POLICE ACADEMY
715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers across British Columbia.

HAPPY BIRTHDAY:
CHARTER TURNS TWENTY FIVE
This year the Charter of Rights and
Freedoms turned 25 years old. Back on
April 17, 1982 the Charter came into
force and is part of Canada’s
Constitution Act. It sets out rights and freedoms that
Canadians believe are necessary in a free and
democratic society. These rights include a number of
legal rights that are enumerated in ss. 7-14.
Often, these legal rights become the basis by which
accused persons challenge the admissibility of
evidence gathered by the police. Under s.24(2) of the
Charter a person may seek the exclusion of evidence
if they can convince a court that evidence was
obtained in a manner that infringed or denied any
Charter rights and the admission of the evidence in
the proceedings, having regard to all the
circumstances, would bring the administration of
justice into disrepute. Furthermore, it is not
unusual for accused persons to seek a remedy
under s.24(1), such as having charges stayed
or stopped because of police conduct.

•

s.9 Everyone has the right not to be arbitrarily
detained or imprisoned.

•

s.10 Everyone has the right on arrest or detention
a) to be informed promptly of the reasons
therefor; b) to retain and instruct counsel
without delay and to be informed of that right;

It is important for police officers to have a working
understanding of how these rights affect their jobs.
In some recent judgments, courts have held that the
police did not act in good faith because they should
have known the law and the limits of their authority,
while in other cases their legal training was
inadequate. The comments of Justice Doherty in R. v.
Clayton and Farmer are apposite, “If the rights
guaranteed by the Charter are to have real meaning
and shape the interaction between the police and
individuals, police forces must take those rights
seriously. Officers must be trained to perform their
duties in a manner that is consistent with those
rights.”

Most cases where police conduct is
questioned involve only a few of the legal
rights under the Charter. These include ss.710.
•

s.7 Everyone has the right to life, liberty
and security of the person and the right
not to be deprived thereof except in
accordance with the principles of
fundamental justice. Rights such as the
right to silence and full disclosure have
been entrenched in s.7 by the courts.

•

s.8 Everyone has the right to be secure
against unreasonable search or seizure.

Volume 7 Issue 3
May/June 2007

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg

Searches Incident to Arrest are an
Exception to Warrantless Presumption

4

Trunk & Glove Box Search Justified as
Incident to Arrest

7

Incidental Search not Unreasonable
Because Unrelated Evidence Found

10

Court Must Knit Evidence Together as
a Whole When Assessing Grounds

13

Warrantless Weapons Search: Safety
Should not Depend on Guesswork

14

BOLF: Upcoming Supreme Court of
Canada Judgments

17

Thorough Knapsack Search Justified
Incident to Investigative Detention

20

Courts Should Avoid Second Guessing
Officer Safety

22

Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). The articles
contained herein are provided for information purposes only
and are not to be construed as legal or other professional
advice. The opinions expressed are not necessarily the
opinions of the Justice Institute of British Columbia. “In
Service: 10-8” welcomes your comments on or
contributions to this newsletter. If you would like to be added
to our electronic distribution list e-mail Mike Novakowski at
mnovakowski@jibc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police
officers across British Columbia."
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2. Police –
Legal status, laws, etc. – Canada – Cases –
Periodicals. I. Justice Institute of British Columbia.
Police Academy. II. Title: In service, 10-8. III. Title: In
service, ten - eight.

2

‘IN SERVICE: 10-8’
e-LETTERS TO THE EDITOR
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newsletter is alive and
well; the website looks
great too. Can’t tell you how helpful it
has been during my short time out on
the road. I have been a faithful reader and look
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*********
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service 10-8" electronic distribution list.
I sent out case law to our members to
assist in the ever changing legal landscape. This would
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distribution list? I really enjoy reading
about the case laws, especially those
pertaining to vehicle searches” - Police Constable,
Manitoba
*********

“I have just had the opportunity to read
one of the issues and would love to be
added to the distribution list. They are
informative and up to date, a great resource.” Canada Border Services Agency Officer
*********

“I am now assigned to the new Station
NCO position [and we] now have 24/7
report quality control for all Crown
Counsel reports. Members must attend our office for
approval. We review the report in PRIME and either
approve it or have them make the needed changes...
Needless to say, it is quite a challenge, and a ton of
work. Since none of us is an expert in all areas/
investigative nuances, we have been reviewing a ton of
case law, and investigative techniques, etc. and
thought we could really use your 10-8 publication. Be
great to have 10-8 to help make decisions and guide
the members.” - Police Sergeant, British Columbia
*********

“We always appreciate reading your
newsletter-it is an excellent way to stay
on top of the latest case law” - Federal
Wildlife Officer

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Volume 7 Issue 3
May/June 2007

IN-SERVICE LEGAL ROAD TEST
The “In Service” Legal
Road Test is a simple
multiple
choice
quiz
designed to challenge your
understanding of the law.
Each question is based on a case featured in this issue.
See page 24 for the answers.
1. Searches incidental to lawful arrest are an exception
to the rule that all warrantless searches are prima
facie unreasonable.
(a) True
(b) False
2. The mere fact a person broke and entered a place
but did not commit an offence inside is sufficient to
rebut the presumption found in the s.348(2)(a) of
the Criminal Code that they entered with the intent
to commit an indictable offence.
(a) True
(b) False
3. When searching as an incident to lawful arrest, the
police do not need separate reasonable grounds apart
from arrest that the search will yield weapons or
evidence of the offence.
(a) True
(b) False
4. Once an arrestee requests to speak to a lawyer, the
police must refrain from eliciting incriminating
evidence until the person has been provided a
reasonable opportunity to consult with counsel.
(a) True
(b) False
5. A search incident to arrest will be unreasonable if
evidence related to offences other than those for
which the accused was arrested is discovered.
(a) True
(b) False

The Honourable Bertha Wilson,
formerly a justice of the
Supreme Court of Canada,
passed away in Ottawa on April
28, 2007 after a prolonged
illness. Justice Wilson attended
the University of Aberdeen,
Scotland, and graduated with an
M.A. in 1944. She continued her
education at the Training College
for Teachers in Aberdeen,
obtaining her diploma in 1945.
She married the Reverend John Wilson in December
1945 and they emigrated to Canada in 1949. In 1955,
Bertha Wilson enrolled at Dalhousie University to study
law, and in 1957 she completed her LL.B. and was called
to the bar of Nova Scotia. In 1959 she was called to the
bar of Ontario. She practised law in Toronto with
Osler, Hoskin & Harcourt for 17 years.
Bertha Wilson broke ground in 1975 as the first woman
appointed to the Court of Appeal for Ontario, and again
in 1982 when she became the first woman appointed to
the Supreme Court of Canada. She retired from the
Court in 1991.
Chief Justice Beverley McLachlin, on behalf of the
members of the Supreme Court of Canada, lamented
Justice Wilson’s passing, “Bertha Wilson was known for
her generosity of spirit and originality of thought. She
was appointed to the Supreme Court of Canada the
same year the Canadian Charter of Rights and
Freedoms was enacted. As a member of this Court, she
was a pioneer in Charter jurisprudence and made an
outstanding contribution to the administration of
justice. She will be sorely missed by all who were
privileged to know her.”
Source: Supreme Court of Canada News release

Note-able Quote

LATIN LEGAL LINGO:
“de minimus (non curat lex)”- the law does not
concern itself with trifles. Something that is unworthy
of the law’s attention or does not rise to a level to be
dealt with judicially. The matter is so trivial or
technical no sentence or retribution is necessary.

Volume 7 Issue 3
May/June 2007

FIRST WOMAN SUPREME COURT
JUSTICE DIES

“Confronted with the choice, the American people

would choose the policeman's truncheon over the
anarchist's bomb.” - Spiro T. Agnew

www.10-8.ca

www.10-8.ca
3

POLICE EXEMPLARY SERVICE
MEDAL
Most countries have, as part of their
honours system, some form of official
award to tangibly express national
gratitude for long and commendable
service, particularly in fields of
endeavour involving potential risk.
Canada’s Exemplary Service Medals
recognize the men and women dedicated
to preserving Canada’s public safety
through long and outstanding service.
The Police Exemplary Service Medal,
created on August 12, 1983, recognizes
police officers who have served in an
exemplary manner, characterized by
good conduct, industry and efficiency.
Recipients must have completed 20 years
of full-time service with one or more recognized
Canadian police forces. Full-time police cadets in
training also qualify for the award. Consideration is
given only to periods of service for which no other
national long service, good conduct or efficiency
decoration has been awarded.
Members of the Royal Canadian Mounted Police
(RCMP) and Canadian Forces are ineligible. However,
full-time exemplary service of former members of
the RCMP and Military Police of the Canadian Forces
may qualify where that service has not been
recognized by award of the RCMP Long Service and
Good Conduct Medal or the Canadian Forces
Decoration, respectively. The Medal may be awarded
posthumously.
Description: a circular medal:
•

•
•
•

on the obverse of which are the Scales of
Justice, superimposed on a stylized maple leaf,
and circumscribed with Exemplary Service Servces Distingues;
on the reverse of which is the Royal Cipher;
the Medal is suspended from a ribbon of five
equal stripes, two gold and three blue;
a Bar, bearing a stylized maple leaf, may be
awarded to a recipient of the Medal for each
additional 10-year period of full-time service
with one or more Canadian police forces.

SEARCHES INCIDENT TO
ARREST ARE AN EXCEPTION TO
WARRANTLESS PRESUMPTION
R. v. Alkins, 2007 ONCA 264
At about 1:00 a.m. two officers
observed a vehicle registered to the
accused’s father parked, but running,
in the parking lot of an apartment
building. The accused was in the driver’s seat and
there were three other men in the vehicle. The
officers suspected that the occupants of the vehicle
were committing liquor offences and were in
possession of and smoking marijuana.
One officer approached the front passenger who
was in breach of his probation order, which
prohibited him from being in the area, while another
officer approached the accused. The front
passenger was arrested for failing to comply with his
probation order and revealed that he had a large
knife on his right side tucked into his pants when
asked if he had any weapons. When searched, a gun
was located in his front waistband and he was
arrested for carrying a concealed weapon. It was
later determined that the gun was a pellet gun.
Meanwhile, the other officer asked to see the
accused’s driving documents and then told him to
turn off the engine of the car. After he learned
that the front passenger had a weapon in his
possession, the officer asked the accused to step
out of the vehicle. At that point, a handgun fell out
of the accused’s pant leg. He too was arrested for
possession of a firearm, which also turned out to be
a pellet gun. The accused was patted down, but no
other weapons were found.
While the accused and front passenger were being
arrested and searched, the two men in the back of
the vehicle had been placing their hands underneath
the seat and moving around suspiciously, so they
were told to put their hands on their heads. They
Back-up was called and were informed that two
handguns had been located. One of the backup
officers opened the rear door on the passenger side
to effect an arrest for possession of firearms in a
motor vehicle. He saw the passenger trying to kick
a large knife under the seat in front of him. The
passenger was taken from the vehicle, arrested,

Source: http://www.gg.ca/honours/medals/hon04-esm_e.asp

4

www.10-8.ca

Volume 7 Issue 3
May/June 2007

handcuffed and searched. A second back up officer
went to the rear door on the driver’s side and saw
that passenger trying to conceal an item, which
turned out to be another large knife.
Once all four occupants had been arrested and
secured, the vehicle was searched and a large
kitchen knife was located on the back seat, an
Exacto knife on the floor behind the driver’s seat,
and a large knife on the rear floor of the vehicle. In
the trunk of the car a blue backpack was found and
removed. The accused said, “Ah, shit. Here we go.
This should be interesting.” Inside the backpack,
the officer found a sawed-off shotgun with a shell
chambered in the ready-to-fire position. When he
was searched again at the police station, a knife with
a three-inch blade was found hidden in his pants.

