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The subject who assaulted Officer Lazenby was charged with first degree murder.

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?C5H=4','$;;H4'L
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Source: Officer Down Memorial Page available
at www.odmp.org/canada

*E1/GM(D125'LNN,

IN SERVICE: 10-8 ONLINE
All back issues of the newsletter are available online
at www.10-8.ca. If you would like to be added to
the electronic distribution list for the newsletter
simply send an email to mnovakowski@jibc.ca.

When the newsletter is completed it will be sent
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www.10–8.ca

Be Smart & Stay Safe

Volume 12 Issue 4

Volume 12 Issue 4 ! July/August 2012

Highlights In This Issue
Absence Of Subjective Suspicion Fatal To Detention’s
Legality

5

Police Exceed Implied Licence To Knock: Smelling
Stink Breached Privacy

8

Intentional Act Can Establish Necessary Risk For
Care Or Control

11

Tangential Detention Requires Right To Counsel

14

Commands To Show Hands & Get Out Of Vehicle
Not A De Facto Arrest

16

Officer Had No Greater Expertise Than Judge

21

New Arrest Power For Breaching Parole

22

2011 Police Reported Crime

23

Lawful Probation Order ‘Knott” Nullified By New
Sentence

28

Police Leadership Conference

36

Facts-Figures-Footnotes

37

Reports-Research-Reviews

39

Online Graduate Certificate Programs

42

National Library of Canada
Cataloguing in Publication
Data

Unless otherwise noted all articles are
authored by Mike Novakowski, MA, LLM. The
articles contained herein are provided for
information purposes only and are not to be
construed as legal or other professional
advice. The opinions expressed herein are not
necessarily the opinions of the Justice Institute
of British Columbia. “In Service: 10-8”
welcomes your comments or contributions to
this newsletter. If you would like to be added
to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.ca.

POLICE LEADERSHIP
APRIL 7-9, 2013
Mark your calendars. The British
Columbia Association of Chiefs of
Police, the Ministry of Public
Safety and Solicitor General, and
the Justice Institute of British
Columbia Police Academy are
hosting the Police Leadership
2013 Conference in Vancouver,
British Columbia. This is Canada’s largest police
leadership conference and will provide an
opportunity for delegates to discuss leadership
topics presented by world renowned speakers.
“The Service of Policing: Meeting Public Expectations”

Main entry under title:
In service: 10-8. -- Vol. 1, no. 1 (June 2001)
Monthly
Title from caption.
“A newsletter devoted to operational police
officers across British Columbia.”
ISSN 1705-5717 = In service, 10-8

www.policeleadershipconference.com

1. Police - British Columbia - Periodicals. 2.
Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of
British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten-eight.
PAGE 2

see pages 36-37

Graduate Certificates
Intelligence Analysis
or

Tactical Criminal
Analysis
www.jibc.ca

see
pages
42-43

Volume 12 Issue 4 ! July/August 2012
Combating memory loss: common problems and
treatments.
Boston, MA: Massachusetts General Hospital, 2011.
RC 394 M46 C55 2011
Creative thinking skills. [videorecording]
Burnaby, BC: Distribution Access [distributor],
c2010.

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

The ABCs of evaluation: timeless techniques for
program and project managers.
John Boulmetis, Phyllis Dutwin.
San Francisco, CA: Jossey-Bass, 2011.
HD 31 B633 2011
The adult learner: the definitive classic in adult
education and human resource development.
Malcolm S. Knowles, Elwood F. Holton III, Richard
A. Swanson.
Amsterdam; Boston: Elsevier, 2011.
LC 5225 L42 K56 2011
Becoming a master student.
Dave Ellis, Doug Toft (contributing editor), Debra
Dawson.
Toronto, ON: Nelson Education, c2012.
LB 2343.3 E44 2012
Coaching for leadership: writings on leadership
from the world's greatest coaches.
editors, Marshall Goldsmith, Laurence S. Lyons,
Sarah McArthur.
San Francisco, CA: Pfeiffer, c2012.
HD 30.4 C63 2012
Co-active coaching: changing business,
transforming lives.
Henry Kimsey-House, Karen Kimsey-House, Phillip
Sandahl.
Boston, MA: Nicholas Brealey Pub., 2011.
HF 5549.5 C53 K56 2011

1 videodisc (DVD) (26 min.): sd., col.; 4 3/4 in.

English captions for the deaf and hearing impaired.
Creativity can be the difference between success
and failure. When all! solutions escape you, creative
thinking can provide another perspective.
This program explores how we as individuals can
become more creative and develop a questioning
mindset, enhancing our ability to generate,!!
challenge, test and reinvent ideas.
BF 408 C743 2010 D1412

The developing mind: how relationships and the
brain interact to shape who we are.
Daniel J. Siegel.
New York, NY: Guilford Press, c2012.
BF 713 S525 2012
An employer's guide to surveillance, searches and
medical examinations.
John C. O'Reilly, Katherine Ford.
Toronto, ON: Carswell, c2012.
HF 5549.5 E428 O74 2012
Evaluating research articles from start to finish.
Ellen R. Girden, Robert I. Kabacoff.
Thousand Oaks, CA: SAGE Publications, c2011.
Q 180.55 E9 G57 2011
A first-rate madness: uncovering the links
between leadership and mental illness.
Nassir Ghaemi.
New York, NY: Penguin Press, 2011.
RC 537 G479 2011
The five levels of leadership: proven steps to
maximize your potential.
John C. Maxwell.
New York, NY: Center Street, 2011.
HD 57.7 M394 2011

PAGE 3

Volume 12 Issue 4 ! July/August 2012
The four styles. [videorecording]
production services provided by TS Media Inc.
[S.l.]: EIC Incorporated; Port Perry, ON: OwenStewart Performance Resources Inc. [distributor],
c2008.
1 videodisc (22 min.): sd., col.; 4 3/4 in. (DVD) + 1 CD-ROM
(4 3/4 in.)

Accompanying CD-ROM contains leader's guide,
section breakdown in PDF and Microsoft PowerPoint
presentation. Scientific research shows that people
communicate, think and behave! differently.
Generally they fall into four categories: suportives,
emotives, reflectives and directives. In this 3-part
program you will learn about these four behavior
styles and what's included in them, learn! ! ! how to
identify these styles in others and how to change
your behavior to better communicate with others.
HF 5718 F687 2008 (Restricted to in-house.) D1431

Hungry: fuelling your best game.
Ryan Walter.
Surrey, BC: Heads-Up Communications Corp.,
c2011.
BF 637 S8 W35 2011

Enhanced DVD features include: course leader's
guide (PDF file); presentation slides (PPT files); group
training workbook, self-study workbook, objectives
and programme outline, certificate (Word files).
This updated version of the classic film illustrates the
five basic principles for conducting productive
meetings. In a nightmarish court, a cynical manager
is found guilty of failing to prepare himself and
inform others about the meeting agenda.
HD 2743 M43 2012 D1423

The mentor's guide: facilitating effective learning
relationships.
Lois! J. Zachary.
San Francisco, CA : Jossey-Bass, c2012.
LB 1731.4 Z23 2012
The polyvagal theory: neurophysiological
foundations of emotions, attachment,
communication, and self-regulation.
Stephen W. Porges.
New York, NY: W. W. Norton, c2011.
QP 401 P67 2011

Incognito: the secret lives of the brain.
David M. Eagleman.
Toronto, ON: Viking Canada, c2011.
BF 315 E24 2011

The post-traumatic stress disorder sourcebook: a
guide to healing, recovery, and growth.
Glenn R. Schiraldi.
New York, NY: McGraw-Hill, c2009.
RC 552 P67 S326 2009

Legal help for British Columbians: a guide to help
non-legal professionals make legal referrals for
their clients.
Cliff Thorstenson.
[British Columbia]: Courthouse Libraries BC, c2012.
KEB 174 T46 2012

Quiet: the power of introverts in a world that
can't stop talking.
Susan Cain.
New York, NY: Crown Publishers, c2012.
BF 698.35 I59 C35 2012

Meetings, bloody meetings. [videorecording]
produced by Video Arts Limited.
London: Video Arts; Mississauga, ON: RG Training
[distributor], c2012.
1 videodisc (33 min.): sd., col.; 4 3/4 in. (DVD).

Title from disc.
Title of accompanying manual: Meetings, bloody
meetings: making meetings more productive.
written by Pat Mitchell.
Manual publication date: 2012.

Twelve steps to a compassionate life.
Karen Armstrong.
Toronto, ON: Knopf Canada, c2011.
BL 624 A74 2011
Working in high risk environments: developing
sustained resilience.
edited by Douglas Paton and John M. Violanti.
Springfield, IL: Charles C. Thomas, c2011.
HF 5548.85 W678 2011

PAGE 4

Volume 12 Issue 4 ! July/August 2012

ABSENCE OF SUBJECTIVE
SUSPICION FATAL TO
DETENTION’S LEGALITY

Forty-five minutes later the officer advised the
accused why he was arrested and told him about his
right to counsel. Then, about an hour later, he was
provided access to a telephone at the police station
for the purpose of contacting legal counsel.

R. v. Dhillon, 2012 BCCA 254
Police were dispatched to the parking
lot of a Subway restaurant in response
to a fight complaint involving a group
of 12 South Asian males and found
several South Asian males out front of
it. There was also a BMW with its passenger door
open parked at an angle to the linear parking stalls,
suggesting someone might have left it in a hurry. A
police officer informed the group that he was
investigating a complaint about a fight. The men said
there was no fight and there was no evidence of one.
The complaint was concluded as unfounded but the
officer recognized an individual in the group from
previous dealings and police intelligence as
someone involved in violent criminal activity and
associated with firearms. He became suspicious that
weapons might be present. Upon inquiring as to the
BMW’s ownership, the accused came forward and,
when asked if he had any identification, produced
his driver’s licence from the middle console of the
vehicle. The officer saw a pair of scissors and some
rolling papers in the console. In his experience those
items were typically associated with marijuana use
but he did not see or smell any burnt or fresh
marijuana. The possibility of drugs in the vehicle
again made the officer suspicious that there might be
weapons in it.
Although he had not seen any drugs or weapons
inside the main body of the vehicle, the officer
decided to search the trunk where he found a
Norico assault rifle (an AK-47 knock-off) covered in
towels. A 30-round magazine was attached. The
accused was arrested, handcuffed, patted-down and
placed in the back of a police vehicle. About four
minutes had elapsed between the accused
identifying himself as the vehicle’s owner and his
arrest. Shortly thereafter, two men associated with a
criminal gang arrived. They were known to carry
handguns, wear body armour and were previously
involved in shootings. More backup was summoned
and all the men were handcuffed and searched.

British Columbia Provincial Court (trial)
The officer acknowledged that he did not
have reasonable grounds to obtain a
search warrant, nor to arrest or detain the
accused for investigative purposes and
therefore did not have authority to conduct a search
for officer safety reasons. (Instead, he claimed he
had the accused’s consent, which was later found to
be invalid). The trial judge, however, concluded that
there were no Charter violations. She found the
accused was lawfully detained pursuant to an
investigative detention. The presence of drug
paraphernalia in the vehicle, the manner in which
the vehicle was parked and the presence of a known
violent offender in the group of males gave the
officer both subjective and objective grounds to
detain the group of men, including the accused, for
investigation in relation to the fight complaint. “It
would be naive and unrealistic to expect that the
police when investigating an assault would accept
the word of a group of people there when they deny
an assault ever took place, especially given the
known violent person within the group,” said the
judge. “Up to the point where the accused is
arrested, interference with his liberty was minimal,
only to the extent required for the officers to do their
duty in checking out a potential assault.”
Since the accused was lawfully detained for
investigative purposes, the search of his vehicle for
officer and public safety reasons was reasonable as
incidental to the detention. As for the 45-minute
delay in providing a reason for detention and
advising the accused of his right to retain and
instruct counsel, it was not intentional but due to the
volatility and potential danger of the situation. Plus,
even if the accused’s rights were breached, the
firearm would have been admitted as evidence
under s. 24(2) anyway. The accused was convicted of
four firearm and weapon related offences;
possessing a firearm without a licence, carrying a

PAGE 5

Volume 12 Issue 4 ! July/August 2012
concealed weapon, being an occupant of a motor
vehicle knowing there was a prohibited weapon and
possessing a prohibited device.

British Columbia Court of Appeal
The accused argued that the trial
judge erred in characterizing the
search as incidental to an
investigative detention. In his view,
the officer did not subjectively believe that he had
reasonable grounds to detain him and therefore his
detention was arbitrary under s. 9 of the Charter. The
vehicle search, he suggested, was also unlawful and
breached s. 8 of the Charter. Thus, the firearm
should have been excluded as evidence. The Crown,
on the other hand, submitted that even if there was
no lawful investigative detention, the search was still
reasonable as a justifiable use of police powers in
the exercise of the police duty to preserve the peace,
prevent crime and protect life and property.

The Detention
Justice Smith, authoring the Court of Appeal’s
unanimous judgment, described the test for
detention this way:
Detention for Charter purposes exists where
there is “a suspension of the individual’s liberty
interest by a significant physical or psychological
restraint”. Psychological detention occurs where
an individual “submits or acquiesces in the
deprivation of liberty and reasonably believes
that the choice to do otherwise does not exist”.
The determination of whether there has been
detention is an objective test. Where there has
been no physical restraint and no legal
obligation to comply with a demand by a police
officer, the question is whether “a reasonable
person would conclude by reason of the state
conduct that he or she had no choice but to
comply”. [references omitted, para. 30]

A detention will not be arbitrary under s. 9 of the
Charter if it is authorized by law, either statute or
common law. Under the common law, the police
may lawfully detain someone for an investigation if
they have reasonable grounds to suspect that the
targeted individual is involved in criminal activity.
Reasonable suspicion is more than a hunch and
includes both subjective and objective elements. In
addition to the requirement of a reasonable
suspicion, the detention must also be reasonably
necessary in order to justify what would otherwise
be an unreasonable interference with an individual’s
liberty.
In this case, the Court of Appeal found there was no
detention. The officer said he did not detain the
accused nor was there any control exerted over him.
The accused was not physically restrained or
directed to go anywhere or do anything other than to
step away from the vehicle when it was being
searched. And even if the accused could have been
lawfully detained, that is not what the police did.
Instead, they arrested him. “When the police have
wrongfully arrested someone, their actions cannot
be defended on the basis that they could have
detained this person on some other basis,” said
Justice Smith. “In deciding whether the police
infringed Charter rights they are to be judged on
what they did, not what they could have done.”
Moreover, the officer did not have reasonable
grounds to detain as the trial judge mistakenly
found. The officer did not form a subjective belief
that the accused had been or was involved in a fight
and found nothing to support the complaint, which
was concluded as unfounded. Nor did the officer
claim to search the vehicle incidental to an
investigative detention. Rather, he acknowledged he
only had a bare suspicion that he might find drugs
and/or weapons in the trunk of the vehicle, which
did not rise to the level of reasonable grounds for
detention. “The law requires both a subjective and
an objective basis for an investigative detention,”

“When the police have wrongfully arrested someone, their actions cannot be defended on
the basis that they could have detained this person on some other basis. In deciding
whether the police infringed Charter rights they are to be judged on what they did, not what
they could have done.”
PAGE 6

Volume 12 Issue 4 ! July/August 2012

“Where there exist reasonable grounds to suspect that a detained individual is connected to a
particular crime, officer or public safety concerns may justify a search incidental to that
detention, which will typically involve a pat-down search of the detained individual. A lawful
search incidental to an investigative detention requires ‘reasonable grounds’ (i.e., an objective
basis) for concerns about officer and/or public safety, and that the search be ‘reasonably
necessary’ to ensure the preservation of the officer and/or public safety.”
said the Court. “Even if the trial judge’s finding that
there was an objective basis for detention were
accepted, the complete absence of a subjective basis
in this case is fatal to the finding that there was a
lawful investigative detention.”

