspicion about the accused's sobriety before the tests, he had reasonable and probable
grounds that the accused's ability to drive was impaired by alcohol after the tests. He made a
demand the accused was charged with "over 80" and acquitted. The Crown appealed the
acquittal to the Supreme Court of BC.
In R. v. Bonogofski20 the BC Court of Appeal decided that a person is detained when subjected
to a roadside sobriety test. In R. v. Bonin21 reiterated the custody aspect of such a test but held
that at that stage a suspect need not to be informed of his right to counsel "as a reasonable limit
demonstrably justified in a free and democratic society" (s. 1 Charter).
The trial judge had found that the Bonin decision was not applicable in the circumstances as they
were in this case. The Court of Appeal for BC held in the Bonin decision that s. 214 of the BC
Motor Vehicle Act and section 27 (2) of the Interpretation Act authorize a peace officer to
elevate his/her suspicion to reasonable and probable grounds by means of a roadside sobriety
test. This to prevent the endangering of lives and property. To do sos. 214 M.V.A. stipulates
that a driver must stop, pull over to the side of the road, etc. etc .... Needless to say, the accused
had done his damage for that evening, furthermore his pick-up truck was upside down in the
middle of the road. Consequently s. 214 M.V.A. was hardly applicable and it followed, held
the trial judge, that the Bonin decision did not apply. The accused was detained and without
having been made aware of his right to counsel, was subjected to a sobriety test which yielded
the grounds the officer needed to make his demand.
The Supreme Court of BC bluntly stated that the trial judge had erred in his reasoning. Section
214 M.V.A. is as applicable to drivers whose vehicles are inoperable for whatever reason as it
is to cars that are operated on the public roads and stopped by police for whatever reason. The

20

R. v. Bonogofski - Volume 29, page 1 of this publication - (1987) 19 B.C.L.R. (2d)
360

21

R. v. Bonin - Volume 34, page 1 of this publication - (1989) 47 C.C.C. (3d) 320

35

section is designed to keep impaired drivers off the roads so they will not harm ~thers or
themselves". It is for the same reason that the Courts have held that being in charge or control
of an inoperable vehicle is no defence to an allegation of "impaired care or control".
Crown's appeal was allowed.
Acquittal set aside and new trial ordered

36
LACK OF EVIDENTIAL COHESIVENESS CAUSING LACK OF GROUNDS
TO EFFECT AN ARREST- ORDERING A SUBORDINATE TO MAKE A DEMAND
REGINA v. LULU - Supreme Court of BC, Kamloops 37428, August 1991
A police supervisor attended a major motor vehicle accident. He searched the cab of a big truck
that was involved, and went into a field upon being "told by a witness that another citizen was
there somewhere pursuing a person who fled the accident scene. He did find the accused pinned
to a fence and being detained. However, in what sequence the search and the pursuit occurred
was not in evidence. The officer observed that the detained person was under the influence of
alcohol and he arrested him for impaired driving. The arrest was solely made on the basis that
someone at the scene told the officer that the driver of the truck had fled. He therefore seemed
to have assumed that the person he found detained was the driver. Then he ordered a constable
to demand breath samples of the accused, a discretionary authority that was original to the
constable. You simply can't order another officer to make a demand regardless of your superior
rank. The officer making the demand must have the grounds to do so.
The supervisor had found either before or after the pursuit of the fleeing man, (the accused), a
partially filled bottle of booze in the cab of the truck. In the circumstances it added no weight
to the evidence. The necessary links to make all of these snatches of evidence a whole event
that not only gave the supervisor the reasonable and probable grounds to effect the arrest but
also to make a demand for breath samples (or inform the subordinate of all of the grounds he
had so he was in a position to consider making the demand) were simply not there. For some
reason the bottle added nothing to the evidence as it was not connected to anything.
Accused's appeal for
conviction of our "80 mlg"
allowed.
Conviction set
aside.