recognized as an exception to the rule that
prima
facie
warrantless
searches
are
unreasonable…. A search incident to arrest must
still be reasonable within the meaning of s. 8….
The search will be reasonable only if it is
authorized by law, the law is reasonable, and the
search is conducted in a reasonable manner. A
search conducted incident to arrest will be
authorized by law if it meets the [following]
requirements […] First, the arrest must be lawful.
Second, the search must be truly incidental to
arrest. Third, the manner in which the search is
conducted must be reasonable. [references
omitted, para. 26]

Justice MacPherson concluded that the trial judge
erred on two points; 1) the accused’s privacy interest
in the trunk and 2) the absence of a supportable
reason for the search. He wrote:

At trial in the Ontario Superior Court of Justice the
The privacy interest of the [accused] with
accused was charged with eight weapons related
respect to the car trunk was, in my view,
offences; two charges related to the knife and
miniscule. The car was not the [accused’s];
pellet gun and six charges related to the loaded
it belonged to his father. Moreover, there
sawed-off shotgun. The trial judge ruled the
is “a lesser expectation of privacy in a car
searches of the accused and the interior of the
than there is in one’s home or office, or with
respect to their physical person”…. The
vehicle were lawful as an incident to arrest, but
[accused] had been lawfully searched and a
found the Crown did not prove the knife or pellet gun
handgun (later determined to be a pellet gun)
were “weapons” under s.2 of the Criminal Code. He
had been seized. A passenger in the car had
also found the search of the trunk
been arrested and a large
breached s.8 of the Charter. In his
“Searches conducted incident knife and a handgun (also
view, the accused had a reasonable
later determined to be a
to arrest have been
expectation of privacy in the trunk
pellet gun) were seized from
and there was no reason why the recognized as an exception to
him. More police arrived on
the rule that warrantless
search needed to be done immediately
the scene. When [the backup
officer] and his partner
without a search warrant. Neither
searches are prima facie
searched the interior of the
safety nor destruction of evidence
unreasonable.”
car – a lawful search – two
were at issue because the car could
more
large
knives
and an Exacto knife were
have been detained while a search warrant was
discovered. In these circumstances – four
sought. The evidence obtained from the search of
arrests, lawful searches of four persons and
the trunk was excluded under s.24(2). The accused
the interior of a car, and discovery and
was acquitted on all eight counts.
seizure of what appeared to be two handguns
The Crown appealed to the Ontario Court of Appeal
arguing, in part, that the trial judge erred by finding
a s.8 Charter breach when police searched the trunk.
Justice MacPherson, writing the unanimous decision
of the Court, first examined the power to search as
an incident to arrest:
Section 8 of the Charter protects against
unreasonable search and seizure.
Searches
conducted incident to arrest have been

Volume 7 Issue 3
May/June 2007

and four knives – it is difficult to see any
serious privacy interest that the [accused]
might have in the contents of the car trunk.
The reality is that the car appeared to be
filled with weapons and people connected to
those weapons. [para. 40]

These same circumstances in Justice MacPherson’s
opinion, provided a strong and supportable reason
for the car trunk search:

www.10-8.ca

5

In my view, the search for more weapons was not
only the natural thing to do; it was also fully
compliant with s. 8 of the Charter.

interior of the car. In this respect, the search
complied with [Chief Justice Lamer’s] stricture in
Caslake…that “the search is only justifiable if the
purpose of the search is related to the purpose
of the arrest.”

When [the backup officer] arrived on the scene –
a dark parking lot in the early morning hours of a
wintry night – he faced “a very volatile situation
It is true that the discovery of additional
in which it is fair for the police to expect the
weapons in this case led to other weapons-related
unexpected”…. [The backup officer] and his
charges. … Additional charges flowing from a valid
partner were responding to an emergency call for
search are an appropriate result of the search.
police back-up. As soon as [the backup officer]
In summary, I conclude that in the circumstances
arrived, he was informed that two men had been
of this case, where multiple suspects have been
arrested and two handguns had been seized. [The
lawfully arrested and several
backup officer] approached the vehicle
have been discovered
and saw two other men seated in the back
“Additional charges flowing weapons
pursuant
to lawful searches of
of the car. When he opened a rear door,
from
a
valid
search
[incident
the
arrested
persons and the
he saw one of the men trying to kick a
interior
of
a car, it is
to arrest] are an appropriate
large knife under the seat. He removed
appropriate for a police
him from the car, brought him to the
result of the search.”
officer to search the trunk of
ground and handcuffed him. Meanwhile,
the
same
car
with
a
view to discovering additional
his partner was dealing with the other man in the
weapons.
These
weapons
can be relevant to the
back seat. He discovered another large knife and
weapons
charges
that
have
already been laid; they
an Exacto knife.
can also ground additional weapons-related
The purpose of s. 8 of the Charter is to protect
charges. [citations omitted, paras. 42-48]
against unreasonable searches.
In the
The search of the trunk was reasonable and the
circumstances I have outlined, [the backup
evidence was admissible. Furthermore, even if there
officer’s] search of the car trunk for more
weapons strikes me as the antithesis of an
was a Charter breach in this case, the evidence was
unreasonable search.
admissible under s.24(2). The Crown’s appeal was
In Cloutier [the Supreme Court of Canada]
observed that a search incident to arrest “must
be for a valid objective in pursuit of the ends of
criminal justice, such as the discovery of an
object that may be a threat to the safety of the
police, the accused or the public”. In my view, this
is precisely the situation in the present case.
Where multiple weapons have been discovered on
several arrested persons and in their vehicle, and
where the arrests and searches leading to the
discovery of the weapons are lawful, finishing the
search of the same vehicle with a view to finding
more weapons is the epitome of reasonable police
conduct. This can be contrasted with Belnavis
where the search, conducted with a view to
discovering stolen property, was unrelated to the
arrest for traffic fines.
Moreover, the discovery of additional weapons
would, potentially, be connected to a fair
assessment of the nature and gravity of the
weapons-related charges that the four men in the
car were already facing. It might shed light on
the intended use to be made of the weapons
already located on two of the accused and in the

6

allowed, the acquittals set aside, and a new trial was
ordered.
Complete case available at www.ontariocourts.on.ca

LEGALLY SPEAKING:
Search Incident to Arrest
“[A search incident to arrest] must be for
a valid objective in pursuit of the ends of
criminal justice, such as the discovery of
an object that may be a threat to the
safety of the police, the accused or the
public, or that may facilitate escape or act as evidence
against the accused. The purpose of the search must not
be unrelated to the objectives of the proper administration
of justice, which would be the case, for example, if the
purpose of the search was to intimidate, ridicule or pressure
the accused in order to obtain admissions.” - Supreme
Court of Canada Justice L’Heureux-Dube, Cloutier v.
Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.)

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Volume 7 Issue 3
May/June 2007

FACT NO OFFENCE COMMITTED
INSUFFICIENT TO REBUT
B&E PRESUMPTION
R. v. Rodney, 2007 ONCA 314
The accused broke into an apartment,
but left after about 30 seconds
without committing an offence. At trial
in the Ontario Superior Court of
Justice the judge rejected the accused’s
explanation for being in the apartment. Although
there was no evidence the accused had an intention
to commit an indictable offence, the judge
nonetheless entered a conviction for break and
enter with intent to commit an indictable offence
under s.348(1)(a) of the Criminal Code solely on the
basis of the presumption of intent created by
s.348(2)(a):

s.348(2)(a) Criminal Code
For the purposes of proceedings under this section,
evidence that an accused... broke and entered a place or
attempted to break and enter a place is, in the absence of
evidence to the contrary, proof that he broke and entered
the place or attempted to do so, as the case may be, with
intent to commit an indictable offence therein.
The accused appealed to the Ontario Court of
Appeal arguing that leaving the apartment after 30
seconds without committing an offence constituted
“evidence to the contrary”, which was capable of
displacing the statutory presumption.
The Ontario Court of Appeal however, disagreed.
The Court stated:
It is clear on the authorities that the point of
entry is the time at which the accused’s intention
is to be ascertained for the purpose of the
offence of break and enter with intent under s.
348(1)(a)… The application of the s. 348(2)(a)
presumption at that point, in the absence of
evidence to the contrary, supplies the proof of the
requisite intent.
The proposition that the fact the accused did not
commit an offence after entering the premises
constitutes “evidence to the contrary” was
rejected in R. v. Nicholas [and] R. v. Singh,…. While
neither case is entirely on all fours with the case
at bar, we are not persuaded in this case that the
fact the accused left the apartment without

Volume 7 Issue 3
May/June 2007

committing an offence could amount to “evidence
to the contrary” and thereby displaces the
presumption.
We agree with the submission of the [Crown] that
the purpose of the combination of the offence of
breaking and entering with intent and the
presumption created by s. 348(2)(a) is to deal
precisely with the situation where the accused has
broken and entered, yet committed no offence.
Here, the [accused] offers nothing more than the
fact no offence was committed. To say that that
constitutes evidence to the contrary would be to
ignore the presumption and essentially gut it of
any meaning. [references omitted, paras. 5-7]

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

LEGALLY SPEAKING:
Police Decision Making
“[I]t is very easy in the cool, clear, light of
day for this court to calmly and coolly
analyze and make decisions about the
actions of police officers who were
making split second decisions in the heat
of the moment.” - New Brunswick Provincial Court Judge
McCarroll, R. v. LeBlanc,
LeBlanc, 2006 NBPC 37

TRUNK & GLOVE BOX SEARCH
JUSTIFIED AS INCIDENT TO
ARREST
R. v. Shankar, 2007 ONCA 280
Two police officers on patrol saw a
vehicle being driven at 2:29 am without
its taillights on. The vehicle was pulled
over and the accused was asked for his
licence, registration, and insurance. He provided a
licence but could not spell the name on it properly.
He also produced a handwritten note and a
photocopied registration. He gave an address of a
possible crack house and fit the description of a
crack dealer operating from there. The accused was
subsequently arrested for attempting to mislead the
police about his identity. They physically removed
him from the car and he told police they were not
allowed to search it.

www.10-8.ca

7

When they patted him down they discovered he was
wearing two bullet proof vests. He said he needed
them because someone wanted to kill him. Police
secured the accused in the back of a police car and
searched the vehicle. In the trunk they found a
semi-automatic pistol with a fully loaded 30 round
clip and in the locked glove box they found a hunting
knife and a fully loaded nine-shot revolver in a
shoulder holster.

However, the scope of the power is constrained by
its source, the legal arrest. The main purposes of
search incident to arrest have been articulated by
the Supreme Court of Canada as follows:
- to ensure the safety of the police and the public;
- to prevent the destruction of evidence; and,
- to discover evidence of the offence or offences
for which the accused was arrested.

In order for a search to be incidental to an arrest,
the police must have one or more of the valid
At trial in the Ontario Superior Court of Justice the
purposes in mind when the search is conducted,
police said they had two purposes in searching the
and there must be some reasonable basis for the
car: 1) to find documentation relating to the
belief that the purpose will be served. In Caslake,
accused’s true identity and 2) for public safety (to
Chief Justice Lamer stressed that this is not a
search for weapons). The trial judge concluded the
standard of reasonable and probable grounds but,
officers could have obtained a search warrant
rather, a common sense observation that an
objective or purpose cannot be valid if it is not
quickly without creating safety issues. In his view,
reasonable to pursue it in the
the extended search of the vehicle
circumstances. In making this
was not reasonably necessary in
“The common law power to
observation, the Chief Justice
the circumstances and breached
search incident to arrest endures cautioned that “[t]he police
the accused’s s.8 Charter rights.
under the Charter. The power
have considerable leeway in the
However, he found the officers
circumstances of an arrest
flows from a legal arrest, and
acted in good faith throughout the
which they do not have in other
there need not be separate
encounter and admitted the guns
situations”...
[citations
into evidence under s.24(2). The reasonable and probable grounds omitted, paras. 11-12]

accused was convicted of two
counts of possessing a loaded
firearm, possessing a prohibited
device, driving while disqualified,
and public mischief.

that the search will yield evidence
or weapons. However, the scope
of the power is constrained by its
source, the legal arrest.”