The Search
Investigative Detention: In some cases a detained
person may be searched. “Where there exist
reasonable grounds to suspect that a detained
individual is connected to a particular crime, officer
or public safety concerns may justify a search
incidental to that detention, which will typically
involve a pat-down search of the detained
individual,” said Justice Smith. “A lawful search
incidental to an investigative detention requires
‘reasonable grounds’ (i.e., an objective basis) for
concerns about officer and/or public safety, and that
the search be ‘reasonably necessary’ to ensure the
preservation of the officer and/or public safety.”
However, since the officer’s concern that the
accused might possess drugs and/or weapons did
not rise to the level of reasonable suspicion, the
search of the vehicle could not be justified as
incidental to an investigative detention for officer
and/or public safety reasons.
Waterfield Doctrine: The authority to conduct the
search on the basis that it was reasonably necessary
for officer and public safety reasons based on the
Waterfield doctrine was also rejected. The Crown
had tried to argue that the officer had a duty to
search the trunk for the protection of the public and
the officers present because of the nature of the
suspected crimes and the potential for a high risk of
violence. “To date, no court has recognized a police
power to search based on a standard lower than that
of objectively reasonable suspicion,” noted Justice
Smith. “While I am not persuaded that a free-

standing power to search for officer safety reasons
should be recognized, if such a power were to be
recognized, in my view it would, at a minimum,
require this level of objectively reasonable grounds.”
Here, the officer admitted he had nothing more than
a bare suspicion to support his concerns for officer
and public safety. He also admitted that the vehicle
could have been secured until more officers arrived,
which ran directly counter to the argument that the
search was necessary for public safety reasons. Thus,
the search was neither objectively reasonable nor
necessary, failing the second branch of the
Waterfield doctrine:
In short, while the Waterfield doctrine has
developed a robust history in Canada, it has
been limited by constitutional constraints and, in
particular, by a requirement that police show an
objectively reasonable basis for the exercise of
any powers. This criterion is reflected in the
second branch of the Waterfield doctrine, which
requires that police conduct not involve an
“unjustifiable use of police powers”. Canadian
courts, to date, have held the exercise of a
common law police power is only justified
where its use is objectively reasonable and
necessary. Thus, even if the Waterfield doctrine
could be found to support the use of police
powers based on concerns about safety rather
than concerns about the commission of specific
criminal offences, in my view at the very least
those safety concerns would have to be
objectively reasonable before they could serve
as a free-standing justification for the use of
police search powers. [para. 70]

s. 24(2) Charter
As a result of the Charter breaches, the firearm was
excluded under s. 24(2). The Charter-infringing
conduct was serious and the impact on the
accused’s Charter-protected interests was significant.

PAGE 7

Volume 12 Issue 4 ! July/August 2012
The accused’s appeal was allowed, his convictions
were quashed and acquittals were entered. There
was no need to address the accused’s s. 10 Charter
arguments.
Complete case available at www.courts.gov.bc.ca

More on the Waterfield Doctrine
The English Waterfield or ancilliary powers doctrine is
used to determine whether a police officer was acting
lawfully at common law. The test has two branches:
• Whether the police conduct, which involved a prima
facie unlawful interference with a person's liberty, fell
within the general scope of any duty imposed by
statute or recognized at common law, such as
preventing life or protecting property?
• Whether the police conduct, albeit within the
general scope of such a duty, involved an unjustifiable
use of powers associated with the duty? 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.
Examples of its use:
• the power of investigative detention on the basis
of a reasonable suspicion. R. v. Mann, 2004 SCC 52
• the power to forcibly enter a private home to
investigate a 911 call and provide assistance to the
caller. R. v. Godoy, [1999] 1 S.C.R. 311
• the power to detain people (by stopping a vehicle)
based on the existence of reasonable grounds to
believe there were handguns in a public place,
which posed a genuine risk to public safety. R. v.
Clayton, 2007 SCC 32
• the power to use a sniffer-dog to search luggage
on the basis of a “reasonable suspicion” standard.
R. v. Kang-Brown, 2008 SCC 18

POLICE EXCEED IMPLIED
LICENCE TO KNOCK: SMELLING
STINK BREACHED PRIVACY
R. v. Atkinson, 2012 ONCA 380
The accused entered an apartment
uninvited through an open balcony
door. The suite belonged to an
acquaintance who she met at
Cocaine Anonymous and lived in the
same building. She refused to leave when asked, but

grudgingly did so when the request was repeated.
The next day the accused again entered the
apartment uninvited, this time walking into a
bedroom and asking for a “ten piece” of crack. She
refused to leave when requested and had to be
escorted out. Then, sometime during the middle of
the night, a burglar entered the apartment and the
following day a flat screen television was found
missing. Feces was seen on a table beneath the
balcony, on the balcony, and on the kitchen and
living room floors.! None of the footprints were
closer than about three feet from where the
television had been.
Police attended the apartment and looked around,
discovering a lot of “dark feces”. It appeared
someone had stepped in dog feces left on the
balcony of the apartment and proceeded to track it
around.! The officer considered the accused as a
person of interest, having entered the apartment
uninvited and unannounced the previous two days.
However, he concluded he did not have reasonable
and probable grounds to believe that she was the
burglar. The officer went to the accused’s home,
walked up to the door of the enclosed verandah/
mudroom and knocked. The accused answered the
door and, when questioned, denied any knowledge
of the television theft. The officer noticed a pair of
black shoes close by with something stuck to their
bottom. He took a step or two inside, picked up the
shoes, looked at them and lifted them towards his
nose. He smelled feces. The accused acknowledged,
but then quickly denied the shoes were hers. The
shoes were seized and the accused was charged. The
television was never recovered.

Ontario Court of Justice (trial)
The officer conceded that in order to
smell the deposit stuck to the shoes he
needed to pick them up. He considered
he had an implied invitation to enter the
verandah/mudroom and walked in without any
objection from the accused. When the accused
denied taking the television she told the officer he
could enter her house and showed him that the
television was not there. The Crown conceded that
the officer breached s. 8 of the Charter in seizing the
shoes and that they should be excluded as evidence.

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Volume 12 Issue 4 ! July/August 2012
Although the shoes themselves were excluded, the
officer’s observations of the shoes, both visual and
olfactory, were admitted and the accused was
convicted of break and enter and two counts of
unlawfully in a dwelling house for the two earlier
entries to the same apartment.

Ontario Court of Appeal

the material on the accused’s shoes breached s. 8 of
the Charter.

The Door Knock
Like all members of the public, a police officer has
an implied invitation to knock at a person’s door to
facilitate communication with an occupant. This
invitation to knock waives the privacy interest the
occupant might otherwise have in the approach to
the door of their home. Justice Watt, authoring the
unanimous Court of Appeal judgment, described it
this way:

The accused argued, among
other grounds, that the officer’s
observations in seeing and
smelling the adherent fecal
matter on the shoes were
The common law recognizes an
inadmissible. In her view, each
“The common law
implied licence for all members of
observation amounted to a “search”
the public, including police officers,
recognizes an implied
under s. 8 of the Charter and lacked
to
approach the door of a residence
a ny s t a t u t o r y o r c o m m o n l aw
licence for all members
and to knock. Thus, an occupier is
authority.! There was no warrant or
deemed to grant the public,
of the public, including
consent.! Further, the “plain view”
including the police, permission to
doctrine, which only permits a seizure
police officers, to
approach the door and to knock.!
(not a search), did not apply because
approach the door of a Police who act in accordance with
the officer was not lawfully present in
this implied invitation do not intrude
the verandah/mudroom. Nor was the residence and to knock. on the occupant’s privacy. Unless
feces either readily apparent or
rebutted by some clear expression of
Thus, an occupier is
i n t e n t , t h e i m p l i e d i nv i t a t i o n
inadvertently discovered. The Crown,
deemed to grant the
effectively waives the privacy interest
on the other hand, despite the trial
that an individual might otherwise
concession of an unlawful seizure,
public, including the
have in the approach to the door of
now submitted that the officer was
police, permission to
his
or her dwelling.
lawfully in the verandah/mudroom to
approach
the
door
and
pursue his burglary investigation and
This implied invitation to knock
the! material on the shoes was clearly
to knock.”
extends no further than is required to
visible from the entrance. Crown
permit convenient communication
suggested the officer was entitled to pick up the
with the occupant of the dwelling. It follows that
shoes, look at the material and smell it. This was not
only those activities reasonably associated with
an unreasonable search the Crown contended.
the purpose of communicating with the
occupant are authorized by the “implied
The officer’s initial approach to the home, his entry
licence” to knock.
and his conduct in picking up the shoes, looking at
Where state agents approach a dwelling with the
them and smelling them was both a search and a
intention of gathering evidence against an
seizure the Court of Appeal concluded. And since
occupant, they have exceeded any authority
there was no warrant, the onus shifted to the Crown
implied by the invitation to knock and become
to establish a lawful basis for the police action,
engaged in a search of the occupant’s home.
which they failed to do. The officer exceeded the
Likewise, where police specifically advert to the
implied licence to knock doctrine, the accused gave
possibility of securing evidence against an
no valid consent, nor was the plain view doctrine
accused by “knocking on the door”, they have
applicable. The officer’s observations of and about
exceeded the authority conferred on them by the
implied licence to knock.

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Volume 12 Issue 4 ! July/August 2012
In some circumstances, police officers lawfully
present at the door of a residence may lawfully
enter the premises. An invitation to enter may be
implied from the circumstances, for example
from the words and conduct of a person in
charge of the place. An implied invitation to
enter furnishes lawful authority for the police to
be in the residence or other place.

The consent must be voluntary and informed. To
be voluntary, the consent, which may be express
or implied, must not be the product of police
oppression, coercion or other conduct that
negates the consenting party’s freedom to choose
whether to allow police to pursue the course of
conduct requested or to deny them that right. To
be informed, the consenting party must be aware
of
i.!the nature of the police conduct to which the
consent relates;
ii. the right to refuse to permit the police to
pursue the conduct; and
iii. the potential consequences of giving consent.
[references omitted, paras. 55-56]

When determining whether to imply an
invitation to enter a residence from the words
and conduct of a homeowner in a brief
interaction with a police officer, we should not
lose sight of the dynamics of the police-citizen
relationship. The essence of the policing function
puts citizens on an uneven footing with police.
We should not too readily imply an invitation to
enter from the absence of objection or mere
compliance, any more than we would equate
consent with acquiescence or compliance in
equivalent circumstances. [references omitted,
paras. 45-49]

Plain View

In this case, Justice Watt found the officer exceeded
the boundaries of implied invitation to knock and
engaged in a search of the accused’s home.
Although the officer considered the accused a
“person of interest” and did not have reasonable
grounds to arrest, he asked questions and took
action from which it could be reasonably inferred he
“approached the home in the hope of obtaining
evidence linking the accused to the burglary.”

Consent
The officer stepped into the enclosed verandah/
mudroom after claiming he had an “implied
invitation” to enter, suggesting the accused offered
no objection. But the evidentiary record was
insufficient to support a finding that the accused had
an adequate informational basis upon which she
could truly relinquish her right to privacy. Justice
Watt described the issue of consent like this:
A consent search is lawful, thus reasonable.! A
valid consent requires that the consenting party
have the required informational foundation for a
true relinquishment of the right.

The common law “plain view” doctrine allows the
warrantless seizure of things in plain view provided
(1) the seizing officer is lawfully in the place of
seizure, (2) the evidentiary nature of the item is
immediately apparent to the officer through the
unaided use of their senses and (3) the evidence is
discovered inadvertently. Here, however, the officer
was not lawfully present and the plain view doctrine
therefore did not apply.
!

s. 24(2) Charter
Despite the Charter breach the evidence was
nonetheless admissible. The officer acted in good
faith and the breach involved conduct comprising a
single brief transaction in an area of the premises
which was outside the main living area and visible
from the entrance. The impact of the breach on the
accused’s Charter-protected interests was minimal.
Territorially, the area searched was a covered
verandah/mudroom, not the main living area of the
residence, and entry was by a door that all members
of the public had a licence to approach and knock.
The shoes were visible from the doorway and the
officer only needed to take a step or two, pick them
up, look at them and smell the adherent material.
Informationally, the unaided observations of sight
and smell indicated that someone wearing the shoes
had stepped in feces. This revealed little about the

“A consent search is lawful, thus reasonable.!A valid consent requires that the consenting party
have the required informational foundation for a true relinquishment of the right.”

PAGE 10

Volume 12 Issue 4 ! July/August 2012

INTENTIONAL ACT CAN
ESTABLISH NECESSARY RISK
FOR CARE or CONTROL

intimate details of the accused’s lifestyle and
personal choices and was nothing more than a
passerby could infer from a casual meeting on a
street corner.! Finally, the circumstantial evidence
provided a link between the accused (her shoes) and
the break and enter (the apartment).!
The accused’s appeal was dismissed.
Complete case available at www.ontariocourts.on.ca

s. 349(2) Presumption
In R. v. Atkinson, 2012 ONCA 380 the accused also argued
that the trial judge failed to properly apply the statutory
presumption of intent in s. 349(2) of the Criminal Code. This
presumption deems that an intruder who unlawfully
enters!or is unlawfully present in a premise, absent evidence
to the contrary, was there with the intent to commit an
indictable offence. From the evidence of the actus reus, the
judge presumes the mens rea. The Court of Appeal described
the presumption as follows:
The presumption in s. 349(2) ... helps the Crown prove the
requisite fault element, the intent to commit an indictable
offence in the premises unlawfully entered. For the purposes
of the subsection, “evidence to the contrary” is evidence, which
may emerge from the Crown’s case or be adduced as part of
the defence case, that is not disbelieved by the trier of fact
and tends to negate the accused’s intention to commit an
indictable offence in the premises.
In prosecutions to which s. 349(2) applies and in which
“evidence to the contrary” is given, the trial judge is required
to consider that evidence, along with the rest of the evidence
adduced at trial, in determining whether Crown counsel has
proven the mens rea required for a conviction beyond a
reasonable doubt. [references omitted, paras.105-106]

And further:

R. v. Coleman, 2012 SKCA 65!!!!!!!!!!!!!!!!!!
!

After receiving a complaint about a
black or dark-coloured Jetta bearing
a specific licence plate number
being driven in an erratic manner,
police located it at about 10:30 pm
parked on the side of the road. The keys were in the
ignition, the engine was not running, its headlights
were off and the accused was sleeping in the driver’s
seat. When an officer knocked on the window a
couple of times, the accused awoke, mouthed the
words “oh fuck”, reached toward the keys in the
ignition with his right hand and put his left hand on
the steering wheel. The officer then opened the
driver’s door of the vehicle to stop the accused from
driving and to speak with him. She detected a strong
odour of alcohol and asked the accused several
times for his driver’s licence and registration.! His
speech was slurred and deliberate, and his
movements were jerky.! He also fumbled getting his
licence and said that he had been at a bar. His!
breath smelled of alcohol.!The accused was arrested
and placed in the back of a police car where he
promptly fell asleep.! He provided breath sampels
over the legal limit and was subsequently charged
with having care or control while impaired by
alcohol and over 80mg%.
!

To rebut the presumption of unlawful intent in s. 349(2),
“evidence to the contrary” must tend to show that the
intruder or occupier had no intention of committing a crime
in the premises.!As with any evidence adduced at trial, it is for
the presiding judge to assess this evidence, to determine
whether she or he believes all, some or none of it. If the
“evidence to the contrary” is neither rejected nor disbelieved,
it falls to the Crown to prove the existence of the relevant
intent beyond a reasonable doubt on the evidence taken as a
whole. [reference omitted, para. 108]

Although there was evidence in the Crown’s case capable of
amounting to “evidence to the contrary” within s. 349(2), the
judge used circumstantial evidence of subsequent conduct as
a basis upon which to infer a prior state of mind. The judge’s
rejection of the “evidence to the contrary” left the
presumption of unlawful intent intact and the Crown’s case
unanswered.