37
USE OF S™ILAR FACT EVIDENCE IN SEX RELATED CR™ES
REGINA v. A - Court of Appeal for BC, Vancouver, CA011662
The accused appealed his convictions of sexual assault against two girls in their early teens.
Both girls testified that the accused insisted on them committing fellatio and that they swallow
his seminal fluid. To lend strength to the victims' evidence the wife of the accused (who was
the mother of one of the victims) testified. She told the jury that the accused had become
obsessed with oral sex shortly before the period during which he committed the alleged offences.
She also had to commit fellatio and swallow semen. The accused argued that allowing this
similar fact evidence to be admitted had been so prejudicial to him that it outweighed its
probative value.
The accused was tried by a Judge and Jury. The trial judge told the jury that oral sex between
married persons was neither immoral, illegal nor criminal and therefore should not be seen by
them that the accused was by his wife's evidence exposed as a person who had the disposition
to commit crime or abuse young girls. The purpose of the evidence was to support the girls'
credibility. They said their sexual relations to the accused had been forced acts of fellatio and
indeed, according to his own wife, oral sex was an obsession for the accused. The evidence was
only to show the accused's predisposition to oral sex; in other words if he did have sexual
relations with the complainants his preference would be the oral kind. The evidence ·was not
before the jury for them to conclude that the accused is an immoral person who is likely to
commit the crime alleged.
The accused argued that no warning to a jury about these legal niceties and finite distinctions,
would prevent prejudicial impressions on the part of jury members who consider oral sex
morally repugnant. They are likely to reason that where a person is stooping this low, sexually
abusing young teenagers is within the same moral scope. He argued that consequently the jury's
verdict could not be relied upon as one that was based on proper legal considerations.
About six months after the accused's trial the Supreme Court of Canada dealt with a similar
case22 where a father sexually abused his daughter. Like in this "A" case the single issue was
whether to believe the complainants ("A" had testified at his trial and categorically denied that
any of the things the complainants alleged, ever occurred). The complainant in the "B" case
testified that the accused progressed his sexual involvement from fondling at first, to oral sex,
and then intercourse. The daughter of a previous common-law wife of the accused testified that
she had very similar experiences with the accused when she was in a father-daughter relationship
with him. The progression had been identical. Whether or not this was admissible as similar
fact evidence was the very question put to the Supreme Court of Canada. It reiterated (once

22

R. v. B. (C.R.) [1990] 1 S.C.R. 717, April 1990

38
again) that the evidence of this kind can never be used to show a propensity or disposition on
the part of the accused. It is only to show a similar modus operandi, thus assisting the Crown
in evidence of identification. This is allowed as an exception to the general rule of evidence,
provided that the value of this evidence to the Crown does not outweigh its prejudicial effect.
The Supreme Court of Canada observed that the more the similar fact evidence sought to be
admitted is of a morally repugnant act the greater the chances that it will prejudice the accused
to an extent where only very valuable similar fact evidence could supersede that prejudiCe.
The Supreme Court of Canada held that similar fact evidence can be adduced for assistance to
the Crown for three different purposes; identity, intent or corroboration. In this "A" as well as
the "B" case, there was no need for evidence of identity. It simply was not a matter of "who
done it", but whether or not it did happen. Could the complainants in view of the denials of the
accused be believed. If that was proven, nothing in regards to intent needed to be addressed.
Hence credibility of the complainants was the single issue. Consequently the similar fact
evidence was solely adduced for the purpose of corroboration.
The facts were similar in terms of B's pattern of behaviour. His relationship with the girls and
the similar fact evidence would be admissible should itsprobative value outweigh the prejudicial
effect. Considering the wide discretion of trial judges on this matter, the Supreme Court of
Canada held they had not seen any reason for interfering in the conclusion of the trial judge.
The evidence had been appropriately· admitted .
.With this Supreme Court of Canada decision as a guide, the Court of Appeal for BC considered
A's appeal. Comparing the experiences of A's wife aild that of the girls, there were similarities.
The acts he expected from them, that is that they swallow his semen, were also similar. Hence
there was a distinctiveness attributable to the accused. Despite the fact that the evidence,
particularly the unusual and repugnant aspects of his behaviour, could prejudice the jury against
the accused, it cannot be said that it was so unfair that the jury should not have heard the
evidence to resolve their difficult task to decide on the· credibility of the complainants.