The accused appealed to the Ontario Court of
Appeal arguing the guns should have been excluded
as evidence because the police did not act in good
faith; they were ignorant of the scope of their
powers. This increased the seriousness of the
Charter breach and the admission of the firearms
would bring the administration into disrepute. The
Crown, on the other hand, asked the appeal court to
reconsider the s.8 issue, arguing the search was
proper as an incident to arrest.
Justice Gillese, writing the opinion of the Ontario
Court of Appeal, first reviewed the power of search
incident to arrest. She stated:
The common law power to search incident to
arrest endures under the Charter. The power
flows from a legal arrest, and there need not be
separate reasonable and probable grounds that
the search will yield evidence or weapons.

8

In this case there was no
argument that the accused was
lawfully arrested; the police
subjectively believed they had
grounds to arrest the accused
and there was ample objective justification for the
arrest. Further, “the search of the car flowed
directly from the lawful arrest and was prompted by
the nature and circumstances of the arrest.” In
concluding that there was no s.8 breach, Justice
Gillese wrote:
Having lawfully arrested the [accused] for
attempting to mislead the police, it was proper to
check the car for documents pertaining to his true
identity. Furthermore, the circumstances of the
arrest and taking the [accused] into custody gave
rise to real concerns about safety, which made it
appropriate to check the car for weapons. The
officer’s concern about public safety arose from
the bullet-proof vests that the [accused] was
wearing, the [accused’s] comments about people
wanting to kill him, the time of night, and the fact
that he believed that the [accused] was involved in
the crack cocaine trade.

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While a fairly extensive search of the vehicle was
conducted in this case, in my view, it was reasonable
in the circumstances. Those circumstances… include
the following:
• The search followed a determination by [the
officer] that it was merited in order to locate
weapons and/or discover evidence as to the
[accused’s] true identity.
• It was conducted pursuant to valid state
objectives, i.e. public protection and the discovery
and preservation of evidence which could be
located at the scene of the arrest, and not for any
oblique or improper motive.
• The search was relatively non-intrusive. It began
with an inspection of the interior of the car, under
the seats, and proceeded logically from there to
the trunk and the glove box.
• There is a diminished expectation of privacy in a
motor vehicle.
• There was nothing abusive in the manner in which
the search was conducted. No damage was done
to the car, no individuals were interfered with,
and the seizures were selective and related to the
purpose of the search.
• Immediately upon finding the first gun, the
Emergency Task Force was called so as to properly
secure the guns and make them safe. [paras. 15-16]

Furthermore, even if there was a breach of s.8, the
evidence was admissible under s.24(2). The officers
acted in good faith; they reasonably believed they
were entitled to search the car.
Complete case available at www.ontariocourts.on.ca

LEGALLY SPEAKING:
Dangerous Driving: Falling Asleep
“[A] sleeping driver is in a state of noninsane automatism and cannot be convicted
of dangerous driving on the basis of acts of
driving committed while in that state, since
such acts are involuntary and cannot form
the actus reus of the offence. However, such a driver may
be convicted of dangerous driving if the trier of fact is satisfied
beyond a reasonable doubt that the driver embarked on
driving or continued to drive in circumstances in which he
knew or ought to have known that it was dangerous to do so
because there was a real risk that he would fall asleep at the
wheel.” - British Columbia Court of Appeal Justice Smith, R.
v. Jiang,
Jiang, 2007 BCCA 270

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May/June 2007

PROVIDING S.10(b) RIGHTS
PARTWAY THROUGH INTERVIEW
PROCESS DID NOT FIX BREACH
R. v. Lewis, 2007 ONCA 349
The accused was arrested as he was
leaving his apartment for the vicious
attack of two young men. He was
advised of his right to counsel and
immediately told the arresting officer he wanted to
talk to his lawyer. The officer told him he could do
so at the police station. The accused was
transported to the police station and again advised
of his right to counsel. Although he did not make a
second request to speak to a lawyer, he was not
provided with the opportunity to do so in response to
his earlier request.
The accused was placed in an interview room and
searched. The lead investigator in the case
questioned him for 20 minutes, between 4:05 pm and
4:25 pm. The accused initially denied being present
at the crime scene but then admitted to being in a
fight without weapons. He also agreed to a photolineup to identify an outstanding suspect and to
being recorded while doing so. No recording of the
interview was made. The accused then repeated his
request to speak to a lawyer, which was provided.
After speaking to duty counsel the accused
participated in the videod photo-lineup and then
made a statement which was audiotaped. He
admitted he was at the scene and punched one
victim.
At trial in the Ontario Superior Court of Justice the
judge admitted the statements following the
accused’s arrest that were video and audiotaped.
The jury convicted the accused of two counts of
attempted murder and two counts of robbery. He
was sentenced to seven years in prison after being
credited three years for pre-trial custody.
The accused then appealed to the Ontario Court of
Appeal arguing, in part, that the two recorded
statements were taken in violation of his s.10(b)
Charter right to counsel. He submitted that both
statements taken after he spoke to his lawyer were
part of a process that began with the interview that
proceeded his access to counsel. In the accused’s

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9

view, the statements should have
been excluded under s.24(2). The
Crown, on the other hand, contended
that the two statements admitted
into evidence by the trial judge were
provided to police after the accused
had spoken to a lawyer.
Justice Goudge, authoring the
unanimous judgment for the Ontario
Court of Appeal agreed with the
accused. He stated:

“Once [the accused]
made this request [to
speak to a lawyer] the
police were obliged to
refrain from eliciting
incriminating evidence
from him until he was
afforded that opportunity.”

[T]here can be no doubt that the inculpatory
statements made by the [accused] to the police
between 4:05 p.m. and 4:25 p.m. were taken in
violation of his s. 10(b) rights. He had already
expressed his wish to exercise his right to consult
a lawyer but had not been given an opportunity to
do so. Once he made this request the police were
obliged to refrain from eliciting incriminating
evidence from him until he was afforded that
opportunity.
The Crown relies on the fact that the two
statements admitted into evidence, the video
statement and the audio recording, were given
after the [accused] subsequently spoke to
counsel…
In my view, this does not immunize them from the
earlier Charter breach…
In this case there was a close temporal connection
between the taking of the original statement
between 4:05 p.m. and 4:25 p.m. in breach of the
[accused’s] s. 10(b) rights, and the taking of the
two recorded statements that were concluded less
than three hours later. Moreover, the three
statements were all part of the same
interrogation process. The [accused] remained in
the custody of the same police officers during
that time and their objective throughout was to
obtain statements from the [accused]. The
inculpatory audio recording is essentially a repeat
of the first statement made by the [accused]
prior to obtaining legal advice. The police made no
attempt to sever any connection between these
two…“The absence of any attempt by the police to
make a ‘fresh start’ after the [accused] had
spoken with counsel further cements
the
connection” between the statements.
I would therefore conclude that the video
statement and the audio recording were obtained

10

in a manner that infringed the
[accused’s] right to counsel.
[references omitted, paras. 29-33]

As for whether the evidence was
inadmissible under s.24(2), Justice
Goudge concluded the statements
were conscriptive, the s.10(b)
breach serious, and the admission
of the statements would undermine
the fairness of the trial and bring
the administration of justice into disrepute. The
accused’s appeal was allowed, his conviction quashed,
and a new trial was ordered.
Complete case available at www.ontariocourts.on.ca

LEGALLY SPEAKING:
s.24(2) Charter:
Charter: “Obtained in a Manner”
“The evidence will be “obtained in a
manner” that infringed a Charter right if on
a review of the entire course of events,
the breach and the obtaining of the
evidence can be said to be part of the
same transaction or course of conduct. The connection
between the breach and the obtaining of the evidence may
be temporal, contextual, causal or a combination of the
three. The connection must be more than tenuous.” Ontario Court of Appeal Justice Doherty, R. v. Plaha,
Plaha, (2004)
Docket: C35157 (OntCA)

INCIDENTAL SEARCH NOT
UNREASONABLE BECAUSE
UNRELATED EVIDENCE FOUND
R. v. Duong, 2007 BCCA 227
The accused was pulled over in his van
after he attempted to solicit the
sexual services of an undercover
police officer posing as a sex trade
worker. He was arrested for communication for the
purpose of prostitution and searched. Police found a
wallet with a driver’s licence, two cellular
telephones, a small calculator, and some keys. His van
was also searched and a white plastic shopping bag
containing $5,700 in cocaine and $15,000 cash was
found on the driver’s side floor. A gift bag found

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Volume 7 Issue 3
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near the driver’s seat contained a kilogram of
cocaine valued at $25,000. The accused was then
arrested for possessing cocaine for the purpose of
trafficking.

area notorious for the sex trade,” said Justice
Kirkpatrick. “The numerous types of unlawful
behaviour connected with the sex trade warranted
care in the search of the [accused] and his van.” She
continued:

At trial in British Columbia Provincial Court the
Furthermore, in my opinion, the trial judge did not
accused conceded he was lawfully arrested but
err in his conclusion that the search of the
argued the police were only allowed to pat him down
[accused] and the van he was driving fell within the
and were not allowed to search his pockets or the
permissible limits articulated in Caslake. As [the
van. The officer said he conducted a cursory search
officer] explained in his evidence, persons
of the van, looking for items that could comprise a
arrested for this offence often carry multiple
“sex assault kit”, such as duct tape, zap straps, and
sets of identification which may require further
weapons to assault or kidnap sex trade workers. The
investigation as to the true identity of the
trial judge ruled that the
arrested person. In addition, I
search was reasonable even
“[The officer’s] search incidental to consider that there was a
reasonable basis for [the
though there was no reason to
arrest,
which
was
for
a
validly
officer’s] search. It is true that
suspect the accused might
articulated
purpose
such
as
safety
of
he did not have specific
possess items that could be
knowledge that the [accused]
the public or the police, did not
used to harm sex trade
was known to carry weapons, or
become unreasonable by virtue of that anyone had been abducted
workers. He held that assaults
on sex trade workers by the discovery of evidence relating to
in the area, or that the
customers are serious and
offences other than those for which [accused] or the van had been
relatively common and that a
involved in any unlawful conduct.
the [accused] was being
However, that is not the test.
search around the driver’s seat
investigated.”
The test, as stated in Caslake…
of a vehicle driven by a person
is
whether there is "some
arrested for communication for
reasonable basis for doing what the police officer
the purpose was lawful and reasonable when the
did”.
search was undertaken to look for weapons. The
evidence was admitted and the accused was
In my opinion, the occurrence of a limited police
search of the arrested individual and his vehicle,
convicted of possessing cocaine for the purpose of
in furtherance of the stated objectives in
trafficking.
Caslake - officer safety, preservation of evidence,
The accused appealed to the British Columbia Court
and discovery of evidence - was supported by [the
officer’s] evidence and the other evidence
of Appeal arguing, in part, that the police had no
tendered on the voir dire. [The officer’s] search
justification in searching either his person or the
van. He submitted that the officer did not have the
necessary subjective or objective grounds to
reasonably believe there were weapons, escape aids,
or a rape kit in the van or that the accused was
connected to assaults or kidnappings of sex trade
workers. Therefore, in his view, the searches were
not truly incidental to arrest and were unreasonable
under s.8 of the Charter.
Justice Kirkpatrick, authoring the unanimous
judgment of the British Columbia Court of Appeal
upheld the accused’s conviction. The officer had a
valid reason related to the arrest for conducting the
searches. The accused “was lawfully arrested in an

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May/June 2007

incidental to arrest, which was for a validly
articulated purpose such as safety of the public or
the police, did not become unreasonable by virtue
of the discovery of evidence relating to offences
other than those for which the [accused] was
being investigated... [paras. 26-27]

Even if the search breached s.8 exclusion of the
evidence would not have been warranted under
s.24(2) of the Charter, Justice Kirkpatrick ruled.
The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

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11

LEGALLY SPEAKING:
Search Incident to Arrest
“In summary, searches must be authorized
by law. If the law on which the Crown is
relying for authorization is the common
law doctrine of search incident to arrest,
then the limits of this doctrine must be
respected. The most important of these limits is that the
search must be truly incidental to the arrest. This means
that the police must be able to explain, within the [following]
purposes … (protecting the police, protecting the evidence,
discovering evidence), or by reference to some other valid
purpose, why they searched. They do not need reasonable
and probable grounds. However, they must have had some
reason related to the arrest for conducting the search at the
time the search was carried out, and that reason must be
objectively reasonable. Delay and distance do not
automatically preclude a search from being incidental to
arrest, but they may cause the court to draw a negative
inference. However, that inference may be rebutted by a
proper explanation.” - Supreme Court of Canada Chief
Justice Lamer, R. v. Caslake,
Caslake, [1998] 1 S.C.R. 51.