Saskatchewan Provincial Court (trial)
!

The accused said he had two beers at the
bar after work and then left at 6:30 pm to
drive home. As he began to fall asleep he
pulled over at about 7:00 pm to nap for
about five minutes, but ended up sleeping for three
hours. He tried to explain the indicia of impairment
observed by police but the judge disbelieved him.
The judge concluded that the accused had been
driving as late as about 10:00 pm. His seat had been
in an upright position, the vehicle had been pulled
off the highway (not blocking traffic) and was not
otherwise in a dangerous position. The keys were in
the ignition, the engine was not running, the
emergency brake was engaged and the gearshift was

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Volume 12 Issue 4 ! July/August 2012

“The relevant risk does not relate solely to the possibility of an impaired driver acting
inadvertently to put a vehicle in motion.!It also includes the possibility of such a driver acting
intentionally in this regard.”
in neutral. Further, to put the car into motion the
accused would have had to depress the clutch and
shift into gear.! He also found that the accused had
reached for the steering wheel and key for the
purpose of starting the vehicle.
!

Because the judge found that the accused had
stopped his vehicle intending to have a nap, the
presumption in s. 258(1) of the Criminal Code had
been displaced. However, on the whole of the
evidence, the Crown had proven beyond a
reasonable doubt that the accused had been in de
facto, or actual, care or control of his car. In the
judge’s view, the accused had used the fittings or
equipment in an intoxicated state when he reached
for the steering wheel and key in the ignition. This
constituted a risk of setting his vehicle in motion so
that it could become dangerous:
!

In this case, I accept that the accused was sitting
upright in the driver's seat sleeping. When [the
officer] woke him up he reached for the steering
wheel and the key in the ignition to start the
vehicle. It matters not whether it was inadvertent
or intentional. The fact is, this is what he did and
only the officer's quick response in opening the
car door stopped the accused from actually
starting the vehicle.

process of the use of the fittings or equipment of the
vehicle. There was no risk of inadvertently setting the
vehicle in motion.” The accused’s conviction was
overturned and a not guilty verdict was substituted.
!

Saskatchewan Court of Appeal
!

A further appeal by the Crown was
successful. Justice Richards,
delivering the opinion of the
Saskatchewan Court of Appeal,
noted that care or control was defined by the
Supreme Court of Canada nearly 30 years ago in R.
v. Toews, [1985] 2 S.C.R. 119 as: “acts of care or
control, short of driving, are acts which involve
some use of the car or its fittings and equipment, or
some course of conduct associated with the vehicle
which would involve a risk of putting the vehicle in
motion so that it could become dangerous.” Since
then, Justice Richards opined, the case law has
“emphasized that the central consideration in
relation to ‘care and control’ is the risk that the
accused person will create a dangerous situation,
whether by putting the vehicle in motion or some
other way.” He continued:
!

The relevant risk does not relate solely to the
possibility of an impaired driver acting
inadvertently to put a vehicle in motion.! It also
includes the possibility of such a driver acting
intentionally in this regard.! The reason for this is
self-evident.!Impaired drivers have a diminished
capacity to make safe judgments. They
frequently act, deliberately, in ways which
endanger themselves and the public. [para. 24]

!

The accused was convicted of care or control while
impaired.
!

Saskatchewan Court of Queen’s Bench
!

The accused successfully appealed his
conviction. An appeal judge emphasized
that the law should not discourage a
drinking driver from pulling their vehicle
off the road.!He concluded that the accused had not
been in care or control of his vehicle. “In order to
set the vehicle in motion, there would have had to
have been numerous steps taken,” said the judge. “In
sum, the accused was simply sleeping in his car and
it was completely turned off. … [I]t cannot be
reasonably said that the accused was engaged in the

!

The Queen’s Bench judge had focused exclusively
on the question of whether the accused might have
inadvertently put his vehicle in motion without
considering the risk of him making a deliberate
decision to drive:
!

PAGE 12

Significantly, this is not a case where a driver,
realizing he is impaired, decides to pull off the
road in order to avoid endangering himself or

Volume 12 Issue 4 ! July/August 2012
the public.!To the contrary, [the accused] denied
having been intoxicated and testified that he had
consumed only two beers some four hours
before being awakened by the police.! He said
he had pulled over, not because he was drunk,
but because he was sleepy.!He did not intend to
park until he had sobered up.!Rather, he said he
had merely paused on his way home for a “fiveminute nap”. All of this demonstrates that [the
accused’s] course of conduct posed a genuine
risk to the public.! He was behind the wheel of
his car and he was of a mind to deliberately put
it in motion even though he was impaired. The
learned Queen’s Bench judge appears to have
overlooked or given no consideration to this key
fact.

significance of these considerations so as to find
[the accused] guilty on the s. 253(1) charge.
[reference omitted, paras. 28-31]
!

Finally, the Court of Appeal disagreed with the
Queen’s Bench judge in finding that, for policy
reasons, s. 253(1) of the Criminal Code should be
interpreted or applied so as not to penalize impaired
drivers who pull their vehicles off the road:
In my respectful view, this line of thinking
cannot be accepted. The legislative objective
behind s. 253(1) of the Criminal Code is clear. In
light of the obvious dangers involved in mixing
motor vehicles and alcohol, Parliament made it
an offence for an individual, whose ability to
operate a motor vehicle is impaired by alcohol,
to be in care and control of a vehicle. The idea,
it seems to me, was to wholly avoid having
intoxicated individuals in positions where they
can put vehicles in motion (or otherwise
endanger the public) in the first place. It was not
to create an incentive for drunk drivers to pull
over.!

!

The risk that [the accused] would deliberately
have chosen to drive is underlined by his actions
on being awakened by the police.! As found by
the trial judge, [the accused] “reached for the
steering wheel and the key in the ignition to start
the vehicle” and “only the officer’s quick
response in opening the door stopped him from
actually starting the vehicle.”! This, too, confirms
in clear terms the risk to the public posed by the
possibility of [the accused] making a deliberate
decision to drive his vehicle.

!

Accordingly, I conclude that the Queen’s Bench
judge erred by analyzing the issues before him
with a view to giving effect to the policy idea
that s. 253(1) of the Code should not be applied
so as to penalize impaired drivers who take their
vehicles off the road. An impaired person behind
the wheel of a parked vehicle might pose a less
acute danger to the public than an impaired
person behind the wheel of a moving vehicle.!
But, that does not mean the latter situation is risk
free. Parliament has attempted to address both
issues by aiming criminal sanctions not just at
those individuals who drive while impaired, but
also at those who assume care and control of a
vehicle while impaired. Section 253(1) of the
Criminal Code is directed at the very root of the
impaired driving problem. Its object is to stop
intoxicated or otherwise impaired individuals
from endangering themselves and the public by
having care or control of a motor vehicle.
[reference omitted, paras. 33-34]

!

... The answer to the care and control question
does not turn merely on whether a driver starts a
vehicle or is behind the wheel of a vehicle with
a running motor. Indeed, an intention to drive is
not a necessary element of the offence created
by s. 253(1). As counsel ultimately conceded,
the proper analysis of the point turns on an
assessment of the full constellation of factors
relevant to the risk of the accused putting the
vehicle in motion or otherwise creating a danger
to the public.! As the Supreme Court said in
Toews, there must be “some course of conduct”
in relation to the vehicle which could create a
danger.
!

Here, [the accused] did pull off the highway and
park on a side road. He did turn off the engine
of his vehicle, engage the emergency brake and
go to sleep.!But, on the other hand, he denied or
did not understand that he was impaired. He
stopped only for a five minute nap. He did not
recline his seat. He left the keys in the ignition
and he tried to start his vehicle on being
awakened by the police. As a result, the trial
judge made no error in weighing the collective

!

The Crown’s appeal was allowed and the accused’s
conviction was reinstated.!
Complete case available at www.canlii.org

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Volume 12 Issue 4 ! July/August 2012

TANGENTIAL DETENTION
REQUIRES RIGHT TO COUNSEL
R. v. MacDonald, 2012 ONCA 495
!

Shortly after midnight police officers
stopped the accused’s van after
clocking it on radar travelling at 121
km/h in a 90 km/h zone. One officer
approached the accused (on the
driver’s side) while a second officer approached the
passenger side where he observed, through the
passenger-side window, a brown cardboard box in
the large open area at the back of the van. The box
was about 20” x 10” x 14” and had some lettering
on it which aroused suspicions that the box
contained contraband cigarettes. When asked what
was in the box, the accused initially said he did not
know but when asked again said it contained
cigarettes. Police called a senior investigator at the
provincial Ministry of Revenue, to obtain
authorization to detain and search the vehicle
pursuant to s. 24(1) of Ontario’s Tobaco Tax Act
(TTA). The revenue investigator concluded that there
were reasonable and probable grounds to believe
that the vehicle contained evidence of a TTA
contravention, and granted authorization to detain
and search the van and seize any products or
paperwork relating to the purchase, sale and
transportation of cigarettes. A police search revealed
a bag containing 310 grams of marijuana and a
fanny pack containing $4,872.75 in cash. The
cardboard box contained 50 plastic bags, each
containing 200 unmarked cigarettes. The accused
was charged with offences which included
possessing marihuana for the purpose of trafficking
under the Controlled Drugs and Substances Act
(CDSA) and possessing more than 200 unmarked
cigarettes under the TTA.
!

Ontario Court of Justice (trial)
!

The accused argued that his Charter rights
were violated, including ss. 8 and 10. But
the trial judge found there was no search
when the police asked the accused about
the contents of the box. The judge also found the
authorization to search provided by the revenue
investigator was valid. In his view, the information

BY THE BOOK:
s. 24(1) of Ontario’s Tobacco Tax Act
s. 24 (1)!For any purpose relating to the
administration and enforcement of this
Act and the regulations, any person
authorized for the purpose by the
Minister who has reasonable and
probable grounds to believe that the vehicle, trailer
attached to a vehicle, vessel, railway equipment on
rails or aircraft contains evidence of any
contravention of this Act,
(a) may, without warrant, stop and detain any
vehicle, including any trailer attached to the vehicle,
any vessel, railway equipment on rails or aircraft;
(b) may examine the contents thereof including any
cargo, manifests, records, accounts, vouchers, papers
or things that may afford evidence as to the
contravention of this Act or the regulations;
(c) subject to subsections (2), (2.2) and (2.4), may
seize and take away any of the manifests, records,
accounts, vouchers, papers or things and retain them
until they are produced in any court proceedings;
and
(d) may use any investigative technique, procedure or
test that is, in the person’s opinion, necessary to
determine whether cigarettes found during a
detention are marked or stamped in accordance with
this Act and the regulations.

available was “sufficient, on the subjective and
objective standard, to support reasonable and
probable grounds of an infraction under the Tobacco
Tax Act.” As for s. 10, the judge found that the
accused was detained under the TTA when the
officer walked back to the police cruiser with the
intent of seeking authorization to search the van
pursuant to s. 24(1). Although he should have
advised the accused that he was being detained
under the TTA and of his rights under s. 10, it was of
no consequence because no evidence was collected

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Volume 12 Issue 4 ! July/August 2012
pursuant to that breach. The accused was convicted
and was sentenced to four months in jail plus 12
months probation for the CDSA conviction and
given a $4,205 fine for the TTA conviction.

the Supreme Court of Canada held … that the
implicit limitation on the s. 10(b) right to counsel
that is inherent to roadside stops was justifiable
under s. 1 of the Charter.”

!

!

Ontario Court of Appeal

So in this case, the accused was detained for the
speeding infraction under the HTA, remained
The accused appealed his CDSA
detained and was not free to leave the scene until
conviction arguing, among other
this process was completed. However, when the
grounds, that the questions about
officer questioned the accused about the contents of
the cardboard box was an
the box—related to his suspicion that it contained
unreasonable search under s. 8 of the Charter and
illegal cigarettes—the accused was placed in a new
triggered a requirement that the police inform him
jeopardy under the TTA which triggered his s. 10
about his rights under s. 10. Furthermore, he
right to consult counsel. Because he was detained
submitted that the judge erred in
under the HTA and he could not leave
finding the authorization under the
“s. 10 Charter rights
the scene he could reasonably be
expected to feel compelled to respond
TTA proper. In the accused’s view,
crystallized when the
to questions from the police. “Before
his utterances, the marihuana and
nature of the
answering the question, which had
the cigarettes ought to have been
nothing to do with his speeding offence,
excluded under s. 24(2).
questioning shifted
!
he should have been advised of his right
towards a TTA
TTA Search
to consult counsel” the Court said in
!
investigation.”
holding a s. 10(b) Charter breach.
!
Justice MacPherson, delivering the
Court’s opinion, concluded that the search was
s. 24(2) Charter
!
properly authorized under s. 24 of the TTA. There
was sufficient information provided by police to the
Although the Charter breach was not serious — the
revenue investigator to furnish the requisite
officer was not involved in a fishing expedition nor
reasonable and probable grounds to believe that a
was the single question particularly intrusive — and
search of the van would produce evidence of a TTA
the evidence reliable, the impact on the accused’s
contravention. Plus, as the trial judge concluded, the
Charter protected interests favoured exclusion. There
officer was properly authorized in law to receive
is a general rule that statements taken in breach of
sub-delegated power from the revenue investigator
the Charter will be excluded. “Since the police
to conduct the search.
officers would not have had reasonable and
probable grounds to search the van without the
Detention
[accused’s] answer to the question about the
contents of the box, it follows that the marijuana and
Justice MacPherson concluded that the accused’s “s.
cigarettes would not have been found by the police
10 Charter rights crystallized when the nature of the
had the [accused] not made the self-incriminating
questioning shifted towards a TTA investigation”.!
response,” said the Court. The accused’s answer to
Generally, a person is detained when they are
the question, the marijuana and the cigarettes were
stopped by police for a highway related infraction,
inadmissible. The accused’s appeal was allowed and
but the need to advise them of their s. 10(b) Charter
an acquittal on the charge of possessing marijuana
right to counsel is suspended as a reasonable limit
for the purpose of trafficking was entered. The TTA
under s. 1. “The case law makes it clear that a
charge was subject to a separate appeal route.
roadside stop of a vehicle for possible violations of
the Criminal Code (e.g. impaired driving) or
Complete case available at www.ontariocourts.on.ca
provincial regulatory offences under statutes like the
[Highway Traffic Act (HTA)] (e.g. speeding) is a
detention,” said Justice MacPherson. “Furthermore,
!

!

!

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Volume 12 Issue 4 ! July/August 2012

COMMANDS TO SHOW HANDS &
GET OUT OF VEHICLE NOT A DE
FACTO ARREST

necessary to believe he had committed an indictable
offence. The arrest being lawful permitted a search
incidental to that arrest.

