m11u11 OP WMTl!lllT
VOLUMI NO® 17

Justice Institute of British Columbia

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Columbia, V6R 4J5

CHAR.TF.R. OF RIGIITS AND mEEOOKS

EXCUJSIONAR.Y RULE - GROUNDS
FQR DRUG-SEARCH AND CHOKING SUSPECT
Collins v. The Queen Supreme Court of Canada, April 1987
In 1983 , the B.C. Court of Appeal considered Collins' appeal * in regard to her
conviction for possessing heroin.
The admissibility of the evidence, the
heroin, became the key issue in the trial, with the application of the
exclusionary rul"e (s. 24(2) of the Charter) being centre-stage.
Police had Mr. and Mrs. Collins under observation in a pub, as they were
suspected to traffic in heroin. Mr. Collins, and another person left the pub,
and the officers tailed them, leaving Mrs. Collins behind . The tailing paid
off and Mr. Collins and others were apprehended with balloons containing
heroin in their possession.
Police then returned to the pub, and conceding
not to ha'\l'e any reasonable and probable grounds for believing that Mrs.
Collins was in possession of any contraband, ~hey rushed her and grabbed her
by the throat to prevent any swallowing. Her mouth was clear, but a balloon
containing heroin was found clenched in her hand.
The Crown had failed to show that the officer who conducted the search had the
requisite grounds under s. 10 N.C.A. Mrs. Collins appealed her conviction for
possession to the B.C. Court of Appeal. She argued that since her right to be
secure against unreasonable search or seizure had been infringed, the evidence
found as a consequence of this infringement ought to have been excluded from
the evidence at her trial.
The B.C. Court of Appeal held that the exclusionary rule created by s. 24(2)
of the Charter is not absolute, but conditional.
In other words, an
infringement of a right or freedom does not automatically call for an
exclusion of the evidence which was obtained by the manner that amounted to
the infringement.
The B:C. Court of Appeal was, at this baby-stage of the
Charter (1983), of the opinion that:
nNo longer is all evidence admissible, regardless of the
means by which it was obtained. Nor, on the other hand,
is all improperly obtained evidence inadmissible.
A
middle ground has been chosen, but not the middle ground
of discretion that has been chosen in many jurisdictions.n

*

Regina v. Collins, Volume 12, page 1 of this publication
B.C.C.A. CA 821475

- 2 The B.C. Court of Appeal went on to say that instead of admissibility of
evidence resulting from an infringement of a right or freedom being at the
whim of the judiciary, our Charter has given specific guidelines for
considering the matter of admissibility. Our exclusionary rule is conditional
and not discretionary or strict said B.C.'s highest court, and had apparently
no problems in identifying the conditions.
1.

The accused must show on the balance of probabilities that the manner in
which the evidence in issue was obtained infringed his right of freedom;

2.

The Court JDust consider the circumstances surrounding the obtaining of
the evidence; and

3.

The Court must find that admitting the evidence in issue will not bring
the administration of justice into disrepute.

The latter condition the B.C. Court of Appeal found to be kernel, and the
single objective of the exclusionary rule.
Th~
Court emphasized that
exclusion could not be invoked to discipline police, but only to disassociate
themselves from, and not to be a party to a deliberate and flagrant
infringement of a citizen's rights or freedoms by accepting the evidentiary
fruit of such an infringement.
Concluded the B.C. Court of Appeal in the Collins' case:

1.

The suspicion on the part of the police officers proved correct;

2.

The alleged offence was serious;

3.

There was no malicious or capricious treatment of Mrs. Collins;

4.

The throat hold was to prevent the loss of evidence; and

5.

The admission of the evidence was not unfair to the accused.