“CHOKE UNDER PRESSURE?”
Insp. Kelly Keith, Atlantic Police Academy
Why is it that some athletes
choke under pressure while
others seem to get better?
What was it that made Michael
Jordan better in the last
minutes of the game?
There is far more money put into sports research
than law enforcement research. However, we can
learn plenty of valuable lessons from tapping into
this resource. Just as some athletes choke when the
pressure of the game is high, law enforcement
officers also have this same issue. There are many
factors that can contribute to this, but lets take a
look at this issue from a sports perspective and
relate it to law enforcement.
Sporting competition promotes psychological and
bodily responses similar to the “fight or flight”
response. If the event is beyond one’s perceived
ability, anxiety is the inevitable outcome.

12

Stress can be viewed as positive or negative. We all
know people who fight stronger when more stress is
added while others fold or buckle under the
pressure. If we simply understand that the “fight
or flight” body reactions are the body preparing to
do well , it assists us in viewing it as a positive.
Generally, the higher the level of competition,
stress
and
anxiety
increases;
individual
performances tend to be more stressful and bring
out greater anxiety. Both in sports and law
enforcement the greater the chance of getting hurt,
the greater the anxiety. As well, anxiety is also
increased if the expectation of success is high.
Anxiety can be recognized on the cognitive level (by
particular thought processes), the somatic level (by
physical responses) and/or on the behavioural level
(by certain patterns of behaviour).
If you believe in yourself and have positive
expectations of success, you will be more confident
and subsequently you are likely to perform close to
your best. If you do not believe in your abilities or
are not confident in your success, your performance
will suffer.
It is believed that if athletes set their own goals
rather than have goals imposed upon them by a coach
or team manager, their confidence will increase and
their anxiety will be reduced. The perceived support
of a coach can assist the athlete in better coping
with the psychological demands of competition. In
order to reduce anxiety it is better for the coach to
encourage athletes to beat their own performance
rather than seek superiority over their peers.
We all have body responses to stress and anxiety. If
you can recognize your own responses to stress and
anxiety, it will assist you in properly handling them.
Once you recognize your body responses you can
start to take action against stress and anxiety by:
1.

Remember your “winning feeling” and link your
emotions to this feeling. Before your next
competition, put yourself into this state of
emotion and concentrate on the “winning feeling”;

2.

Combat breathe, combat breathe and combat
breathe some more! Empty all the air in your
lungs, replacing bad air with the good. Do this
multiple times; and

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3.

When you start feeling a negative or unwanted
thought (cognitive anxiety) such as “I just don’t
want to be here today”, picture a large red stop
sign in your mind’s eye or change the channel in
your head. You can then follow this with a
positive self-statement such as “I am going to
hit it hard right from the off!” Thoughtstopping can be used to block an unwanted
thought before it escalates or disrupts
performance. The technique can help to create a
sharp refocus of attention keeping you
engrossed in the task at hand.

It is normal to experience stress and anxiety in any
competition. What separates those that are
successful from those that are not is how they
handle it. Don’t allow stress and anxiety to make you
“choke” under pressure!
Reference: Peak Performance e-newsletter.

ROAD RULES:
High Occupancy Vehicle Lanes
Division 42 of BC’s Motor Vehicle Act
Regulations outlines the rules with respect
to High Occupancy Vehicles. Section
42.03(2) states that “A driver of a vehicle
that is not a high occupancy vehicle must
not use a high occupancy vehicle lane on
a freeway.” A “high occupancy vehicle” is a bus or a
vehicle under 5,500 kg GVW that is carrying the minimum
number of persons specified for that lane. Of course, like
most legislation, there are exceptions to the rules. The
following drivers may drive in a high occupancy lane without
the minimum number of persons required:
• Emergency vehicles
• Peace officers on active duty
• Motorcycles, taxis, handy dart vehicles
• Marked vehicles responding to a disabled vehicle or
another emergency on the freeway (eg. tow truck)

COURT MUST KNIT EVIDENCE
TOGETHER AS A WHOLE WHEN
ASSESSING GROUNDS
R. v. Todd, BCCA 176
A police officer found the accused
asleep in his car that was stopped at a
green traffic light with the engine
running, the car in gear, and loud music
playing. After the officer pounded on the driver’s
window at least four times, the accused rolled down
the window, releasing a smell of alcohol. The accused
produced a “Save On More” card when asked for his
driver’s licence and the officer observed that he had
“glassy eyes”. A breath demand was made,
appropriate warnings given, and the accused was
arrested. At the police station, the arresting officer
again observed the accused’s eyes were glassy,
detected a strong odour of alcohol coming from his
breath, noted he was a little unsteady on his feet,
and saw that his face was flushed slightly. The
accused provided two breath samples and was
charged with impaired and over 80mg%.
At trial in British Columbia Provincial Court the
accused was acquitted. The trial judge, in part, ruled
that the officer did not have objectively reasonable
and probable grounds for the breath demand. He
looked at individual indicia of impairment and found
a possible alternative explanation for each:
•

•

•

•

Note-able Quote
“The young man knows the rules, but the old man
knows the exceptions.” - Oliver Wendell Holmes

Volume 7 Issue 3
May/June 2007

Pounding on the window four times to awake the
accused-the music could have been so loud that
the person inside (awake or asleep) may have
thought “the bass was a little heavy on the music”;
Production of the “Save on More Card”-the
person merely produced the wrong card; there
was no evidence of fumbling the card or staring
at it intently before handing it over;
Glassy eyes-the driver could have been driving
for a long time or could have been crying from a
recent emotional experience; and
The officer never made any inquiries of the
driver as to why he fell asleep or ask any
questions about liquor consumption.

The Crown appealed to the British Columbia Court of
Appeal arguing, among other grounds, that the trial
judge erred in concluding the officer did not have

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13

objectively reasonable and probable grounds for the
breath demand. The appeal court judge agreed with
the Crown and ordered a new trial. In his view, the
trial judge erred in considering alternative
explanations for the indicia of impairment that were
not in evidence and that “individual pieces of
evidence must not be examined in isolation but must
be considered in the context of the totality of the
evidence.”
The accused then appealed to the British Columbia
Court of Appeal submitting that the appeal court
judge erred in allowing the appeal. Justice Chiasson,
rendering the decision of the British Columbia Court
of Appeal, agreed with the appeal judge’s findings.
He found that the trial judge erred in reviewing and
discounting each indicia of impairment observed by
the officer. The proper test is to look at the
evidence as a whole, not each piece by itself and
speculate on other possibilities.
Justice Saunders also commented on the trial
judge’s piecemeal approach. She said:
[T]he trial judge addressed specific components
of the evidence, but does not appear to have
stepped back after, to knit it together as a whole.
Had he done so, the whole necessarily would have
included reference to the feature of the
undisputed evidence, which was the observed
odour of alcohol emanating from the car when the
window was rolled down, that was not referred to
either in the ruling on the reasonable and probable
cause for the demand and the subsequent
exclusion of the breathalyzer test results, or in
the reasons for acquittal on the impaired driving
charge.
On the issue of conjecture, the trial judge also
engaged
in
out-loud
wondering,
creating
explanations for the officer’s observations that
had no foundation in the evidence tendered.
There was, for example, no evidence that [the
accused] had been driving for 10 hours or just had
an emotional experience that made his eyes
glassy. Yet the trial judge proffered these as
potential explanations for that observation in his
ruling on the breathalyzer demand issue. [paras.
36-37]

The accused’s appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

14

WARRANTLESS WEAPONS
SEARCH: SAFETY SHOULD NOT
DEPEND ON GUESSWORK
R. v. Peacock-McDonald, 2007 ONCA 128
Two police officers attended at the
accused’s residence in response to her
complaint concerning noise from her
neighbours. As a result of talking with
and observing her, the officers concluded that she
was suicidal. Accordingly, they took her to the
hospital for an evaluation by a physician as to
whether she should be detained under s.15 of
Ontario’s Mental Health Act (MHA) for a psychiatric
assessment.
Within ten minutes of their arrival at the hospital,
one of the police officers obtained a firearms
licence that was in the accused’s possession,
together with the keys to her house and her
firearms’ cabinet. The officer then left the hospital
to return to search the accused’s home for her
firearms. The police officer staying at the hospital
was informed at about the same time that the
attending physician intended to sign an involuntary
admission form under the MHA requiring the
accused’s detention for the purpose of a psychiatric
examination. The officer returning to the accused’s
home was not told of this decision before he left the
hospital.
The officer attended and entered the accused’s
residence without a warrant to search for her
firearms, relying on s.117.04(2) of the Criminal
Code. He seized seven firearms in total, all of which
were registered and properly stored by her at the
time of the seizure. The officer then returned to
the hospital where he learned of the MHA
authorization for the accused’s detention. She was
transported to a psychiatric facility for an
evaluation, arriving about three hours after the
search of her home. She was subsequently released
less than forty-eight hours later.
The police applied under s.117.05(1) of the Criminal
Code for a hearing concerning the forfeiture of the
seized firearms. The accused, however, argued the
requirements of s.117.04(2) had not been met and
therefore the warrantless search was not justified.

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She claimed the application judge therefore lacked
jurisdiction to hear the forfeiture matter. She also
submitted that the search was unreasonable and
violated her rights under s.8 of the Charter.
In the Ontario Court of Justice the application
judge held the conditions to invoke s.117.04(2) of
the Criminal Code had been satisfied and no breach
of s.8 had occurred. Since the search was lawful, he
had jurisdiction to proceed with the forfeiture
hearing. The application judge granted forfeiture
and gave the accused 30 days to transfer ownership
of the firearms or they would be forfeited to the
Crown.
The accused appealed to the Ontario Superior Court
of Justice and the search was found to have violated
the accused’s rights under s.8 of the Charter
because she had been detained under the MHA for
at least 72 hours observation which would have
abated her being a danger to herself or anyone else.
However, the appeal judge found the evidence of the
firearms admissible under s.24(2) and ruled the
application judge had jurisdiction to conduct the
forfeiture order and dismissed the appeal.
The accused again appealed to the Ontario Court of
Appeal arguing the appeal judge erred in holding the
application judge had jurisdiction to hear the matter
and that the test for forfeiture under s.117.05(1)
had been met. In her view, a s.117.05 forfeiture
hearing may only be conducted where the firearms
in question were validly seized with or without
warrant under s.117.04. She submitted, in part, that
the preconditions for a warrantless search under
s.117.04(2) were not met and the firearms
therefore, were not validly seized under that
section.
Although warrantless searches are presumptively
unreasonable under s.8 of the Charter, s.117.04(2)
authorizes a search and seizure for weapons without
the need for a warrant if there are reasonable
grounds to believe it is not desirable in the interests
of safety for a person to possess a weapon and there
are grounds to get a warrant, but it is impracticable
to obtain the warrant because of a possible danger
to safety.
Justice Cronk, writing the Ontario Court of Appeal’s
opinion, concluded it was impracticable in the
circumstances for the police to obtain a warrant

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May/June 2007

BY THE BOOK:
s.117.04 (1) Criminal Code
Where, pursuant to an application made by a
peace officer with respect to any person, a justice
is satisfied by information on oath that there are
reasonable grounds to believe that the person
possesses a weapon…and that it is not desirable
in the interests of the safety of the person, or of
any other person, for the person to possess the
weapon…the justice may issue a warrant
authorizing a peace officer to search…and seize
any such thing, and any authorization, licence or
registration certificate relating to any such thing,
that is held by or in the possession of the person.