As for Madore, he had been arbitrarily detained
which was prolonged and turned into an unlawful
arrest. The judge rejected the testimony of the officer
Police officers became suspicious
arresting Madore that she had smelled marihuana
after they saw the accused Madore,
and found she did not have reasonable grounds. She
believed to be a high-level marihuana
was an experienced police officer and
trafficker, drive his truck
“An arrest is a more
knew the importance of making
onto a logging road.
They stopped a logging truck on the
serious infringement of personal notes, but failed to make a
note or reference to smelling
road and spoke to its driver, receiving
personal liberty than a
marihuana before arresting Madore in
more information that increased their
detention, and it
either the report to Crown counsel or
suspicions. They drove a short distance
in the ITO. The evidence found in the
up the logging road and saw Madore’s
requires a more
vehicle
and the bag was nevertheless
truck parked just off the roadway.
compelling justification
admitted. In the judge’s view, Madore
Madore, holding a bag, was standing
on the part of police.”
would have been lawfully arrested
near the open passenger door of a Jeep
anyways following the search of
Cherokee which was occupied by the
Madiera.
Both
men were convicted of possessing
accused Madeira sitting in its driver’s seat.! Police
marihuana exceeding three kilograms for the
stopped their cars and got out quickly. One of the
purpose of trafficking.
officers , with her gun drawn in the ready position at
her hip, directed Madore to show his hands, drop
British Columbia Court of Appeal
the bag he was holding and arrested him. Madeira
was ordered out of the Jeep by another officer, who
The accuseds argued that the trial
opened the driver’s door and detected the odour of
judge erred in refusing to exclude
“freshly harvested marihuana bud”.! In the process,
evidence that was obtained in
Madeira threw a cell phone or PDA out of the
violation of the Charter breaches.
vehicle’s window. He was also arrested. Police found
Several arguments were made including:
20 kg of marihuana (the bulk of it in the rear of the
Jeep and some in the bag Madore had dropped upon
•! A Layered s. 24(2) Approach: the trial judge
his initial detention) and $105,455 in the Jeep.
distinguished between evidence obtained by
the police prior to the accuseds’ initial
British Columbia Provincial Court (trial)
detention and evidence obtained after their
detention. He relied on the former to afford
The judge found that both men had been
reasonable and probable grounds for the
arbitrarily detained under s. 9 of the
accuseds’ arrest;
Charter when the officers got out of their
vehicles and gave directions to them. The
• De facto arrest: the trial judge did not
police lacked both subjective and objective grounds
characterize Madeira’s initial detention as an
to arrest or detain the men. However, the judge did
arrest; and
not go so far as to hold the detentions amounted to
de facto arrests and admitted the evidence under s.
•! Search: the trial judge found the opening of
24(2). The trial judge ruled that Madeira had been
the Jeep’s door did not violate Madeira’s
arbitrarily detained, but lawfully arrested. The smell
rights under s. 8 of the Charter.
of marihuana was admitted under s. 24(2) against
Madiera and provided the reasonable grounds

R. v. Madore & Madeira, 2012 BCCA 160

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Volume 12 Issue 4 ! July/August 2012

“[W]here police lacked sufficient grounds to detain, they would necessarily have had even less
basis to carry out an arrest. In this sense, an arbitrary de facto arrest should weigh more heavily
than an arbitrary detention within the s. 24(2) analysis.”

s. 24(2) Layered Approach

arrest.”!!Thus, the initial detention was not a de facto
arrest.

The accuseds submitted that the trial judge
improperly conducted two discrete inquiries under
s. 24(2). The first enquiry being the admissibility of
the sensory observations (smell) made after the
initial unlawful detentions, which formed the
grounds for Madiera’s lawful arrest. The second
being the admissibility of the real evidence found in
the Jeep and Madore’s bag. In the accuseds view, the
judge should have made a single, comprehensive
consideration of all the Charter breaches together
rather than disconnecting their initial
unconstitutional detentions from the ultimate
decision to admit or exclude the evidence. But the
Court of Appeal disagreed. “The smell of marihuana
in the air was not obtained illegally,” said Chief
Justice Finch. “The judge made no error in
concluding that Mr. Madeira’s arrest, and the search
incidental to that arrest, were not unlawful.”

De Facto Arrest
On a s. 24(2) analysis, whether an accused was
arrested, or merely detained, can be a significant
factor. “An arrest is a more serious infringement of
personal liberty than a detention, and it requires a
more compelling justification on the part of police,”
said Chief Justice Finch. “In cases such as this one,
where police lacked sufficient grounds to detain,
they would necessarily have had even less basis to
carry out an arrest. In this sense, an arbitrary de
facto arrest should weigh more heavily than an
arbitrary detention within the s. 24(2) analysis.”
Here, there was no de facto arrest. “The facts of the
present case disclose no such categorical attempt to
take the [accuseds] into custody,” said the Court.!
“[The officer] told Mr. Madore to show his hands,
while [another officer] directed Mr. Madeira to get
out of the car.!Such commands are more consistent
with an effort to prevent the [accuseds] from taking
any immediate action than with putting them under

Search
A person alleging a Charter breach must prove it on
a balance of probabilities. In this case, Madiera did
not lead any evidence that he had a reasonable
expectation of privacy in the Jeep. Although he was
found in it, he offered no evidence about who
owned it or that he had the permission of the owner
to occupy it. Rather, he suggested he had no
relationship with it.
The Charter appeal was dismissed but Madore’s
conviction for possessing marihuana for the purpose
of trafficking was substituted with a simple
possession conviction. There was no evidence that
the weight of the marihuana he dropped exceeded
three kilograms. Police never weighed the
marihuana in the bag separately from the marihuana
in the Jeep and the Crown failed to prove both men
controlled all the marihuana together.!
Complete case available at www.courts.gov.bc.ca

FACT FOUND IN SENTENCING
HEARING DID NOT ESTOP
CROWN FROM PROCEEDING
R. v. Punko & Potts, 2012 SCC 39
After a multi-faceted, multi-year
police investigation into the activities
of the East End Chapter of the Hells
Angels, a number of criminal
offences were prosecuted. Some of
the offences fell within the jurisdiction of the
provincial Crown, while others fell to the federal
Crown. The provincial Crown proceeded first against
the accuseds Punko and Potts, among others, on
charges of extortion, uttering threats, counselling
mischief, and unlawful possession of explosive
substances and firearms. Some of the offences were
allegedly committed for the benefit of, at the

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Volume 12 Issue 4 ! July/August 2012

direction of, or in association with a criminal
organization, namely the Hells Angels. Following a
10 month trial on the provincial charges, a jury
found each accused guilty of a number of offences.
However, all men were acquitted of the criminal
organization counts. Meanwhile, the federal Crown
also initiated various drug-related offences,
including methamphetamine production and
trafficking, and it was again alleged that they had
done so for the benefit of, at the direction of, or in
association with a criminal organization.

British Columbia Supreme Court
On the federal prosecution the accuseds
made pre-trial motions arguing that the
Crown should be estopped from leading
evidence that the Hells Angels was a
criminal organization because the issue had already
been decided by the jury in the provincial
prosecution. The motions were granted and the
judge held that the Crown should be estopped from
seeking to prove that the Hells Angels was a
criminal organization in the federal case.

British Columbia Court of Appeal
The Crown appealed the Supreme
Court ruling which was overturned
and a new trial was ordered.
Justice Kirkpatrick, writing for the
court, found the jury’s verdict did not necessarily
result from a finding that the Hell’s Angels were not
a criminal organization. Instead, individual jurors
may have reached their decisions on the verdict by
different routes.

Supreme Court of Canada
Th e a c c u s e d s t h e n
appealed to Canada’s
highest Court. They
argued that the Crown
was estopped from seeking to prove the East End
Chapter of the Hell’s Angels was a criminal
organization. In their view, the earlier jury trial
resulting from the provincial prosecution already
decided the issue when it returned a verdict of
acquittal on the criminal organization counts.

What is the doctrine of issue estoppel?
In Canadian criminal law, issue estoppel merely ensures
that an accused will not be required to answer questions
that have already been determined in his or her favour. It
prevents relitigation of an issue that was decided in the
accused’s favour in a prior trial and serves three purposes:
1. fairness to the accused who should not be called
upon to answer questions already determined in his
or her favour;
2. the integrity and coherence of the criminal law; and
3. the institutional values of judicial finality and
economy.

Issue Estoppel
The doctrine of issue estoppel is part of Canadian
criminal law but it is to be narrowly applied. Not
every issue raised in a previous trial will be the
subject of issue estoppel. “The Crown is precluded
from relitigating only those issues that were decided
in favour of the accused at the earlier trial,” said
Justice Deschamps on behalf of the Court.
“Moreover, the resolution of an issue in favour of the
accused must be ‘a necessary inference from the
trial judge’s findings or from the fact of the
acquittal’.” Where there was a jury trial, the finding
in favour of the accused must be logically necessary
to the verdict of acquittal. But if there is more than
one logical explanation for a jury’s verdict, the
verdict cannot successfully be relied on in support
of issue estoppel if one of these explanations did not
depend on the jury resolving the relevant issue in
favour of the accused.!
In this case, the trial judge “erred in law in drawing
inferences on a balance of probabilities — a
question of burden of proof — rather than
considering whether a finding regarding the criminal
nature of the organization was logically necessary to
the acquittal — a question of logic and law.” The
original jury acquitted the accused on all the
criminal organization counts. This did not, however,
mean that the jury must have found that the Hells
Angels was not a criminal organization. Rather, two
distinct defences had been raised and therefore
there were at least two logical explanations for the
not guilty verdict on each of the criminal
organization counts:

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Volume 12 Issue 4 ! July/August 2012
1. the Crown had failed to prove that the Hells
Angels was a criminal organization;!and
2. none of the substantive offences were
committed for the benefit of, at the direction of,
or in association with the Hells Angels.
Thus, a judge could not infer from the verdict that
the jurors necessarily found the Hells Angels was not
a criminal organization. There were alternate routes
to the verdict. “In a multi-issue jury trial, it will be
rare for an acquittal to ground issue estoppel,” said
Justice Deschamps. “Such an acquittal will often
have more than one possible basis and different
jurors may have reached a unanimous verdict by
different routes.” Nor could findings of fact made by
the judge for the purpose of sentencing be relied
upon to support issue estoppel.

A Slightly Different View
Justice Fish agreed with the reasons of the
majority but would not foreclose the
possibility that, as a matter of principle, a
factual finding made by a sentencing
judge could never estop the Crown from relitigating
an issue in a subsequent proceeding.! “To constrain
the doctrine as my colleague does is to create the
possibility of conflicting judicial determinations,
each purporting to be final, and each made in
proceedings between the same parties,” he said.
“Where the earlier finding was made in the
accused’s favour, it is precisely this sort of
inconsistency that damages the integrity and
coherence of the criminal justice system.”
Complete case available at www.scc-csc.gc.ca

SOMETHING MORE THAN BALD
STATEMENT NEEDED TO
ESTABLISH IMPRACTICABILITY
R. v. Scott, 2012 BCCA 99
After receiving an anonymous tip
from a source of unknown reliability
about a marihuana grow operation at
the accused’s rural property, police
investigated further and an officer
prepared an Information to Obtain (ITO) a search

warrant. He applied for a telewarrant on the
understanding that “there is no Justice of the Peace
in Princeton.” When executing the warrant police
searched three buildings on the property: a mobile
home, a cabin and a large shed divided in two. They
found 13 mature marihuana plants, 583 marihuana
clones and over 8,500 grams of dried marihuana
valued between $126,245 and $229,505, depending
on how it was marketed. When the accused’s mobile
home was searched they found receipts for
chemicals and fertilizer used for the grow operation,
as well as growing instructions.

British Columbia Provincial Court
The accused challenged the telewarrant,
in part, alleging the preconditions for its
issue had not been satisfied. But the trial
judge dismissed the accused’s application
to quash the warrant. The officer had an honest
belief that there was no justice available in
Princeton. Moreover, there was no evidence to the
contrary and Princeton was a remote community
with judges infrequently attending there. Since the
warrant was valid, it was unnecessary to embark on
a s.! 24(2) Charter analysis. The evidence was
admissible and the accused was convicted of
producing marihuana and possessing it for the
purpose of trafficking.

British Columbia Court of Appeal
The accused argued, among other
grounds, that the conditions for a
telewarrant were not met. Under s.
487.1 of the Criminal Code a
peace officer, when submitting a request for a
telewarrant, is required to establish it was
impracticable to appear personally before a justice
to obtain the warrant. Further, this section requires
the officer to include in the ITO “a statement of the
circumstances that make it impracticable.” Was the
statement “there is no Justice of the Peace in
Princeton” sufficient to fulfill this requirement?
Justice Neilson, speaking for the Court, concluded
that it was.
“A bald statement as to the unavailability of a justice
will not suffice as a statement of the circumstances

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Volume 12 Issue 4 ! July/August 2012

“A bald statement as to the unavailability of a justice will not suffice as a statement of the
circumstances creating impracticability. There must be something more to permit the issuing
justice to assess the reasonableness of the officer’s belief that an application for a warrant in
the usual course is impracticable.”
creating impracticability,” she said. “There must be
something more to permit the issuing justice to
assess the reasonableness of the officer’s belief that
an application for a warrant in the usual course is
impracticable.” This requirement may be met by a
statement that establishes there are no justices
available in the community where the officer is
posted. The officer testified it was always his practice
to check a board posted at the detachment that
identifies dates on which Provincial Court regularly
sits in Princeton. Plus, the issuing justice or the
reviewing justice may take judicial notice of
concrete local circumstances in assessing the
adequacy of the officer’s statement.
Here, the trial judge noted the closest resident judge
was located in Penticton, 112 km away, and the
Provincial Court sat in Princeton only several days
each month. The trial judge found the officer
honestly believed there wasn’t a judge or a justice of
the peace available in Princeton and there was no
evidence that there was in fact a justice available.
The officer’s statement that “there is no Justice of the
Peace in Princeton” was facially sufficient to satisfy
s. 487.1(4)(a). The amplification evidence, although
not to be used to strengthen the Crown’s position,
indicated that the officer “undertook inquiries about
the availability of a justice and his statement as to
impracticability was not simply boilerplate.” The
amplification evidence distinguished this case from
other situations where a failure to comply with s.
487.1(4)(a) had been demonstrated. The accused’s
appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

OTHER ASSERTIONS & THEIR OUTCOMES
“because there is no available justice locally” without any
inquiry as to the availability of a justice in Grand Forks, BC nor
any effort to explain in the ITO why it was impracticable to travel
to a nearby community to appear in person before another justice
was fatal to the telewarrant: R. v. Ling, 2009 BCCA 70; see also
“local justice not available” insufficient: R. v. Smith, 2005

BY THE BOOK:
s. 487.1 Criminal Code
s. 487.1! (1)! Where a peace officer believes
that an indictable offence has been
committed and that it would be
impracticable to appear personally before a
justice to make application for a warrant in
accordance with section 256 or 487, the peace officer may
submit an information on oath by telephone or other
means of telecommunication to a justice designated for the
purpose by the chief judge of the provincial court having
jurisdiction in the matter.

.... ... ...

(4)!An information submitted by telephone or other means
of telecommunication shall include
(a)! a statement of the circumstances that make it
impracticable for the peace officer to appear personally
before a justice;

.... ... ...

BCCA 334. “there are no Judicial Justices of the Peace or
Judges available” without evidence that a justice would have
been available in a community near Trail, BC was not sufficient to
communicate the impracticability of appearing in person: R. v.
Farewell, 2006 BCSC 372
“there is no Justice of the Peace in the community before
whom I may appropriately make this application in person”
went beyond simply stating a justice was unavailable and made it
clear there was no justice in the community. This was sufficient:
R. v. Berry, 202 BCSC 1742
“because there is no local J.P. services available” with
amplification evidence the nearest justice from Kimberley, BC
was 30 km away in Cranbrook, BC met the s. 487.1
requirements. The trial judge was entitled to take judicial notice
that the two communities were separated by rugged unorganized
territory: R. v. Erickson, 2002 BCSC 785

Lesson learned = explain why you believe no
justice is available in the ITO

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Volume 12 Issue 4 ! July/August 2012

OFFICER HAD NO GREATER
EXPERTISE THAN JUDGE
R. v. Cranham, 2012 ONCA 457
!

A plain clothes detective observed a
drug trafficker from a distance of two
to three feet while a drug transaction
took place. Another officer, some 60
to 70 feet away, took surveillance
photographs and made notes describing the
trafficker as 45-years-old, wearing blue jeans, a long
black parka, a black toque and black sunglasses. The
trafficker's hair was not visible in the surveillance
photographs. Later that day, the detective confirmed
that the individual in the surveillance photographs
was the trafficker. A bench warrant for the accused,
who resembled the person in the surveillance
photograph, was issued. The arresting officer who
took the accused into custody three days after the
offence “believed” and was “pretty certain” or
“certain” that the accused was also the trafficker in
the surveillance photographs. At the time of arrest
the accused was wearing big square sunglasses and
his cheeks were sunken. However, neither the
detective nor the photographing officer was shown a
line-up with the accused. Nor did they confirm he
was the trafficker in the surveillance photographs at
this time.
!