The B.C. Court of Appeal applied these conditions to subsequent appeals where
the exclusionary rule was part of the grounds for appeal. It seems fair to
say that a difference of judicial opinion was looming between this B.C. Court
and the Supreme Court of Canada. Although one cannot say that the first major
case on the exclusionary rule* that reached the Supreme Court of Canada

*

Regina v. Therens, 18 C.C.C . (3d) 481
Volume 21, page 1 of this publication

- 3 -

rendered the B.C. Court of Appeal approach to the rule erroneous at law, the
Therens' decision (which took many by surprise) did not include any of the
conditions summed up above.
Therens' right to counsel was infringed and
consequently the evidence obtained was excluded - period -. In other words,
our highest national court appeared to apply a strict exclusionary rule.
Many members of our judiciary have 'stickhandled' their way around that
decision, and it seems that, especially in B.C., the Collins precedent
continued to be applied as though it had survived the Therens' judgement.
The inferences one irresistably draws from the Therens' decision (see comments
in Volume 21) seem inconsistent with what the Supreme Court of Canada held in
this Collins decision.
The B.C. Court of Appeal, dealing with the
exclusionary rule, when the Charter was still in diapers, gave their general
and broad views of this new constitutional law.
Many have predicted,
particularly in post-Therens' days, that the Supreme Court of Canada would
sharply disagree with the B.C. views. However, the majority judgement in this
Collins' case indicates "general agreement" with the views of the B.C. Court
of Appeal.
The history of the exclusionary rule in the U.S. and its
consequences, good and bad, had been researched and summed up as the American
experience with the strict application of the rule. It was strongly implied
that a strict application had led to absurdities, and despite what appeared in
the Therens' decision, the Supreme Court of Canada generally agreed that:
1.

the exclusionary rule is a conditional one (the Court quoted the above
paragraph,"No longer is all evidence admissible ... , etc.);

2.

it is not open to the Courts in Canada to exclude evidence to discipline
the police;

3.

it is the admission and not the obtaining of the evidence that is the
focus of attention in s. 24(2) of the Charter;

4.

evidence improperly obtained is prima facie admissible in evidence unless
the person who wishes it excluded shows on the balance of probabilities,
not only that it was so obtained, but also that admission would bring the
administration of justice into disrepute;*

*

An exception may ar;,_se where a warrantless search is involved. The
seizure and the search may be presumed "unreasonable" and in
conflict with s.8 of the Charter, and the burden to show that it was
not unreasonable is then on the Crown. (See Hun~er v. Southam Inc.
Volume 18, page 12 of this publication).

- 4 -

5.

s. 24(2) of the Charter does not confer a discretion on the judges, but a
duty to admit or exclude evidence, based on his frindings;

6.

exclusion is also a means to avoid the administration of justice from
being brought into disrepute;

7.

the question whether or not to exclude evidence is one of law and
therefore to be determined by the trial judge (not the jury), by means of
a voir dire (if the decision is based on a matter of credibility of
witness then, of course, the matter cannot be appealed);

8.

evidence cannot be excluded as a "remedy" under s. 24(1) of the Charter,
but only under subsection (2); and

9.

where the evidence on the issue of admissibility does not establish
whether or not the accused's rights were infringed, the Court must
conclude that they were not infringed;

The issues then in this Collins appeal were if the search was reasonable, and
if not, would admission cause disrepute to be brought on the administration of
justice considering all the circumstances in which the search and seizure took
place?
The Supreme Court of Canada opened its consideration on these issues and
particularly the issue of reasonableness, by saying:
"A search will be reasonable if it is authorized by law,
if the law itself is reasonable and if the manner in which
the search was carried out is reasonable."
In this case, the authorization for the search of Mrs. Collins should be found
in s. 10 of the Narcotics Control Act. The officer had to have reasonable and
probable grounds for believing that there were narcotics in the pub. By their
own admission the officers had no beliefs based on such grounds. Suspicion
was the best description of their reason for the search. Hence, the search
and the choking of Mrs. Collins were unreasonable. Added the Supreme Court in
the same breath:
"Of course, if he is lawfully searching a person whom he
believes on reasonable grounds to be a 'drug handler' then
the 'throat hold' would not be unreasonable."