S.117.04(2) Criminal Code
Where, with respect to any person, a peace officer
is satisfied that there are reasonable grounds to
believe that it is not desirable, in the interests of
the safety of the person or any other person, for
the person to possess any weapon…the peace
officer may, where the grounds for obtaining a
warrant under subsection (1) exist but, by reason
of a possible danger to the safety of that person
or any other person, it would not be practicable to
obtain a warrant, search for and seize any such
thing, and any authorization, licence or
registration certificate relating to any such thing,
that is held by or in the possession of the person.

s.117.05(1) Criminal Code
Where any thing or document has been seized
under subsection 117.04(1) or (2), the justice who
issued the warrant authorizing the seizure or, if no
warrant was issued, a justice who might otherwise
have issued a warrant, shall, on application for an
order for the disposition of the thing or document
so seized made by a peace officer within thirty
days after the date of execution of the warrant or
of the seizure without a warrant, as the case may
be, fix a date for the hearing of the application and
direct that notice of the hearing be given to such
persons or in such manner as the justice may
specify.

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15

before searching for the accused’s firearms. She
stated:
The appellant submits that once she was detained
under the MHA, any “possible danger” to herself
or others was negated because one of two events
would then occur. First, she could be admitted to
a psychiatric facility under the authority of a
Form 1, thus removing the possibility of any
immediate danger to herself or any other person
arising from her possession of the firearms.
Alternatively, she could be released following her
examination by a physician, thereby establishing
that she was not a danger to herself or others.
In either event, two requirements for a
warrantless search under s. 117.04(2) – a possible
danger arising from the appellant’s possession of
the firearms and the impracticability of obtaining
a warrant – would not be met. In this case, the
first scenario applied, that is, the examining
physician signed a Form 1 for the appellant’s
detention. The appellant therefore argues that
the police officers had sufficient time to obtain a
warrant, no immediate possible danger arose from
her possession of the firearms, and s. 117.04(2) of
the Code could not be invoked to justify a
warrantless search.

Section 15(5) of the MHA authorizes the
detention of a person in a psychiatric facility
under a Form 1 signed by a physician for a period
“not more than 72 hours”. Thus, the appellant’s
detention was not for a period of “at least”
seventy-two hours. To the contrary, the length of
her detention was uncertain. She could have been
released within minutes or hours of her initial
detention at the hospital.
This possibility
ultimately materialized when the appellant was
released from the hospital in less than forty-eight
hours.
Second, the detention of the appellant pursuant
to the MHA did not have the effect of “abating”
or “negating” the possibility of the appellant being
a danger to herself or others for a period of
seventy-two hours. As I have said, the appellant
could have been released from the hospital at any
time after her initial detention under a Form 1. In
this important sense, therefore, a possible danger
to the appellant’s safety and to the public
persisted when [the officer] conducted the
search.

Moreover, nothing on this record suggests that
there was any realistic opportunity for the police
to obtain a warrant in the time that elapsed
between the appellant’s arrival at the hospital and
I disagree.
The appellant…was
the completion of the search
suicidal when the police took her to
“Matters
of
public
safety,
when
carried out by [the officer]. The
the hospital for an examination. The
Officer testified that the time
application judge accepted [the firearms are involved, should
required to obtain a search
officer’s] testimony that when they not depend on guesswork; nor
warrant for a residence could vary
arrived at the hospital, [the officer]
are
they
a
‘race
to
the
from “as little as four or five hours
was concerned that the appellant
to two days or more sometimes of
swiftest’.”
would “shore herself up” and deny
trying
to
confirm
your
that she was suicidal, causing the
grounds…and articulate it”. He also said that he
hospital to release her. The application judge
did not know for sure whether the appellant was
found that [the officer] had “a specific concern”
going to be assessed until he got back to the
for the appellant’s safety because she was a high
hospital after seizing her firearms and that, if
suicide risk and, further, that he had “a concern
she were released, it would be too late to seize
for the general public” because the appellant had
them.
firearms at her residence and it was uncertain
whether she would be detained for a psychiatric
In my view, when public safety issues are
assessment. [para. 20-21]
implicated, as in this case, the police should not be

Justice Cronk also considered the ruling of the
appeal judge that the accused’s s.8 Charter rights
had been violated because of the apparent 72 hour
MHA detention. She found this reasoning to be
flawed in two ways:
First, a Form 1 authorization for the detention of
a person under the MHA is not a detention “for at
least 72 hours of observation” by a physician.

16

required to speculate upon the timing of the
release from hospital of a person in the appellant’s
position in the hope that they might secure a
warrant for the seizure of firearms in the
possession of the detainee before that release.
Matters of public safety, when firearms are
involved, should not depend on guesswork; nor are
they a ‘race to the swiftest’. [paras. 26-29]

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And further:
The evidence before the application judge clearly
demonstrated that, at the time of the search,
the appellant’s continued possession of the
firearms posed a possible danger to herself and
to others.
The imminence of this existing
possible danger was not diminished by the fact of
her initial detention for medical examination
under the authority of s. 15 of the MHA. Because
the length of the appellant’s detention under the
MHA was uncertain, I am not persuaded that it
was practicable, having regard to public safety
and the safety of the appellant, for [the officer]
to first seek a warrant before conducting a
search of the appellant’s residence. [para. 32]

The preconditions for a lawful search under
s.117.04(2) had been satisfied and there was no s.8
Charter breach. The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

LEGALLY SPEAKING:
Reasonable Grounds: Breath Demand
“[The arresting officer’s demand for breath
samples at the roadside based on
reasonable grounds] was a continuing
demand that remained in force until
complied with. The fact that there was a
subsequent demand made by the breathalyzer technician
without reasonable and probable grounds and that the
[accused] refused that demand does not invalidate the
earlier demand nor change the character of the [accused’s]
ongoing refusal to comply. Section 254(3) of the Criminal
Code does not require multiple demands. Moreover, in our
view, the subsequent demand was no more than a good
faith attempt by the breathalyzer technician to give the
[accused] a further opportunity to comply.” - Ontario Court
of Appeal, R. v. Townsend,
Townsend, 2007 ONCA 332
Note-able Quote
“I wanted you to see what real courage is, instead
of getting the idea that courage is a man with a gun
in his hand. It's when you know you're licked before
you begin but you begin anyway and you see it
through no matter what.” - Harper Lee

Volume 7 Issue 3
May/June 2007

BOLF:
UPCOMING SUPREME COURT OF
CANADA JUDGMENTS
There are a number of Supreme
Court of Canada decisions that
police officers should keep a look
out for.

Dog Sniff
R. v. Brown (Alberta Court of Appeal—as of right)
Police officers were patrolling a bus terminal as part
of an operation involving investigators monitoring
the traveling public in order to identify and arrest
drug couriers, among others. The team was watching
passengers disembark from an over-night bus. One
officer noticed the accused and monitored his
movements. In the foyer of the bus terminal, the
officer started a conversation with the accused and
identified himself as a police officer. The officer
called to the police dog and she made an immediate
passive indication of the presence of drugs. The
accused was charged with possession of cocaine for
the purposes of trafficking and possession of heroin.
The accused alleged at trial that his s. 9 Charter
rights were breached when the police held a
conversation with him in the foyer of the bus depot
and that his s. 8 Charter rights were breached when,
during the course of that conversation, a sniffer dog
was used to detect drugs.
The trial judge and the majority of the Alberta
Court of Appeal held that the accused was neither
arbitrarily detained nor unlawfully searched. The
majority dismissed his appeal. Relying partly on the
Supreme Court of Canada ruling in R. v. Tessling the
majority concluded that there was no "reasonable
expectation of privacy" in relation to the odours
emanating into the public sphere from the accused’s
bag. Justice Paperny, in dissent, concluded that
while the accused was detained "physically and
psychologically", the standard of review on appeal
required deference to the trial judge's finding in
this respect. On the s.8 issue, she concluded that
the accused had a reasonable expectation of privacy
in his luggage and the odours emanating from it and,

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17

therefore, the dog sniff was an unreasonable search
within the meaning of s. 8 of the Charter.
Questions for the Supreme Court of Canada include:
• Whether the police dog sniffing the accused’s
backpack violated his right under s. 8 of the
Charter to be secure against unreasonable search
or seizure;
• Whether the trial judge erred by failing to find
that the accused was subject to an unreasonable
search and seizure and the evidence ought to
have been excluded from trial pursuant to s.
24(2) of the Charter; and
• Whether Justice Paperny in dissent was correct
that a search occurred—that the accused had a
reasonable expectation of privacy.

Reasonable Grounds
R. v. Rhyason (Alberta Court of Appeal—as of Right)
The accused conceded that the car he was driving
struck and killed a 17-year-old pedestrian who was
crossing the street at a marked, lit crosswalk at a
controlled intersection. He had been drinking. The
arresting officer detected an odour of alcohol on
the accused’s breath and demanded a breath sample
even though he showed no balance or slurring
problems. The officer testified: "Well, my
observations impaired, or excuse me, of alcohol
consumption indicia, as well as my belief that the
victim was deceased, and based on the fact that he
had stated he was the driver....I formed the opinion
that [the accused] had consumed alcohol in such a
quantity that impaired his ability to operate a motor
vehicle, and subsequently caused the death of—of
the victim." The breath samples showed the accused
had more than the legal limit of 80mg%.
The trial judge found him guilty of operating a motor
vehicle while having more than 80mg%. The trial
judge also found that his impairment contributed
more than de minimis to cause the accident. The
majority of the Alberta Court of Appeal dismissed
the appeal. Justice Slatter dissented, would have
allowed the appeal and ordered a new trial on the
basis that the trial judge did not apply the correct
legal test in deciding whether there were reasonable
and probable grounds for the breath sample.
Questions for the Supreme Court of Canada include:

18

•

•

Whether the trial judge applied the correct test
to the issue of reasonable and probable grounds;
and
Whether the trial judge erred in convicting the
accused of impaired driving causing death based
on an erroneous interpretation of impairment of
the ability to drive.

Dog Sniff
R. v. A. M. (Ontario Court of Appeal—by Leave)
The police accepted a long-standing invitation to
bring sniffer dogs into the accused’s high school to
search for drugs. The police had no knowledge that
drugs were present in the school and would not have
been able to obtain a warrant to search the school.
The sniffer dog was trained to detect marihuana,
hashish, cocaine, heroin and crack cocaine. The
police searched the whole school while the students
were confined to their classrooms. In a gymnasium,
they found a pile of backpacks but no students. The
sniffer dog reacted to the accused’s backpack.
Without obtaining a warrant, the police opened the
backpack and found marihuana and magic mushrooms.
The accused was charged with possession of
cannabis marihuana and psilocybin for the purpose of
trafficking. At trial, he challenged the admissibility
of the evidence. The drugs were subsequently
excluded and the charges against the accused were
dismissed. A unanimous Ontario Court of Appeal
upheld the trial judge's ruling.
Questions for the Supreme Court of Canada include:
•
•

Whether the accused’s rights under s. 8 of the
Charter were breached; and
Whether evidence was properly excluded at the
accused’s trial for possession of drugs for the
purposes of trafficking.