Ontario Court of Justice (trial)
!

The plain clothes detective identified the
accused in court as the trafficker he
observed some nine months earlier. He
noted that the accused had gained some
weight and his cheeks, which were a little bit sunken
at the time of the offence, where a little fuller. He
also was confident that his ability to make an incourt identification was not compromised because
the trafficker wore a toque and large sunglasses
during the offence. The detective had not recorded
in his notes, nor did he remember, that the trafficker
had worn a toque. Further, his notes also indicated
the trafficker wore a leather jacket, not a long parka
as indicated in the surveillance photos. As well, the

accused’s hair was dirty blond and not brown as
recorded by the detective. The officer taking the
surveillance photographs testified that he was certain
that the accused was the trafficker, even though he
said he was thinner during the offence. This officer
also agreed that the accused had a light blue tattoo
on his left hand but no tattoo was visible on the left
hand of the trafficker in the surveillance
photographs. The arresting officer also testified that
the accused was heavier than at the time of his
arrest.
!

The judge was unable to identify the accused as the
trafficker captured in the surveillance photographs.
“For me to even consider finding him guilty on the
basis of my personal observation and what I see in
the photographs, would be a total miscarriage of
justice,” he said. But the judge went on to accept the
evidence of the officers and relied on their opinion
that the accused was the trafficker. “Police officers
are more highly trained to make observations of
circumstances, that is, surrounding circumstances,
individuals who are involved (in) life-style activities
than the average citizen, especially officers with any
period of training,” he said. “These officers stated,
every one of them, as they stood, or sat here in the
witness box, they had no difficulty in identifying [the
accused] as the person in the photographs, and
therefore, the person who was involved in the
transaction.” The judge found identify had been
proven beyond a reasonable doubt and the accused
was convicted of trafficking twenty dollars of crack
cocaine.
!

Ontario Court of Appeal
!
The accused argued that the trial
judge erred in relying on the
opinions of the officers that he was
the trafficker in the surveillance
photographs when the judge was unable to do so
himself based on his own observations. In-dock
identification is to be given very little weight
because of its inherent frailties, particularly where
the person identified is a stranger to the witness.

“Many wrongful convictions have resulted from faulty eyewitness testimony. Identification
findings are subject to closer appellate scrutiny than other findings of fact.”

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Volume 12 Issue 4 ! July/August 2012
“Many wrongful convictions have resulted from
faulty eyewitness testimony,” said the Court of
Appeal. “Identification findings are subject to closer
appellate scrutiny than other findings of fact.”
!

In this case, the Appeal Court found “there was no
basis for concluding that [the police officers] had
any greater expertise, particular advantage, or
special knowledge, in identifying whether the
[accused] was the trafficker in the surveillance
photographs.” The arresting officer did not know the
accused and had not observed the trafficker before
the arrest. The officer did not make notes about what
the accused was wearing at the time of arrest and no
photograph of him at the time of his arrest was
offered as evidence. The photographing surveillance
officer did not know or recognize the trafficker and
was at too great a distance to observe him. The plain
clothes detective, who was in a position to observe
the trafficker, also did not know or recognize him.
Although the detective confirmed the person in the
surveillance photographs was the trafficker, he only
briefly saw him once some nine months before
court. He did not remember that the trafficker wore
a toque and some of his observations were
inaccurate. The trial judge, by relying on the
opinions of the officers despite his own conclusion
that he could not identify the accused as the
trafficker, gave more weight to the very in-dock
identification that he had cautioned should be given
very little weight. The accused’s appeal was allowed
and his conviction was quashed.
Complete case available at www.ontariocourts.on.ca

NEW ARREST POWER FOR
BREACHING PAROLE
On June 13, 2012 the Corrections and Conditional
Release Act (CCRA) was amended, adding a new
power for a peace officer to arrest an offender
without a warrant for breaching a condition of their
release. How is this new? Prior to June 13, a peace
officer could only arrest an offender without warrant
if they believed on reasonable grounds that there
was a warrant of apprehension for the offender. An
“offender” is a person sentenced to a penitentiary
but outside of it by reason of parole, statutory

release or unescorted temporary absence (UTA).
Now police do not need to rely on the existence of a
warrant. Police can arrest an offender who has
committed a breach of their parole, statutory release
or UTA or the police find an offender committing a
breach.
!

This is not a new offence like breach of probation or
breach of bail, so there is no new charge attached to
this provision. It is merely an arrest authority. Once
an arrest is made, police will then need contact
parole authorities to determine whether the offender
will be recommitted to custody and serve the
remaining unexpired portion of their sentence.

BY THE BOOK:
s. 137.1 Corrections and Conditional Release Act
Arrest without warrant - breach of conditions
A peace officer may arrest without warrant
an offender who has committed a breach
of a condition of their parole, statutory
release or unescorted temporary absence,
o r wh o m t h e p e a c e o f f i c e r f i n d s
committing such a breach, unless the peace officer
(a) believes on reasonable grounds that the public
interest may be satisfied without arresting the person,
having regard to all the circumstances including the
need to
(i) establish the identity of the person, or
(ii) prevent the continuation or repetition of the breach;
and
(b) does not believe on reasonable grounds that the
person will fail to report to their parole supervisor in
order to be dealt with according to law if the peace
officer does not arrest the person.

Note-able Quote
“Great minds discuss ideas; ordinary minds
discuss events; small-minds discuss other people.”
- author unknown

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Volume 12 Issue 4 ! July/August 2012

2011 POLICE REPORTED CRIME
In July 2012 Statistics Canada
released its “Police reported
crime statistics in Canada,
2011” report. Highlights of this
recent collection of crime data
include:

Police-Reported Impaired Driving Offences
Province

Rate

Impaired Driving
Offences

Rate change
2010 to 2011

SK

683

7,229

+9%

PEI

493

719

-3%

AB

450

17,001

-1%

BC

412

18,835

+15%

NF

362

1,849

-13%

• the total crime rate dropped -6%. This includes a
violent crime rate drop of -4% and a property
crime rate drop of -8%.

NS

328

3,097

-10%

MB

322

4,031

+7%

Source: Statistics Canada, 2012, “Police-reported crime statistics in
Canada, 2011”, Catalogue no. 85-002-X,released on July 24, 2012.

NB

296

2,233

-16%

QC

211

16,820

+2%

ON

130

17,326

-1%

• there were 1,984,916 crimes (excluding traffic)
reported to Canadian police in 2011; this
represents 109,959 fewer crimes reported when
compared to 2010.

Police-Reported Crime Severity Indexes

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

YK
T-159.2
V-169.4
NV-155.2

NWT
NU

T-342.7
V-314.6
NV-353.5

T-326.1
V-469.3
NV-271.1

BC

AB

SK

MB

T-95.1
V-94.6
NV-95.2

T-88.6
V-94.4
NV-86.4

T-144.8
V-141.5
NV-146

T-117.5
V-167.1
NV-98.5

NF
T-74.0
V-60.4
NV-79.2

QC
ON

PEI

T-73.5
V-76.5
NV-72.4

T-65.8
V-42.0
NV-75.0

T-61.1
V-73.4
NV-56.4

NS
NB

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

PAGE 23

T-65.0
V-63.3
NV-65.7

T-79.1
V-84.7
NV-76.9

Volume 12 Issue 4 ! July/August 2012

Police-Reported Crime Rates per 100,000 population

YK
20,920
no change

NWT
48,032
+3%

NU
38,986
-2%

NF
6,441
-4%

Canada
5,756
-6%

BC
7,892
-7%

AB
7,417
-9%

SK
12,272
-3%

MB
8,991
-8%

ON
4,197
-6%

QC
4,459
-6%

NB
5,253
-5%

Homicide
There were 598 homicides reported, 44 more than
the previous year. Ontario had the most homicides
at 161, followed by Alberta (109), Quebec (105),
and British Columbia (87). The Yukon reported no
homicides while Prince Edward Island only reported
one homicide followed by the Northwest Territories
at three and Newfoundland at four. As for provincial
or territorial homicide rates, Nunavut had the
highest rate (21.0 per 100,000 population) followed
by the Northwest Territories (6.9), Manitoba (4.2),
Alberta (2.9) and Nova Scotia (2.3). As for Census
Metropolitan Areas (CMA), Winnipeg, MB had the
highest homicide rate at 5.1. The Canadian
homicide rate was 1.7.
Top CMA Homicide Rates per 100,000

PEI
6,238
+1%
NS
6,501
-7%

Canada’s Top Ten Reported Crimes
Offence

Number

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

497,452

Mischief

315,977

Break and Enter

181,217

Administration of Justice Violations

177,159

Assault-level 1

172,770

CMA

Rate

CMA

Rate

Winnipeg, MB

5.1

Peterborough, ON

2.4

Disturb the Peace

117,476

Halifax, NS

4.4

Saskatoon, SK

2.2

Impaired Driving

90,277

Edmonton, AB

4.2

St. John’s, NS

2.1

Fraud

89,801

Thunder Bay, ON

3.3

Vancouver, BC

1.8

Theft of Motor Vehicle

82,411

Regina, SK

3.2

London, ON

1.8

Saint John, NB

2.9

Gatineau, QC

1.6

Uttering Threats

71,945

PAGE 24

Volume 12 Issue 4 ! July/August 2012

Robbery

Top Ten CMA Robbery Rates per 100,000

In 2011 there were 29,746 robberies reported,
resulting in a national rate of 86 robberies per
100,000 population. Manitoba had the highest
robbery rate followed by Saskatchewan, British
Columbia and Ontario.

Police-Reported Robberies
Province/
Territory

Rate

Robberies

Rate change
2010 to 2011

MB

178

2,231

+1%

SK

103

1,085

-16%

BC

98

4,465

-10%

ON

86

11,511

-2%

QC

85

6,768

+4%

AB

77

2,917

-11%

NS

50

468

-5%

YK

38

13

-24%

NU

36

12

NWT

32

NF

CMA

Rate

CMA

Rate

Winnipeg, MB

258

Montreal, QC

142

Saskatoon, SK

199

Toronto, ON

128

Regina, SK

196

Edmonton, AB

118

Thunder Bay, ON

149

Calgary, AB

109

Vancouver, BC

147

Halifax, NS

95

Break and Enter
In 2011 there were 181,217 breakins reported to police. The national
break-in rate was 526 break-ins per
100,000 people. The Northwest
Territories had the highest break-in
rate (1,710) followed by Nunavut (1,666).

Police-Reported Break-ins
Province/
Territory

Rate

Break-ins

Rate change
2010 to 2011

-16%

NWT

1,710

747

-4%

14

-41%

NU

1,666

555

-18%

22

110

-32%

SK

858

9,079

-9%

NB

18

136

-5%

MB

744

9,305

-10%

PEI

11

16

-28%

BC

650

29,723

-6%

CANADA

86

29,746

-3%

QC

632

50,395

-7%

NF

614

3,136

-8%

YK

554

192

-22%

NS

504

4,764

-10%

AB

490

18,534

-19%

PEI

472

689

-7%

NB

447

3,379

-8%

ON

379

50,719

-9%

CANADA

526

181,217

-9%

• Winnipeg, MB had the highest CMA
rate of robbery in Canada (266),
+3% higher than its 2010 rate. Saguenay,
QC had the lowest rate (19) for the third year
in a row. Two CMAs reported jumps of +30% in
robbery rates; Barrie, ON and Greater Sudbury,
ON.
• Five CMAs reported declines in robberies of
-25% or more; Saint John’s, NL (-43%), Guelph,
ON (-26%), Sherbrooke, ON (-26%), Regina, SK
(-25%) and Victoria, BC (-25%).

PAGE 25

Volume 12 Issue 4 ! July/August 2012
• Break-ins accounted for about 15% of all
property crimes.
• 63% of break-ins were to a residence, 28% to a
business location, and 10% to other locations,
such as a school, shed or detached garage.
• Residential break-ins dropped -7% while
business break-ins declined -11%.
• From 2001 to 2011, the break-in rate dropped by
-42%.
• Among CMAs, St. John’s, NL reported the highest
break-in rate (781) while Toronto reported the
lowest (276). Only London, ON (+12%) reported
a double digit increase in the break-in rate, while
17 CMA’s all reported double digit drops
including Saint John, NB (-31%), Edmonton, AB
(-26%), Halifax, NS (-24%), Kelowna, BC
(-23%), Calgary, AB (-23%), Gatineau, QC
(-22%), Sherbrooke, QC (-22%), Saskatoon, SK
(-21%), St. Catherines-Niagara, ON (-20%),
Victoria, BC (-17%), Winnipeg, MB (-16%) and
Guelph, ON (-16%).
Top Ten CMA Break-in Rates per 100,000

Trafficking, Production & Distribution
Offences by Drug Type

Other drugs
Cannabis
Cocaine

• Trafficking, production, and
distribution offences totaled
21%
32,974 - cannabis (16,548); 30%
cocaine (10,251); and other
drugs (7,215).
49%
• British Columbia had the
highest drug related offence
rates of all 10 provinces for cannabis while
Saskatchewan topped the list for cocaine and
Prince Edward Island was tops for other drugs.
Drug-related Crime Rates by Province
per 100,000 population
Province

Cannabis
rate

Cocaine
rate

Other
drugs rate

BC

424

98

68

SK

328

117

64

NS

261

36

48

CMA

Rate

CMA

Rate

NF

218

47

67

St. John’s, NL

781

Vancouver, BC

689

QC

201

26

64

Thunder Bay, ON

777

Saskatoon, SK

669

AB

201

77

34

Regina, SK

763

Winnipeg, MB

663

NB

194

33

51

Greater Sudbury, ON

756

London, ON

656

ON

172

37

42

Trois-Rivieres, QC

747

Abbotsford-Mission, BC

644

MB

167

70

31

PEI

116

19

85

Drugs

Possession Offences
by Drug Type

In 2011 there were 113,164
drug-related offences coming to
9% 13%
the attention of police. These
offences included possession,
t ra f f i ck i n g , p r o d u c t i o n o r
distribution.
78%
• possession offences
accounted for 79,150 of
Other drugs
these crimes - cannabis
Cannabis
(61,406); cocaine (7,392);
Cocaine
and other drugs (10,352).
Other drugs include
heroin, crystal meth, and ecstasy.

• The territories continue to have some of the
highest drug-related crime rates in Canada.
Territory

Cannabis
rate

Cocaine
rate

Other
drugs rate

NWT

1,243

275

78

NU

1,239

9

42

YK

387

127

20

• Overall, drug offences were up in 2011 (+3%)
from 2010, mainly due to a +7% rise in cannabis
offences.

PAGE 26

Volume 12 Issue 4 ! July/August 2012

Motor Vehicle Theft

Top Ten CMA Vehicle Theft Rates per 100,000

In 2011 there were 82,411 motor vehicle thefts
reported to police, down -12% from 2010 and
down -56% from a decade ago.
• on average there were 226 vehicles stolen per
day in Canada in 2011.
• the motor vehicle theft rate was 239 per 100,000
population.
• the most vehicles reported stolen was in Quebec
(22,397) while Prince Edward Island had the
fewest vehicles stolen (120).