- 5 -

The Crown had failed to establish grounds prerequisite to an authorized search
and, consequently, the Appeal Courts could only find that the search was
unreasonable.
However, the Supreme Court of Canada was critical of what
happened during the trial when the issue of 'grounds' arose and implied that
possibly police had the prerequisite beliefs to a reasonable search if the two
counsel and the trial judge had adhered to and applied the relevant law.
Crown Counsel had asked the officer who conducted the search: "Where ... when
did you formulate those suspicions?
The officer replied:
"We were
advised ... " He did not get any further as defence counsel was on his feet and
objected. He cut the officer off by submitting that the evidence of what he
was advised was hearsay and inadmissirble. This matter was then dropped, and,
of course, it should not have been dropped. For the purpose of establishing
reasonable and probable grounds to testify what one has been told, is
perfectly permissible and does not "infringe the hearsay rule". The Supreme
Court of Canada seemed puzzled why this crucial issue was not further pursued
during the trial. The question was not withdrawn, and the trial judge made no
ruling on the objection. The issue simply faded away in the proceedings and
caused this Court to find that the search was unreasonable.
Then the Supreme Court of Canada addressed the matter of "disrepute" .
The
views of a community are important in this consideration, but the mood of the
community is a factor.
A distraught or angry community must not be
accommodated by the Courts.
Its rulings must not be aimed to make the Court
popular with the community. The community, which is to judge whether or not
the administration of justice is brought into disrepute, must be a reasonable
community. If this was no so, the lynch practice would be accommodated by an
institution that has impartiality as one of its mandatory characteristics.
Again, we must look for the reasonable dispassionate person in a reasonable
community, who is fully apprised of all the circumstances, who must consider:
what kind of evidence was obtained?
what charter right was infringed?
was the Charter violation serious, or was it of a merely technical
nature?
was the infringement deliberate, wilful, flagrant, or advertent, or
was it committed in good faith?
did it occur in circumstances of urgency or necessity?
were there other investigatory techniques available?
would the evidence have been obtained in any event?
is the offence serious?
.is the evidence essential to substantiate the charge?
are other remedies available? ... , etc.

- 6 -

Concluding this issue, the Supreme Court of Canada emphasized how a trial is
the key part of the administration of justice, and that fairness must be the
tenor of a trial and is, therefore, "the major source of the repute of the
system". Said the Court:
"If the admission of the evidence in some way affects the
fairness of the trial, then the admission · of the evidence
would tend to bring the administration of justice into
disrepute, and subject to a consideration of the other
factors, the evidence generally should be excluded."
The Court strongly implied that "the nature of the evidence obtained" will be
very relevant to the consideration if evidence is admissible where a violation
of a right is involved.
Just because there was a violation is. by itself.
rarely a reason to exclude real evidence. particularly evidence that existed
already.
This is different from evidence that arises from an infringement;
evidence that did not exist prior to the violation of a right. The Court did,
of course, refer to confessions and self- incriminating matters.
Said the
Court:
"The use of self-incriminating evidence obtained following
a denial of the right to counsel will generally go to the
very fairness of the trial and should generally be
excluded." ... "It may also be relevant, in certain
circumstances, that the evidence would have been obtained,
in any event, without the violation of the Charter."
In relation to means alternative to Charter violations to obtain evidence, the
Court observed:
" ... the availability of other investigatory techniques,
and the fact that the evidence could have been obtained
without the violation of the Charter, tend to render the
Charter violation more
serious.
. .. their
(the
authorities') failure to proceed properly when that option
was open to them tends to indicate a blatant disregard for
the Charter, which is a factor supporting the exclusion of
the evidence."
Such exclusion is not to discipline the authorities,
fairness of the trial.

