POLICE ACADEMY

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

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

IN MEMORIAL
On
December
18,
2002,
53-year-old
RCMP Superintendent
Dennis Massey was on
duty and driving from
a Calgary City police
station to the RCMP
office at Springbank when a flat deck trailer
loaded with a large propane tank broke away from
an eastbound truck, crossed the centre line, and
crushed his vehicle. Superintendent Massey was
cut from the wreckage and transported to
hospital where he succumbed to his
injuries. Superintendent Massey was
a 33 year member with the force
and is survived by his wife, mother,
a brother, and a sister.
The above information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/canada

CUMULATIVE FACTORS
PROVIDE REASONABLE
GROUNDS
R. v. Reid, (2002) Docket:C38518 (OntCA)
The police had the accused (a
suspended
driver)
under
surveillance and saw him driving
a vehicle bearing stolen licence
plates. One evening, he and a companion were
observed unload musical equipment stolen from a
recent break and enter of a musical studio. They
were moving it from his companion’s vehicle into
the lobby and elevator of an apartment where the
accused lived. The accused was arrested while
carrying a stolen stereo to the elevator. He was

Volume 3 Issue 1
January 2003

also holding a bag of burglary tools and had a
rubber glove in his pocket.
At his trial, the accused offered an explanation
for the possession of the stolen goods. Although
he admitted he drove while suspended, that the
licence plates on his car were not his, and that he
knew the property was stolen, he claimed he was
simply helping his companion unload the musical
equipment for storage at his apartment. He
claimed he did not know the bag contained
burglary tools and that he picked up the rubber
glove and put it in his pocket after it fell from his
companion’s car while unloading the equipment.
The trial judge rejected his explanation and he
was convicted of break and enter, possession of
stolen property, and possession of burglary tools.
He appealed to the Ontario Court of Appeal
arguing, among other grounds, that the police did
not have reasonable grounds to arrest him and
that the trial judge misapplied the doctrine of
recent possession.

Reasonable Grounds
The Ontario Court of Appeal found the arrest
lawful. The cumulative factors of being
suspended, driving a vehicle bearing stolen licence
plates, and unloading computers and musical
equipment late at night into the lobby and
elevator of his apartment building shortly after
the break and enter and theft of a music studio
provided ample reasonable grounds to justify the
accused’s arrest.

Doctrine of Recent Possession
The doctrine of recent possession allows the
court to find that the possessor of recently
stolen goods, in the absence of a reasonable
explanation, stole the goods. Because the accused
was found in possession of stolen musical

equipment, the trial judge drew the inference
that he committed the break and enter of the
music studio. However, the accused suggested
that since there was no evidence directly linking
him to the break and enter and because he
provided an explanation for his actions the night
of his arrest, no inference of guilt for the break
and enter could be drawn. In ruling against the
accused, the Ontario Court of Appeal held that an
“unreasonable explanation”, such as that provided
to and rejected by the trial judge in this case,
was no explanation at all for the purpose of
rebutting the inference drawn by the court. Thus
the unexplained possession of stolen goods by the
accused less than two hours after the break and
enter permitted the inference that he stole
them. His appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

CONFESSIONS RULE: POLICE
MUST ACCOUNT FOR TIME IN
CUSTODY
R. v. Holmes,
(2002) Docket:C35772 & C34957 (OntCA)
The accused was arrested for
arson while walking at the side of
the road after two residential
garages were set on fire. He was
informed of the reason for his arrest and advised
of his right to counsel. Upon arrest, he denied
being responsible for the crimes. At the police
station, the accused made several unsuccessful
attempts to contact his lawyer. Sixteen hours
later he was re-informed of his right to counsel
and spoke to his lawyer. He was then interviewed
for more than five hours. Although he denied
setting them, he made several statements that
placed him in the area of the fires and provided a
motive. The accused was convicted by a judge and
jury, but appealed to the Ontario Court of Appeal
arguing, among other grounds, that his statement
was inadmissible because the Crown failed to
prove it was voluntary beyond a reasonable doubt.
He suggested that the police unsuccessfully

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January 2003

accounted for the 16-hour gap from the time of
his arrest to the time his statement was taken.
The Crown claimed that the statements were
voluntary because the accused was advised of his
right to counsel and spoke with his lawyer.

Voluntariness
The common law confessions rule requires the
Crown prove that a statement made to a person in
authority is voluntary beyond a reasonable doubt.
This burden not only demands the Crown prove
the atmosphere under which the statement itself
was taken was free from inducements and
oppression, but the surrounding circumstances
leading up to it were also free from these
factors. Although the accused was able to consult
with a lawyer, which is an important circumstance
to consider in determining the voluntariness of a
statement, this does not necessarily render any
statement made voluntary. The right to counsel
and the confessions rule are complimentary, but
not the same. The obligation was on the Crown to
account for the lengthy period that the accused
was held in custody. Since the Crown failed to
affirmatively explain the 16 hours of custody,
relying on the fact the accused spoke to a lawyer,
by itself, was insufficient to prove voluntariness.
The Ontario Court of Appeal concluded that trial
judge erred in his assessment of voluntariness.

24 Hour Detention
Section 503(1) of the Criminal Code requires the
police to bring an arrested person before a
justice of the peace without unreasonable delay
and in any event within 24 hours. The Ontario
Court of Appeal noted this section does not
provide the power to simply detain a person for a
period of 24 hours to investigate. The police must
justify why an accused was not taken before a
justice without unreasonable delay by offering an
explanation, which was not provided in this case.
As a result, the convictions were set aside and a
new trial was ordered.
Complete case available at www.ontariocourts.on.ca

2

'OFF SHIFT' POLICE OFFICER
ACTING IN COURSE OF DUTIES
R. v. Jones, 2002 BCPC 0423
An "off duty" police officer
dressed
in
civilian
clothes
identified himself as a police
officer to the accused, who was
a participant in a fight. The officer told the
accused to sit on the curb, but the accused
resisted the officer and attempted to run away.
He also struggled while responding police
attempted to handcuff him.
At issue was
whether the "off duty" police officer was in the
lawful execution of his duty for the offence of
obstructing a peace officer under s.129 of the
Criminal Code. In concluding that the “off-duty”
member was acting as a police officer, British
Columbia Provincial Court Judge Angelomatis
stated:
I will find that the police officer is on duty, and
the reason I am finding it is that I think it is
inappropriate for a police officer to himself say
that he believes himself to be on duty. It is a
matter of law, not what he thinks. The law, both by
looking at the definition of the Code and under the
Police Act, the provincial Code does not specify a
timeframe, and it logically seems consistent that
one would not be a police officer simply as a result
of a booking of a shift or some union constraint on
time; that if you are acting in the course and scope
of what should be your duties, or are your duties,
then you acquire the definition of a police officer
and are entitled to the protection of being a police
officer.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
“Laws are partly formed for the sake of good

men, in order to instruct them how they may live
on friendly terms with one another, and partly for
the sake of those who refuse to be instructed,
whose spirit cannot be subdued, or softened, or
hindered from plunging into evil” Plato (427-347
BC)

Volume 3 Issue 1
January 2003

CLASS 88 GRADUATES
The Police Academy is pleased to
announce the successful graduation
of recruit Class 88 as qualified
municipal constables on November
15, 2002.
ABBOTSFORD
Cst. Chris Nightingale
Cst. Donald Ridder
CENTRAL SAANICH
Cst. Kevin Nystedt
DELTA
Cst. Trent McKie
WEST VANCOUVER
Cst. Katrina Bull
Cst. Robin MacDonald
Cst. Tom Wolff von
Gudengberg
STL’ATL’IMX
Cst. Leonard Isaac

VANCOUVER
Cst. Dino Antonel
Cst. Joanne Arabski
Cst. Todd Blower
Cst. Kaleen Bowyer
Cst. David Brander
Cst. Silvana Burtini
Cst. Chris Cronmiller
Cst. Alison Cropo
Cst. Tyler Doolittle
Cst. Kenneth Duckworth
Cst. Alison Gailus
Cst. Christian Galbraith
Cst. Jason Gibbons
Cst. Jennifer Obuck
Cst. Lee Patterson
Cst. Luis Ramirez
Cst Jennifer Tang
Cst. Duane van Beek
Cst. Tim Ward
Cst. Melissa Yamamoto

Congratulations to Cst. Donald
Ridder (Abbotsford), who was the
recipient of the British Columbia
Association of Chiefs of Police
Shield of Merit for best all around
recruit performance in basic training. Cst. Silvana
Burtini (Vancouver) received the Abbotsford Police
Association
Oliver
Thomson
Trophy
for
outstanding physical fitness. Cst. Duane van Beek
(Vancouver) received the Vancouver Police Union
Excellence in Academics award for best academic
test results in all disciplines. Cst. Lee Patterson
(Vancouver) received the British Columbia
Federation of Police Officers Valedictorian award
for being selected by his peers to represent his
class at the graduation ceremony. Cst. Patterson
also received a Class Supervisor’s award as a
special honour for his leadership and dedication to

3

his class. Cst. Christian Galbraith (Vancouver) was
the recipient of the Abbotsford Police Recruit
Marksmanship award for highest qualification
score during Block 3 training (50/50). Chief
Constable Jamie Graham of the Vancouver Police
Department was the keynote speaker at the
ceremony.

LEADERSHIP & MANAGEMENT:
CONFLICTING or
COMPLIMENTARY CONCEPTS?
Sgt. Mike Novakowski
Webster’s
New
World
Dictionary1 defines the word
‘manage’
as
“to
control…
behaviour” while ‘lead’ is defined
as “to guide by influence”. Like
the dictionary definition, many of
today’s authors of leadership and management
literature attempt to differentiate between
these two models. Catchy phrases and trendy
parlance are used to illustrate a dichotomy. For
example, Covey2 proposes that managers do things
right whereas leaders do the right thing. Loeb
and Kindel3 advocate that management is about
execution and leadership about vision. Yukl4
however, suggests using caution when attempting
to appropriately define these terms simply by
delineating their differences.
In addition to leadership, expert Warren Bennis5
suggests that today’s organizational leaders must
also possess administrative, or management, skills.
Bennis describes western organizational life as
logical,
analytical,
linear,
controlled,
and
conservative (or a left brained culture). People
who work in research and development positions,
by sharp contrast, are intuitive, conceptual, and
artistic (or right brained). Leaders, Bennis

believes, must be whole brained; administrative
and imaginative. Unfortunately, as Bennis points
out, corporate culture usually only rewards left
brain accomplishments (tradition) while right
brain achievements (innovation) are discredited.
Leadership, or the whole brained approach,
requires trust, including one’s hunches and
impulses, which usually translate into doing the
right thing.
In policing, people require both leadership and
management skills at all levels. Assuming that
every officer can be a leader, it is important for
the officer to possess the abilities necessary to
‘do the right thing in the right way’. For example,
officers must be able to use innovative methods
for solving problems and combating crime, yet at
the same time possess strong investigative file
management skills. However, the culture of a
police organization often stifles officers from
taking risks and demonstrating leadership
capacities.
Conforming closely to departmental policy,
procedure, rules, or tradition often restricts an
officer’s ability to do the right thing. This
technical or mechanical aspect of decision-making
attempts to control officer conduct. Leadership
decision making by distinction, uses vision, values,
and ethical considerations to guide judgment.
Police organizations must be prepared to empower
their followers by removing structural barriers
such as excessive policy and procedure6. Police
organizations must move forward from the
traditional hierarchical management style of
controlling behaviour through excessive regulation
to guiding officers by influencing their values and
underlying
assumptions.
Management
can
compliment leadership, but only to the extent
where doing the right thing is compatible with
doing things right!!!

1

Webster’s New World Dictionary (1995). New York, N.Y.: Simon & Schuster Inc.
Covey, Stephen. (1989). The Seven Habits of Highly Effective People. New York,
N.Y.: Simon & Schuster Inc.
3
Loeb, Marshall & Kindel, Stephen. (1999). Leadership for Dummies. Harper Collins
Publishers Inc.
4
Yukl, Gary. (2002). Leadership in Organizations. Upper Saddle River, N.J.:
Prentice-Hall Inc.
5
Bennis, Warren. (1991). On Becoming a Leader. Nightingale-Conant Corp.
2

Volume 3 Issue 1
January 2003

Kotter, John P. (1996). Leading Change. Boston, Mass.: Harvard Business School
Press.; Yukl, Gary. (2002). Leadership in Organizations. Upper Saddle River, N.J.:
Prentice-Hall Inc.
6

4

SEARCH OF TRUNK
INCIDENTAL TO ARREST
R. v. Trenton, 2002 SKPC 69
A police officer stopped the
accused driving and arrested him
for an outstanding warrant under
Saskatchewan’s
provincial
Alcohol and Gaming Regulations Act. He was read
his Charter rights and the police caution. While
being handcuffed, the officer detected a faint to
moderate fresh odour of marihuana on the
accused. He was searched and the officer found a
pager with $80, a glass tube containing old
marihuana roach ends, and $220 in a rear pocket.
The officer called a canine unit trained in the
detection of drugs and .5 grams of marihuana was
found in the trunk of the vehicle. The accused
was arrested for possession of marihuana under
s.4(1) of the Controlled Drugs and Substances
Act and was re-read his rights and the police
warning.
At trial, the accused argued the police did not
have exigent circumstances at the time of the
search and therefore required a search warrant.
Furthermore, the arrest was pursuant to a
warrant for a liquor ticket and therefore a search
beyond his person was not properly incidental to
arrest because it was not conducted to secure
evidence of the offence for which he was
originally arrested (liquor warrant). As a result,
he suggested the warrantless vehicle search was
unreasonable and the marihuana should be
excluded. The Crown, on the other hand,
contended that the search of the accused and his
vehicle was lawful as an incident to arrest. The
police were acting on the belief that they had
found evidence of marihuana during the search of
his person and therefore were entitled to search
his vehicle.

The Search
Since the police did not have a warrant, the Crown
carried the burden of demonstrating that the
search was nonetheless reasonable. Saskatchewan

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January 2003

Provincial Court Justice Whelan concluded the
arresting officer was entitled to arrest the
accused for possession of marihuana after the
personal search, but before the vehicle search.
However, even though he did not advise him he
was under arrest at the time, the search of the
vehicle that followed was still incidental to the
arrest. A search incidental to arrest can precede
the arrest provided the officer is entitled to
make the arrest prior to the search. In this case,
the accused was arrested on the warrant which
permitted the officer to search his person
incidental to that arrest. After discovering the
items on his person, the officer could have
arrested the accused for the possession offence
and was therefore allowed to search the vehicle
because he was “suspicious that further evidence
of crime might be found in the vehicle”. The
search was properly conducted as an incident to
arrest, was thus reasonable, and the evidence was
admissible.
Complete case available at www.canlii.org

SEARCH FIRST, ASK
QUESTIONS LATER?
R. v. Flett 2002 MBPC 10034
Two uniformed police officers on
patrol after midnight in a high
crime area observed four men on
the sidewalk, one of which
appeared to have a can of pepper
spray in his hand. The male saw the police car and
threw the can to the ground. As the officers
stopped, two of the men fled on foot. The
officers approached the two remaining men and
advised them they were being detained “to
ascertain the ownership of the spray”. Both men
were wearing red, which the police believed to be
an insignia of the aboriginal inner city street gang
known as the “Indian Posse”. The canister of
spray was 10-15 feet from the males. One officer,
a 5 year member, dealt with the male she saw
throw down the spray. He acknowledged
ownership of it and was arrested, searched, and

5

placed in the police car. The second officer, a 5
month junior member attended to the accused.
He was wearing a red bandana tucked in, but
visibly hanging out of his belt. On request for
identification, the accused produced three pieces
of government ID. After this interaction, the
officer searched the accused for “safety
reasons” based on “departmental policy” and found
a knife when he reached inside the accused’s
winter jacket and searched his interior chest
pocket. The accused was charged with carrying a
concealed weapon.
During a voire dire to determine the admissibility
of evidence, the accused argued that he had been
arbitrarily detained contrary to s.9 of the
Charter and that the search of his person
violated his right to be secure against
unreasonable search or seizure protected under
s.8. As a result, he contended the knife was
inadmissible as evidence. The Crown suggested
that the officer had articulable cause justifying
the detention and the search was proper
incidental to that detention for officer safety.