The appeal was dismissed.
Conviction Upheld

39
IS THE CARELESS HANDLING OF A FIREARM AN
OFFENCE INCLUDED IN POINTING A FIREARM?

REGINA v. MORRISON - Court of Appeal for BC, Vancouver CA013197, August 1991

After a domestic argument the accused told his common-law wife that he was going to kill her.
He picked up a rifle, (the wife knew it was not loaded) and started to wave it around doing
damage to a window and fixtures. During the struggle that, ensued the wife tried to get the rifle
away from the accused. It was only during this struggle that the rifle was pointed at her. She
implied in her testimony that the pointing was inadvertent. This lack of criminal intent caused
the accused to appeal his conviction for "pointing" in Provincial Court. The Supreme Court
Justice agreed with the accused there was no proof of mens rea and that the conviction could not
stand. However, he held that the accused had been careless in his handling of the firearm and
although he was not charged with that offence, he convicted him of "careless handling". The
Supreme Court justice reasoned that "careless handling" was an offence included in "pointing".
According to the criminal law, a person charged with an offence may be convicted (where the
offence was not proved) of any lesser and included offence, provided, of course, that the lesser
and included offence was made out.
The Criminal Code of Canada provides that there are two ways in which one offence may be
included in an indictable offence and the common-law adds a third.
All offences are defined in the criminal law. This definition may include a lesser offence. For
example, Criminal negligent driving causing death. If the Crown fails to prove that there was
a casual link between the driving and the death, the accused may be convicted of the lesser
offence of criminal negligent driving.
If a person is for instance, charged with attempting to murder John Doe, then regardless what
the Crown proves there is no included offence as the definition of attempted murder only
includes murder itself. Needless to say that is not a "lesser" offence. However, the Crown may
include in the indictment the means by which the accused allegedly attempted to take the life of
John Doe. For example, by wounding him, by administering a poisonous substance, etc. If
these means are an offence (needless to say they are in this example) then a Court may convict
of the offence included in the indictment.

The common-law provision is where the lesser offence is included due to it being a matter of
logic and necessity, like theft and possession of stolen property.
The accused appealed his conviction of careless use of a firearm claiming that this offence was
not included in the offence alleged against him (pointing a firearm). He argued that the lesser
offence is not included in the enactment; was not included (and probably could not have been)

40
in the indictment; and that pointing a firearm does not of necessity include the careless handling
of it.
The Court of Appeal for BC held that it simply could not find that a person who points a firearm
of necessity uses or handles that firearm in a careless manner. This despite the Crown's position
that pointing is so inherently dangerous that to do so is inescapably careless. He argued that the
word "careless" was only omitted from the section to avoid the implication that as long as you
point carefully, it is not an offence.
Another logical question was, how could there be careleiSsness, which infers an element of
negligence or recklessness, where both parties present knew the gun was not loaded. (When
charged with pointing, the fact that the gun is not loaded is no defence). On the question
whether careless handling of a firearm is included in pointing a firearm, the Court held that
when one reads the "pointing" definition, one would not be fairly informed that he would also
have to meet careless handling. Pointing a firearm at someone does not of necessity or by
adding
words to the offence section include careless handling.

wn

Accused's appeal allowed
Conviction set aside and
acquittal ordered

41
WHY OUR "RAPE SHIELD LAW" WAS FOUND WANTING AND
THE SUPREME COURT OF CANADA'S SUBSTITUTION

REGINA v. SEABOYER and REGINA v. GAYME- Supreme Court of Canada, 66 C.C.C.
(3d) 321, August 1991

Seaboyer met a woman in a bar. They did some drinking together and had a sexual encounter
afterwards. The woman complained that she had been sexually assaulted. At the preliminary
hearing the Crown introduced evidence of the complainant's physical condition which would tend
to corroborate that she had not consented to the sex act. The accused sought to cross-examine
the complainant about her other sexual activities that may have caused the bruises and marks the
Crown had put in evidence. The accused ran at this stage amok of the "rape shield law",
sections 276 and 277 of the Criminal Code. Seaboyer was committed for trial.
Gayme also ran afoul of these sections when he at this preliminary hearing wanted to crossexamine his 15 year old prior girlfriend who complained that Gayme had sexually assaulted her
at school. Gayme claimed that she had been the sexual aggressor and that he had an honest
belief that she consented. He sought to adduce evidence and cross-examine the complainant
about her prior and subsequent sex acts. This he claimed would show why he had an honest
belief the complainant consented. Gayme was also committed to stand trial.
Both accused claimed that the shield law prevented them from presenting a full answer and
defence to the serious allegations against them. This they submitted is contrary to sections 7 and
ll(d) of the Charter in that the Criminal Code sections deprived them of a trial based on the
fundamental principles of justice and to be presumed innocent until proven guilty. Provincial
Court judges when conducting a preliminary hearing are not a court of competent jurisdiction
to declare enactments to be without force or effect. Thus the issue of the constitutional validity
of the sections went up the hierarchical judicial ladder and ended up in the Supreme Court of
Canada (S.C.C.).
The questions asked of the S.C.C. were as follows: (as far as they apply to this synopsis)
1.
2.