Police-Reported Motor Vehicle Thefts
Province/
Territory

Rate

Motor Vehicle
Thefts

Rate change
2009 to 2010

NWT

488

213

-4%

SK

470

4,967

-2%

NU

450

150

-28%

AB

356

13,461

-13%

YK

329

114

-30%

MB

313

3,919

-31%

BC

288

13,186

-18%

QC

281

22,397

NB

161

ON

CMA

Rate

CMA

Rate

Saskatoon, Sk

579

Edmonton, AB

367

Brantford, ON

523

Montreal, QC

335

Regina, SK

489

Hamilton, ON

334

Kelowna, BC

437

Calgary, AB

319

Abbotsford-Mission, BC

431

Winnipeg, MB

318

• Six CMAs saw an increase in their motor vehicle
theft rates; Saskatoon, SK (+23%), Guelph, ON
(+23%), Moncton, NB (+12%), Brantford, ON
(+10%), Barrie, ON (+4%) and Halifax, NS
(+2%).
On December 14, 2011 the Insurance Bureau of
Canada released its annual list of the most frequently
stolen vehicles in Canada. According to the report
there is an increasing involvement of organized
crime in auto theft as evidenced by the appearance
of high-end models on the list.
Source: Insurance Bureau of Canada www.ibc.ca

TOP 10 STOLEN AUTOS - Canada 2011
YR

MAKE

MODEL

1

2009

Toyota

Venza 4-door

-8%

2

1999

Honda

Civic SiR 2-door

1,215

-3%

3

2000

Honda

Civic SiR 2-door

155

20,768

-9%

4

2006

Ford

F350 Pickup Trick 4WD

NS

138

1,308

+2%

5

2002

Cadillac

Escalade EXT 4-door AWD

NF

116

593

+6%

6

2006

Chevrolet

TrailBlazer SS 4-door 4WD

PEI

82

120

+3%

7

2007

Ford

F350 Pickup Trick 4WD

CANADA

239

82,411

-12%

8

2001

Pontiac

Aztek 4-door AWD

9

1998

Acura

Integra 2-door

10

1999

Acura

Integra 2-door

• Most CMAs reported declines in motor vehicle
thefts. Several reported double digit decreases
including Victoria, BC (-38%), Sherbrooke, QC
(-38%), Winnipeg, MB (-37%), Gatineau, QC
(-29%), St. John, NB (-28%), Kingston, ON
(-25%), Abbotsford-Mission, BC (-22%),
Peterborough, ON (-22%) and Vancouver, BC
(-21%).

Note-able Quote
“Do not follow where the path may lead. Go instead
where there is no path and leave a trail.” - Harold R.
McAlindon

PAGE 27

Volume 12 Issue 4 ! July/August 2012

LAWFUL PROBATION ORDER
‘KNOTT’ NULLIFIED BY NEW
SENTENCE

days he was released and subsequently breached a
condition of his 2005 probation order; operating a
vehicle without the registered owner present.! He
was sentenced to 60 days for this breach. By the end
of 2007, the accused had accumulated four separate
probation orders.

R. v. Knott, R. v. D.A.P., 2012 SCC 42
Case 1: R. v. Knott
In 2005 the accused pled guilty to
possessing a weapon dangerous to the
public peace (an axe), breaking and
entering a residence, possession of stolen
identification and obstruction of a police officer.!He
was sentenced to 24 months in prison followed by
three years probation.! He was also sentenced to a
one year concurrent sentence on a second charge of
breaking and entering with another three-year
probation order.!The following month, in a separate
proceeding, he pled guilty to charges of possessing
stolen property (an automobile), possessing break-in
instruments and obstructing a police officer.!He was
sentenced to 16 months in prison, to be served
concurrently with his other sentences, followed by
three years of probation.!During his incarceration he
assaulted a corrections officer and was sentenced to
six months to be served consecutively to the
sentence he was serving.! Four months later he was
sentenced to eight months of incarceration plus a
year probation for assaulting an inmate. After serving
a total sentence of two years, 11 months, and 16
Sentence 1

24 months (2 yrs)
August 18, 2005

Sentence 2

12 months (1 yr)

Offence(s):
-possess dangerous weapon
-break & enter
-possess stolen identification
-obstructing a police officer

Case 2: R. v. D.A.P.
The accused pled guilty to sexually
assaulting the 13-year-old daughter and 9y e a r- o l d s o n o f h i s c o m m o n - l a w
spouse.!He was sentenced to a conditional sentence
of two years less a day plus three years of probation.
Several months later he pled guilty to breaking and
entering and unlawful confinement; he had forced
entry into the residence of his former partner, the
mother of the sexual abuse complainants. His
conditional sentence was converted to incarceration
and he was also sentenced to three years’ in prison
on one of the new charges and six months on the
other, to be served concurrently.

British Columbia Court of Appeal
Both accused sought to have their
probation orders quashed because
of the long-standing practice of
merging sentences under s. 139 of
the Corrections and Conditional
+ 3 yrs. probation
breach
probation
January
2009

+ 3 yrs. probation
Offence(s):
-break & enter

August 18, 2005

Sentence 3

+ 3 yrs. probation

16 months
September 8, 2005

R. v. Knott Sentencing Grid

Offence(s):
-possess stolen automobile
-possess break-in instruments
-obstructing a police officer
Sentence 4
Offence(s):
-assault (corrections officer)

6 months
August 10, 2007

*served total sentence of 2 yrs, 11 mos, 16 days*

Sentence 5

8 months
December 3, 2007

PAGE 28

+ 1 yr. probation
Offence(s):
-assault (inmate)

Volume 12 Issue 4 ! July/August 2012

Sentence 1

+ 3 yrs probation

24 months (2 yrs) less a day CSO
June 3, 2008
Sentence 2
36 months (3 yrs) + CSO (sentence 1 above) converted to incarceration
February 19, 2009

R. v. D.A.P. Sentencing Grid
Release Act (CCRA) for the purpose of determining
whether a probation order could be imposed. In
some cases, an otherwise lawfully imposed
probation order was rendered invalid if an offender
received sentences that were cumulatively in excess
of two years, regardless of when the sentences were
imposed. This was so because s. 731(1) of the
Criminal Code only allows for the imposition of a
probation order following a term of imprisonment
not exceeding two years. Section 139 of the CCRA
deems a person to have been sentenced to one
sentence commencing at the beginning of the first of
those sentences and ending on the expiration of the
last sentence to be served. Thus, by applying s. 139
probation orders where nullified when an offender
received a cumulative sentence in excess of two
years.!The Crown, on the other hand, challenged the
law relating to the retroactive invalidation of lawfully
imposed probation orders as a result of these
sentencing merger provisions. !
A division of five judges of the British Columbia
Court of Appeal was empaneled to hear the case and
unanimously reached three conclusions:
1. When a judge imposes a sentence at one sitting
which, either individually or cumulatively,
exceeds two years (eg.! consecutive sentences
imposed at the same time by the same judge)
probation cannot be added to the sentence.
2. If an offender is already serving a sentence and
a subsequent sentence is imposed which, when
combined with the unexpired portion of the
prior sentence will bring the total of the
sentences beyond two years, a probation order
should not follow, except in the rarest of cases.
However, a probation order may be imposed

with a consecutive term of imprisonment if the
remanent of the prior sentence combined with
the new sentence does not exceed two years.
3. If an offender was sentenced to a term of
custody with a probation order and is
subsequently sentenced so that the aggragate
sentence exceeds two years, the preexisting
probation order is not invalidated. The only
exception is if the offender is subsequently
sentenced to life imprisonment because then he
or she will be under supervision for life.!

Supreme Court of Canada
The accuseds again argued,
this time before the Supreme
Court of Canada, that their
probation orders ought to be
quashed. Since s. 731(1)(b)
of the Criminal Code permits an order of probation
on an offender sentenced to “imprisonment for a
term not exceeding two years” the accuseds
submitted that the “term” of imprisonment relates to
the aggregate of the custodial sentence imposed by
the judge and all other sentences currently being
served or later imposed for other offences on the
offender. The Crown, on the other hand, contended
that the “term” of imprisonment refers to the actual
term of imprisonment imposed by a judge at a single
sitting.
The seven member unanimous Supreme Court
agreed with the Crown. First, the merger provisions
of s. 139 of the CCRA do not apply to an offender’s
eligibility for a lawful sentence. Section 139 is for
administrative purposes relating to parole and
remission. It does not merge sentences imposed

PAGE 29

Volume 12 Issue 4 ! July/August 2012
against the same offender on different occasions for
the purposes of determining whether a probation
order may be struck down for a combined sentence
exceeding two years. Second, s. 731(1)(b) is
unambiguous. “The ordinary meaning of s. 731(1)(b)
is perfectly clear,” said Justice Fish. “A probation
order may not be made where the sentencing court
imposes a term of imprisonment exceeding two
years. In determining whether two years has been
exceeded, one looks at! the term of imprisonment
ordered by the sentencing court on that occasion —
not at other sentences imposed by other courts on
other occasions for other matters.” Thus, the
availability of a probation order depends on the term
of imprisonment imposed at the time the probation
order is made.

However, s. 731(1)(b) does not prohibit the
imposition of a fresh probation order when an
offender is given a sentence not exceeding two years
but when combined with a previous or remanent
sentence does exceed two years. But the fresh
probation order must still be a fit sentence in the
circumstances.! “In considering whether a fresh
probation order is appropriate, the sentencing court
must thus take into account the particular
circumstances of the offence, the character and
needs of the offender, and the purpose and relevant
principles of sentencing,” said Justice Fish.
“Unexpired prior sentences remain an important
consideration, though! not necessarily decisive,! in
determining whether! a probation order is
appropriate.”

Furthermore, s. 731(1)(b) merely allows a judge to
impose a probation order and does not say when a
probation order comes into force nor does it
anywhere else in the Criminal Code state that a
probation order must come into effect within two
years of it being made. Instead, s. 732.2 addresses
when a probation order is effective:

In this case, the accuseds’ probation orders were
valid when they were made and “no prior or
subsequent sentences imposed on either [accused]
had, or could have had, the effect of invalidating any
of their probation orders, either prospectively or
retrospectively.” The appeals were dismissed.

A probation order comes into force

Editor’s Note: Additional facts in this case summary
were obtained from R. v. Knott, 2010 BCCA 386.

(a)!on the date on which the order is made;
(b)!where the offender is sentenced to
imprisonment under paragraph 731(1)(b) or was
previously sentenced to imprisonment for another
offence, as soon as the offender is released from
prison or, if released from prison on conditional
release, at the expiration of the sentence of
imprisonment; or
(c)!where the offender is under a conditional
sentence order, at the expiration of the
conditional sentence order.
In situations where an offender is sentenced to
incarceration not exceeding two years but does
result in continuous custody for more than two years
when combined with other sentences imposed on
the same offender by the same judge at the same
sitting, a probation order cannot be imposed. This is
so because the total sentence at one sitting exceeds
the two year rule under s. 731(1)(b).

Complete case available at www.scc-csc.gc.ca

MORE ON PROBATION
• Under s. 731(1)(b) of the Criminal Code a court that
sentences an offender to a term not exceeding two
years may direct the offender to comply with the
conditions of a probation order. Thus, a probation
order may not be made where the sentencing court
imposes a term of imprisonment exceeding two years.
• Probation orders are intended to facilitate an
offender’s rehabilitation and are an effective and
efficient alternative to unnecessary institutional
confinement.
• “Sentencing courts may impose separate but
concurrent probation orders, attached to different
counts.! This may be done to add supplementary
conditions appropriate in the circumstances of
different offences, or to ensure that the offender will
remain subject to probation if one of the probation
orders is later set aside or rendered inoperative.”
• No probation order may continue for more than
three years from the date on which it came into force
- s. 732.2(2)(b) Criminal Code.

PAGE 30

Volume 12 Issue 4 ! July/August 2012

ONE CASE, THREE SEPARATE
OPINIONS
R v. Pearson, 2012 ABCA 239
The accused was stopped for
speeding after his vehicle was
clocked on radar travelling 103 km/h
in a 90 km/h zone. The officer told
the accused he was being stopped
for speeding and asked for his driver’s licence,
vehicle insurance, registration and vehicle rental
agreement. The accused had a British Columbia
driver’s licence with an address near Vancouver.
When asked where he was coming from and going
to, the accused said he rented the vehicle in
Edmonton and drove to Vancouver to drop off his
fiancé and was returning the rental vehicle to
Edmonton. The officer noted the vehicle had been
rented in Edmonton at 9:00 am the previous day and
the accused had made a very long journey in a very
short period of time. The accused was questioned
about his travel choices and provided odd
explanations. When returning the accused’s
documents, the officer leaned into the vehicle’s
window and noticed that the accused’s hands were
trembling. He also smelled the
intermittent faint odour of raw
Timeline
marijuana. As the questioning
pm - vehicle
continued the accused became 10:24
stop for speeding
more nervous. Although he was 10:50 pm - drug
dog arrives
not convinced that marihuana sniffing
10:55 pm - accused
was actually located in the car arrested
11:10 pm - accused
because the odour was faint, the rearrested for PPT
pm - scene
officer became suspicious that 11:22
cleared
there might be drugs in it.
The officer asked the accused to get out of the
vehicle. He told him that he was being formally
detained for possession of a controlled substance.
The officer also said that a police dog would attend
to sniff around the vehicle. The accused was verbally
cautioned that he did not have to say anything and
he had a right to contact counsel. The accused was
placed in the back seat of the police vehicle and,
within minutes, a trained narcotics sniffer dog
attended. The dog twice positively indicated the
presence of drugs in the area of the passenger side
doors. The accused was arrested for possession of a

controlled substance, read his Charter rights and
given the police caution again. The vehicle was
searched and a backpack containing four bricks of
cocaine weighing 4.2 kgs. was found in the rear
hatch area. The accused was then rearrested for
possessing cocaine for the purpose of trafficking.

Alberta Courts of Queen’s Bench
The Crown conceded breaches of ss. 10(a)
and (b) of the Charter when the officer
continued to question the accused after
smelling marijuana but argued the
officer’s initial inquiries were related to the purpose
of a traffic stop under Alberta’s Traffic Safety Act
(TSA). The judge found the officer was entitled,
under the TSA, to ask for information and
documents, including the rental agreement, in order
to ensure everything was in order. The officer
properly advised the accused he was being stopped
for speeding as required by s. 10(a) but a s. 10(b)
right to counsel warning was not required at this
time. Furthermore, questions about where the
accused was coming from and going to were
exploratory in nature and not correlated to any
specific crime, so no further ss. 10(a) or 10(b)
warnings were required. The officer then detected
the odour of marijuana during the traffic stop, which
had not been unnecessarily prolonged at this point.
However, once the odour of marihuana was
smelled, the purpose of the detention changed and
the questioning that followed breached ss. 10(a) and
(b) of the Charter.
As for the use of the sniffer dog, only a reasonable
suspicion was required that the accused was in
possession of a controlled substance. This was met
by the fleeting smell of marijuana, the accused’s
British Columbia address, the use of a rental vehicle
and the long journey in a short period of time. The
dog’s positive indication of drugs elevated the
reasonable suspicion to reasonable and probable
grounds for arrest and the subsequent search of the
vehicle was lawful as an incident to arrest. The judge
also held that it was irrelevant that the officer
suspected there was marijuana when it was cocaine
that was actually found since the police are not
required to determine which drug had been detected

PAGE 31

Volume 12 Issue 4 ! July/August 2012
by the dog. Thus, no s. 8 Charter breach occurred.
As remedy for the s. 10(a) and (b) breaches, the
judge excluded only the statements the accused
made about the economics of his trip. The accused
was convicted of possessing cocaine for the purpose
of trafficking.

Alberta Court of Appeal

“[T]he fact a
peace officer
was
concurrently
conducting a
traffic enquiry
while observing
grounds for a
drug related
offence does
not make that
detention
arbitrary.”

The accused appealed his
conviction arguing the judge
mistakenly concluded, among
other grounds, that he was not
arbitrarily detained contrary to
s. 9 of the Charter when the
officer continued to investigate
him after the original traffic
investigation was concluded. In
his view, the original detention
for speeding – justified initially
– quickly exceeded what was
permitted and went beyond the
purpose of the original traffic
stop to became investigatory in
nature. He further submitted
that the dog sniff of his vehicle
and backpack were unreasonable under s. 8. He
suggested that his s. 8 right was violated because the
officer did not have a reasonable suspicion to
believe that he had committed a criminal offence
when he requested the assistance of a sniffer dog.
Further, the grounds used to support the supposed
reasonable suspicion were obtained in a manner
that violated his rights.