but

to ensure

the

- 7 -

The Supreme Court of Canada readily found that not admitting evidence can also
bring the administration of justice into disrepute.
"In my view, the administration of justice would be
brought into disrepute by the exclusion of evidence
essential to substantiate the charge, and thus the
acquittal of the accused because of a trivial breach of
the Charter.
Such disrepute would be greater if the
offence was more serious."
Reiterating that fairness is the kernel issue, agreeing that evidence is more
likely to be excluded if the offence is less serious, and conversely, more
likely to be admitted where the allegation is one of considerable gravity,
particularly where the evidence is an essential ingredient to the charge, the
Court said:
"I hasten to add, however, that if the admission of the
evidence would result in an unfair trial, the seriousness
of the offence could not render that evidence admissible."
As a matter of fact, if fairness of the trial is at stake, then the opposite
is the case; the more serious the charge the more damaging admission would be
to the repute of the administration of justice.
The Supreme Court of Canada also gave some guidelines to "trickery".
Many
courts have applied the Charter's exclusion provisions where, for instance,tricks were used to obtain a statement from a suspect or others. Sometimes
the very statement was evidence, or it resulted in the discovery of evidence.
Unless such a trick is "dirty", the court thought that resorting to a trick is
not in the least unlawful to obtain a statement, and "should not result in the
exclusion of a free and voluntary statement".
The Court clarified that a
dirty trick is one that would shock the community. The "community shock" is a
higher threshold than the one to test, if the administration of justice would
be brought into disrepute. The former is the absence of an unlawful act on
the part of the authorities, while the latter only arises when there is a
violation of the most important and fundamental law of the land.
An additional reason for the "repute" test being one of a low threshold is

that where the French and English wordings of law differ, then the one most
beneficial to an accused must be applied.
(see Interpretation Act) .
The
English version of s.24(2) of the Charter states that evidence must be
excluded where admission would bring the administration of justice into
disrepute. The French version creates a much lower threshold in that it

- 8 -

states that exclusion mus t follow if the administration of justice could be
brought into disrepute. The Supreme Court of Canada concluded that the French
version must be applied as it best protects the fairness of a trial. It did
so with these words:
"Section 24(2) should thus be read as 'the evidence shall
be excluded if it is established that, having regard to
all the circumstances, the admission of it in the
proceedings could bring the administration of justice into
disrepute'."
Needless to say that between the 'would' and 'could' is a vast difference with
the former being a considerable lower threshold than the latter.
It will,
therefore, be less onerous for an accused to show cause for excluding Crown
evidence.
Applying all this law to the Collins appeal, the Supreme Court of Canada had
no alternative but to find that there were no requisite reasonable and
probable grounds upon which the officer conducted the search. The Crown could
probably have shown such grounds, but the officer was inappropriately
prevented from completing his testimony as to what he knew when he conducted
the search.
Needless to say, this did not assist the Crown in this appeal.
The evidence showed suspicion only on the part of the officer, and that made
his aggressive action a flagrant and serious violation of Hrs. Collins•
rights. Said the Court:
"Indeed, we cannot accept that police officers take flying
tackles at people and seize them by the throat when they
do not have reasonable and probable grounds to believe
that those people are either dangerous or handlers of
drugs."
Despite the fact that the evidence was real and existed at the time of the
infringement of Collins' right, the Court could not hold that the evidence
should have been admitted.
For ordering a new trial, the Court observed that the officer may well be able
to show that he had the necessary grounds to conduct the search.

Appeal allowed - Conviction set aside New trial ordered.