Does the "Rape Shield Laws" infringes. 7 and 11 (d) of the Charter?
If the two sections of the C.C. are invalid, then what is the law?

The S.C.C. recognized the sensitivity of this challenged legislation in that s. 276 (1) amounts
to an exclusionary rule applicable to the defence only. It does stipulate that "no evidence shall
be adduced by or on behalf of the accused concerning sexual activity of the complainant with
any other person than the accused." That prohibition is capable of stifling an accused in making
a full answer and defence.
The impugned section provides for only three exemptions to this exclusionary rule applicable

42
to the defence. The first is where the Crown has opened the door by adducing evidence of the
complainant's sexual activity or absence thereof. The defence may then present evidence of
sexual activity on the part of the complainant with a person other than the accused to rebut such
evidence adduced by the Crown.
The second exemption is where the defence by adducing specific instances of the complainant's
sexual activity may tend to establish that it was not the accused but some other person who had
sexual contact with the complainant on the occasion set out in the charge.
The third exemption is where there is evidence of sexual activity that took place on the same
occasion as the sexual activity that lead to the charge of sexual assault against the accused,
provided that evidence is relevant to the consent the accused claims he believes was given by
the complainant.
Needless to say that considering the circumstances of the offences as outlined above, none of
the exemptions were available to the accused. They argued that they were as much in need as
an accused to whom the exceptions do apply. Gayme argued that his ex-girlfriend's sexual
activity is evidence that relates to him believing there was consent for the sexual contact. Yet
s. 276 (1) (c) C.C. does not include him in the exemption provided by the subsection.
Seaboyer saw no distinction between his need for an exemption to make a full answer and
defence and an accused to whom subsection (b) of section 276 (1) applies. He claimed to have
a need to show that the marks and bruises the Crown alleged he caused the complainant to have
sustained, were the results of a sexual encounter subsequent to his sexual contact with the
complainant.
In addition the defence as well as the S.C.C., identified a few more examples were the need for
delving into a complainant's sexual activity is as essential to meet the rights under s. 7 of the
Charter as in the exemptions provided in section 276 (1) C.C. For instance: 1) Evidence of
sexual conduct on the part of the complainant which tends to prove bias or a reason to fabricate;
2) Evidence of a pattern of sexual conduct so closely resembling the accused version of the
sexual encounter with the complainant that it tends to prove that she consented or that the
accused reasonably believed that there was consent; 3) Evidence that the complainant has made
false allegations of sexual assault.
The S.C.C. recognized that s. 276 (1) C.C. places procedural limitations on the defence that
make possible the conviction of persons who by the most fundamental principles of justice and
law are innocent. S. 276 deprives the trier of facts from getting at the truth by excluding crucial
and relevant evidence. This runs amok of what a fair trial has to have as essential elements.
A fundamental one of these is the rights of an accused person to call evidence in his or her
defence. In other words, s. 276 (1) C.C. is a "shield" for the complainant but a "sword" for
an accused person.