Right to Silence
R. v. Singh (British Columbia) (By Leave)
An innocent bystander was standing just inside the
doorway of a pub when a group of people were
arguing outside the pub and a stray bullet shot by
someone in the group struck the bystander, killing
him. The accused was arrested and charged with
second degree murder. During the second of two
police interviews following his arrest, the accused

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Volume 7 Issue 3
May/June 2007

made admissions to the police which the Crown
sought to introduce into evidence at trial in order to
identify him as the shooter. He was given proper
Charter warnings and spoke to counsel before the
interviews. During the interviews, he repeatedly
asserted his right to silence. He repeatedly told the
police that he did not want to talk, that he had
nothing to say, that he knew nothing about the
shooting, and that he wanted to return to his cell.
Each time the accused raised his right to silence,
the interviewing officer said that he had a duty or
desire to place the evidence before the accused and
he continued the interview. The trial judge admitted
the statements into evidence, holding that the police
did not breach the accused’s right to silence by
continuing to question him after he had asserted his
right to silence. The British Columbia Court of
Appeal upheld the decision to admit the admissions
into evidence and the accused’s conviction for
second degree murder.
Questions for the Supreme Court of Canada include:
•

•

Whether it is a violation of s. 7 of the Charter
for a police officer to attempt to persuade a
detained person, who has asserted a right to
remain silent following the exercise of the right
to counsel, to break his or her silence; and
Whether a voluntary statement to police may be
excluded on the basis that the accused's right to
silence was violated.

The trial judge held it was a reasonable inference
that the occupants of the vehicle were the intruders
and that they had the gun with them during the
break and enter. The accused was convicted of
multiple offences, including use of a firearm while
committing an indictable offence, for which he was
sentenced to a one-year jail term to be served
consecutively to all other sentences. The Crown
conceded on the appeal that it also was a reasonable
inference that the gun might have been in the getaway vehicle during the break and enter. Section
85(1)(a) of the Criminal Code states that "Every
person commits an offence who uses a firearm while
committing an indictable offence ...". The British
Columbia Court of Appeal held "uses a firearm"
includes having a firearm "proximate for future use".
Questions for the Supreme Court of Canada include:
•

•

Whether accused should have been convicted of
use of a firearm while committing break and
enter of a dwelling house if firearm was located
in vehicle outside dwelling house; and
Whether "use of a firearm" includes a situation
in which a firearm is "proximate for future use".

Source: Supreme Court of Canada www.scc-csc.gc.ca

Use of Firearm
R. v. Steele (British Columbia) (By Leave)
A woman saw three intruders in the backyard of a
neighbour's dwelling house, challenged them and
frightened them away. The accused’s thumb print
was found at the scene of an attempted break and
enter. Ten days later, four individuals broke into the
same house. They awakened three residents. One
intruder said "Don't move ... We have a gun ... Where
are the drugs?" Another said "Where are the drugs?
... Get the gun ... Get the gun." Another said "Get the
gun out." The intruders fled. None of the residents
identified the accused as one of the intruders or
testified that they saw a gun, although they
testified that they saw some of the intruders
holding objects about the size of a gun. The
residents gave the police a description of the get-

Volume 7 Issue 3
May/June 2007

away car and a few minutes after the break and
enter, the police stopped a vehicle matching the
description. Four individuals, including the accused,
were inside the vehicle. The police found a loaded
pistol in the vehicle.

LEGALLY SPEAKING:
Search Incident to Arrest
“It appears to me that the police officers
could have obtained a search warrant
and had time to do so. But there is no
requirement in law that a search warrant
be obtained if the search is conducted
incidentally to the lawful arrest of the suspect for any of
three reasons: to ensure the safety of the police and the
public; to protect evidence from destruction; or...for “the
discovery of evidence which can be used at the arrestee’s
trial.” - British Columbia Court of Appeal, R.. v. Munro,
Munro,
2005 BCCA 610

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19

THOROUGH KNAPSACK SEARCH
JUSTIFIED INCIDENT TO
INVESTIGATIVE DETENTION

reasonable, and the manner the search was carried
out was also reasonable. The Court noted:

In the Mann case, the Supreme Court of Canada
established that an investigative detention and
R. v. Peters, 2007 ABCA 181
protective search is authorized by law and is
reasonable in circumstances where carrying out
Three bike patrol officers responded
proper police duties requires it. The police have
to a call from a hotel that a man
the responsibility of protecting the
wearing a red jacket
lives of the public, including their own.
In 2007 it is obvious that a member
and
carrying
a “[A]n investigative detention
and
protective
search
is
of the public who, in a public place,
knapsack with pins and trinkets
has a gun, is a potential threat to the
inside the hotel had a gun. Upon
authorized by law and is
arrival the officers saw the reasonable in circumstances public. It is clear that the risk can be
as great from a hidden handgun as
accused fitting the description.
where carrying out proper from a more obvious rifle. [para. 5]

No gun was seen but he was
police duties requires it. The
wearing a red/orange jacket and
Here, the Court ruled, the trial judge
police
have
the
responsibility
had a large knapsack with pins and
did not err in finding the officer was
trinkets on it. One of the officers of protecting the lives of the
fully justified in conducting the
public,
including
their
own.”
patted down the accused and
thorough search of the knapsack
searched the knapsack by opening
where marihuana, but no gun, was
it up and taking a quick look, making sure nothing was
found. The marihuana was found during a lawful
obvious. A second officer was not satisfied with the
protective search and was admissible. Once the
cursory search and felt a small gun or weapon hidden
marihuana was found, the accused was arrested and
in the knapsack could pose a threat. He did not want
the discovery of more drugs was incidental to the
to return the knapsack to the accused which might
arrest.
have contained a firearm. The officer then made a
Complete case available a www.albertacourts.ab.ca
more thorough search of the knapsack and found
baggies containing marihuana, walkie-talkies, pipes,
lighters, and a bottle of isopropyl at the bottom.

LEGALLY SPEAKING:

At trial in the Alberta Court of Queen’s Bench the
accused was convicted of possessing marihuana for
the purpose of trafficking. The trial judge ruled
that there were reasonable grounds for the
investigative detention and protective search, which
was reasonable in manner and scope. The accused
then appealed to the Alberta Court of Appeal. He
did not challenge the validity of the initial detention,
the pat-down or the cursory search of the upper
part of the knapsack, but argued, in part, that the
extended detention and deeper search into the
knapsack by the second officer breached his s.8
Charter rights.
In a memorandum of judgment, the Alberta Court of
Appeal upheld the conviction. Since there was no
warrant for the investigative detention or
protective search the Crown needed to
demonstrate, on the preponderance of the evidence,
the search was authorized by law, the law was

20

Police Questioning & the Right to Counsel
“Whether or not there was detention is of
fundamental importance, since the right
of someone to be informed of their right
to consult counsel arises only if that
person is being detained… Care must be
taken in not proceeding on the assumption that everyone
being interviewed about the commission of a crime is
detained on the premise that they might eventually become
a suspect and thus entitled under section 10(b) of the
Canadian Charter to the right to counsel. ... [N]ot every
contact between a citizen, even one who is a suspect, and
the police, creates in and of itself a situation of fact
amounting to detention, with the rights that flow from that
status.” - Quebec Court of Appeal, R. v. Gaudette,
Gaudette, 2006
QCCA 1004

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Volume 7 Issue 3
May/June 2007

17th Annual
Abbotsford Police
Challenge Run

Saturday September 22, 2007
Register Early and Save!
The Abbotsford Police Challenge is committed to
being a family oriented event and for those who
don’t run there is a 5 km fun run/walk route so no one
is excluded from participating. The Police Challenge
Run began as a Fund Raiser for the Law Enforcement
Torch Run for Special Olympics 16 years ago. Today
it has grown to be one of the more prominent
community events supporting three charities.

ROAD RULES:
Bicycle Safety Helmets
Section 184 of BC’s Motor Vehicle Act
creates two offences related to bicycle
safety helmets. First, under s.184(1) it is an
offence for a person to operate or ride as
a passenger on a cycle on a highway
when not wearing an approved bicycle
safety helmet. Second, under s.184(2) a parent or guardian
of a child under 16 years old commits an offence if they
authorize or knowingly permit the child to operate or ride
a cycle on a highway without wearing an approved bicycle
safety helmet.
A “cycle” is defined in s.119 as “a device having any
number of wheels that is propelled by human power and
on which a person may ride and includes a motor assisted
cycle, but does not include a skate board, roller skates or
in-line roller skates.” Approved safety helmet standards and
specifications are listed in s.1(1) of the Motor Vehicle Act’s
Act’s
Bicycle Safety Helmet Standard Regulation and include
Canadian Standards Association (CSA), Snell Memorial
Foundation, American Society for Testing and Materials
(ASTM), and American National Standards Institute (ANSI).
Regardless of what standard the helmet is manufactured
under, all helmets must:
•
•
•

LOCATION
Abbotsford Civic Plaza, adjacent to Abbotsford
Police Department, 2838 Justice Way, Abbotsford,
BC.

RACE TIME

Section 2 of the Bicycle Safety Helmet Exemption
Regulation requires that the safety helmet must have a
label showing it meets one of the required standards.

Exemptions

Both events start at 9:00 am. Warm-up led by Apollo
Athletic Club at 8:30 am, Civic Plaza.

ROUTE
The 10km route is a test of your endurance that
includes a 1 km hill while the 5km fun run route is a
single flat loop.

www.abbotsfordpolice.org
Volume 7 Issue 3
May/June 2007

•

have a smooth outer surface;
be constructed so the helmet is capable of absorbing
energy on impact;
be strongly attached to a strap designed to be
fastened under the chin; and
be undamaged from use or misuse.

Under s.3 of the Bicycle Safety Helmet Exemption
Regulation four categories of persons are exempt from
wearing a bicycle safety helmet: (1) the wearing of a helmet
would interfere with an essential religious practice, (2)
operators and passengers of pedicabs or quadricycles, (3)
a person issued a certificate by the Superintendent of
Motor Vehicles for medical purposes; and (4) a person
under 12 years old operating a non-chain driven 3 or 4
wheeled cycle designed for recreational use.