The Detention
In finding the detention lawful, Justice Devine of
the Manitoba Provincial Court stated:
In my view, there can be no issue that these
officers did have articulable cause to briefly
detain these two individuals in order to investigate
the offence that they believed they had seen
being committed, that of being in possession of a
prohibited weapon. Even though I have found that
the police officers did know which of the two
individuals had been in possession of the canister
prior to its being thrown down, I also find that
they were entitled to briefly detain [the accused]
in these circumstances in order to ascertain his
identify. He readily complied with this request,
producing three different pieces of identification.
No issue can be taken with the police conduct to
this point. They believed they had observed an
offence. Their subsequent investigation in picking
up the discarded item and questioning the suspect
about ownership was brief. [The accused’s
companion’s] admission of ownership gave them the

Volume 3 Issue 1
January 2003

reasonable and probable grounds they needed to
arrest him for the offence. In all of the
circumstances, it was also reasonable for the
police to briefly detain [the accused] in order to
ascertain his identity. They may have needed to
speak to him further regarding the incident if, for
example, [the accused’s companion] had later tried
to point the finger at [the accused]. The police
may then have needed to follow up with [the
accused] to eliminate this possibility. In the result,
defence has not persuaded me that the brief
detention of [the accused] on the street for a
period sufficient to ascertain his identity was
arbitrary or a breach of the Charter.

The Search
Although the detention was justified, the accused
was not a suspect in the offence the police
observed. He was cooperative, complied with the
officer’s request for identification, did not run
away, was neither drunk, nor aggressive, nor
threatening. The search was conducted after the
conversation and production of identification and
went beyond a pat-down search to involve a
search of inner jacket pockets. In concluding that
the search was unreasonable, Justice Devine held:
Given the timing of the search in the context of
the events, I find that in the totality of
circumstances this search was not for the
purposes of officer safety but was rather an
investigatory exploration that extended the period
of detention beyond that justified by the events.
The police did not call for back-up, did not opt to
pursue the fleeing persons and got out of the car
with full knowledge of who the perpetrator was. As
indicated above, I do accept that they were
entitled to ask [the accused] for identification in
the event they needed to talk to him at a later
time about the incident, but they were not entitled
to detain [the accused] for longer than the period
it took him to produce identification. The fact that
they chose to search him after they had satisfied
the legitimate purposes of the detention
undermines the credibility of their articulated
concern. They of course also had the option at any
point of telling [the accused] to leave, rather than
searching him. (emphasis added)
………

6

This issue of possible gang membership may have
been a factor tending towards legitimizing the
search had not the timing of the search belied the
assertion as to why it was done. Equally however,
one must be cautious that the understandable
abhorrence that police and many members of
society feel for the activities carried out in the
names of such gangs does not become an excuse
for singling them out for discriminatory treatment.
It is somewhat ironic that [the accused], who
unlike two of his companions stayed around to
speak to the police, was rewarded for his
cooperation by being detained and searched.
Meanwhile the two whose flight could arguably
have suggested that they had something more to
hide were not pursued by police. This hardly
promotes the message that there is anything to be
gained by cooperating with the police.

And further:
…I do not believe that we have yet reached the
stage where the incantation of "officer safety"
can be used to legitimize every fishing expedition
undertaken by the police under that mantra.
In so saying, I do not mean in the least to trivialize
the danger faced by the police officers patrolling
our streets nor to undermine their legitimate right
to take all reasonable and lawful steps to ensure
their own safety in a given situation. However the
courts must be equally vigilant in not giving the
police carte blanche to initiate an "investigatory"
conversation with unsavory individuals as a guise
for carrying out a personal search that they would
not otherwise be able to make. Proportionality and
individual circumstances must be examined in each
instance of reliance on this doctrine.
Complete case available at www.canlii.org

Note-able Quote
“[O]f all the criminal justice components, it’s our
police who are respected the most7” Member of
Parliament
Jacques
Saada,
Parliamentary
Secretary to the Solicitor General of Canada.

7

From Speaking notes during the International Centre for the Prevention of Crime
November 10, 1998, available online at www.csc-scc.gc.ca

Volume 3 Issue 1
January 2003

CORRECTIONAL OFFICERS
HAVE DUTY TO PROTECT
INMATE
Guitare v. Canada, 2002 FCT 1170
The
plaintiff,
a
federally
incarcerated and segregated
inmate at Millhaven Institution,
sued the government for his
injuries arising from an assault occurring in his
cell. He alleged that correctional officers were
negligent in failing to keep him safe and promptly
coming to his rescue. The plaintiff, who was
labeled a sexual predator, had been placed in the
segregation unit for his own safety. To maintain
safety amongst the prisoners in this unit, only one
inmate is allowed on the range while all others
remain secured in their cells. On this occasion the
range cleaner (an inmate who serves meals, does
laundry, and cleans up) was standing across from
the plaintiff’s cell speaking to another inmate.
The plaintiff overheard the cleaner use the term
“hound” (a reference to a sex offender) and
engaged in a heated argument with him involving
swearing and insults. Because the plaintiff felt
immune from physical attack in the safety of his
secure cell, he goaded on the inmate cleaner. The
cleaner threatened to have the plaintiff’s door
opened and kill him.
The cleaner placed some laundry in front of the
plaintiff’s cell door, called out for the
correctional officer in the safety post to open
the door so the plaintiff could get his laundry.
The inmate cleaner stepped back into his own cell.
The officer thought he locked the cleaner’s door
and then unlocked the plaintiff’s door. Evidently
the inmate cleaners door was not locked, he
pushed it open, and rushed to the plaintiff’s cell.
There, he began to punch and kick the plaintiff.
The officer, who could not leave his post, advised
the men over the intercom to stop fighting and
return to their cells. Two back up officers were
called but concluded it was unsafe to enter the
range without additional backup. They shouted

7

orders to the two men to stop fighting. After two
minutes of repeated punching by the inmate
cleaner, both men tired and were eventually
returned to their cells by correctional officers.
The plaintiff was examined by a doctor and
treated for facial lacerations, abrasions, and a
broken tooth.

Negligence
To prove a case of negligence, the plaintiff must
establish the following:
•
•
•

the correctional authorities owed him a duty
of care;
they breached the duty of care required, and
the injuries he sustained were caused by the
breach of the duty.

Justice Lafreniere of the Federal Court of
Canada concluded the “duty of reasonable care
[by prison officials] to safeguard prisoners in
their custody or control from attack by other
inmates…will vary commensurate with the risk to
the inmate”. Since the plaintiff had a reputation
as a sexual offender, he was at risk to be harmed
by other inmates, which was the reason he was
involuntarily placed in segregation. Thus,
correctional officers working in segregation were
required “to exercise great care in monitoring
[his] movements and limiting as much as possible
any opportunities for retaliation by other
inmates”. In this case, the officer “failed to
properly secure [the plaintiff’s] cell door and
prematurely opened [the inmate cleaner’s] door, in
breach of unit policy, thereby placing [the
plaintiff] in danger”. Although the error was
nothing more than a lapse in judgment, the assault
was a direct and foreseeable consequence of this
failure. The plaintiff was awarded $5000 for
general damages.
Complete case available at www.fct-cf.gc.ca

Note-able Quote
“A simple man believes anything, but a prudent
man gives thought to his steps” Proverbs 14:15

Volume 3 Issue 1
January 2003

MOMENTARY DELAY IN ARREST
DOES NOT DISGRACE JUSTICE
R. v. Lee & Wu,
(2002) Docket:C33056 & C33160 (OntCA)
During a Canadian Airlines flight
from Hong Kong to Pearson
International Airport, several
members of the crew became
suspicious of the two accused
Lee and Wu, who were passengers aboard the
flight. They were observed switching bags and
entering various washrooms from which banging
noises could be heard. The pilot sent a teletype
message regarding the suspicious behaviour to
the airlines office in Toronto which was
forwarded to Canada Customs. Following the
airplane’s arrival, a search of the washrooms was
conducted and bricks of heroin were found. The
secondary inspection area was notified to be on
the lookout for the men, but it was reported they
had already been released. Lee was spotted in the
arrivals lobby, escorted back to the secondary
inspection and questioned. Lee stated he was
visiting a cousin and provided his cousin’s
telephone number. The cousin, who turned out to
be Wu, was called and stated he would be at the
airport in half an hour to pick up Lee. Lee was
arrested, and when Wu arrived at the airport he
was also arrested.
Both men were fingerprinted after the arrest and
their luggage, airline tickets, and boarding passes
were seized as evidence. Sixty bricks of heroin
(42 kgs.) worth $50,400,000 were found behind
the walls in six of the airplanes washrooms. Three
of the accused Lee’s fingerprints and 8 of
accused Wu’s fingerprints were found on 11 of the
heroin bricks. The trial judge concluded that at
the time the men returned to the secondary
inspection area they were not “detained” for the
purpose of the Charter and thus neither s.9
(arbitrary detention) or s.10 (right to counsel)
were violated. Furthermore, the fingerprinting
and search of the accused were not unreasonable
and therefore did not violate s.8 of the Charter.

8

They were convicted of importing heroin by a
judge and jury but appealed arguing, among other
grounds, that the trial judge erred in admitting
Lee’s fingerprints and the documents seized from
him. Lee suggested that his rights under s.8, 9,
and 10 were violated and the evidence should have
been inadmissible under s.24(2) of the Charter.

Admissibility of Evidence
Once the customs officer was informed of the
discovery of the heroin and the contents of the
teletype sent by the pilot, the subjective and
objective
grounds
for
arrest
were
“overwhelming”. The “fingerprints were taken
after the lawful arrest. Accordingly there was no
s.8 violation with respect to them”. Moreover,
even if the trial judge erred in his assessment of
whether the accused Lee was “detained”, s.24(2)
was applied appropriately. Although the arresting
officer delayed the arrest of Lee for a few
minutes after he was brought back to the
secondary inspection area (the officer was “overly
cautious about her suspicions and wanted to make
sure she had subjective grounds”), this “extreme
caution to arrest” did not create “a serious
Charter breach”. Thus the delay in arrest after
the “alleged unlawful detention” could only be
characterized as a minimal breach and did not
warrant the exclusion of evidence. Admitting the
physical, non-conscripted evidence obtained after
the arrest simply because the officer hesitated
in making a lawful arrest would not bring the
administration of justice into disrepute. The
appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

RETRO LESSONS FROM
MAYBERRY
Deputy Barney: How does one acquire good
judgment?
Sheriff Andy: I guess it comes from experience.
Deputy Barney: How do you get experience?
Sheriff Andy: From getting kicked around a little
bit.

Volume 3 Issue 1
January 2003

GOLDEN KEY PROVES
POSSESSION
R. v. Vu, 2002 BCCA 659
The police executed a Controlled

Drugs

and

Substances

Act

search warrant at a rural
property
with
two
vacant
residences and several large barns, one of which
contained 1,878 marihuana plants and grow
equipment. The driveway leading up to the barns
had a chain across it between two metal poles.
While searching the property, the accused
arrived as a passenger in a vehicle, exited, and
was observed taking the chain off the post. He
was arrested by police and searched. In his front
pants pocket the police found $1,100 in cash and a
gold key that opened the only lock securing the
barn containing the marihuana. Although the
accused and one of his companions testified at
trial that they were at the property after being
provided the key to do some cleanup work, the
judge convicted him of possession of marihuana
for the purpose of trafficking. However, he was
acquitted of production of marihuana and theft of
electricity. The accused appealed to the British
Columbia Court of Appeal arguing, in part, that
the trial judge erred in finding he had the
necessary knowledge and control of the grow and
that a conviction for possession and an acquittal
of production were inconsistent and therefore
unreasonable.

Knowledge and Control
In proving possession, the Crown bears the
burden of proving that the accused had knowledge
of and some measure of control over the
marihuana. In this case, the trial judge concluded:
I find that the accused's possession of the key to
the lock on the door to the grow op is proof of
control over the drugs inside. Even though the
accused was not found inside the building,
possession of the key proves control. In fact,
possession of the key is, in my opinion, a stronger
indicator of control than mere presence in a

9

building. A locked door and the key to that door is
the very essence of control.

On appeal, the accused submitted that knowledge
and control were not the only reasonable
inferences to be drawn from the circumstantial
evidence. Justice Rowles, for the unanimous
British Columbia Court of Appeal, wrote:
Whether an inference as to knowledge and control
can be drawn by a trier of fact is a matter to be
examined in light of the particular facts and
circumstances of each case. In the circumstances
of this case, the [accused’s] possession of the key
to the only lock on the barn where the growing
operation was located is sufficient evidence to
support the inference of control.
The following evidence supports an inference of
knowledge: the [accused’s] attendance at the
property, his possession of a key that opened the
only lock on the barn containing the growing
operation, the extensive nature of the operation
and its very high commercial value, the daily
attention needed to maintain the health of the
marihuana plants, the residences on the property
being unoccupied at the time, and the only use for
the key being to open the padlock securing the
barn.

Although other inferences from the facts are
possible, there was no evidence to support an
alternative.

Inconsistent Verdicts
In dismissing the accused’s assertion that a
conviction for a possession charge but an
acquittal for production are incompatible, and
therefore unreasonable, Justice Rowles stated:
It is possible to possess marihuana for the purpose
of trafficking without producing or cultivating it,
since a conviction for possession for the purpose
of trafficking requires proof of knowledge and an
element of control but does not require any
evidence of active participation in the growth of
the plants. Contribution to the growth of plants is
irrelevant to a finding of possession. For example,
if the appellant was on the property to distribute
the marihuana in the barn, it could hardly be said

Volume 3 Issue 1
January 2003

that he necessarily participated in the production
of the plants.