43

An example was given of the imbalance the shield law creates:
A woman (A) claims she was raped by a man (B). B. claims A is a prostitute who agreed to
give him sexual gratification for $20.00. When the service was completed A. demanded
$100.00. Non compliance would result in a complaint of rape against B. He refused and she
charged him with rape and he counter charged her with extortion. In the extortion trial evidence
of her sexual conduct and her modus operandi to extort a bonus, may be adduced by the Crown.
In the prosecution of B. for sexual assault evidence that she used the same methods to booster
her price for sexual services, with others, is inadmissible. Yet the facts are the same in both
cases. His sexual behaviour with persons other than B. is as essential an issue to determine if
B. is a rapist as it is to decide if A. is an extortionist. "If the woman's sexual behaviour is
relevant enough to be admitted against her when she is a defendant, then certainly it is relevant
enough to be admitted in a trial at which she is merely a witness.
The S.C.C. considered various remedial alternatives to declaring s. 276(1) C.C. without any
force or effect but decided that these would be inappropriate. The Court applauded parliament's
attempt to abolish the outmoded, sexist based use of sexual conduct evidence by defence
lawyers. However, Parliament did "overshoot the mark" and closed the door to evidence
essential to a legitimate defence to eliminate the possibility that a judge and jury may draw an
illegitimate inference from such sexist based evidence. Said the Court:
"The price is simply too great in relation to the benefit secured,
and cannot be tolerated in a society that does not countenance in
any form the conviction of the innocent."
The Court saw it as its responsibility to strike down s. 276 (1) C.C. and found that two
suggested alternative means to deal with this flawed shield law were inappropriate.
The rules of evidence as they were prior to this impugned shield law coming into effect, were
due to unscrupulous maximization of what was permitted at the time, in desperate need of
remedy. The Court or Parliament simply had to come to grips with the relevance and probative
value of evidence of a complainant's previous sexual activities with persons other than the one
on trial for having sexually abused her. A woman who took the stand as a witness and victim
was not to be envied. In many cases, what they endured as a complainant during investigative
and procedural stages was psychological horror and a saga probably much worse than the rape
itself. The S.C.C. recognized that the torturous rules of evidence prior to s. 276, were rules
that existed at common law. Would striking downs. 276 revive the outdated rules? The Court
answered that question with a resounding "No" and said:
'
" ..... the reality in 1991 is, that evidence of sexual conduct and
reputation in itself, cannot be regarded as logically probative of
either the complainant's credibility or consent."

44

These, of course, were the key myths Parliament eradicated by means of s. 276 and 277. The
old rules were so firmly entrenched that the law no longer protected the women who could not
carry the day in the witness stand. Only the ones™ as virtuous and seemingly chaste could
escape or withstand the defence's onslaught. Extensive research has revealed facts about the
entire process (from the time a complaint ·was lodged until a verdict was rendered) one would
consider impossible in our enlightened era. As a matter of fact the old procedures, and preconditions to be met for eligibility in that system, were the equivalent of attending the barber
for dental care. The S.C.C. seemed to favour qualified dentists and prevented revival of the old
common law by creating new evidence rules.
The S.C.C. firstly held thats. 277 is valid law and does not infringe the Charter. This section
simply stipulates that sexual reputation, whether general or specific, is not admissible in sexual
assault trials for the purpose of challenging or sup_porting the credibility of the complainant. It
found that there simply is no rationale to support a link between credibility and sex habits.
As stated·above, the Court did strike down s. 276 but created new rules to prevent revival of
antiquated common law. The Court did so by reminding the judiciary of their inherent powers
to adapt the law to contemporary standards. The Court also gave some direction in regard to
procedures.
The Court firmly supported a restriction on the admissibility of evidence adduced by or on
behalf of the accused concerning the sexual activities of the complainant with persons other than
the accused. However, it broadened the scope of the exemptions to the exclusionary rule
binding on the accused. Where the sexual behaviour of the complainant 1) is capable of casting
doubt that there was in fact consent for the sexual contact subject to the charge; 2) where it tends
to show fabrication and false accusations; or 3) where supportive physical Crown evidence can
be rebutted by showing that someone else may have caused the physical symptoms, then, of
course, that behaviour is relevant and admissible.
The Court seemed to address the judiciary and blame them for Parliament having to step in to
put a stop to the barbaric procedures they allowed by their own outmoded rules. Said the Court:

"It is hoped that sensitive and responsive exercise of discretion by
the judiciary will reduce and even eliminate the concerns which
provoked legislation such as s. 276, while at the same time
preserving the right of an accused to a fair trial". (emphasis is
mine)
·
The Court emphasized that the need for exploring the complainant's sexual behaviour with the
accused or others, to allow him to make a full answer and defence will only be in "exceptional
cases". When this is necessary, the Courts must follow a procedure that will minimize the
invasion of the privacy of the complainant. Consequently the S.C.C. directed that the accused