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21

COURTS SHOULD AVOID
SECOND GUESSING OFFICER
SAFETY
R. v. White, 2007 ONCA 318
Two plainclothes officers were on
patrol in an area notorious for criminal
activity, including gun and drugrelated crimes, when they saw the
accused driving a black Acura at about 6 pm. He
pulled up to a parking spot close to the front door of
a strip club and remained parked there while his
girlfriend made three separate trips back and forth
from the car to the club in the space of six minutes.
After the third trip, the accused’s girlfriend reentered the club and remained inside. Based on their
experience, the officers believed they had just
observed a “text-book” case of someone either
buying or selling drugs and formed the suspicion
that the accused was engaged in illicit drug activity.
The officers followed the accused in their van as he
left the strip club and drove to a nearby gas station.
At the gas station the officers ran a check on the
Acura’s licence plate and learned it was registered
to a man prohibited from driving. Once he paid for
his gas, the accused did not return directly to his
car but took a circuitous route that enabled him to
pass the officers’ van and look inside. They believed
that this conduct was deliberate and designed to
confirm his suspicion that he was being followed by
the police. After walking past the officers’ van, the
accused returned to his car but he did not leave the
gas station. He instead went to a Tim Horton’s
“drive-through” and then returned to the gas
station parking lot where he parked his car. He got
out of his car and began to walk away from the
officers towards the street. He was speaking on his
cell phone at the time.
Believing that the accused might try to get away,
the officers decided to stop and investigate him for
suspected drug activity and driving while prohibited.
They got out of their van and an officer approached
the accused, overhearing him say “Yeah, they’re
here now” on his cell phone. The officer immediately
identified himself as a police officer and seized the
accused’s cell phone. It was then learned the
accused’s brother was the owner of the car. When

22

asked to retrieve his driver’s licence from the car,
the accused opened the driver’s door and leaned
across the front seat. He opened the glove
compartment with his left hand while putting his
right hand under the passenger seat. This action
concerned the officers and they put their hands on
their guns. A “mickey” bottle of liquor was seen
between the driver and the passenger seat and
police told the accused he would be charged under
the Liquor Licence Act and searched. The accused
replied that if he was going to be searched, he had
“this” and pulled out two bags of marijuana from his
pocket, turning them over to an officer. He was
arrested for possession of a controlled substance
and advised of his right to counsel.
The car was searched and a loaded .38 calibre
revolver wrapped in a bandana was found under the
front passenger seat. The “mickey” bottle of alcohol
and an electric pocket scale located inside the car
was also seized along with $80 Canadian and $30
U.S. from the accused at the police station.
During a voir dire in the Ontario Superior Court of
Justice the officer testified he seized the cell
phone for reasons of safety and evidence
preservation. The officer suspected the accused
was letting others know where he was and what was
going on and that it could present an officer safety
issue if other people attended the scene to assist
the accused, or items such as weapons or evidence
could be transferred. The trial judge ruled, in part,
that the police violated the accused’s s.8 Charter
rights when they seized his cell-phone during the
investigative detention. She stated:
I find there were no exigent circumstances justifying
a warrantless seizure under Section 11(7) of The
Controlled Drugs and Substances Act. There was no
urgency to seize the cell phone, nor was there any
credible evidence of a threat or apprehension that
the safety of the officers was at risk because [the
accused] had a cell phone on his person. [The accused]
was totally compliant and responsive to the officer’s
detention. He made no threatening gestures with his
phone or otherwise. He did not attempt to run, he
showed no inclination towards violence. The officer,
on his own evidence, perceived no real danger or
discomfort in the process until later when the
accused put his hand on the floor of the vehicle. The
phone call he was on ended when the officer stopped

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him. There is no evidence he tried to use the phone
after he was detained.

two separate bases for detaining and investigating
the [accused].

In her opinion the s.8 violation was serious, police
conduct “high-handed and an abuse of [their]
ancillary powers,” and the evidence was excluded
under s.24(2). The accused was acquitted on charges
of possessing marihuana for the purpose of
trafficking, possession of property obtained by
crime, possession of a prohibited firearm,
possession of prohibited ammunition, and being an
occupant of a motor vehicle knowing there was a
firearm.

• When the officers decided to approach the
[accused], he was walking away from their vehicle
towards the street and he was using his cell phone.
As [the officer] approached and identified himself
as a police officer, he overheard the [accused] say
“Yeah, they’re here now”. It was then that he
seized the [accused’s] phone.

The Crown appealed to the Ontario Court of Appeal
arguing the trial judge erred in holding the police
violated the accused’s rights under s.8 of the
Charter when they seized his cell phone. Justice
Moldaver writing the unanimous opinion of the Court,
however, found the police did not violate the
accused’s s.8 Charter right. He wrote:
Had the trial judge applied the correct principles of
law to those findings, she would, in my respectful
view, have concluded that [the officer] was fully
justified in seizing the [accused’s] cell phone when he
did and that he did not violate the respondent’s s. 8
rights in the process. The critical facts to which I
refer are set out below:

…[T]he trial judge determined that [the officer] was
not legally justified in seizing the [accused’s] cell
phone when he did. In so concluding, she found, among
other things, that there were “no exigent
circumstances justifying a warrantless seizure” and
there “was no urgency to seize the cell phone”. If by
that, the trial judge intended to limit the right of
seizure to situations of immediate danger as opposed
to reasonably apprehended potential danger, I am
respectfully of the view that she erred. Put simply,
the police did not have to wait to seize the [accused’s]
cell phone until they were set upon by back-up forces
summonsed by him. They were entitled to take
preventative measures.
The trial judge continued her analysis noting that
there was no “credible evidence of a threat or
apprehension that the safety of the officers was at
risk because [the respondent] had a cell phone on his
person”.

• On the evening in question, [the
officers] were working in plain
clothes in a high risk area of
Brampton notorious for all manner
of criminal activity, including drug
and gun related crimes. Their
observation of the [accused] and
his girlfriend at the Cannonball
Strip Club provided them with
reasonable grounds to suspect
that the [accused] was engaged in
illegal drug activity.

With
respect,
that
“In the circumstances, [the officer] had little misses the point. [the
time to reflect. He had to make a split officer] did not seize
the
[accused’s]
cell
second decision; a moment’s hesitation phone simply because he
could have put his life and that of his “had [it] on his person”.
partner in peril. Courts should keep this in He did so because the
was letting
mind when assessing the conduct of [accused]
someone know that the
officers in the field. When it comes to police were there. That
officer safety and preserving the integrity is precisely the kind of
of their investigation, police officers should information that [the
officer] was worried
• After they followed the [accused]
be given a good deal of leeway and about, both from the
for about a block to a nearby gas
second guessing should be avoided.”
point of view of officer
station, the officers observed him
safety and the potential
taking steps that caused them to
loss of evidence. If the
believe that he suspected he was being followed by
[accused] had not already done so, [the officer] did
the police. By this time, the officers had reason to
not want to give him the opportunity to provide his
suspect that the [accused] was not only engaged in
cohorts with more information, such as the location of
illegal drug activity but also, that he was driving
the gas station and the number of officers present.
while prohibited. Their beliefs were legitimate and
Nor was he required to do so. If ever there was a case
honestly held, and they provided the officers with
where [the officer] was justified in seizing the phone
to prevent (or attempt to prevent) back-up forces,

Volume 7 Issue 3
May/June 2007

www.10-8.ca

23

sympathetic to the [accused], from arriving at the
scene and imperilling police safety and/or obstructing
their investigation, this was it. [paras. 44-47]

Webster v. Edmonton (City) Police Service,
2007 ABCA 23

And further:
In sum…I have no doubt that [the officer] was fully
justified in seizing the [accused’s] phone when he
did, for the reasons he gave. There was no s. 8
breach here. [The officer] was engaged in a high
risk investigation. He and his partner were in plain
clothes, in an area of town notorious for drug and
gun related crimes. They were investigating a
suspected drug dealer who knew that he was being
followed by the police and who was “caught in the
act” conveying information to someone as [the
officer] approached him.
When [the officer] seized the [accused’s] cell
phone, he found himself in a dangerous and
potentially volatile situation. In the circumstances,
he had little time to reflect. He had to make a split
second decision; a moment’s hesitation could have
put his life and that of his partner in peril. Courts
should keep this in mind when assessing the conduct
of officers in the field. When it comes to officer
safety and preserving the integrity of their
investigation, police officers should be given a good
deal of leeway and second guessing should be
avoided. [paras. 53-54]

The marihuana, loaded firearm, and ammunition were
admissible as evidence. The Crown’s appeal was
allowed, the acquittals set aside, and a new trial was
ordered.
Complete case available at www.ontariocourts.on.ca

‘IN SERVICE’
LEGAL ROAD TEST ANSWERS
1. (a) True—see R. v. Alkins (at p. 4 of this
publication).
2. (b) False—see R. v. Rodney (at p. 7 of this
publication).
3. (a) True—see R. v. Shankar (at p. 7 of this
publication).
4. (a) True—see R. v. Lewis (at p. 9 of this
publication).
5. (b) False—see R. v. Duong
publication).

24

USE OF POLICE TAC UNIT NOT
EXCESSIVE IN CIRUMSTANCES

(at p. 10 of this

Police received a call from the
complainant about her father, the
plaintiff, and made a number of
allegations. She alleged the plaintiff
was threatening to find her husband with a crew of
men and inflict serious bodily harm upon him. He had
access to numerous firearms, including shotguns, .22
calibre rifles and big long guns, many of which were
illegal. He was under psychiatric care and suffered
from depression, anxiety attacks and manic
depressive episodes. He was unstable, had a wicked
temper, had an unpredictable nature, and his
response to police was uncertain, therefore police
should exercise caution when approaching him.
The call taker, in addition to entering the
information on the computer, also spoke with the
supervisor in charge of the communications section.
The communications supervisor made direct contact
with the complainant to get more information and to
corroborate her report. She also directed computer
searches to determine whether the police had any
prior involvement at the plaintiff’s residence and
whether he or his wife had prior criminal histories.
This resulted in information being provided which
disclosed that the plaintiff had a prior criminal
history involving the use of offensive weapons.
The communications supervisor communicated
directly with a platoon commander who had assumed
responsibility for the investigation. He determined
that, in light of the nature of the call, it was
necessary to involve the police tactical unit in
accordance with written policy. The tactical unit was
a team specially trained to deal with firearm calls
and provide enhanced public safety as well as
member safety. Rather than storm the house, the
tactical squad created a security perimeter,
telephoned the house, and persuaded the plaintiff
and his wife to come out and surrender with their
hands in the air. The plaintiff was made to kneel
down to be handcuffed and the police searched the
residence and found a number of firearms, stored
improperly in some respects. Those firearms were

www.10-8.ca

Volume 7 Issue 3
May/June 2007

seized and disposed of by police arrangement with
the plaintiff and he was not charged with any
offence in connection with the firearms. Webster
was taken to a nearby community police station, his
handcuffs were removed, and he remained for about
one hour before his release. Webster’s wife was not
handcuffed but also driven to the nearby community
station.
At a civil trial in the Alberta Court of Queen’s Bench
Webster and his wife sued police, among others, for
wrongful arrest and detention and claimed damages
for nervous shock, assault and damage to their
house. The trial judge found the police, including the
Chief and the platoon commander, used excessive
force. Additionally, even if the use of the tactical
team was initially justified the police were also liable
in tort because the plaintiff’s detention was
unlawful. He said:

nobody but her parents and a small dog were in the
house and confirmation from [the plaintiff’s wife]
that nobody but she and her husband were there.
[The plaintiff] was treated like a dangerous
criminal by being forced to his knees and
handcuffed while [his wife] was placed in a police
car. They were each taken away in view of
bystanders and a TV film crew. In the
circumstances, the police could have readily
located the weapons
through directions
voluntarily given by both parties and returned the
[the plaintiffs] to their home in short order.
Unfortunately, [the platoon commander], who was
in charge, never saw the [the plaintiffs] leave
their home and nobody appears to have had the
authority or the inclination to exercise any
independent judgment on the scene. The
procedure adopted was inexorable and incapable
of any flexibility. I find that it was not justified
and resulted in the unlawful detention of the
[plaintiffs].