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

WARRANT REQUIRES NO MORE
THAN REASONABLE GROUNDS
R. v. Law, 2002 BCCA 594
A police officer was told by a
colleague that the male occupant
of a van entered a hydroponics
store known as a place from
which persons who grew marihuana would
purchase equipment and supplies. Three days
later, at 3:30 am, the police officer attended the
registered owner’s address (obtained from CPIC)
and found the hydro meter spinning 6-8 times
faster than two neighbouring residences. It was
also noted that the windows were covered with
blinds and that the garage windows had a “blackout” blind. The officer re-attended again at 3:30
am a day later and made the same observations
(meter and blinds), but also found the van seen at
the hydroponics store parked in the driveway.
After obtaining the hydro records for the
residence, which suggested high electricity
consumption, the officer applied for and was
granted a search warrant under s.11 of the
Controlled Drugs and Substances Act. As a result
of the search, the accused was charged with and
convicted of production of a controlled substance
and possession of marihuana for the purpose of
trafficking. The accused appealed to the British
Columbia Court of Appeal arguing that the trial
judge erred in finding that there were reasonable
grounds to issue the warrant. He suggested that
entering the “indoor gardening store”, having
closed blinds at night, and using more electricity
than the neighbours would at best support a
“suspicious possibility”, but did not amount to
reasonable grounds.
The test on review for the issuance of the search
warrant is “whether the justice of the peace

10

acting judicially on the information before her
could have concluded that [there were]
reasonable…grounds to believe that an offence
was being committed [at the residence]”. Justice
Huddart, writing for the unanimous appeal court,
opined that reasonable grounds for belief (aka:
reasonable belief, reasonable probability, or
probable cause) simply requires enough evidence
to amount to a minimum threshold of “crediblybased probability”. In concluding that the test in
this case had been satisfied, Justice Huddart, in
dismissing the appeal, stated:
It is true that each fact taken individually could
have a legitimate alternate explanation that would
weigh against an inference of criminal activity
taking place in the house. It is equally true that
more diligence could have been exercised by the
investigating officer in obtaining evidence to
support his application for a search warrant. But
the justice of the peace made her decision on the
basis of the evidence before her. The question for
this court is not what additional evidence might
have put the issue beyond debate, it is whether
the entirety of the evidence before the justice of
the peace was sufficient to give her reason to
conclude "probability" had replaced "suspicion".
When I have regard to the entirety of the
evidence, I am persuaded it was reasonable for the
justice of the peace to conclude from it that a
marijuana-grow operation would probably be found
in the house to be searched. The observation of
the electric meters, combined with the hydro
account said to be consistent with a grow
operation, takes the evidence beyond the suspicion
raised by the visit of a male to the hydroponic
store from a motor vehicle registered to the
[accused], to the probability required to invade the
[accused’s] privacy.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“The reputation of policing suffers from the
misdeeds of a few” Author unknown

Volume 3 Issue 1
January 2003

BY VACATING HOUSE,
ACCUSED RELINQUISHED
CONTROL OF GROW
R. v Lucani, 2002 BCCA 646
The accused and a second male,
Sarjola, rented a two-story
house with living quarters on the
upper floor and a furnace and
other equipment in the basement. The two men
told the landlord that the accused would occupy
the top floor while Sarjola would rent the
basement. Sarjola stayed in the basement after
setting up a cot. Both men each paid half the
monthly rent to the landlord. On October 31st,
2000, the landlord received a call that Sarjola
would now be solely responsible for the rent. On
November 2nd the landlord went to collect the
rent but also remembered that the outside water
tap needed to be shut off from inside the house
to prevent it from freezing. He entered the
basement, found the grow operation, and promptly
reported it to police. The police obtained a search
warrant and executed it that same day. While the
police were conducting the search, Sarjola arrived
home, claimed responsibility for the grow
operation, and told police the accused had moved
out of the home. Nonetheless, the accused and
Sarjola were charged with production of
marihuana and possession for the purpose of
trafficking dated November 2nd, 2000.
Although the accused did not testify at trial, his
girlfriend did. She told the court she lived with
him in the upper section of the house but had
moved out on October 22nd or 23rd. The accused
was convicted by the trial judge of possession for
the purpose of trafficking, but acquitted of
production. The trial judge concluded that the
accused had the requisite knowledge of the grow
as well as the capacity to exercise consent and
control over it. He appealed to the British
Columbia Court of Appeal arguing there was no
evidence that the elements of possession

11

required to convict him existed (on November 2nd,
2000) after he had moved out of the house.
In setting aside the conviction and ordering an
acquittal, Justice Esson for the unanimous British
Columbia Court of Appeal stated:
The vacating of the house and the attempts by
[the accused] to persuade the landlord to agree
that he had given notice of intention to quit are
matters not inconsistent with his having formed a
genuine intention to severe his relationship with
Sarjola and with the property. I have some
reservations whether the evidence was capable of
establishing, that while he lived in the house, [the
accused] was a party to the offence of possession
but, in any event, that does not establish that he
had any control in the time specified in the charge,
i.e. on or about November 2. The evidence relied
on by the trial judge to convict him was essentially
all circumstantial. In my view, it was evidence
consistent with the view that [the accused] had no
connection or control over the grow operation at
the relevant time.
Complete case available at www.courts.gov.bc.ca

NO NEED TO ENQUIRE ABOUT
SUCCESS IN CONTACTING
COUNSEL
R. v. Liew, 2002 ABCA 279
Following his arrest, the accused
was given three police Charter
warnings and was provided a
telephone, and a telephone book.
He was also made aware of a Legal Aid roster and
made several telephone calls to a lawyer. He was
then placed in a holding room with an undercover
officer and engaged him in a conversation. The
conversation was admitted at trial because it had
not been elicited by the police. The accused had
argued that he told the police he was unable to
reach his lawyer of choice. The police denied this.
The trial judge rejected the accused’s assertion
and held that his rights under s.10(b) of the
Charter were not violated. The accused appealed
to the Alberta Court of Appeal submitting that

Volume 3 Issue 1
January 2003

his Charter rights were violated and he was thus
entitled to a new trial or a judicial stay of
proceedings. In rejecting the accused’s s.10(b)
counsel of choice argument, Justice Ritter for
the unanimous Alberta Court of Appeal stated:
Once the police have informed an individual of his
right to counsel, and have facilitated the exercise
of that right, there is a positive duty on the
individual to pursue that right….Absent unusual
circumstances, there is no duty on the part of the
police to enquire whether or not the individual has
been successful in contacting counsel of choice.
(references omitted)
Complete case available at www.albertacourts.ab.ca

BCCA UPS THE ANTE ON HOME
INVASION ROBBERY
R. v. Whicher, 2002 BCCA 336
Armed with a knife, the accused,
and his confederate entered the
home of an elderly couple
through an unlocked back door.
While demanding money he waved his knife
around, slashing wallpaper and cutting the
telephone lines. Although the victims gave the
men $300 from their wallets, they demanded
more. The female victim was sexually assaulted by
his companion while the accused confined her
husband to a chair at knifepoint. The ordeal
lasted for about half an hour and the female
suffered bruises and loosened teeth. The 24 year
old accused had a criminal record and substance
abuse problem at the time of the offence. He
plead guilty to break and enter and possession of
a weapon and was sentenced to 10 years on the
break and enter and a further 3 years concurrent
on the weapons offence. The accused appealed his
sentence arguing that is was unfit and a range of
5 to 8 years would be more appropriate. In
unanimously dismissing the accused’s sentencing
appeal, the British Columbia Court of Appeal
stated:
Counsel for the Crown respondent in this case
submitted that if earlier cases in this Court had

12

suggested a range of seven to ten years as being
appropriate for this type of offence, then, in view
of the increasing incidence of this class of offence
and, the associated continuing violence to
householders, some upward revision might be
necessary. In my opinion, this submission of Crown
counsel has merit. While sentences are but one
tool, and often a rather blunt one at that, in
dealing with persistent societal problems, courts
must, by the sentences they impose, endeavour to
curb violent behaviour. Violent lawbreaking is a
particularly serious threat to an ordered society.
The instances of violent home invasions in this
province are all too frequent. It must be made
clear that those who engage in such activity will,
upon conviction, face significant penalties.
It
seems to me that a sentence range of 8 to 12
years should be considered an appropriate range
for sentences in this class of case. Of course,
here, we are speaking of planned home invasions,
not cases of breaking and entering where violence
is not contemplated. That kind of case is less
serious, although there is always the regrettable
danger in such cases that matters may go awry and
unplanned violence may occur. As I noted earlier,
Parliament has classed housebreaking as a very
serious offence in any circumstances.
Although the above noted range can furnish a
general guide, trial judges should not be unduly
fettered in choosing an appropriate sentence,
having regard to the widely varying factual
circumstances of offences and offenders.
Particularly egregious circumstances…may attract
higher sentences.
Correspondingly, a lower
sentence may be thought appropriate for a
relatively young offender who is perhaps led into a
situation he or she did not fully appreciate might
arise. What must be dealt with severely are the
genus of break-ins and robberies that involve the
violent invasion of residential premises that are
occupied. These offences, perhaps particularly
those that occur in the hours of darkness, are
terrifying to the victims in particular and to the
populace in general.
In this class of case,
deterrence, general and specific, assumes prime
importance. (emphasis added)
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“Charter rights are the rights of all people in
Canada. They cannot be simply suspended when the
police are dealing with those suspected of
committing serious crimes. Frustrating and
aggravating as it may seem, the police as respected
and admired agents of our country, must respect
the Charter rights of all individuals, even those
who appear to be the least worthy of respect8”
SCC Justice Cory.

CROWN MUST PROVE CAUSE OF
IMPAIRMENT
R. v. Jobin,
(2002) 165 C.C.C. (3d) 550 (QueCA)
A McDonald’s restaurant drive
through employee believed the
male driver of a car was
inebriated and was unable to
drive. She noted an odour of
alcohol, red and glassy eyes, difficulty speaking,
and he appeared to not understand what she was
saying to him. This was reported to police who
responded and followed the accused for 10-15 km.
They observed unprovoked sharp braking and his
failure to make any turns even though his signal
was flashing. After stopping the car, the officers
observed the accused had difficulty getting out
of the car, understanding their questions, and
balancing. He swayed while standing and his eyes
were bloodshot and his pupils dilated. Although
the officers did not note an odour of liquor, the
accused was arrested and transported to the
police station where he provided two breath
samples resulting in readings of 0mg%. The
officers were surprised by the readings because
they were inconsistent with the physical
symptoms. Nonetheless, the accused was charged
with impaired driving.
At trial the accused testified and advanced
various innocent explanations for his condition and
driving. These included:
8

Volume 3 Issue 1
January 2003

R. v. Stillman [1997] 1 S.C.R. 607 at para. 126.

13

•

•
•

the odour of alcohol detected by the
restaurant employee was from empty alcohol
bottles he transported the day before;
after signaling his intention to turn, he
changed his mind; and
his physical symptoms were a result of minor
handicaps including deafness, a shortened leg
bone, and a speech impediment.

Although he found alcohol was not the cause of
impairment, the trial judge concluded the Crown
had nonetheless proven the accused’s ability to
drive was impaired and convicted him. He
appealed to the Superior Court of Quebec, but
the conviction was confirmed. He again appealed,
this time to the Quebec Court of Appeal, arguing
that the Crown failed to prove the cause of
impairment.
Justice Thibault, writing for the unanimous
court, held that an essential element of a charge
under s.253 of the Criminal Code requires proof
beyond a reasonable doubt that impairment was
from alcohol and/or a drug and not some other
cause:
…I am of the view that the text of s.253 of the
Criminal Code…requires that the Crown prove,
beyond a reasonable doubt, that the accused’s
faculties were impaired by alcohol, a drug, or both.
The proposition according to which the mere
observation of impairment would lead to the
conviction of a driver of an automobile, does not
respect either the letter of s.253 nor the
intention of Parliament.
The conduct which is criminalized is not driving
while one’s faculties are impaired—and impairment
may be caused by fatigue, stress, a physical or
mental handicap, etc.—but rather driving while
one’s ability is impaired by the consumption of a
drug or alcohol. This is the scourge, which the
Criminal Code intends to punish and eradicate, and
nothing else.

In light of the trial judge concluding that the
accused had not been drinking, and Crown’s
inability to link the impairment to a drug, the
Quebec Court of Appeal entered an acquittal.

ARTICULABLE CAUSE IS MORE
THAN AN INFORMED HUNCH
R. v. Harvie, 2002 BCPC 0441
A police officer was patrolling
for impaired drivers around a
hotel pub at closing (2am) when
he noticed a taxi parked near an
alley. The officer was aware that
a known drug dealer currently on bail lived down
the alley in a residence above a business premise.
The residence however, was a different one than
the dealer was charged with selling drugs from
and the officer did not know whether the dealer
was continuing to sell drugs out of his new
residence. When the officer approached the
driver of the taxi he observed a person exit the
alley. The officer had seen a similar dressed
person enter the alley 3 to 5 minutes earlier.
Although the officer did not have grounds to
arrest the person nor know if the person
attended the residence of the drug dealer, the
officer immediately detained him on suspicion of
drug possession and conducted a safety search.
The officer found cocaine and the person was
charged with unlawfully possessing a controlled
substance.
During a voire dire to determine the admissibility
of evidence, Justice Doherty of the British
Columbia Provincial Court concluded that the
officer lacked an articulable cause and “the
detention and subsequent arrest were arbitrary
and unlawful”. Justice Doherty stated:
[T]he court has no wish to smother police
initiative. Good police work involving police officers
with a healthy scepticism or suspicion often results
in the prevention of crime or the apprehension of
criminals. Nor does the court want to render a
decision that would put a police officer’s personal
safety in jeopardy because of a failure to search.
The officer’s safety issue is very much of concern.
Having said that, the price of officer safety might
well be that the search goes awry and this would
appear to be such a case.
………

Complete case available at www.canlii.org

Volume 3 Issue 1
January 2003

14

In my view in the case at bar, the officer acted on
little more than a hunch. It was an informed hunch
but in the end it was a little more than that. While
articulable cause may require something less than
grounds to support an arrest it requires something
more than a hunch, even an informed hunch. Had
the officer been able to connect the accused with
a visit to the known drug dealer's residence this
case might have taken a different turn.
Complete case available at www.provincialcourt.bc.ca

A DIFFERENT SPIN…
What s. 10(b) of the Charter says…
Every one on arrest or detention has the right to
retain and instruct counsel without delay and to
be informed of that right.

What a defence lawyer would like a court
to believe it says…
Every one on police questioning has the right to
retain and instruct counsel without delay and to
be informed of that right.

What s.9 of the Charter says…
Every one has the right to be free from arbitrary
detention or arrest.

What a defence lawyer would like a court
to believe it says…
Every one has the right to be free from any
detention or arrest.

What s.8 of the Charter says…
Every one has the right to be secure against
unreasonable search or seizure.

What a defence lawyer would like a court
to believe it says…
Every one has the right to be secure against
warrantless search or seizure.