45
must admit a written motion to be exempted from the exclusionary rule. If the trial judge holds
that the motion is primafacie valid than he/she must conduct an in camera voir dire to determine
if the probative value of the evidence is in balance with its potential prejudice.
Please note the inclusion of the complainant's sexual behaviour with the accused in this
exclusionary rule. Although the S.C.C. seemed to be of the opinion that the need for admission
of sexual behaviour with the accused is more likely to be relevant than such behaviour with
others, it clearly stated that it ought not to be admissible by its very nature. Said the Court:
"I question whether evidence of other sexual conduct with the
accused should automatically be admissible in all cases; sometimes
the value of such evidence might be little or none."
The S.C.C. also instructed trial judges to exercise their discretion to ensure that there was no
unnecessary infliction of embarrassment and invasion of the complainant's privacy. The defence
evidence of sexual behaviour on the part of the complainant has to be "for a legitimate purpose"
that "logically supports a defence". Said the Court:
"The fishing expeditions which unfortunately did occur in the past
should not be permitted. The trial judge's discretion must be
exercised to ensure that neither in camera procedures nor the trial
become forums for demeaning and abusive conduct by defence
counsel".
Trial judges were also instructed to caution jurors where they get to hear evidence of the
complainant's sexual behaviour with the accused or others. They must be told that such
evidence is only to serve the legitimate purpose of the defence and that they may not consider
that evidence to determine the complainant's worthiness of belief or find on the basis of that
evidence that the complainant was more likely to have consented to her sexual involvement with
the accused.
In summary, the S.C.C. ruled that no evidence of the complainant's consensual sexual conduct
may be adduced by or on behalf of the accused for the purpose of creating the inference of
consent to the sexual encounter that is subject to the charge before the Court or to discredit the
complainant's worthiness of belief.
Such evidence of sexual behaviour may only be admissible where it possesses probative value
on an issue in the trial where that value is not substantially outweighed by the danger of unfair
prejudice flowing from that evidence.
The Court then gave a number of examples of exemptions to this exclusionary rule. All of these
are mentioned above.

46
The Court agreed that judges presiding over preliminary hearing lack the jurisdiction to consider
the constitutional validity of legislation. Therefore the committals to stand trial were valid.

The appeals by the two
accused were dismissed.
They were ordered to stand
trial.

47

TIDBITS
CROWN MUST PROVE SEAT BELT IS PROPERLY
ATTACHED TO IBE MOTOR VEHICLE

Mr. Sara was simply not wearing his seat belt, the trial judge found at the conclusion of a trial.
He appealed this finding to the BC Supreme Court arguing that the Crown had not met its
burden of proof. The officer had given a detailed description of what he observed when he rode
his motorcycle behind Mr. Sara's mid-seventies model car. There, no doubt, was a seat belt
in the car. However, s. 217 (4) of the BC Motor Vehicle Act, states that a person in a motor
vehicle shall wear the seat belt, provided the vehicle is equipped with one for the seating
position that is properly attached to the vehicle. When the officer had not included in his
evidence that the seat belt was so attached Mr. Sara had unsuccessfully made a no evidence
motion at the closing of the Crown's case, or in the alternative, that the requisites of the offence
were not made out. The judge had misunderstood the motion and held there was some evidence.
Mr. Sara then testified, and in essence provided the evidence the Crown was short of. The
Supreme Court Justice agreed that the Crown had failed to prove, that Mr. Sara's car was one
that had "properly attached to it a seat belt assembly". There was a seat belt, but whether it was
attached was not known at the end of the Crown's case. Mr. Sara had been entitled to his no
evidence motion resulting in a dismissal. That the error made by the trial judge caused Mr. Sara
to take the stand and supply the missing link will not cause the quashing of a conviction23 •
Mr. Sara's
dismissed

Regina v. Sara - Supreme Court of BC, Vancouver No. CC901576, June 1991.

23

R. v. Boyer - [1968] 4 C.R.N.S. 127 (B.C.C.A.)

appeal

was