I conclude that in all the circumstances of this
case, the use of the tac team was not justified and
The plaintiff was awarded $6,000 in damages while
constituted a significantly greater use of force
his wife was awarded $4,000.
than was necessary. Within the principles in the
The defendants, including the Chief of police and
Mann decision, the [plaintiffs’] right to security
within their home was seriously breached. There
the platoon commander, appealed to trial judge’s
was insufficient evidence of
ruling to the Alberta
danger to [the plaintiff],
“Police officers are not expected to measure Court of Appeal arguing
the public or the police to
the plaintiff was not
the precise amount of force the situation
justify the steps taken.
wrongfully detained or
requires. Nor will they be denied the
However, even if the use of
that the police used
the tac team might have
protection of s. 25(1) if they fail to use the
excessive force when
been justified initially, I am
least
amount
of
force
that
would
achieve
the
they used the tactical
satisfied
that
the
desired
result.
Allowance
must
be
made
for
team
during
this
detention of the [the
plaintiffs] was not.
an officer, in the exigency of the moment,
operation.
In
a

misjudging the degree of necessary force.
When the [the plaintiffs]
Judgment the Alberta
left their home, with their Accordingly, the immediate decisions a police
Court of Appeal allowed
hands empty and raised, it
officer makes in the course of duty are not
the appeal and dismissed
was immediately evident
assessed through the ‘lens of hindsight’”
the plaintiff’s actions.
that they were not a threat
to anyone. Nevertheless,
Excessive Force
the police methodically continued along with the
standard procedure of the police manual. They
Police officers will be exempt from liability under
considered that a search for the firearms was
s.25 of the Criminal Code “if they use no more force
mandatory and that it was necessary that the
than is necessary having regard to their reasonably
[plaintiffs] be absent from the premises while
held assessment of the circumstances and dangers
this was conducted. In addition, the search was
left to the tac team who adopted the approach
in which they find themselves.” In citing a previous
that another dangerous individual could well be
judgment (Crampton v. Walton, 2005 ABCA 81), the
lurking in the house. This was carried on in the
principles surrounding police use of force were
face of information from [the complainant] that
Memorandum

of

summarized as follows:

Volume 7 Issue 3
May/June 2007

www.10-8.ca

25

Police officers are not expected to measure the
precise amount of force the situation
requires...Nor will they be denied the protection
of s. 25(1) if they fail to use the least amount of
force that would achieve the desired result.
Allowance must be made for an officer, in the
exigency of the moment, misjudging the degree of
necessary force…Accordingly, the immediate
decisions a police officer makes in the course of
duty are not assessed through the "lens of
hindsight"…[references omitted]

In this case the trial judge made three palpable and
overriding errors. First, his conclusion was
inappropriately based, in part, on hindsight. Second,
he was misguided in concluding that the police ought
to have obtained more information before employing
the tactical team. For example, it was unlikely that
the plaintiff’s counselling psychologist would have
agreed to provide information without his consent.
And finally, the trial judge neglected to consider
that “the police need not measure the precise
amount of force required and must be given
allowance for misjudging the degree of force
required because of the exigency of the moment. As
well, he neglected to consider whether their
assessment of the circumstances and danger was
reasonably held.” The Court stated:
If the trial judge had not made the above errors,
he would have been unable to conclude that the use
of the tactical team constituted excessive force.
The police assessment of the circumstances was
reasonably held and in good faith. They had a
report suggesting that the respondent had made
threats against [the complainant’s] husband; had a
criminal record; was under psychiatric care and
was unpredictable; and was in possession of
numerous firearms including illegal ones.
Deployment of the tactical team under these
circumstances was required by the Police
Service's Policy…
Given the need for public protection in the
circumstances known to the police, the use of the
tactical team did not constitute excessive force.
[paras. 32-33]

The Detention
The Supreme Court of Canada outlined in R. v. Mann
the circumstances in which a person may be detained
for investigative detention:

26

The detention must be viewed as reasonably
necessary on an objective view of the totality of
the circumstances, informing the officer's
suspicion that there is a clear nexus between the
individual to be detained and a recent or on-going
criminal offence. Reasonable grounds figures at
the front-end of such an assessment, underlying
the officer's reasonable suspicion that the
particular individual is implicated in the criminal
activity
under
investigation.
The
overall
reasonableness of the decision to detain, however,
must further be assessed against all of the
circumstances, most notably the extent to which
the interference with individual liberty is
necessary to perform the officer's duty, the
liberty interfered with, and the nature and extent
of that interference, in order to meet the second
prong of the Waterfield test.

In this case, the trial judge misapplied the Mann
principles. The Court stated:
His conclusion on improper detention was
apparently based on his view that [Webster] and
his wife were not a threat because they came out
of the house with their hands up; the police could
have searched the house while [Webster] and his
wife remained in it; [Webster] was forced to
kneel while he was handcuffed; and a TV film crew
and others observed all this.
On the one hand, the trial judge failed to take
account of "all the circumstances", as required by
Mann. On the other, he took account of
circumstances that were irrelevant or beyond the
control of the police.
Among the circumstances he neglected to
consider were whether it was realistic to expect
the police to conduct a weapons search while
[Webster] was in the house and, if not, whether it
was realistic to keep [him] standing outside the
house given the cold temperature that day. He
also failed to consider whether [Webster’s]
privacy interests would be better served if he was
taken to the police station rather than left in the
glare of publicity.
As for circumstances that he considered, the
presence of the media and others was not within
the control of the police. This was an irrelevant
consideration in his assessment of the overall
circumstances.
A proper application of Mann compels the
conclusion that the detention was not improper.

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Volume 7 Issue 3
May/June 2007

There was a clear nexus between the [Webster’s]
detention and the officers’ reasonable belief that
[Webster] was implicated in the criminal activity
under investigation (threats and possession of
illegal guns). It was not unreasonable for the
police to conclude that [Webster] should be
absent from the house during the weapons search.
The matrix of the circumstances included the
weather, the presence of curious onlookers on the
one hand, and the relatively short time during
which the respondent was detained. These
circumstances also supported the reasonableness
of the police action. [paras. 37-41]
Complete case available at www.albertacourts.ab.ca

CRIMINAL CODE DISTURBANCE
REQUIRES MORE THAN
ATTRACTING CURIOSITY
R. v. Walker, 2007 ONCA
At about 6:00 pm the accused, a
uniformed
patrol
officer,
was
patrolling in a marked police car when
he saw the complainant walking. The
officer thought the complainant might be a person
wanted on an arrest warrant. As the officer
attempted to make eye contact, the complainant
glanced over at him and then quickly looked away.
The officer decided to speak to him and also had
concerns, arising from the clothing that the
complainant was wearing, that he might be a gang
member.
The officer made a U-turn and pulled his police car
partially up onto the grassy curb area beside the
sidewalk. The complainant was a short distance
ahead of the officer but, after the police car pulled
up onto the curb area, the complainant stopped,
turned around and walked back to the police car. The
officer spoke to the complainant who responded in a
loud voice. Upon observing the complainant's face at
close range, the officer realized that he was not the
man wanted on a warrant.
The complainant continued to "vent" at the officer,
including the use of insulting language, consisting of
accusations of racism. The complainant also asserted
that the officer was only questioning him because he
was a black male. The officer got out of his police
car and asked the complainant to identify himself,

Volume 7 Issue 3
May/June 2007

but the complainant continued to make comments in
a loud voice to the officer. The officer attempted to
contact the police dispatcher by his radio but the
battery fell out of the unit rendering it inoperable.
The complainant told the officer again that he was a
racist and suggested that the officer arrest him.
Some residents of the area came out of their houses
to see what was going on. The officer told the
complainant that he was under arrest for causing a
disturbance and told him to turn around so that he
could be handcuffed. The officer got the handcuffs
on one of the complainant's wrists but the
complainant then began to resist. The officer
delivered a knee strike to the complainant and
forced him to the ground, causing his cheek bone to
fracture. Once the complainant was on the ground,
the officer completed handcuffing him. The officer
placed the battery back into his radio and called for
backup and other officers arrived on scene to assist.
At trial in the Ontario Court of Justice the officer
was convicted of assault causing bodily harm and
given a conditional discharge. The trial judge
concluded that the officer left his police car to
pursue an investigation into whether the complainant
was a gang member which resulted in a detention.
She found the detention unlawful. At the time the
officer left his car he knew the complainant was not
the man wanted on a warrant and further, the
officer had no reason to believe the complainant was
involved in or had any knowledge of any criminal
offence. The trial judge also ruled the officer was
not acting in the lawful execution of his duties when
he made the arrest. The disturbance that occurred
resulted from the officer unlawfully detaining the
complainant and therefore the arrest for causing a
disturbance was unlawful. There was no justification
to use force and the Crown had proven beyond a
reasonable doubt that the officer had assaulted the
complainant and caused bodily harm.
The officer then appealed to the Ontario Superior
Court of Justice alleging the trial judge erred in
finding a detention. Had he found no detention, the
officer said the trial judge would not have concluded
the arrest was unlawful. The Crown submitted that
the issue of detention was irrelevant because there
was no disturbance and therefore no basis upon
which the officer could have arrested the

www.10-8.ca

27

complainant. Rather, the officer created the
disturbance by persisting in unjustifiably questioning
the complainant.
The appeal judge ruled that is was open to the trial
judge to find a detention and even so, there was no
disturbance as defined by the case law. There was
no “externally manifested disturbance” even though
certain people in the area had their attention drawn
to the encounter. Merely attracting curiosity is not
the same as causing a disturbance. Further, any
degree of disturbance was instigated by the officer.
The appeal judge stated:
The trial judge pointed out that the [officer],
once he knew that the complainant was not the man
he was seeking and that the complainant was
objecting to being questioned, could simply have
driven off. Instead, the officer got out of his
police car, thereby exacerbating the situation, and
persisted in questioning the complainant when he
had no reasonable grounds to do so. While counsel
for the [officer] contended that the [officer] had
the right to ask questions because of the
complainant's "bizarre" conduct, the fact is that
there was no evidence of such conduct nor was
there any evidence to base any reasonable belief
that the complainant might have been mentally ill
or intoxicated and therefore a danger to the
public peace.
I do not quarrel in any way with the point made by
counsel for the [officer] that police officers
ought not to be subject, in the course of their
duties, to verbal abuse or insults at the hands of
citizens. At the same time, however, citizens have
the right to object to the actions of the police
where they have a reasonable basis to believe that
an officer may be exceeding his or her authority.
This is particularly important in the context of
investigative detentions for the reason that Mr.
Justice lacobucci set out in R. v. Mann...where, in
discussing some of the dangers associated with
such detentions, he noted... " ... the potential for
abuse inherent in such low-visibility exercises of
discretionary power ..."
It would have the proverbial "chilling effect" on
the rights of citizens to object to such abuse by
police officers if the consequences of objecting
were to be for the objectors to then find
themselves charged with a criminal offence such
as causing a disturbance. In so concluding, I do not
mean to condone the conduct of the complainant
regarding the manner in which he chose to express

28

his objections. I, like the trial judge, find his use
of insulting language towards the officer
disturbing. However, it remains the fact that,
however objectionable the conduct of the
complainant may have been, on the facts before
the trial judge she was entitled to find, as a fact,
that it did not rise to the level of causing a
disturbance nor could the [officer] reasonably
have concluded that it did.

The officer then appealed to the Ontario Court of
Appeal. In dismissing the appeal in a short
Endorsement, the Court stated:
Even if there was a “disturbance,” in common
parlance, there was no “disturbance” within the
meaning of the Criminal Code in this case. The trial
judge found that the [officer] had no right to
continue investigating or questioning the
complainant. While the complainant’s loud and rude
protestations may have been “disturbing” to some,
they did not constitute reasonable grounds for the
[officer] whose improper actions instigated the
exchange to believe there was a criminal
disturbance. [para. 5]
Complete case available at www.ontariocourts.on.ca

MARK YOUR CALENDAR!!!
POLICE LEADERSHIP 2008
CONFERENCE
April 14-16, 2008

Future of Police Leadership:
One World, One Voice, One Purpose
The
British
Columbia
Association of Chiefs of
Police, the Ministry of Public
Safety and Solicitor General,
and the Justice Institute of
British
Columbia,
Police
Academy are hosting the
Police Leadership 2008 Conference in Vancouver,
British Columbia, at the Westin Bayshore. This is
Canada's largest police leadership conference and
is held every two years. International speakers
and participants from across Canada and beyond
will be attending. More details at:

www.10-8.ca

www.jibc.ca
Volume 7 Issue 3
May/June 2007