Volume 3 Issue 1
January 2003

PRIVATE BAILIFF IS NOT A
PEACE OFFICER
R. v. Burns, 2002 MBCA 161
The accused, an employee of a
private bailiff company, was
charged
with
falsely
representing himself to be a
peace officer when he attended a vehicle lessee’s
place of employment to repossess the vehicle.
When questioned by the lessee’s employee about
who he was, the accused represented himself to
be employed by the Manitoba Sheriff’s
department. At trial, the accused was convicted
under s.130(a) of the Criminal Code, which was
confirmed on appeal to the Manitoba Court of
Queen’s Bench. The accused appealed further to
the Manitoba Court of Appeal arguing that since
he was a bailiff he was in fact a peace officer as
defined in the Criminal Code and it is “not an
offence for one kind of peace officer (a bailiff)
to represent himself to be another kind of peace
officer (a sheriff’s officer)”.
Although s. 2 of the Criminal Code defines a
peace officer as including “a…bailiff…or other
person employed for the preservation and
maintenance of the public peace or for the
service or execution of civil process”, Justice
Twaddle for the unanimous Manitoba Court of
Appeal concluded that “a private bailiff is not a
person of the kind encompassed by the definition
of peace officer” in the Code. He stated:
[T]he word "bailiff" has two meanings. In the first
meaning, it refers to a person employed in an
official capacity to serve a Crown-appointed
officer (such as a sheriff) or a court. In the
second meaning, it refers to an agent of a private
person who collects rents or manages real estate.
The accused was clearly not a "bailiff" within the
first meaning. Although I have some doubt about
his status as a "bailiff" under the second meaning,
I will assume, for the purpose of this decision,
that he was acting as a "bailiff" within the second
meaning.

15

Which meaning was intended by Parliament in
defining "peace officer"? Or did Parliament intend
to encompass both? I do not think there is any
doubt that Parliament used the word solely in its
first meaning. Everyone referred to in the
definition section, other than a "bailiff," is
patently a public or statutory officer performing
public duties. There is no reason to believe that
Parliament intended to include, as a peace officer,
a person who was a private appointee performing
non-public duties.

The accused’s appeal was dismissed.
Complete case available at www.canlii.org

CLUB POOL IS A ‘PUBLIC
SWIMMING AREA’
R. v. D’Angelo,
(2002) Docket:C36984 (OntCA)
The accused was convicted of
the sexual interference of a
minor under 14 years of age when
he touched the victim with his
mouth and penis. He was sentenced to 12 months
community imprisonment, 3 years probation, which
included a term that he not associate with
children under 14, and a 10 year order under s.161
of the Criminal Code prohibiting him from
attending a public swimming area where children
under 14 were or could reasonably be expected to
be. He was a 25 year resident of a community
comprised of seven high rise buildings and
numerous townhouses accommodating about 8,000
residents. He had gone swimming in the
community club pool (used by owners or renters
of the complex) where other people were using it
including children under 14. The manager, who was
aware of the accused’s orders, called police. The
accused was arrested and charged with breach of
probation (s.733.1 Criminal Code) and breach of a
prohibition order (s.161(4) Criminal Code).
At trial, the accused successfully argued that the
pool was a private one. Since he lived in the
complex, was a member of the club, and paid a
membership fee to use it, the trial judge applied

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the definition of public place found in s.150 of the
Criminal Code and concluded the club was not open
to the general public—it therefore was not a
“public” swimming area. The accused was
acquitted of both charges but the Crown appealed
to the Ontario Court of Appeal arguing that the
club pool was a “public” swimming area.
In defining the meaning of “public” in the phrase
“public swimming area”, the accused submitted
that it would need to be a facility operated or
funded by government. In rejecting this narrow
view, Justice MacPherson for the unanimous
Ontario Court of Appeal found the word “public”
was connected more to invitation and access
rather than ownership or control. In applying the
dictionary meaning of the words “public” and
“public place” and the Criminal Code statutory
definition of the phrase “public place”, the Court
of Appeal held that the community swimming pool
fell within these definitions:
The principal users of the pool are the residents
of the Community itself. That community is a large
one, about 8000 people; indeed, it is worth noting
that the…Community is larger than many Ontario
villages and towns. Moreover, there are many
secondary and tertiary users of the pool. The
secondary users are people from neighbouring
communities who purchase club memberships. The
tertiary users are non-members who use the pool
for various classes and programs.
Importantly, many of the users in all of these
categories are children.

Furthermore, the Court examined s.161 and how
its purpose would impact the meaning to be
ascribed to a “public swimming area”:
Section 161…deals with…sexual offences. Many of
the provisions in this part of the Code are
designed to protect children from sick adults who
prey on them for purposes of selfish sexual
gratification. Adopting a narrow definition of
“public swimming pool”-for example, one which
excluded such large facilities as Wet and Wild
Kingdom or Canada’s Wonderland-would be a
disservice to a particularly vulnerable group in
Canadian Society.

16

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

LACK OF BAD FAITH
MITIGATES CHARTER BREACH
R. v. Nagra, 2002 BCCA 497
The accused was convicted of
possession of cocaine for the
purpose of trafficking after his
car was stopped, searched
without a warrant, and a duffle bag containing
cocaine was found by police. The officer
conducting the search testified he believed he
had exigent circumstances and therefore relied
on the warrantless search provisions of s.11(7) of
the Controlled Drugs and Substances Act for
justification. At trial the accused suggested that
the search was warrantless and therefore
violated his s.8 Charter right to be free from
unreasonable search or seizure. Although the
officer had reasonable grounds to conduct the
search, the trial judge concluded there were no
exigent circumstances justifying a warrantless
search. However, the evidence was nonetheless
admitted under s.24(2) of the Charter. In his
s.24(2) admission/exclusion analysis, the trial
judge stated:
The onus at this stage is on the accused to
establish on a balance of probabilities that
admission
of this
evidence
obtained
by
infringement of a Charter right would bring the
administration of justice into disrepute. Good
faith or bad faith by the police is relevant and the
existence of other lawful means, namely obtaining
a search warrant, makes the infringement more
serious. There is no evidence here of bad faith on
the part of the police, nor can it be said they were
acting in good faith when they did not apparently
directly apply their minds to their obligations
under s. 11(7) of the C.D.S.A. I find their conduct
was more lack of diligence than it was a deliberate
and flagrant breach of Charter rights. The
seriousness of the breach is mitigated somewhat
due to the established lower expectation of

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privacy in an automobile travelling on a public
highway, but overall I would assess the Charter
breach as in the mid-range of seriousness.

The accused appealed, arguing the trial judge
erred in holding that the police officer was not
acting in bad faith and that the evidence should
have been excluded. In assuming (without
deciding) that the search was unreasonable,
Justice Ryan for the British Columbia Court of
Appeal dismissed the appeal. The trial judge
neither erred in principle nor made an
unreasonable finding.
Complete case available at www.courts.gov.bc.ca

CROWN MUST PROVE GUN
LOADED AT RELEVANT TIME
R. v. Adiwal, 2002 BCCA 530
A police officer watching the
home of the accused saw him
open the rear hatch of a van and
appear to search it while a
second person stood watch. The officer heard
what sounded like a gun being “racked” several
times and saw the accused holding a firearm for
about 20 seconds as the two men talked. He then
put the gun back in the hatch area and closed it.
The two men entered the van (the accused
driving) and left the area. Fifteen minutes later
the police stopped the van and there were now
four males in it; the accused was in the passenger
seat. In the rear of the vehicle under some
carpeting police found a gun with one round in the
magazine.
The accused was charged with and convicted of
possessing a loaded prohibited firearm (a sawed
off rifle) and being an occupant of a vehicle
knowing there was a firearm. The accused
appealed his conviction for possessing the loaded
firearm by arguing, among other grounds, that the
Crown failed to establish the rifle was loaded
when the accused was seen handling it. In
agreeing with the accused and entering an

17

acquittal, Justice Prowse for the unanimous
British Columbia Court of Appeal stated:
There was no direct evidence that the rifle was
loaded at the time [the officer] saw it in the
possession of the person he identified as [the
accused]. While [the officer] stated that he
heard a noise which he thought was a shotgun
being "racked", he was not asked to elaborate on
that evidence and he did not tie it to the issue of
whether the rifle was loaded. The Crown did not
suggest that we could take judicial notice of what
the word "racked" means in this context, and we do
not propose to do so.
The only circumstantial evidence which relates to
the issue of whether the rifle was loaded at the
time it was seen in the possession of the person
identified as [the accused] is the evidence that it
had a bullet in the magazine approximately 15
minutes later at the scene of the takedown. In our
view, this evidence, in itself, could not support a
finding beyond a reasonable doubt that the gun
was loaded at the time [the officer] said he saw it
in the possession of the person he identified as
[the accused]. By then, 15 minutes had elapsed,
two further males had joined the group and,
according to the evidence of [the officer], [the
accused] had exchanged places in the vehicle.

psychiatrist with expertise in pedophilia who was
of the opinion that pedophiles generally tend to
collect and keep child pornographic materials.
Based on this information, the investigator
obtained a warrant to search the accused’s home
for four items (cameras, film and negatives,
developed photographs depicting the victim, and
photo developing receipts) directly related to the
offence she was investigating as well as “any
pedophile collection which may or may not include”
items such as magazines, videos, audio tapes,
writings, computer discs, etc. The warrant was
executed and the only item found directly related
to the mother’s complaint was a Polaroid camera.
However, they also found and seized other child
pornography. Although the charge in relation to
the mother’s complaint was withdrawn, a charge
of possession of child pornography proceeded.

R. v. Fawthrop,
(2002) Docket: C36382 (OntCA)

At trial, the investigator, who was present for,
but did not participate in the actual search, was
the only police officer to testify on the voire
dire. The trial judge found that the psychiatrist
did not have any contact with the accused and
therefore could not say he was a pedophile.
Consequently, there was no link between the
accused and pedophilia sufficient to provide
reasonable grounds to believe pornographic
material existed at his home. Therefore, the
warrant was severed with it being valid only to
the extent it authorized the search for the four
items directly related to the complaint, and
invalid in so far as it authorized the search for
the pedophile collection.

A mother complained to the
police that the accused, a family
friend, engaged in improper
sexual
conduct
with
her
daughter and had taken two
Polaroid photographs of her private areas.
Following interviews with the complainant and the
victim, the investigator believed the accused was
still in possession of the photographs. Suspecting
he might also be a pedophile who possessed child
pornography, the investigator consulted a

However, since the warrant was valid for the four
items, the pedophile collection would have been
found anyway during this valid portion of the
search. Thus, its seizure was authorized by
s.489(1) of the Criminal Code and the accused was
convicted. Furthermore, even if he was wrong in
holding the seizure lawful, the trial judge would
have nonetheless admitted the evidence under
s.24(2) of the Charter. The accused appealed to
the Ontario Court of Appeal arguing, among other
grounds, that the trial judge erred in finding the

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

‘FISHING EXPEDITION’
RENDERS CHILD PORN SEARCH
UNREASONABLE

Volume 3 Issue 1
January 2003

18

seizure lawful under s.489(1) and in admitting the
evidence.

The Seizure
Justice Borins (Justice Catzman concurring)
found s.489 of the Code authorizes the seizure of
items not specified in a search warrant if the
police, while lawfully executing a warrant or
otherwise in the execution of their duties, believe
on reasonable grounds that the item has been
obtained by, used in, or will provide evidence of
the commission of an offence. Similarly, the
common law plain view seizure doctrine would also
allow the seizure of the pedophile collection if it
was immediately obvious to, and was discovered
inadvertently by, the officers executing the
lawful portion of the search warrant. Both of
these authorities only allow an officer to seize
items that are visible during an otherwise lawful
intrusion, but do not permit an affirmative
search.
Since the only officer testifying was not
physically involved in the search, there was no
evidentiary foundation for the court to properly
conclude that the items were in fact lawfully
located under either s.489 or the plain view
doctrine. Because the test “is not whether the
police would have found the items in plain view…
but whether they did [in fact] find the items in
plain view”, the search and seizure was
unreasonable and thus a violation of s.8 of the
Charter.

Admissibility of the Evidence
The search warrant process is meant to prevent a
search based only on suspicion that a crime might
have been committed, which is all the investigator
had in this case with respect to the pornographic
collection. The search based solely on suspicion
was a ‘fishing expedition’ of the accused’s home
and rendered the s.8 Charter breach serious.
Furthermore, the majority characterized the
quantity of child pornography seized, which
included 2 short stories and 35 images, 12 of
which depicted a young girl engaged in fellatio,

Volume 3 Issue 1
January 2003

for the most part as small and relatively mild,
thus the offence was relatively minor. In
concluding the admission of the evidence would
bring the administration of justice into disrepute
and warranted exclusion, Justice Borins stated:
In my view, in the circumstances of this case, to
fail to exclude the impugned evidence would be to
sanction the results of a fishing expedition
engaged in by the police based on their suspicion
that the appellant possessed what [the
investigator] described as a “pedophile collection”.
To rule that the evidence is admissible would
seriously diminish the appellant’s s. 8 Charter
rights by giving approval to the practice of
obtaining a warrant to search for items which the
police have reasonable grounds to believe may be
found in an individual’s home, and using the warrant
as a means to engage in a fishing expedition for a
shopping list of items which the police only suspect
may also be located in the home. Stated somewhat
differently, a failure to exclude the pedophile
collection would enable the Crown to introduce
evidence through the back door that it was unable
to introduce through the front door.

Justice Simmons, in a dissenting opinion, agreed
the trial record did not support the application of
s.489 because the officer who actually seized the
items did not testify. However, she believed the
seriousness of the violation was mitigated
because the police were acting in good faith. They
would have been able to form one of the requisite
beliefs under s.489 had they actually examined,
on an item by item basis, the material they
ultimately seized while looking for the two
photographs related to the complaint and listed in
the valid portion of the search warrant. In her
view, the offence was serious and the admission
of the evidence would not bring the
administration of justice into disrepute.
The accused’s conviction was set aside and an
acquittal was entered.
Complete case available at www.ontariocourts.on.ca

19

THREATENING IMPOSSIBLE
WARRANT RENDERS
‘INFORMED’ CONSENT INVALID
R. v. O’Connor,
(2002) Docket:C30841 (OntCA)
Police homicide investigators
attempted to persuade the
accused to consent to a search
of his vehicle. They had
previously interviewed him on three occasions and
believed he was lying about his whereabouts at
the time of the shooting. The vehicle owned by
the accused was also similar in description to a
vehicle seen by a resident driving off quickly from
behind the murder victim’s van after two
gunshots were heard. At the time, the police did
not have sufficient grounds to arrest the accused
nor to apply for a warrant to search his vehicle.
They read him a consent form advising him he did
not have to consent to the search, that it could
be withdrawn at any time, that they would be
looking for evidence of blood, hair, fiber, and
fingerprints, and that he had the right to counsel.
After being told he had the option of not letting
the police take the truck, the accused said he did
not want them to take it at that time. Reluctant
to take no for an answer, the officers advised him
they could seize the vehicle without consent at a
time that was not convenient for him if they
applied for and were granted a search warrant.
After declining the police no less than nine times,
the accused eventually agreed to give his truck to
them. The accused signed the consent form after
the police added the condition that the consent
was only valid until noon the next day. As a result
of a forensic search of the truck, police found a
bloodspot on a piece of plastic molding covering
the driver’s seat hinge. After a warrant
authorizing further detention and examination of
the vehicle was subsequently obtained, police also
found a greasy material on the windshield wiper
blade. Both the blood spot and the greasy

Volume 3 Issue 1
January 2003

material were analyzed and matched the murder
victim’s DNA.
During the voire dire, the trial judge found the
consent to be voluntary; free from police
oppression or coercion. It had been made clear to
him that he was free to withhold his consent and
he ultimately decided to allow the police to search
the truck. The evidence was admissible and the
accused was convicted of second degree murder.
The accused appealed his conviction to the
Ontario Court of Appeal contending, among other
grounds, that the trial judge erred in concluding
that he consented to the warrantless search and
that the evidence should have been excluded
under s.24(2) of the Charter.