The Crown, on the other hand, argued that the
accused was properly detained pursuant to a lawful
traffic stop that evolved into a criminal investigation
and at no time was he arbitrarily detained. Further,
there were still sufficient grounds to uphold the
reasonableness of the accused’s continued detention
even without the excluded conversation. This
included the smell of marijuana coming from the
vehicle, itself sufficient to satisfy the standard of
reasonable suspicion. The positive indication by the
dog of the presence of drugs provided the grounds
for the accused’s arrest and subsequent search of the
vehicle was lawful.

Three Alberta Court of Appeal justices heard the
case and wrote separate but concurring opinions.

Say One
Justice McDonald found the
accused’s initial detention for
speeding was justified under the
TSA. Any further detention
beyond the traffic stop would require reasonable
grounds to detain. This reasonable suspicion
standard imports both a subjective and objective
standard. Although the officer felt the the faint,
intermittent smell of marijuana in this case was not
sufficient to justify an arrest under the s. 495(1)(b) of
the Criminal Code, “it was sufficient to meet the
lower standard of reasonable suspicion which is all
that was required on these facts to justify the
intervention of a drug sniffer dog.” Plus, “the fact a
peace officer was concurrently conducting a traffic
enquiry while observing grounds for a drug related
offence does not make that detention arbitrary.”
Thus, there was no s. 9 breach.
As for a drug dog sniff, it is authorized where the
police have a reasonable suspicion that there are
illegal drugs present. The trial judge found the
officer’s decision to call for a drug detecting dog was
based on more than a hunch and satisfied the
reasonable suspicion standard. The smell of raw
marihuana was a significant subjective and objective
factor which alone created a reasonable suspicion.
Justice McDonald saw no basis to interfere with the
trial judge’s ruling.
Despite the conceded ss. 10(a) and (b) breaches, the
trial judge’s s. 24(2) analysis admitting the cocaine
was upheld.

Say Two

PAGE 32

Justice Hunt disagreed with Justice
McDonald that there was no ss. 8
or 9 breaches. As for the s. 9
breach, she said this:
The officer’s evidence makes it apparent that
although the traffic stop was originally valid, it
became a detention for the purpose of

Volume 12 Issue 4 ! July/August 2012
investigating a possible drug
offence. When he began that
investigation, the officer had
nothing more than a hunch or
suspicion arising from the date of
the car rental, the driver’s address
and the direction in which he was
travelling. The power to detain
cannot be exercised on the basis of
a hunch. Hunches are no substitute
for the proper Charter standard
(reasonable grounds) when dealing
with a subject’s liberty.

“The power to detain
cannot be exercised on
the basis of a hunch.
Hunches are no substitute
for the proper Charter
standard (reasonable
grounds) when dealing
with a subject’s liberty.”

Possible support for this view
comes from the emphasis the
Supreme Court has put on looking
at “the entire chain of events during which the
Charter violation occurred in the course of
obtaining evidence.” ... In this case, the search
that led to the discovery of the contraband was
connected temporally, contextually and causally
to the earlier Charter breaches. A chain of events
perspective suggests it would be inappropriate to
use the smell of marijuana to provide reasonable
suspicion for justifying the sniffer dog search,
since the earlier breaches permitted detection of
the odour. In other words, one thing led
inexorably to another. [refrences omitted, paras.
80-82]

The officer testified that he did not have
reasonable grounds until he smelled marijuana.
(It should be noted that no marijuana was found
by the officer or the sniffer dog). It follows that
the originally valid detention had become
arbitrary and the [accused’s] section 9 right to be
free from arbitrary detention was breached.
[references omitted, paras. 77-78]

When the purpose of the detention shifted to
criminal activity the officer was required to
immediately inform the accused of that fact and
advise him that he had a right to counsel. Justice
Hunt found that this obligation arose before the
officer detected the smell of marijuana, which was
sooner than the trial judge found.
Since the smell of marihuana was detected after the
ss. 9 and 10 breaches, it could not be used to
provide the necessary reasonable suspicion upon
which to base the sniffer dog search. Justice Hunt
wrote:
[C]an evidence obtained during breaches of
Charter rights (in particular, the odour of
marijuana) be used to provide the basis of a
reasonable suspicion so as to justify the use of a
sniffer dog? If the answer is no, the search by the
sniffer dog was unreasonable as was the ensuing
search of the rental car once the dog indicated
the presence of contraband.

clearly have breached other
Charter rights. Such an approach
would simply encourage the police
to breach Charter rights in the
hopes of finding something to
justify their behaviour that, without
the first Charter breaches, would
otherwise be illegal. That is hardly
the promise of the Charter.

Justice Hunt found the sniffer dog and vehicle
searches were unreasonable. However, like Justice
McDonald, she also ruled the contraband was
admissible under s. 24(2).

Say Three
Justice O’Ferrall too would dismiss
the appeal, agreeing with the trial
judge’s reasoning. Unlike Justice
Hunt, he found no other Charter
breaches other than what Crown had earlier
conceded:
In my view, the critical change in the nature of
the initial detention, which was not arbitrary, did
not occur until the investigating officer detected
the odour of raw marihuana. Although I found
Justice Hunt’s step-by-step analysis of the
investigating officer’s authority to detain and
question to be logically attractive, I am not sure
one can so precisely conclude that the Traffic
Safety Act detention in this case ended and the
Controlled Drugs and Substances Act detention

There does not appear to be any jurisprudence
specifically on this point. It seems counterintuitive to permit evidence obtained during
Charter breaches to provide the foundation for
further police activity that–without information
obtained from earlier Charter breaches–would

PAGE 33

Volume 12 Issue 4 ! July/August 2012

“[I]f a mere unsubstantiated and loosely-held suspicion of a non-traffic-related offence in
the mind of a police officer stopping a vehicle for an apparent traffic violation triggers a
change from a Traffic Safety Act detention to a criminal detention, then the police would be
compelled to advise Traffic Safety Act detainees of their Charter rights even before they
begin administering or enforcing that Act. And that cannot be right.”
began when the investigating officer started to
suspect there might be some drug trafficking
going on. The effluxion of a mere eight minutes
from the time of the stop until the investigating
officer properly advised the accused that he was
being detained on suspicion of drug possession
does not permit precise pinpointing of the
transition. Furthermore, if a mere
unsubstantiated and loosely-held suspicion of a
non-traffic-related offence in the mind of a
police officer stopping a vehicle for an apparent
traffic violation triggers a change from a Traffic
Safety Act detention to a criminal detention,
then the police would be compelled to advise
Traffic Safety Act detainees of their Charter rights
even before they begin administering or
enforcing that Act. And that cannot be right.
[para. 112]

with the terms of this order.” The lawyers suggested
the residual clause in s. 732.1(3)(h) of the Criminal
Code allowed a sentencing judge to impose such a
term as part of a probation order. Section 732.1(3)(h)
permits the Court to order that a probationer
“comply with such other reasonable conditions as
the court considers desirable … for protecting
society and for facilitating the offender’s successful
reintegration into the community.” Any such random
search was to occur between the hours of 8:00 am
and 8:00 pm. The accused and his parents
unequivocally and “wholeheartedly” consented to
the inclusion of the search clause in the probation
order.
!

Saskatchewan Provincial Court

Say All
The accused’s appeal was dismissed and his
conviction was upheld.
Complete case available at www.albertacourts.ab.ca

RANDOM PROBATION SEARCH
PROVISION PERMISSIBLE
R. v. Unruh, 2012 SKCA 72!! !! !! !! !! !! !
!

The accused pled guilty to possessing
child pornography contrary to s.
163.1(4) of the Criminal Code. A joint
sentencing submission was presented
by Crown and defence counsel
asking for a sentence of five years in jail followed by
three years probation.! The accused planned to live
with his parents upon his release. Included in the
joint submission was a probation term whereby the
accused “shall submit to a search of his person,
residence, vehicle or computer or computer-related
device found in his possession, without warrant, by
any police officer checking to ensure compliance

Despite the voluntary consent of the
accused and his parents, the sentencing
judge declined to include the random
search term because she said she did not
have jurisdiction to do so. In her view, the Supreme
Court of Canada in R. v. Shoker, 2006 SCC 44
directed that the provisions of the Criminal Code
concerning the imposition of optional probation
conditions do not contemplate the imposition of
random searches.

Saskatchewan Court of Appeal
!

Th e C r ow n a r g u e d t h a t a
sentencing judge could include the
random search clause in the
probation order. Justice Herauf,
writing the Saskatchewan Court of Appeal’s decision,
agreed. He found the sentencing judge too broadly
interpreted the Shoker decision and a more narrow
reading of it was required. “In our view, the Supreme
Court made it abundantly clear that the decision in
R. v. Shoker applied only to the ‘compelled seizure
of bodily samples as an enforcement mechanism’,”
he said. “The decision does not state that all

PAGE 34

Volume 12 Issue 4 ! July/August 2012
conditions under s. 732.1(3)(h) of the Criminal Code
that have a monitoring or enforcement aspect are
without jurisdiction.” Plus, the unequivocal consent
of the probationer and his parents to the residual
clause in s. 732.1(3)(h) had to be considered as part
of the circumstances. !
The Crown’s appeal was allowed and the random
search term was included in the probation order
with the condition that any search must take place
between the hours of 8:00 am and 8:00 pm.
Complete case available at www.canlii.org

BY THE BOOK:
s. 732.1(3) Criminal Code
Optional conditions of probation order
The court may prescribe, as additional
conditions of a probation order, that the
offender do one or more of the
following:
(a)!report to a probation officer ...;
(b)! remain within the jurisdiction of the court unless
written permission to go outside that jurisdiction is
obtained from the court or the probation officer;
(c)!abstain from
(i)! the consumption of alcohol or other intoxicating
substances, or
(ii)!the consumption of drugs except in accordance with
a medical prescription;
(d)! abstain from owning, possessing or carrying a
weapon;
(e)!provide for the support or care of dependants;
(f)!perform up to 240 hours of community service over a
period not exceeding eighteen months;

... ... ...

(h)!comply with such other reasonable conditions as the
court considers desirable, subject to any regulations
made under subsection 738(2), for protecting society
and for facilitating the offender’s successful reintegration
into the community.

OLDER CANADIANS HAVE
LOWEST RATE OF VIOLENT
VICTIMIZATION
In March 2012 Statistics Canada released its
“Victimization of older Canadians, 2009” report.
Highlights of this recent collection of data included:
• Older Canadians (aged 55+) reported the lowest
rates of violent victimization, 10 times lower that
the rate reported by the youngest age group (15 to
24 years of age).
• Theft of household property (31%) was the most
common form of non-violent crime reported by
older households, followed by break and enter
(29%), vandalism (28%) and theft of motor
vehicle (13%).
• Older Canadians (46%) were almost twice as
likely to report violent incidents to police than
younger Canadians (28%).
• Wanting to stop the incident or receive protection
was the most commonly cited reason why older
Canadians reported violent victimization to police
(75%). This was followed by feeling a sense of
duty to notify police (71%) and a desire to see the
offender arrested and punished (60%). As for not
reporting to police, the most commonly cited
reasons included having dealt with the incident in
another way, feeling the police could not do
anything about it, feeling that the incident wasn’t
important enough or that it was a personal matter.
• Older victims of violence were more likely than
younger victims to experience emotional
consequences. Those 55 and older reported anger,
confusion and fear as the most common
emotional reactions.
• The majority of older Canadians (91%) stated that
there were satisfied with their personal safety.
Source: Statistics Canada, 2012, “Victimization of older Canadians,
2009”, Catalogue no. 85-002-X,released March 8, 2012.

PAGE 35

April 7 - 9, 2013
The British Columbia Association of Chiefs of Police, the
Ministry of Public Safety and Solicitor General, and the
Justice Institute of British Columbia, Police Academy are
hosting the Police Leadership Conference in Vancouver,
British Columbia. This is Canada's largest police leadership
conference. This Police Leadership Conference will provide
an opportunity for delegates to hear leadership topics
discussed by world-renowned speakers.
Leadership in policing is not bound by position or rank and
this conference will provide delegates from the police
community with an opportunity to engage in a variety of
leadership areas. The Police Leadership Conference will
bring together experts who will provide current, lively, and
interesting topics on leadership. The carefully chosen list of
keynote speakers will provide a first class opportunity at a
first class venue to hear some of the world's outstanding
authorities on leadership, the challenges facing the policing
community and how to overcome those challenges.

The Service of Policing:
Meeting Public Expectation
www.policeleadershipconference.com

Speakers
Rick Mercer chronicles, satirizes and ultimately celebrates all that is great and irreverent about this
country. Known as "Canada's Unofficial Opposition," Mercer is our most popular comic, a political
satirist who knows exactly what matters to regular Canadians and what makes them laugh. Born in
St. John's, Newfoundland, Mercer has won over 25 Gemini Awards.
Assembly of First Nations National Chief Shawn A-in-chut Atleo is a Hereditary Chief from the
Ahousaht First Nation. In July 2009, Atleo was elected to a three-year mandate as National Chief to
the Assembly of First Nations. Atleo has been a tireless advocate for First Nations by spending time
in First Nations in every region of the country.
Craig Kielburger co-founded, with his brother Marc, Free The Children in 1995 at only 12 years of
age. Today, he remains a passionate full-time volunteer for the organization, now an international
charity and renowned educational partner that empowers youth to achieve their fullest potential as
agents of change.
Wendy Mesley is a regular contributor to CBC News: The National, CBC Television’s flagship news
program, appearing throughout the week in a regular segment that asks provocative questions about
the news stories Canadians are talking about. She also contributes to CBC News: Marketplace, CBC
Television's award-winning prime-time investigative consumer show.
Richard Rosenthal was appointed BC’s first Chief Civilian Director of the Independent Investigations
Office on January 9, 2012. He has extensive experience in civilian oversight of law enforcement
having served for 15 years as deputy district attorney for Los Angeles County, where he worked on
various assignments.
Ian McPherson is a Partner, Advisory Services with KPMG in Toronto and the former Assistant
Commissioner of Territorial Policing at the Metropolitan Police Service in London, UK. Ian is with
KPMG's Global Centre of Excellence for Justice and Security, leading its work throughout North
America.
Major-General (ret'd) Lewis MacKenzie is considered the most experienced peacekeeper on the
planet. MacKenzie has commanded troops from dozens of countries in some of the world's most
dangerous places. In Sarajevo, during the Bosnian Civil War, he famously managed to open the
Sarajevo airport for the delivery of humanitarian aid.
Dr. John Izzo has devoted his life and career to helping leaders create workplaces that bring out the
best in people, plus discover more purpose and fulfillment in life and work. For over 20 years, he has
pioneered employee engagement, helping organizations create great corporate cultures and leading
brands through transformations that create both customer and employee loyalty.
In an increasingly social world, Susan Cain shifts our focus to help us reconsider the role of introverts
- outlining their many strengths and vital contributions. Like A Whole New Mind and Stumbling on
Happiness, Cain's book, Quiet: The Power of Introverts In a World That Can't Stop Talking, is a
paradigm-changing lodestar that shows how dramatically our culture has come to misunderstand and
undervalue introverts.

Volume 12 Issue 4 ! July/August 2012

FACTS - FIGURES - FOOTNOTES
The percentage of Canadians who
believe that there has been an
increase in the amount of crime in
their community over the last five
years. This compares to 35% of Britons and 45% of
Americans.

39"

Only 27% of Canadians fear becoming a victim of
crime while 39% of Britons and 35% of Americans
have the same fear. People in Britain were more
likely (18%) to report having been a victim of crime
in the past two years and calling the police as
compared to 13% of Canadians and 12% of
Americans.
Source: Angus Reid Public Opinion, released April 26, 2012.

Health care and hospitals
was the most important
problem or concern cited
by 31% of Canadians
polled. This was followed
by 26% of Canadians
citing the economy, 18% for unemployment, 10%
for education and schools and only 8% for crime,
violence, or gangs.