Consent
In establishing that a person waived their
constitutional protection to privacy afforded by
s.8 of the Charter, the Crown bears the burden
of proving that the consent was not only
voluntary, as the trial judge held in this case, but
also informed. “Knowledge of the various options
and an appreciation of the potential consequences
of the choice made are essential to the making of
a valid and effective choice”. Although Justice
O’Connor, writing for the unanimous appeal court,
found the accused’s consent voluntary, he
concluded that it was not properly informed
because the police misled him about the
consequences of refusing to give his consent when
they told him they could apply for a warrant even
though they knew they did not have the requisite
reasonable grounds. Justice O’Connor held:
On two occasions, the police told the [accused]
that if he refused to allow them to take his truck,
they could apply for a search warrant and on the
second occasion they also told him that if a
warrant was granted, the truck could be seized at
a time that would not necessarily be convenient to
the appellant. Shortly afterwards, the [accused]
agreed to sign the consent. The police knew that
based on the information they had at the time
they could not obtain a warrant. Although the
police chose their words carefully so as to say only
that they could apply for a warrant, not that they

20

could obtain a warrant, that distinction was likely
lost on the [accused] and the message he would
have received was that if he did not consent then
the police would obtain a search warrant. The
information provided by the police, while literally
accurate, would likely have led the [accused] to
believe that the police could obtain a warrant to
search his truck at that point, when in fact they
could not.
I agree with the Crown that in seeking the
[accused’s] consent to search his truck, it was not
necessary for the police officers to advise the
[accused] that they did not have the grounds to
obtain a warrant. There would have been no
problem if the police had not raised the subject of
a warrant. However, once they chose to raise the
matter, it was incumbent upon them to fully and
fairly apprise the appellant of the correct
situation, including the fact that they did not have
sufficient grounds to obtain a warrant. Not only
did they not do this, they described the situation
in a way that likely led the appellant to believe that
they could obtain a warrant. For that reason alone,
I conclude that the [accused’s] consent was not
valid to waive his rights under s. 8 of the Charter.

Since the search warrant was obtained from
information gathered during the initial tainted
search, it too was invalid.

Admissibility of the Evidence
Although the s.8 breach of the accused’s right
was more than trivial or technical, its seriousness
was mitigated by a number of factors. These
included the following:
•

The expectation of privacy in the truck was
lower than that of a residence;

•

The police were not on an ‘unwarranted fishing
expedition’. The police had a legitimate
concern after interviewing the accused that
he could destroy or remove evidence if they
were unable to search the truck. In this
respect, the circumstances involved urgency
and necessity; and
Aside from crossing the line in suggesting
they could obtain a warrant, police otherwise
conducted
themselves
properly
and

•

Volume 3 Issue 1
January 2003

appropriately. They prepared a written
consent form setting out the reasons for the
search and choices open to him and made it
clear that he could refuse consent and could
contact counsel. They also took notes that
accurately recorded their conversation with
the accused.
As a consequence, the admission of this essential
and non conscriptive, real evidence in a most
serious crime would not bring the administration
of justice into disrepute. However, the Ontario
Court of Appeal quashed the conviction on other
errors and ordered a new trial.
Complete case available at www.ontariocourts.on.ca

JURY TO BE CAUTIONED OVER
POLICE COMMENTS IN
STATEMENT
R. v. Stevenson, [2002] Q.J. No. 3213
(QueCA)
The accused was convicted of
second degree murder by a jury
for the most part on the
testimony of a witness present
at the time of the murder. The
witness had pled guilty to second degree murder
and agreed to testify as a prosecution witness.
The outcome of the trial was largely determined
by the jury’s assessment of and ability to
carefully weigh the credibility of both the
accused and the prosecution witness. As part of
the Crown’s case, statements made by the
accused after his arrest were introduced as
evidence.
The statement was full of police comments
suggesting the accused was “adjusting the truth”,
“lying”, and “incapable of telling the truth”, while
the Crown witness was “not hiding the truth”. The
accused appealed suggesting, in part, that the
trial judge erred in failing to properly instruct
the jury to disregard these comments in
assessing the witness’s credibility or whether the

21

exculpatory parts of his statement raised a
reasonable doubt of guilt. Justice Fish, for a
unanimous Quebec Court of Appeal, stated:
[Proper] instructions were necessary to avoid the
danger that the jurors would be influenced by the
impugned
comments,
believing
that
the
investigators, on account of their professional
training and experience, were better able to
determine which suspect was lying and which was
telling the truth.
It should also have been made clear to the jurors
in this context that their role, unlike that of the
police, was to determine, on the basis of the
evidence presented at trial, whether the guilt of
the accused had been established beyond a
reasonable doubt.

As a result of this and other errors, the Quebec
Court of Appeal quashed the accused conviction
and ordered a new trial.
Complete case available at www.canlii.org

“IN SERVICE: 10-8” AVAILABLE
ON LINE
The “In Service: 10-8”
newsletter is available online by logging onto the
Justice
Institute
of
British Columbia website at
www.jibc.bc.ca and surfing
through the Police Academy training links. If you
have an interesting topic or information you
would like to share with the police community, email
Sgt.
Mike
Novakowski
at
mnovakowski@jibc.bc.ca and your written article
may appear in our newsletter.

Note-able Quote
"A

pessimist sees the difficulty in every
opportunity; an optimist sees the opportunity in
every difficulty". Sir Winston Churchill (18741965)

Volume 3 Issue 1
January 2003

FORCIBLE ENTRY REQUIRES
INTERFERENCE WITH
PEACEABLE POSSESSION
R. v. J.D.,
(2002) Docket:C36071 (OntCA)
Police attended a break and
enter and with the use of a
police dog followed a scent to a
nearby park where the accused,
who matched the general description of the
suspect, refused to stop when told to and quickly
walked away to a residence and knocked on the
door. A twelve-year-old boy recognized the
accused when he answered the door. He told the
boy, “Pretend I live here”, entered the house,
and proceeded to the back door. Noticing a police
officer at the rear of the residence and the back
door blocked by a couch, he went upstairs. An
adult resident invited the police into the home
and the accused was arrested coming down the
stairs. The adult resident knew the accused, an
acquaintance of her children, by name and was
not surprised that he was in her home. He was
convicted at trial of forcible entry under s.72(1)
of the Criminal Code with respect to his entry.
Section 72(1) of the Criminal Code creates the
hybrid offence of forcible entry:
s.72 Criminal Code
(1) A person commits forcible entry when that person
enters real property that is in the actual and
peaceable possession of another in a manner that
is likely to cause a breach of the peace or
reasonable apprehension of a breach of the peace.
(1.1) For the purpose of subsection (1), it is immaterial
whether or not a person is entitled to enter the
real property or whether or not that person has
any intention of taking possession of the real
property.

After reviewing both the French and English
wording of the section, Justice Doherty for the
unanimous Ontario Court of Appeal found that
mere entry into a premises is insufficient to
warrant a conviction under this section. The

22

section requires “a taking of possession [of the
property] in the sense of an interference with
the peaceable possession of the person in actual
possession”, done in a manner likely to cause a
breach of the peace or reasonable apprehension
thereof. The intention need not be to
permanently take possession of the property, but
a brief taking could suffice. Justice Doherty
wrote:
For example, an intruder who forces his or her way
into a home over the objection of the person in
actual possession intending only to run through the
house and out the back door would have no
intention of taking over possession of the
residence in any permanent sense. The intruder’s
conduct would, however, interfere, albeit briefly,
with the owner’s peaceable possession of the
residence. On my reading of s.72(1) and s.72(1.1),
the fact that the intruder intended only to run
through the house and out the back door would not
foreclose a conviction for forcible entry since
there was a taking of possession in that there was
an interference, a]albeit a brief one, with the
peaceable possession of the person in actual
possession of the property.

The Ontario Court of Appeal set aside the
accused’s conviction and entered an acquittal. His
entry into the residence “was not accompanied by
any force, violence, or threat of force or
violence”. He was admitted into the home and was
not even a trespasser. Nor was there any
evidence that he interfered with the family’s
peaceable possession of their property. Even if
he had resisted during his arrest, that breach
would not have resulted from the manner of his
entry into the house, but rather would have been
the product of events unrelated to the
homeowner’s continued peaceable possession.
“The breach or the apprehended breach must
flow from the manner in which possession of real
property is taken and not from subsequent
events”.
Complete case available at www.ontariocourts.on.ca

DETENTION & SEARCH
UNLAWFUL, BUT EVIDENCE
ADMITTED
R. v. D.F., 2002 MBCA 171
The accused young offender
(YO) was a passenger in a vehicle
stopped by a police officer after
it was observed fishtailing and
being driven too fast for the road conditions. On
approach to the vehicle, the officer saw the adult
driver pass something to the YO. After the driver
did not respond to the officer’s request for his
drivers licence, he was asked to turn off the
vehicle and did so, only after receiving a nod from
the YO. Before the driver, who admitted he did
not have a licence, left the vehicle at the
officer’s request, he passed a cellular telephone
to the YO. The driver was escorted to the police
car, told he would be served with a provincial
offence notice for driving without a licence, was
frisk searched, and placed in the rear of the
police car.
The officer conducted a computer check of the
car and learned it was registered to a numbered
company, but was not reported stolen. When
questioned about the car, the driver gave evasive
answers about ownership causing the officer to
think the car might be stolen. As a result, he
called for back-up. When back-up arrived, the
officer told them of his observations and
suspicions and asked them to deal with the YO
while he continued to attend to the driver. The
back-up officers approached the vehicle and
asked the YO to step out and accompany them
back to their police car. When told he would be
searched for safety reasons before being placed
in the police car, the YO reached down the front
of his pants, stated he had some stuff he wanted
to give them since they would find it anyway, and
produced a bag with crack cocaine.
After he was arrested for possessing the cocaine,
the YO was searched and placed in the rear of
the police car. He identified himself and was

Volume 3 Issue 1
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23

informed of his right to counsel and his right to
contact a parent or other adult. However, his full
rights under s.56(2) of the Young Offenders Act
(YOA) were not explained to him in age
appropriate language. The young offender was
then questioned by police and provided
incriminating answers. After transport to the
police station, the YO was strip searched and
questioned further. He was left in an interview
room for about an hour before being moved to a
second interview room where he was taken
through the standard young offenders waiver
form and advised of his rights accordingly. He
waived his rights and subsequently provided the
police with a written statement.
At his trial for possession of cocaine for the
purpose of trafficking, the accused was
convicted. The trial judge found the YO had been
detained when he was asked to step from the car,
but that there was nothing “unreasonable or
ungovernable” about it. Furthermore, his initial
oral statements were inadmissible because the
police did not comply with s.56(2) of the YOA.
However, the trial judge ruled the written
statement admissible because it was obtained
following compliance with the YOA and was taken
at a different place and time. The YO appealed
his conviction to the Manitoba Court of Appeal
arguing the cocaine was produced “on threat of an
unreasonable search following an unlawful
detention” and the written statement was
obtained under circumstances where the police
failed to comply with the YOA.

(in this case the detention), the court must
consider two questions:
(1) does the police conduct fall within the general
scope of any duty imposed by statute or
recognized at common law? and
(2) does the police conduct, albeit within the
general scope of such a duty, involve an
unjustifiable use of police powers associated
with the duty? In assessing whether an actual
interference
was
unjustified,
“the
interference with liberty must be necessary
for the carrying out of the particular police
duty and it must be reasonable, having regard
to the nature of the liberty interfered with
and the importance of the public purpose
served by the interference”9.
Justice Twaddle, writing unanimously on this
issue, held:
In the case at bar, the vehicle in which the alleged
young offender was a passenger had been stopped
on account of driving offences. The driver was
temporarily detained when it was discovered that
he did not have a driver's licence. The alleged
young offender as a passenger had no involvement
in those offences. The police officers involved in
the investigation had a suspicion that the vehicle
might have been stolen, but did not know that to
be the fact and the bases for their suspicion of
the alleged young offender's complicity were
tenuous at best.
Apart from the alleged young offender's presence
in the car as a passenger, the only bases for their
suspicion were

The Detention
Using the two-prong analysis of the Waterfield
test (a legal analysis for determining the common
law powers of the police adopted from the English
case of R. v. Waterfield, [1963] 3 All E.R. 659
(C.C.A.)) the Manitoba Court of Appeal concluded
that the police were not justified in detaining the
YO and consequently violated his s.9 Charter
right to be free from arbitrary detention. When
the police conduct constitutes a prima facie
interference with a person's liberty or property

Volume 3 Issue 1
January 2003

(i) the fact that the driver passed something to
the alleged young offender
as the first officer
on the scene approached the car;
(ii) the fact that, when asked to turn off his
engine, the driver appeared to do so only on a nod
by the alleged young offender; and
(iii) the fact that the driver passed a cellular
phone to the alleged young offender immediately
before getting out of the car.

9

Dedman v. The Queen et al., [1985] 2 S.C.R. 2).

24

Neither alone nor in combination do any of these
bases justify the detention of the alleged young
offender for questioning.
In these circumstances, the police direction that
the alleged young offender get out of the car and
accompany them to theirs was prima facie an
unlawful interference with the alleged young
offender's liberty. Even if their detention of the
alleged young offender for questioning can be said
to fall within the broadly defined duties of the
police (a conclusion which I doubt), I do not see it
as necessary or reasonable for the police to have
detained the passenger, when the driver had
already been detained and they had grounds on
which they could deny him the right to drive the
car away. The important public purpose to be
served was the recovery of stolen property, if
stolen it proved to be, and that could be
accomplished without the alleged young offender's
involvement.
The trial judge found nothing "unreasonable or
ungovernable" about the detention, but failed to
identify either the particular police duty which
made the detention necessary or the public
purpose which was served by interference with the
alleged young offender's liberty. That being so, I
find no proper basis for the judge's finding. In my
view, the detention was unlawful.

The Search
In ruling the search the product of an arbitrary
detention and thus unreasonable (a s.8 Charter
violation), Justice Twaddle wrote:
The search which was threatened following the
detention was solely for the purpose of securing
officer safety. It would have been unnecessary but
for the unlawful detention. In the circumstances,
the threatened search was unauthorized by law
and consequently unreasonable.
It is true that the threatened search was never
carried out. The alleged young offender,
recognizing his vulnerability to a search, produced
the cocaine to the officers. In my opinion,
however, these facts do not negate the otherwise
obvious conclusion that the evidence of the alleged
young offender's possession of cocaine was
obtained as a result of an arbitrary detention and

Volume 3 Issue 1
January 2003

an unreasonable search. The right to be secure
against unreasonable search, in my opinion, includes
a right to be secure against the threat of one
where the threat is made when those making it
have the immediate ability to carry it out.

The Written Statement
Even if the written statement had been obtained
after the strict compliance of s.56(2) of the
YOA, it should have been inadmissible because
the oral statements, which were not taken in
compliance with the YOA, were “substantial
factors leading to the making of the written
statement”.

Admissibility of the Evidence
The court was in agreement that the YO’s rights
under s.8 and s.9 of the Charter and s.56(2) of
the YOA had been violated. However, it was
divided on the admissibility of the cocaine as
evidence. Justice Huband and Justice Kroft
concluded that the cocaine was admissible under
s.24(2) of the Charter. Characterizing the
detention as “being on the borderline of
reasonable and certainly understandable”, they
found the Charter breaches “to have been the
product of carelessness in the execution of
duties rather than design”. They were not
deliberate or willful. Justice Huband stated:.
In my opinion, an informed citizen concerned about
the operation of our laws and the rights of accused
persons, but also conscious of the need to
apprehend those involved in serious criminal
behaviour, would not be troubled by the admission
of this evidence under the circumstances of this
case. Nor would the admission of the evidence be
seen as condoning improper police behaviour.
Whenever Charter breaches have been identified,
it is cause for concern. Whenever that occurs, it
places in jeopardy the outcome of an otherwise
successful prosecution, and that is something that
police officials from the highest to the lowestranking officer will be at pains to avoid in the
future.

Justice Twaddle, on the other hand, would have
excluded the evidence under s.24(2). He found

25

that the Charter breaches were more than
technical and that the officers could have asked
for identification without placing the YO in the
police car, thus averting the need to search him.
The officers exhibited a somewhat cavalier
attitude towards the YO which was compounded
by questioning him without complying with the
terms of s.56 of the YOA. Finally, Justice
Twaddle suggested “a scolding of the officers for
their violation of the alleged young offender's
rights is scarcely consolation for the alleged
young offender or a real inducement to other
officers to respect an individual's rights”. In his
view, “by admitting the evidence, the court might
be seen to condone the police adoption of a
cavalier attitude to the Charter rights of
individuals” which “in the long run…would do
greater harm to the public interest than the
acquittal of the alleged young offender”.
The appeal was allowed and a new trial was
ordered, with the cocaine being admissible but
the written statement excluded.
Complete case available at www.canlii.org

PRESUMPTIVE CARE &
CONTROL: INTENT, NOT
ABILITY, VITAL
R. v. MacAulay, 2002 PESCAD 24
A citizen found the accused
passed out in the driver’s seat of
his truck stopped at the side of
the road. The engine was running,
the vehicle was in drive, the lights were on, and
the accused had his foot on the brake. His seat
belt was on and a strong odour of alcohol was
smelled coming from him. After briefly awakening
him to see if he was alright, the citizen put the
truck in park, shut off the engine, took the keys,
and called the police. An officer attended and
found the accused asleep in the driver’s seat.
After observing symptoms consistent with
impairment, the officer formed reasonable

Volume 3 Issue 1
January 2003

grounds to believe he was impaired and requested
samples of his breath.
At trial, the judge concluded that even though
the citizen had removed the keys from the
vehicle prior to police arrival, the accused was
still in care and control of his truck at the time
the officer found him. The accused was convicted
of care and control of a motor vehicle with a BAC
in excess of 80mg% contrary to s.253(b) of the
Criminal Code. The accused successfully appealed
to the Prince Edward Island Supreme Court.
Although the accused was in care and control
when the citizen found him, once the keys were
removed from the truck neither presumptive care
and control nor actual care and control had been
proven. Since the time between the readings and
when the citizen found the accused were outside
the two hour limit, the Crown was not entitled to
rely of the certificate of qualified technician.
On further appeal by Crown to the Prince Edward
Island Court of Appeal, the accused’s acquittal
was overturned and his conviction was restored.
Section 258(1)(a) of the Criminal Code creates “a
presumption of the actus reus and mens rea of
“care and control” arising from being found in the
driver’s seat” of a vehicle:
s.258(1)(a) Criminal Code
In any proceedings under…section 253…(a) where it is
proved that the accused occupied the seat or position
ordinarily occupied by a person who operates a motor
vehicle…the accused shall be deemed to have had care
and control of the vehicle…unless the accused
establishes that the accused did not occupy that seat
or position for the purpose of setting the vehicle…in
motion…

The word “purpose” in this subsection refers to
intent, not ability. Thus, if an accused is found in
the driver’s seat and fails to prove on a balance of
probabilities that they did not intend on driving,
they are deemed to be in care and control. Proof
that the accused did not have the means or ability
to put the vehicle in motion does not rebut the
presumption. Furthermore, it is the accused who
must prove lack of intent to drive or set the

26

vehicle in motion. It is not necessary that the
Crown prove the accused intended to drive. In
most cases, the accused will need to testify as to
their purpose for being in the driver’s seat or
face conviction. In concluding that the accused
was in presumptive care and control even though a
third party removed the keys, Chief Justice
Mitchell (Justice Webber concurring) stated:
The question therefore becomes whether there is
proof on a balance of probabilities that at the
material time the [accused] did not occupy the
driver's seat for the "purpose" of putting the
vehicle in motion. It is the purpose of the
occupant, not his or her means or ability, that
Parliament chose to address in s-s.258(1)(a).
Although the absence of means may in some cases
be evidence of purpose, the fact that an occupant
of the driver's seat does not have keys to the
vehicle does not, by itself, overcome the
presumption in s.258(1)(a). The main question is not
whether the occupant of the driver's seat had a
key to the ignition. The critical issue is his or her
purpose in occupying that seat. If an accused
found occupying the driver's seat testifies that he
was not there for the purpose of putting the
vehicle in motion, evidence that he did not have
keys will tend to support his statement. However,
the lack of a key alone does not prove an occupant
of the driver's seat was not there for the purpose
of putting the vehicle in motion. A motor vehicle is
still a motor vehicle within the meaning of s. 253
regardless of whether the person in the driver's
seat has the keys. The fundamental objective of
Parliament in enacting s. 258(1)(a) was to keep
intoxicated people from even getting into the
driver's seat of a motor vehicle.

In this case, the majority of the appeal court
held that the accused had failed to rebut
presumptive care and control. He was in care and
control before the keys were removed and this
continued after their removal. He remained seat
belted in the driver’s position and called no
evidence to demonstrate a change in purpose.
In a dissenting judgment, Justice McQuaid was of
the opinion that depriving the accused of an
ability or means to put the vehicle in motion
alters their purpose for occupying the driver’s

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January 2003

seat. In his view, the presumption found in
s.258(1)(a) of the Code was rebutted, and care
and control was not proven. He would have
dismissed the appeal and allowed the acquittal to
stand.
Complete case available at www.canlii.org

BEING CRAMPED & ANXIOUS IS
NOT A REASONABLE EXCUSE
IN FAILING TO BLOW
R. v. Lewko, 2002 SKCA 121
A police officer stopped the
accused for dangerous driving
and detected an odour of
alcohol. He was requested to
provide a sample of his breath into a roadside
screening device. He voluntarily assumed a
position in the backseat of the patrol car and was
permitted three attempts to provide an adequate
sample. The first blow was not hard enough, the
second blow was not long enough, and on the third
blow the officer felt he was sucking back. The
accused was charged with impaired driving and
failing or refusing, without reasonable excuse, to
comply with a demand.
At trial, the accused testified he was cramped
when he tried to provide the sample. While sitting
in the back seat, his knees were to his chest as he
leaned forward to blow into the device held by
the officer seated in the front. He also stated he
was frightened during the ordeal. The accused
called an expert in the mechanics of breathing
and the effects of stress on it. The expert
testified that a person hunched over in a cramped
position and suffering from respiratory anxiety
results in shallow, rapid breathing and could not
be able to completely fill their lungs like they
would if they were standing upright. This became
the accused’s excuse for failing to provide the
required sample.
The trial judge rejected this argument as a
reasonable excuse and convicted the accused. The

27

judge concluded that people can somewhat control
their breathing even under stressful situations.
The accused was aware he was required to
provide a breath sample, but took no steps to
neither remedy the situation nor bring it to the
attention of the officer. The accused
successfully appealed his conviction to the
Saskatchewan Court of Queen’s Bench. In
ordering a new trial, Justice Smith found the trial
judge erred in his analysis of the nature of the
defence of reasonable excuse and the standard
of proof required. The Crown appealed to the
Saskatchewan Court of Appeal.

Crown’s Obligation
Section 254(5) of the Criminal Code creates an
offence for a person to fail or refuse, without
reasonable excuse, to comply with a demand by a
peace officer made under s.254. Under this
section there are three types of demands:
•

approved screening device demand upon
reasonable suspicion person has alcohol in
their body (s.254(2))

•

approved instrument demand upon reasonable
and probable grounds person has committed
an offence under s.253 Criminal Codeimpaired driving by alcohol or over 80mg%
(s.254(3)(a))

•

Blood sample demand upon reasonable and
probable grounds person has committed an
offence under s.253 Criminal Code-impaired
driving by alcohol or over 80mg%-and the
person is incapable of providing or it would be
impracticable to obtain a breath sample
(s.254(3)(b)).

There are three elements the Crown must prove
beyond a reasonable doubt to secure a conviction
for failing or refusing to provide a sample:
1.

the existence of a demand having the
requirements of one of the three types of
demands under s.254

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January 2003

2. the failure or refusal by the accused to
provide the required sample of breath or
blood (the actus reus)
3. the accused intended to produce the failure
or refusal (the mens rea)
Once these three elements are established, the
accused will be convicted unless they raise a
defence in the ordinary sense, or provide a
reasonable excuse.

Establishing a Reasonable Excuse
Stage 1-Putting the issue into play
Initially, the accused has the “evidential burden
of producing sufficient evidence of something
that is capable of being a reasonable excuse”.
This is not a persuasive burden on a balance of
probabilities, but only requires raising the
“question of the possibility of a reasonable
excuse”. This can be accomplished through the
accused’s testimony, or from other defence or
Crown witnesses.

Stage 2-Is the excuse prescribed by law?
Once the court has determined the accused has
satisfied the evidential burden of raising a
reasonable excuse, the judge must establish
whether the “particular excuse [is] capable in law
of being a reasonable excuse”. This is a question
of law to be decided by the judge.

Stage 3-Crown’s rebuttal
The judge will decide the substantive merits of
the reasonable excuse by examining the
credibility of the witnesses, weighing the
evidence, and settling questions of fact. If the
accused has satisfied the evidential burden by
raising a reasonable excuse supported by law, the
Crown must rebut the excuse and in doing so
bears the burden of proving beyond a reasonable
doubt that the excuse does not work in favour of
the accused.

28

Stage 4-Final evaluation
This final stage involves the judge evaluating the
facts and making a decision on whether or not the
excuse operates in favour of the accused and
therefore results in an acquittal.

The Cramped/Anxious Defence
In this case, the unanimous Saskatchewan Court
of Appeal concluded that the trial judge did not
err and the accused’s “voluntary assumption of a
cramped position in a motor vehicle while
attempting to provide a sample of his breath
coupled with his anxiety…is not, as a matter of
law, capable of constituting a
‘reasonable
excuse’”. The appeal was allowed, the order for a
new trial was set aside, and the accused’s
conviction was restored.
Complete case available at www.canlii.org

NOT USING AVAILABLE
RECORDING EQUIPMENT
RENDERS CONFESSION
SUSPECT
R. v. Ahmed,
(2002) Docket:C37978 (OntCA)
The accused was arrested for
robbery two nights after two
men stole the victim’s wallet at
knifepoint. Upon arrest he had
told the officers that he did not commit the
robbery. The arresting officer transported the
accused to the station and placed him in an
interview room. A detective, whose duty it was to
investigate prisoners brought in by uniformed
officers, entered the room and told the accused
he required personal particulars such as address,
age, height, weight, etc. to complete a pre-printed
form recording the arrest. At that point, the
accused blurted out that he lied to the other
officers and he confessed to committing the
robbery. The accused was told by the detective
to stop speaking and arrangements were made for

Volume 3 Issue 1
January 2003

him to speak to duty counsel. After speaking to a
lawyer, the accused declined to speak further
with the detective, who subsequently completed
his paperwork.
During the voire dire to determine the
admissibility of the confession, the detective
testified he did not use force, threaten, or
suggest it would be better if the accused
provided a statement. The accused testified that
this was his first arrest and he confessed
because he wanted to go home, not to jail. He
told the court that after denying that he
committed the robbery, the detective said, “You
want to go home. Tell me the truth”. He then
confessed. Without providing any reasons, the
trial judge accepted the detective’s evidence as
credible and rejected the accused’s evidence. The
trial judge ruled the statement admissible and
together with identification evidence, which
would not by itself support a conviction, found him
guilty. The accused appealed to the Ontario Court
of Appeal arguing, in part, that the trial judge
erred in ruling the confession voluntary

Voluntariness and the Failure to Record
The Crown bears the burden of proving that a
statement made to a person in authority is
voluntary beyond a reasonable doubt. Since there
were no other witnesses present and the
interaction was not recorded in any way, the
voluntariness of the confession was a credibility
contest between the evidence of the police
officer and that of the accused. Although it is
not fatal to a statement’s admissibility that it was
not recorded, in most circumstances the failure
to record a confession will render it sufficiently
suspect to raise a reasonable doubt about its
voluntariness. Justice Feldman, for the unanimous
Ontario Court of Appeal stated:
The reason our courts have focused so heavily on
the desirability of recording the interactions
between police officers and accused persons upon
arrest, is to avoid these credibility contests at trial
on the crucial issue of whether any coercion,
oppression or inducement led to the accused to

29

make the impugned statement. …[A]s long as
recording equipment is available, the failure to
record will generally preclude a finding of
voluntariness, except in circumstances where the
police officer did not set out to interrogate the
suspect. Consequently, the question of the officer’s
intention is also a critical one on the voire dire.
Therefore, where there is no recording, and the
issue of the officer’s intention is in dispute, that is
one of the circumstances where the trial judge must
carefully analyze the conflicting evidence and give
reasons which clearly explain why the judge either
accepts the evidence of the police officer or
officers, or conversely, why that evidence is
rejected or insufficient to satisfy the judge beyond
a reasonable doubt. (reference omitted)

The Crown submitted that there was no need to
record the contact between the detective and
the accused because the officer did not
deliberately set out to interrogate him. He was
simply attempting to obtain personal information
to fill out a form. The accused, on the other hand,
highlighted the fact that the detective was able
to complete his paperwork with the required
background information even though he never did
ask the accused any questions about personal
particulars. Furthermore, the detective never had
any recording equipment when he went in to
further interview him after he consulted counsel.
Because the trial judge failed to adequately
explain the circumstances of the confession,
failed to properly assess the evidence of the
accused, and failed to provide reasons for
disbelieving him about the alleged inducement,
the conviction was set aside and a new trial was
ordered.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
"In theory, there is no difference between
theory and practice. But, in practice, there is”.
Jan L.A. van de Snepscheut

Volume 3 Issue 1
January 2003

PARENTAL SEARCH OF FOSTER
CHILD’s ROOM UNREASONABLE
R. v. I.D.K., 2002 BCPC 0536
The accused was a 16-year old
foster child who had been placed
in a foster home. As a rule there
was to be no illegal activity
including drug possession and the foster parents
were required under their contract with the
Ministry for Children and Families to report any
illegal activity to the police. Furthermore, the
accused was told by the foster parents that they
could search his room if they suspected illegal
activity. One day the foster father smelled
burning marihuana coming from the accused’s
bedroom and searched it. He found marihuana
under some clothes and reported it to the police.
The accused was charged with possession of a
controlled substance.
During the trial voire dire to determine the
admissibility of the marihuana, British Columbia
Provincial Court Justice Gove concluded that the
search was unreasonable. Because the foster
parents were under contract with the Ministry
for Children and Families to report illegal activity
to the police, they were acting as agents of the
state. Justice Gove stated:
I am satisfied that where foster parents, as here,
were acting under contract with a government
ministry requiring them to notify the police if they
suspected or detected any illegal activity, they
were agents of the police and therefore agents of
the state. The foster parents were not in a similar
position to parents who are under no obligation to
contact the police if and when they detect illegal
activities conducted by their children in their
bedrooms.