Health
Care

British Columbia residents had the lowest
confidence level in their provincial courts (10%), the
RCMP (27%) and their municipal police force
(28%). Albertans had the lowest confidence in the
Supreme Court of Canada (16%) but the highest in
their municipal police (47%) and the RCMP (42%).
Manitoba and Saskatchewan had the most
confidence in their provincial courts (27%) while
Quebec had the highest confidence in the Supreme
Court of Canada (42%).
Source: Angus Reid Public Opinion, released April 26, 2012.

The percentage of Canadians
supporting the use of alternative
penalties - such as fines, probation
or community service - rather than
prison for non-violent offenders. Twenty eight
percent opposed alternative penalties for non-violent
offenders while 4% were unsure. When looking at
different types of offences, 78% of Canadians
supported non-prison alternatives for personal
marihuana use, followed by 37% for credit card
fraud, 31% for drunk driving and 21% for arson.

68"

Source: Angus Reid Public Opinion, released April 26, 2012.

Source: Angus Reid Public Opinion, released April 26, 2012.

The percentage of Canadians who
agree that the prison system in
Canada does a good job in helping
prisoners become law abiding. In
the same poll, 61% agreed the criminal courts did a
good job in determining guilt or innocence while
38% said the justice system treats people fairly.

19"

Source: Angus Reid Public Opinion, released April 26, 2012.

Municipal Police

18 years of age

The age at which the rate of those accused of a
Criminal Code offence in 2010 peaked in Canada.
After age 18, the rate of those accused of crime
generally decreased with age.
Source: Statistics Canada, Canadian Centre for Justice Statistics, Uniform Crime
Reporting Survey.

The number of youth accused of
committing a crime in Canada in
2011. Most of them (66,662)
were accused of committing a property crime
followed by 42,799 committing a violent crime and
26,186 committing other crimes. Most of these
(57%) were diverted from the justice system while
the remainder (43%) were formally charged.

135,647

The element of the Canadian justice system that
most people have complete or a lot of confidence in.
Thirty nine percent of Canadians said they had
confidence in the internal operations and leadership
of their municipal police force, compared to 38%
for the RCMP, 31% for the Supreme Court of Canada
and only 19% for criminal courts in their province.

Source: Statistics Canada, 2012, “Police-reported crime statistics in Canada,
2011”, Catalogue no. 85-002-X,released on July 24, 2012..

PAGE 38

Volume 12 Issue 4 ! July/August 2012

REPORTS - RESEARCH - REVIEWS

Private Residence

The most common location for youth to commit
crime (32%). This was followed by commercial
establishments (23%), including stores, office
buildings and gas stations, and outdoor public
spaces (23%), such as streets, parks and parking lots.
Source: Statistics Canada, 2010, “Where and when youth commit policereported crimes, 2008”, Catalogue no. 85-002-X,released Summer 2010.

After School

The peak time for youth crime. During after school
hours (3 to 6 pm) 22% of violent youth crime was
committed along with 20% of non-violent youth
crime. In the early afternoon (noon to 3 pm) 24% of
youth drug offences were committed while 28% of
traffic violations were committed at night-time (9 pm
to midnight).
Source: Statistics Canada, 2010, “Where and when youth commit policereported crimes, 2008”, Catalogue no. 85-002-X,released Summer 2010.

Northwest Territories
The province or territory with the highest youth
crime rate at 36,168 Criminal Code (non-traffic)
incidents per 100,000 youth population. This was
followed by:
• Nunavut = 25,235
• Yukon = 18,133
• Saskatchewan = 16,997
• Manitoba = 9,330
• Nova Scotia = 8,985
• Alberta = 6,918
• New Brunswick = 6,445
• Newfoundland = 6,327
• Prince Edward Island = 5,303
• British Columbia = 4,623
• Ontario = 4,561
• Quebec = 3,800
Source: Statistics Canada, 2010, “Where and when youth commit policereported crimes, 2008”, Catalogue no. 85-002-X,released Summer 2010.

The number of officers reporting
they attended an information
session on professional standards.
For those members attending an
information presentation about professional
standards, they had much more positive views of the
Professional Standards Office (PSO). Only 21% of
those not attending an information session had
positive views on the performance of the PSO while
nearly 41% of those who did attend had positive
views. Similarly, 53% of survey respondents
attending information sessions felt that members of
the PSO treated officers fairly while only 33% of
those not attending did so. For those police members
attending the information sessions, they were more
likely to agree that PSO members:
• try their best to expedite investigations while
respecting due process (47% v. 28% of those
not attending);
• want to help members avoid making mistakes
others have made (45% v. 29% of those not
attending);
• are open minded (45% v. 25% of those not
attending); and
• welcome feedback from officers (30% v. 15% of
those not attending).

36"

Additionally, for those attending the information
sessions, they agreed they:
• had more respect for what PSO members do
(50%);
• learned how to avoid errors in judgment which
could lead to negative repercussions (47%);
• were more willing to seek advice from a PSO
member (42%); and
• were more willing to report wrongdoing to a
PSO member (30%).
Only 9% of those attending an information session
had a more negative view of the PSO, while 61%
said they did not.
Source: CACP, CACP Professionalism in Policing Research Project Survey
Results.

PAGE 39

Volume 12 Issue 4 ! July/August 2012

FACTS - FIGURES - FOOTNOTES
Impaired Driving
Firefighters
The most common type of offence completed in
adult criminal court. In 2010/2011 there were
48,033 impaired driving offences. This was followed
by theft (42,566), common assault (37,604), fail to
comply with order (37,247), breach of probation
(31,157), major assault (20,929), uttering threats
(17,652), drug possession (16,363), mischief
(14,691) and fraud (14,415).
Impaired driving also had the highest conviction rate
with 84% of adult cases resulting in a guilty finding.
Only 13% of impaired driving cases were stayed or
withdrawn, 3% of cases resulted in an acquittal and
1% were classified as other outcomes, such as not
criminally responsible or unfit to stand trial.
Source: Statistics Canada, 2012, “Adult criminal court statistics in Canada,
2010/2011”, Catalogue no. 85-002-X,released on May 28, 2012.

The number of completed
cases in adult criminal court
in 2010/2011 involving
1,196,917 Criminal Code and other federal statute
charges.

402,980

Source: Statistics Canada, 2012, “Adult criminal court statistics in Canada,
2010/2011”, Catalogue no. 85-002-X,released on May 28, 2012.

The percentage of Vancouver’s
street-involved youth aged 15-25
who transitioned to become
regular injection drug users after experimenting with
drug injection for the first time. Of these 74%, 60%
progressed to regular injecting within one month of
their first injection while 84% transitioned within
one year. The same BC Centre for Excellence in HIV/
AIDS study also showed 83% of young females
became regular injectors, making them more
vulnerable to addiction following experimentation
than males at 71%. Neither age nor the type of drug
(heroin, cocaine or methamphetamine) significantly
impacted the probability of becoming a regular
intravenous drug user.

74"

Source: Addiction and Urban Health Research Initiative, BC Centre for
Excellence in HIV/AIDS, 2012, “Most Vancouver street-involved youth who
experiment with injection drugs become regular drug injectors,” released July
19, 2012.

The most trusted profession in Canada. According to
two Ipsos Reid polls taken in December 2011 and
June 2012, 88% of Canadians said they trusted
firefighters, which topped the list of 40 professions.
Only 57% of those polled said they trusted the
police, which was down 12 points from a similar
poll in 2007. This was one of the largest declines of
any profession. However, police officers were still
more trusted than judges (52%), lawyers (25%) and
lawmakers (national politicians - 10%).
Profession

% Trust

Profession

% Trust

Firefighters

88%

Church Leaders

33%

EMTs

86%

TV & Radio personality

31%

Nurses

85%

Journalists

31%

Pharmacists

78%

Environmental Activists

30%

Doctors

75%

Travel Agents

28%

Canadian soldiers

74%

Pollsters

27%

Airline Pilots

73%

Lawyers

25%

Farmers

71%

Auto Mechanics

23%

Dentists

67%

Taxi Cab Drivers

20%

Teachers

65%

New Home Builders

21%

Chefs

58%

CEOs

19%

Police Officers

57%

Municipal Politicians

17%

Daycare Workers

56%

Union Leaders

16%

Judges

52%

Actors

14%

Accountants

48%

National Politicians

10%

Chiropractors

43%

Bloggers

9%

Airport Security Guards

42%

Psychics

9%

Plumbers

40%

Advertising Executives

8%

Financial Advisors

34%

Car Salespeople

6%

Charity Leaders

34%

Telemarketers

3%

Source: Ipsos Reid on behalf of Postmedia News and Global Television.

PAGE 40

Volume 12 Issue 4 ! July/August 2012

REPORTS - RESEARCH - REVIEWS
The most common
sentence imposed in
adult criminal court. In 2010/11 probation was
imposed, either on its own or in combination with
other sanctions, in 45% of all guilty cases. The
median length of a probation order was 365 days.
Probation was most often imposed in criminal
harassment cases (90%) and least often for homicide
(7%) and impaired driving (10%).

Probation

Source: Statistics Canada, 2012, “Adult criminal court statistics in Canada,
2010/2011”, Catalogue no. 85-002-X,released on May 28, 2012.

Probation was also the most common sentence
imposed by youth courts in 58% of guilty cases.
Youth probation was most often imposed in youth
criminal harassment cases (84%). The median length
of youth probation was 365 days.
Source: Statistics Canada, 2012, “Youth court statistics in Canada, 2010/2011”,
Catalogue no. 85-002-X,released on May 28, 2012.

Prince Edward Island

The province most likely to sentence an impaired
driver to custody. Ninety-three percent of impaired
drivers in Prince Edward Island were sentenced to a
custodial term compared to 8% for Canada. The
Canadian median length of a custodial sentence for
impaired driving was 33 days. Fines were levied
against 89% of convicted impaired drivers with the
median fine being $1,000.
Overall, custodial sentences were more frequently
imposed in Prince Edward Island (63% of the cases)
but the median length of these sentences was the
shortest in Canada (14 days). The median length of
custody for Canada as a whole was 30 days.
Source: Statistics Canada, 2012, “Adult criminal court statistics in Canada,
2010/2011”, Catalogue no. 85-002-X,released on May 28, 2012.

The c onvic t i o n ra t e f o r ca s es
completed in youth court. In 2010/11
there were 29,908 guilty findings out
of 52,904 cases in youth court. Of the remaining
cases, 42% were stayed or withdrawn, 1% resulted
in acquittal and 1% were classified as other
outcomes like not criminally responsible or unfit to
stand trial.

57"

Source: Statistics Canada, 2012, “Adult criminal court statistics in Canada,
2010/2011”, Catalogue no. 85-002-X,released on May 28, 2012.

Motor Vehicle Theft

The Criminal Code offence least likely to be cleared
by police. In 2010, theft of motor vehicle was
cleared in only 13.5% of police reported incidents 7.4% were cleared by charge and 6.1% were
cleared by other means, such as diversion.
Top 5 Cleared Offences
Offence

cleared
by charge

cleared
otherwise

total
cleared

Administration of justice violations

85.7

9.9

95.6

Assault police officer

78.5

16.5

94.9

Other violations causing death

82.4

9.9

92.3

Forcible confinement/kidnapping

80.9

6.2

87.1

Other assaults

73.4

9.2

82.6

Source: Statistics Canada, 2012, “Police-reported clearance rates in Canada,
2010”, Catalogue no. 85-002-X,released on June 7, 2012.

Gang Related Homicide
There is a lower probability of clearing a gang
related homicide than other types. Between 2000
and 2010, 42% of gang related homicides were
solved by police while 88% of non-gang related
homicides were solved. Similarly, homicides
involving a firearm (56%) were less likely to be
cleared by police than non-firearm related
homicides (88%). The overall homicide clearance
rates have also been declining over the last 50 years.
In the mid-1960s about 95% of homicides were
cleared while today only about 75% are solved. This
could be due to a sharp increase in gang related
homicides between 1993 and 2008, which are
generally more difficult to solve.
Source: Statistics Canada, 2012, “Police-reported clearance rates in Canada,
2010”, Catalogue no. 85-002-X,released on June 7, 2012.

province with
Saskatchewan The
the highest police

reported clearance rate at 59.2% of cases. British
Columbia had the lowest clearance rate at 29.8%.
Source: Statistics Canada, 2012, “Police-reported clearance rates in Canada,
2010”, Catalogue no. 85-002-X,released on June 7, 2012.

PAGE 41

ONLINE GRADUATE CERTIFICATE PROGRAMS
INTELLIGENCE ANALYSIS | TACTICAL CRIMINAL ANALYSIS
Foundational Courses:
Intelligence Theories and Applications
Advanced Analytical Techniques
Intelligence Communications

Specialized Courses:
Competitive Intelligence
Analyzing Financial Crimes
Tactical Criminal Intelligence
Analytical Methodologies for Tactical Criminal
Intelligence

Entrance Requirements:
Proof of completion of bachelor degree; OR
A minimum of two years of post secondary
education plus a minimum of five years
of progressive and specialized experience in
working with the analysis of data and
information. Applicants must also write a
500 – 1000 word essay on a related topic of
their choice OR
Applicants who have not completed a
minimum of 2 years post-secondary
education must have eight to ten years of
progressive and specialized experience in
working with the analysis of data and
information (Dean/Director discretion).
Applicants are required to write a 500-1000
word essay on a related topic of their
choice.
For detailed requirements please visit the
JIBC Website.

Justice Institute of British Columbia, Canada | www.jibc.ca |graduatestudies@jibc.ca

Foundational Courses
(students enrolled in either graduate certificate are required to complete the
foundational courses)

Intelligence Theories and Applications

Intelligence Communications

Advanced Analytical Techniques

A survey course that introduces the student
to the discipline of intelligence and provides
the student with an understanding of how
intelligence systems function, how they fit
within the policymaking systems of free
societies, and how they are managed and
controlled. The course will integrate
intelligence theory with the methodology
and processes that evolved over time to
assist the intelligence professional. The
course will develop in the student a range
of advanced research and thinking skills
fundamental to the intelligence analysis
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The skill most appreciated by
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ability to communicate, briefly
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detailed analytic work. This
course, through repetitive
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Topics include: drug/terrorism/other
intelligence issues, advanced
analytic techniques (including
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management theory (large
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Specialized Courses
(students enrolled in either graduate certificate are required to complete the
foundational courses)

Intelligence Analysis

Tactical Criminal Analysis

Competitive Intelligence
This course explores the business processes involved in
providing foreknowledge of the competitive environment; the
prelude to action and decision. The course focuses on
supporting decisions with predictive insights derived from
intelligence gathering practices and methodologies used in the
private sector. Lectures, discussions, and projects focus on the
desires and expectations of business decision-makers to gain
first-mover advantage and act more quickly than the
competition.

Tactical Criminal Intelligence
This course is an introduction to law enforcement
terminology, practices, concepts, analysis, and
intelligence. The course will introduce the student to
the discipline of crime analysis and law enforcement
intelligence through the study of the intelligence
cycle and the intelligence determinants. The role and
responsibilities of an analyst within each sub-topic
will be addressed. Additionally, the utilization of
analytical software will be introduced.

Analyzing Financial Crimes
This course examines the nature and scope of financial crimes
and many of the tools used by law enforcement in the
preparation of a financial case. Included in this course is a
detailed treatment of the following: laws which serve to aid in
the detection and prosecution of these crimes, the types of
business records available, types of bank records available, an
examination of offshore business and banking operations, and
the collection and analysis of this information, with emphasis
placed on Net Worth and Expenditure Analysis. In addition,
special treatment is given to the detection and prosecution of
money laundering, various types of money laundering
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terrorism.

Analytical Methodologies for Tactical Criminal
Intelligence
The course reviews the key requirements for
intelligence in law enforcement and homeland
security. The course focuses the use of advanced
analytic methodologies to analyze structured and
unstructured law enforcement data produced by all
source collection. Students will apply these
concepts, using a variety of tools, to develop
descriptive, explanatory, and estimative products
and briefings for decision-makers in the field.

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