Furthermore, the accused had a reasonable
expectation of privacy in his bedroom. The
accused had a statutory right to privacy, although
somewhat limited, under British Columbia’s Child,
Family and Community Service Act (s.70(1)(d)).
The foster parents testified they respected the
bedroom as the accused’s “own space” and did not

30

enter it without his presence. Daily visual
inspections for cleanliness were done from the
doorway and the accused brought his own laundry
out of his room to be cleaned by the foster
mother.

ACCOMPANYING ARRESTEE
INTO BEDROOM TO CHANGE
CLOTHES NOT A SEARCH

The search was conducted without a warrant and
could not be justified within any of the
exceptions to prior judicial authorization such as
consent, plain view, or exigent circumstances.
Thus, the accused’s right to be secure against
unreasonable search or seizure under s.8 of the
Charter was violated. The evidence was excluded
under s.24(2) of the Charter. Justice Gove held:

Police responded to a dispatched
report of a break and enter in
progress at a residence to
determine whether it was
actually occurring and to inquire about the safety
of any occupants. The accused, an adult female
occupant of the home, opened the back door at
the kitchen and assured the police that
everything was all right. Officers detected an
overwhelming odour of growing marihuana coming
from the house and arrested the accused at the
doorway. She was dressed in pajamas.

The violation was not inadvertent but, rather, very
deliberate. There were no emergency or security
concerns. There were other investigative means
that could have been employed
………
…Young people, especially those in the care of
government and for whom the state is their
guardian, have less advantages and choices than
those growing up within their families….Unlike a
natural parent, the foster parents or care givers
of children as demonstrated on the facts here, can
not exercise a discretion on what to do if they find
a foster child to be breaking the law. This may be
understandable, given the need to regiment care
giving. However, from the point of view of the
foster child, he or she is being treated differently
than one who lived with natural parents. Youth in
the care of the Ministry are treated in a different
manner than other young people.
…Allowing youth in care to be treated in a
different manner than other youth, resulting in
breaches of their rights under the Charter, would
bring the respect for the law and administration of
justice into disrepute.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
"Good people do not need laws to tell them to act
responsibly, while bad people will find a way
around the laws". Plato (427-347 B.C.)

Volume 3 Issue 1
January 2003

R. v. Benbow, 2002 BCPC 0516

Police facilitated her request to change into
street clothes by having a female police officer
attend and accompany the accused into her
bedroom to keep her under observation and
ensure officer safety.
While changing her
clothes, she opened a drawer and the female
officer observed a Marihuana Grower’s Handbook.
While leaving to obtain a warrant, the
investigating officer observed mould and
condensation on the basement windows. A search
warrant was issued and executed on the basis of
the odour, the book, and the windows. Police
subsequently found 108 marihuana plants and
other cultivation equipment.
During the trial voire dire to determine the
admissibility of the evidence, the accused argued
that the police conducted a warrantless search
when they were in the kitchen and while
accompanying her into the bedroom. However,
British Columbia Provincial Court Justice Gove
concluded that there was no search. The police
were responding to a call of a break and enter in
progress and were offering assistance to the
home. The only reason that the police entered the
residence was to assist the accused at her
request to change her clothes. The police were
showing “decency and common sense”. The

31

handbook was observed in plain view while
accompanying the accused in her room and the
window condensation was noticed while the police
were lawfully on the property. Thus, the search
warrant issued on the basis of these grounds was
valid and did not breach the accused’s Charter
rights. The evidence was ruled admissible.
Complete case available at www.provincialcourt.bc.ca

PDW REQUIRES DANGEROUS
INTENT PRIOR TO USE
R. v. MacDonald,
(2002) Docket:C37456 (OntCA)
The accused confronted his wife
in the driveway of their home as
she was about to drive away with
their 20 year old daughter to go
shopping. They were separated from each other
but living in the same residence. The accused had
been physically abusive towards his wife in the
past. The accused’s wife had various papers with
her that included some he believed were his
personal documents and would be used by her
lawyer in gaining advantage in the ongoing divorce
proceedings. The accused ran towards the van,
stood in front of it preventing his wife from
leaving, yelled at her, and demanded the papers
be returned.
After she refused, he became angry and verbally
abusive and tried to lift the hood of the van so
his wife could not see ahead. The accused
increasingly became upset and took a jack knife
he carried with him and used around the farm
from his pocket stating, “Fine then, I ‘ll slash the
tires”. As he bent down beside the vehicle, his
wife moved the vehicle forward and struck him
with the side view mirror of the van. The accused
stood up very close to the driver’s side window,
held the open jack knife at chest level, and calmly
stated, “You’re next”. His wife took this to mean
that she would receive another beating. The
accused testified he threatened to let the air out
of the tires to intimidate his wife into returning

Volume 3 Issue 1
January 2003

the documents and he was going to use the tip of
the knife to press down on the tire valve to let
the air out. He denied saying, “You’re next”.
The accused was convicted of uttering threats
and possession of a weapon for a purpose
dangerous to the public peace. The trial judge
concluded that the words “You’re next”, in light of
the circumstances, was a threat to cause death or
serious injury and that the accused intended, by
his own admission, to intimidate and frighten his
wife. Furthermore, although the initial possession
of the jack knife was lawful, the possession was
changed to an unlawful purpose when he removed
it from his pocket to intimidate and frighten his
wife in an effort to retrieve his papers. The
accused successfully appealed to the Ontario
Superior Court of Justice. In overturning the
accused’s convictions and entering acquittals,
Justice Jenkins was of the opinion that the wife
was not concerned about her safety at the time.
Further, the trial judge erred in his analysis of
the evidence by relying entirely on the evidence
of the wife and disregarded the evidence of the
accused. The Crown appealed to the Ontario Court
of Appeal.

Uttering Threats
The actus reus for the offence of threatening is
the uttering of threats of death or bodily harm.
This is to be viewed objectively by considering
the circumstances surrounding the utterance, the
manner in which the threat was uttered, and to
whom the threat was made. A subjective state of
fear is not required. Justice Doherty, writing for
the unanimous Ontario Court of Appeal stated:
[I]t is not an essential element of the offence that
the person subjected to the threat actually fear
for his or her own safety as a result of the threat.
Indeed, that person does not even have to know
that the threat was made. The reaction of the
person threatened is of evidentiary significance
only. (references omitted)

The mens rea of threatening is that the words
uttered were meant to intimidate or be taken

32

seriously. In this case, “the trial judge was
entitled to consider the words spoken, the history
between [the accused and his wife], the
immediate context, including the [accused’s]
anger, and his possession of an opened jack-knife,
as well as the [accused’s] own admission that he
intended to intimidate and frighten [his wife]”.

Weapons Charge
Section 88 of the Criminal Code creates an
offence for a person to possess a weapon for a
purpose dangerous to the public peace. In proving
this offence, the Crown must establish the
following three elements:
1.

the jack-knife was in possession of the
accused. In this case, there was no doubt he
was in possession of the jack-knife.

2. the jack-knife was a weapon. Weapon is
defined in s.2 of the Criminal Code as “any
thing used…for the purpose of threatening or
intimidating any person”. By the accused’s own
admission, he used the jack-knife to frighten
and intimidate his wife.
3. the purpose for which the accused had
possession of the jack-knife was dangerous
to the public peace. This intention must be
formed before actually using it. Thus, where a
person is lawfully in possession of a weapon
and uses it on the sudden without
premeditation for its use, no offence is
committed. However, in this case it was
reasonable for a court to conclude that the
accused’s lawful possession of the knife
changed to a possession for a purpose
dangerous to the public peace when he formed
the intention to frighten his wife before
removing the knife, opening it, and using it to
intimidate her.
The acquittals were set aside and the convictions
restored.
Complete case available at www.ontariocourts.on.ca

Volume 3 Issue 1
January 2003

INCIDENTAL SEARCH MUST BE
CONNECTED TO ARREST
R. v. Wakeling, 2002 BCPC 0525
The accused was driving in the
company of his wife and four
teenaged girls when police
stopped him. The licence plate of
the car he was driving was
routinely queried on CPIC and found to be
registered to a different vehicle and associated
to a vehicle impound candidate. When told why he
was being stopped, the accused exited the car,
removed some items, including a briefcase, from
the trunk and handed it to his wife. He also told
her to call his lawyer. The passengers then
departed the scene and went to a nearby gas
station. Although the accused was not the
impound candidate, the officer learned from
CPIC that he was a prohibited driver and wanted
on an outstanding arrest warrant. The accused
was arrested, handcuffed, and placed in the
police cruiser.
A CPIC query of the vehicle’s VIN revealed that
the car was stolen. The accused’s wife returned
from the gas station, but was not permitted to
speak to him. The officer identified the wife and
the teenage girls and sent them on their way. At
this time neither the briefcase nor other items
removed from the trunk were of any concern to
the officer. Shortly after the passengers
departed, the officer received additional CPIC
information to contact the RCMP drug section
because the vehicle was designated a “crime
vehicle”.
The officer made a general broadcast for other
units to find the wife and search the briefcase.
She was located and 13 ounces of cocaine, along
with items connected to the accused, was found
inside the briefcase. The accused was charged
with possession of cocaine for the purpose of
trafficking contrary to s.5(2) of the Controlled
Drugs and Substances Act.

33

Search Incidental to Arrest
All warrantless searches are presumptively
unreasonable and the onus is on the Crown to
nonetheless establish that the search was
reasonable. During the trial voire dire to
determine the admissibility of the briefcase
evidence, the Crown suggested that incidental to
the arrest of the accused for possession of the
stolen vehicle, the police were entitled to search
the vehicle and anything contained in it in
furtherance of that investigation. British
Columbia Provincial Court Justice Gill agreed that
the arresting officer could have searched the
vehicle and briefcase incidental to the stolen
property arrest. He stated:
In my view an arresting officer who does not
initially decide to search incidental to the arrest is
not necessarily precluded from searching shortly
thereafter, upon receipt of additional information
connected to any proper grounds to arrest. Under
those circumstances, a search of the briefcase
approximately 20 minutes later and one kilometer
from the scene, now in the possession of [the
accused’s wife], would have been entirely
reasonable. However, that is not the reason the
briefcase was searched. (emphasis added)

And further:
The officer's decision to search the briefcase was
made only when additional information came to
light that the car was a "crime vehicle" and
possibly associated with narcotics. However there
was nothing in this new information directly
implicating the accused, and this information would
not have provided any additional grounds to arrest
him. In fact the officer was clear in his testimony
that while he may have been remiss in failing to
examine the briefcase at the scene, his later
decision to search the briefcase was made because
he felt he was now dealing with a stolen vehicle
connected to drugs, in other words, a "dual
purpose" search ostensibly authorized by the fact
of the accused's arrest for possession of stolen
property. There is little doubt however, that the
officer wanted to know if the briefcase contained
narcotics. Indeed, crown conceded that the
officer did not possess any reasonable and

Volume 3 Issue 1
January 2003

probable grounds to believe there to be anything
unlawful in the briefcase, much less narcotics.

Since the police searched the briefcase for
reasons (drugs) unconnected to the arrest
(stolen property), it was not proper as an incident
to arrest. Therefore, the search was not
authorized by law and violated the accused’s s.8
Charter right to be secure against unreasonable
search or seizure. However, despite the Charter
breach, the evidence was ruled admissible under
s.24(2).

UNDERSTANDING ELEMENTS
OF A CRIME
A criminal offence consists of two parts: a
criminal act (the actus reus), accompanied
contemporaneously by a prescribed state of mind
(the mens rea). If either of these two elements
is absent, there is no criminal offence committed.
Many of the defences available in criminal law
seek to suggest that one or the other of these
elements is missing or not proven beyond a
reasonable doubt by the Crown. Therefore, it is
important for police officers investigating crimes
to understand these elements when gathering
evidence to support a conviction.

Actus Reus (criminal act) X Mens Rea (guilty
mind) = Crime

ACTUS REUS
No matter how evil the
Latin for
intentions or thoughts of a
“criminal act”
person are, there can be no
crime until there is some
impugned act attributable to the accused. In
other words, thoughts alone do not constitute a
crime. Thus, every crime must have an actus reus.

Actus reus is sometimes referred to as the

“physical act”, "guilty act", or "wrongful act". Even
though the actus reus will most often involve a
prohibited act, it is more accurate to describe the
actus reus as all parts of the crime other than the

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mens rea.

In determining the actus reus for a
particular crime, it is necessary to examine the
definition of the offence. The actus reus may take
one of several forms including:

1. Overt physical act (the law seeks to
prevent)
Many criminal offences take this form of actus
reus, as they require some positive action be
committed. An example is the definition of assault
found in s.265(a) of the Criminal Code:
A person commits an assault when…(a) without the
consent of another person, he applies force intentionally
to that other person, directly or indirectly.

In this definition, the non-consentual application
of force to a person is the physical act.

2. An omission to perform a legal duty
(omission offences)
Some criminal offences involve the failure to act
where there is a legal duty to do so. An example is
found in s.215(1(a) of the Criminal Code:
Everyone is under a legal duty…(a) as a parent, foster
parent, guardian or head of a family, to provide
necessaries of life for a child under the age of sixteen
years;...

Section 215(2) creates an offence for a person
who fails to perform the duty if the child is in
destitute or necessitous circumstances or their
life or health is endangered. Similarly, s.254(5) of
the Code creates an offence for a person who fails
to submit to a proper breath demand made by a
police officer:
Every one commits an offence who, without reasonable
excuse, fails or refuses to comply with a demand made
to him by a peace officer under this section.

3. A state of affairs prohibited by law
(state of being offence)
Some criminal offences require neither an overt
act nor an omission. Rather, they require that a
prohibited state of affairs, or state of being,

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exists at the time. There are many examples of
this type of actus reus in possession offences. For
example, s. 354(1) of the Criminal Code provides:
Everyone commits an offence who has in his possession
any property...knowing that all or part of the property
…was obtained by or derived directly or indirectly from…
(a) the commission in Canada of an offence punishable by
indictment...

Thus, it is an offence to be in possession of
property obtained through the commission of a
crime, typically theft or robbery. This offence is
sometimes referred to as ‘‘possession of stolen
property”. Being in possession of stolen property
is the state of affairs prohibited by the law.
Similarly, s.4(1) of the Controlled Drugs and
Substances Act creates an offence for persons to
knowingly possess controlled substances.

MENS REA
The mens rea is the required
Latin for
mental, blameworthy, criminal
“guilty mind”
mental state, or fault element
of a crime. In addition to
proving the prohibited act, the Crown must also
prove that the person meant or intended to commit
it. It is not necessary that the accused intended
to commit a crime; it is enough that they intended
to do an act that is recognized by law as a crime.
Mens rea is required because it is not in the
interest of justice to punish persons who did not
intend to commit a particular act or who have no
control over their mental or physical processes.
Mens rea can take many forms, or differing
degrees, which include the following:

1. Intention
Generally, it is necessary
Foresight of a
that an accused intended
consequence
to cause a consequence.
For example, if person A
plus a desire it
hit person B without
come about
consent, then A is guilty
of an assault only if A intended to hit B. If A hit
B accidentally then no criminal offence is

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committed. Intention is a required mens rea
element in many offences and may be recognized
by the wording of the offence, ("intentionally",
"willfully" or "means to").
s.265(1)(a) Criminal Code
A person commits an assault when…(a) without the
consent of another person, he applies force
intentionally to that other person, directly or
indirectly.

In this example, the required intent is to apply
force.

General (or Basic) Intent
In a general intent offence, the acts are done to
achieve an immediate consequence or result. For
example, assault is committed when A
intentionally hit B without consent. Unlike a
specific intent offence, there is no additional or
further intention in mind beyond the prohibited
act itself.

Specific (or Particular) Intent
Some offences require a special, additional, or
ulterior intent. In addition to the general intent, a
specific intent attending the purpose for the
commission of the act must be proven. These are
called specific intent offences. For example, A's
further intention in hitting B might be for the
additional intent to steal B's money, which now
renders the offender guilty of robbery.
s.343(c ) Criminal Code
Every one commits robbery who …(c) assaults any person
with intent to steal from him;

In general, specific intent offences are indicated
by the words "with intent" or similar words such as
"for the purpose of". A greater burden of proof is
placed on the prosecution in a specific intent
offence. That is, the prosecution must prove not
only that the accused intentionally committed the
prohibited act, but also that they committed the
act with a specific intent. In R. v. Bernard [1988]
2 S.C.R. 833, Justice McIntyre of the Supreme
Court of Canada described the difference between
general and specific intent as follows:

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There is a world of difference between the man who
in frustration or anger strikes out at his neighbour
in a public house with no particular purpose or intent
in mind, other than to perform the act of striking,
and the man who strikes a similar blow with intent
to cause death or injury. This difference is best
illustrated by a consideration of the relationship
between murder and manslaughter. He who kills
intending to kill or cause bodily harm is guilty of
murder, whereas he who has killed by the same act
without such intent is convicted of manslaughter.
The proof of the specific intent, that is, to kill or to
cause bodily harm, is necessary in murder because
the crime of murder is incomplete without it. No
such intent is required, however, for the offence of
manslaughter because it forms no part of the
offence, manslaughter simply being an unlawful
killing without the intent required for murder.

Intention and Motive
Intention and motive are not the same. Motive
refers to some reason for committing a crime and
is not part of the mens rea component. A person
may commit a crime for a seemingly beneficial
motive and still be found guilty. For example, in a
mercy killing the accused’s motive may be to
relieve one from suffering. However, the actus
reus (killing a person) and the mens rea (intending
to kill the person) are both present and thus a
crime was committed. The motive, to put one out
of their misery and end suffering, is irrelevant to
the issue of criminal responsibility, although it may
become a sentencing factor or issue for public
debate.

2. Knowledge
This mens rea component is
Awareness of
usually recognized by the
circumstances
words, such as "knowing" or
"knowingly",
within
the
definition of a crime. For example, s. 131 of the
Criminal Code creates the offence of perjury:
…every one commits perjury who, with intent to
mislead, makes…a false statement under oath…knowing
that the evidence is false.

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However, the words knowing or knowingly may not
be included in the definition of a crime, but
knowledge of a particular fact may be essential.
For example, s.270 of the Criminal Code creates
offences for persons who assault a peace officer
in the execution of their duties:
Every one commits an offence who (a) assaults a
public officer or peace officer engaged in the
execution of his duty...
If an accused assaulted a person not knowing that
their victim was a peace officer, they are not
guilty of assaulting a peace officer because they
did not have the necessary knowledge. However,
the person may be found guilty of common assault.

3. Willful blindness
Willful blindness “arises
Choosing to
where a person who has
remain ignorant
become aware of the need
of the truth
for some inquiry declines
to make the inquiry because [they] do not wish to
know the truth10”. In possession offences such as
possession of stolen property, willful blindness can
be a mens rea substitute for actual knowledge. In
R. v. Vinokrov 2001 ABCA 113, the Alberta Court of
Appeal expressed the test for willful blindness as
follows:
A finding of willful blindness involves an affirmative
answer to the question: Did the accused shut his
eyes because he knew or strongly suspected that

It is not necessary to intend that a consequence
occur nor is actual knowledge of circumstances
required. If the risk of a harmful consequence is
high and the accused knowingly takes that risk, the
mens rea of recklessness is established.

CATEGORIES OF LIABILITY
All offences require the actus reus element to be
proven by the prosecution. However, the mens rea
is not necessary in all cases. There are three
categories of liability created by statute and
distinguished as follows:

¾ Full Liability Offences
•

•

¾ Strict Liability Offences
•

•
•

looking would fix him with knowledge.

4. Recklessness
Recklessness arises when a
Seeing a risk
person persists in their conduct
but taking
knowing that there is a risk of
the chance
danger. For example, s.443 of
the Criminal Code creates
culpability for reckless damage caused by fire:
Every person who…recklessly causes damage by fire or
explosion to property, whether or not that person owns
the property, is guilty…

10

requires proof by the prosecution of a
positive state of mind (mens rea such as
intent, knowledge or recklessness)
includes most criminal offences

there is no necessity for the prosecution
to prove mens rea. However, it is open to
the accused to avoid liability by proving
that a reasonable person would have
committed the actus reus under the same
circumstances (the defence of due
diligence)
may be either federal or provincial
offences
generally, these include matters dealing
with health, safety, and general welfare of
the public

¾ Absolute Liability Offences
•
•

•

requires actus reus only
it is not open to the accused to clear
themselves by showing that they were free
of fault
covers most provincial offences (e.g.
speeding, red light infraction, etc).

Ultimately, the courts will interpret the offence
and decide into which category it will fall.

R. v. Sansregret (1985) 18 C.C.C. (3d) 223 (S.C.C.) per McIntyre.

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37

COURT REJECTS IMPAIRED
DRIVER’s NECESSITY DEFENCE
R. v. L’Hirondelle, 2002 ABPC 175
An Alberta Provincial Court
Judge
rejected
a
driver’s
defence that she drove while
impaired out of necessity. The
accused testified that she was out drinking to
celebrate a friend’s birthday when he got involved
in a bar fight with 3 or 4 other persons. During
the scrap her intoxicated friend fell back and
struck his head on the ground. The others
involved fled the scene. The accused went to
arouse her companion, but could not. Noticing
blood oozing from the back of his head, she
thought his life was in danger and panicked. She
dragged him to her car and drove him to the
hospital. She also told the court that she did not
want to leave him alone to go and call for help. On
arrival at the hospital, the accused was arrested
by a special constable security guard and turned
over to police. She subsequently provided two
breath samples over the legal limit.

The Necessity Defence
The defence of necessity is a heavily
circumscribed common law defence recognizing
that in rare and compelling circumstances an
accused person should be excused from a crime
because it was committed as a product of a
‘morally involuntary’ decision. The defence will
only succeed if the following three conditions are
met:
1.

the situation is one of imminent peril or
danger. This includes both a subjective belief
that such a situation exists as well as an
objective basis for such a conclusion. In other
words, the accused’s belief must be
reasonable. It would not be sufficient for the
accused to only argue they perceived
imminent peril or danger when it was
objectively unjustified;

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2. there is no reasonable legal alternative to the
course of action taken; and
3. the harm inflicted is lesser than the harm
avoided
Although Justice Creagh accepted the accused’s
subjective belief that her friend was seriously
injured, there was an insufficient objective basis
for believing the situation was one of imminent
peril. The inability to arouse her companion could
have been the effects of the injuries or alcohol
consumption and the only evidence of injury was
the blood. With respect to other reasonable legal
alternatives, she could have run into the bar or
any other business and called 911 or requested
some one else to do so. Finally, the court held
that despite not wanting to leave her friend alone
to make a call, this would have been a lesser harm
inflicted than exposing the public to an impaired
driver. The accused’s necessity defence was
rejected and she was convicted.
Complete case available at www.albertacourts.ab.ca

AROMA OF BURNT MARIHUANA
PROVIDES REASONABLE
GROUNDS
R. v. Dubois, 2002 BCPC 0239
When
two
police
bicycle
members were on patrol they
detected a smell of burning
marihuana as a Corvette passed
by them. The car turned into a
parking lot and the officers rode up to it. An
officer saw the driver raise a beer and take a
drink. A strong odour of burning marihuana could
be smelled coming from the car and a box of beer
was seen in the rear of the vehicle behind the
seats. The driver and his female passenger were
told to exit the car. At this time the female
brushed what the police suspected was marihuana
leaves or remnants from her pants. Both of the
occupants were advised they were under
investigation for possession of a controlled
substance and open liquor in a vehicle and that
the vehicle would be searched. A police dog was

38

called to the scene, searched the car, and located
a baggie of marihuana between the passenger
seat and the passenger door, roaches in the
ashtray, and a sum of money. The accused driver
was arrested and taken to the police detachment
where a jail guard found a deck of cocaine in his
pants. He was subsequently released on a Promise
to Appear for the drug offences and served a
violation ticket for the liquor offence. During the
trial voire dire to determine the admissibility of
the drugs, the accused argued that his rights
under s.9 (arbitrary detention) and s.8
(unreasonable search and seizure) of the Charter
had been violated.

Furthermore, Justice Sinclair found the search
of the accused at the detachment was lawful as
an incident to arrest.
The evidence was
admissible and the accused was convicted of
cocaine possession, but acquitted of the
marihuana charge. Although very close, the court
was not satisfied beyond a reasonable doubt that
the accused had knowledge of and control over
the baggie. It was possible that the female
passenger had the baggie and put it between her
seat and the door when she exited the car.

The Searches

Complete case available at www.provincialcourt.bc.ca

Because the searches of both the vehicle and the
accused were conducted in the absence of a
warrant, they were presumptively unreasonable
and the burden lay with the Crown to prove that
they were nonetheless reasonable. In concluding
that his rights were not breached, British
Columbia Provincial Court Justice Sinclair stated:
The Criminal Code requires that an officer must
subjectively have reasonable grounds on which to
base an arrest or detention. Those grounds must
be justifiable from an objective point of view, that
is a reasonable person placed in the position of the
officer must be able to conclude that there were
reasonable and probable grounds. I have concluded
that a reasonable person would readily conclude
that given the aroma emanating from the vehicle it
was reasonable to conclude that one or both of the
occupants had recently used marihuana within it
and might do so again.
In addition, there was apparently open liquor in the
vehicle. The accused was seen to drink from a beer
can. It was reasonable to conclude that the
accused might continue to drink and that his ability
to operate the vehicle, if not then impaired by
alcohol or a drug, might become so later.
Thus the police had the right and, indeed, the duty
to investigate further. The situation cried out for
them to search the vehicle. They had reasonable
and probable grounds to believe that an offence
had just been committed or was being committed.
Thus they had the right and the duty to detain the

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accused and to conduct a search of the vehicle
incidental to detaining him. They could hardly have
walked away.

REASONABLE GROUNDS
INCLUDES EXPERIENCE &
TRAINING
R. v. Homewood, 2002 BCPC 0298
A police officer received a tip
from
an
electrical
utility
company of a possible marihuana
grow operation at a residence
because
of
high
power
consumption. Attending the premises but
gathering no substantive evidence to support the
information,
the
officer
suspended
his
investigation. About a year later, the investigation
was revived by another officer targeting
potential grow operations in the city. A search
warrant was obtained and executed at the
property. Police found 12 marihuana plants and
related paraphernalia and charged both occupants
with six drug related offences. During the voire
dire, the accused argued that the police lacked
reasonable grounds to properly support the
search warrant.
In reviewing the basis for the search warrant,
British Columbia Provincial Court Justice
Alexander concluded that there were sufficient
grounds upon which a justice could have issued
the warrant. He noted that the grounds to
support the warrant were based on the following:

39

•

•

•
•

a consistent pattern of high electrical
consumption when compared to similar
residences;
a FLIR (forward looking infrared) examination
of the exterior of the residence revealed two
hot spots;
a perimeter search revealed a smell of
marihuana coming from the residence; and
the officers belief that rental property was
consistent
in
his
experience
and
understanding as an earmark of a grow
operation

The accused submitted that the information to
obtain was problematic. They pointed to
inconsistencies in the police investigation
concerning the existence of a basement suite,
wind direction at the time of the perimeter
search, and the absence of notes or a report
made by the FLIR operator. After scrutinizing
the testimony of the officers, the court found
that the inconsistencies were minor and did not
mislead the issuing justice. In concluding that
there were sufficient reasonable grounds upon
which a justice of the peace could issue a
warrant, Justice Alexander stated:
I accept that there may be many explanations for
alleged high hydro consumption at the residence. I
also accept that it is likely that the majority of
rental properties are not grow operations. Further,
a FLIR examination, in the absence of a technical
report from its operator, may in itself be
inconclusive. A police officer is, however, entitled
to rely on his training and experience in
determining whether he has a sufficient basis to
seek a search warrant. Part of that determination
involves a consideration of all the factors
collectively. That is, an evaluation of the totality
of the circumstances in determining whether
reasonable and probable grounds for a search
warrant exist.

Since there was no breach of the accused’s rights
under s.8 of the Charter to be secure against
unreasonable search or seizure, the evidence was
admissible.

DID YOU KNOW…
that Quebec has a
provincial Charter of

Human
Rights
Freedoms?

and

Interestingly, one of the rights places an
obligation on citizens to immediately help others
whose lives are in peril unless doing so puts one’s
self or others at risk.
s.2 Quebec Charter of Human Rights and Freedoms
Every human being whose life is in peril has a right to
assistance. Every person must come to the aid of
anyone whose life is in peril, either personally or by
calling for aid, by giving him the necessary and
immediate physical assistance, unless it involves danger
to himself or a third person, or he has another valid
reason.

ALL THE BEST FOR 2003
The staff at the
Police
Academy
would like to wish
our
“In-Service:
10-8” readers and
their families all
the best for 2003.
It has been a pleasure serving British Columbia’s
police officers by keeping them up-to-date on
many of the issues facing them as they protect
the citizens of their communities. May this new
year bring you good cheer and have a safe and
blessed 2003.

For comments on or contributions to this
newsletter contact
Sgt. Mike Novakowski at the JIBC Police Academy
at (604) 528-5733 or e-mail at
mnovakowski@jibc.bc.ca
Past issues available online at www.jibc.bc.ca

Complete case available at www.provincialcourt.bc.ca

Volume 3 Issue 1
January 2003

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