- 9 -

Comment:
This publication is supposed to contain synopses of cases that may be of
interest to those in the front-lines of the criminal justice system.
The
length of this Collins decision by the Supreme Court of Canada hardly seems an
abbreviated version of reasons for judgement. However, the exclusionary rule
is, in terms of legal history, brand new in Canada, and ought to be of crucial
interest to practicing investigators. Not being interested is the equivalent
to a professional athlete not being interested in rules of the game in which
he participates. This was the second time that the only institution, that can
tell us what s. 24 of the Charter means, dealt with the issue. In terms of
guidance or judicial law making the first one (Therens' case) was of very
little assistance.
Only those favouring a strict application of the
exclusionary rule had reason to be optimistic.
Some of them even claimed
victory.
This time, in terms of law making, trendsetting and guidance
(comments not directly related to the narrow legal question before the court),
the Supreme Court of Canada did do considerably better than it did in Therens.
An issue that will be of considerable interest is the consideration of
exclusion of evidence where the person, whose rights were infringed, is one
other than the accused.
For example, if an unreasonable search of a home
yields real evidence against a person who does not reside there, and was not
present at the time of the search.
Firstly, the real evidence existed
separate from the infringement; in other words, it was not created by it.
Secondly, if fairness is a main consideration, the unreasonable search was
perhaps unfair (at least) to the occupant of the home, and he could seek a
remedy under subsection (1) of section 24 of the Charter. It could, with some
validity, be argued that in such circumstances the accused, regardless of the
means by which the evidence was obtained, would have a fair trial. The only
threshold the Crown may encounter is the argument that by accepting the
evidence, the courts seem to become a party to, or give a nod to the illegal
means by which it was obtained.

******

- 10 -

VR.I'I OF ASSISTANCE - THROAT-BOLD SEARCH OF DWEIJ..ING HOUSE - UNREASONABLE SEARCH? ADMISSIBILITY OF EVIDENCE

Hamill v. The Queen* Supreme Court of Canada, May 1987
Armed with a writ of assistance, police searched the accused's home. As he
was suspected to possess drugs, and to be violent, the officers rushed in,
shouted "police", and seized the accused by the throat. Although nothing was
found in his mouth, plenty of drugs and paraphernalia were found in his home.
The trial judge had found writs of assistance unconstitutional documents and
consequently found that the search was unreasonable, and he did not admit the
evidence. The B.C. Court of Appeal questioned the constitutional validity of
writs, but held that, even if the trial judge was correct admitting the
evidence would not bring the administration of justice into disrepute and
ordered a new trial.
Hamill took this B.C. decision to the Supreme Court of Canada which promptly
applied their Collins decision.
(See page 1 of this Volume). It noted that
Writs at the time were legal documents backed by statute. Whether or not they
were constitutional had no bearing on the issue before the trial court in
regard to admissibility of evidence. The officers had acted in good faith.

Hamill's appeal dismissed
Order of new trial upheld

*

See Volume 17, page 26 of this publication

- 11 -

CONVERSATIONS Vim PERSONS IN AUTHORITY AND VOIR DIRKS
Between JOSEPH and The Queen, County Court of Vancouver
Registry No. CC861272, November 1986
The accused was involved in an accident and, at the scene, there was a
conversation between the accused and the investigating constable. The officer
told the accused he believed the accused had been drinking and that he was
going to suspend his driver's licence for 24 hours unless he (the accused)
voluntarily supplied a sample of breath, the analysis of which would show a
blood-alcohol content less than "50 mlg". The accused had, by means of words,
indicated he understood the law and had said words to the effect of: "Yes, I
would like to go and give a breath sample." The reading was in excess of "80
mlg" and this resulted in a conviction of "over 80 mlg" under the relevant
provisions of the criminal code.
The accused appealed the conviction (on
grounds one would not expect in the circumstances) on the basis that no voir
dire had been held to determine the admissibility of the evidence of the
conversation between the accused and the officer.
Conversations are always sensitive when the recipient of a verbal
communication from an accused person relates that communication to the Court
in testimony. Firstly, if the communication is adduced to prove the truth of
its content (not merely the fact that something was said), the witness cannot
vouch for that truth, hence the evidence is hearsay.
An exemption to the
hearsay rule allows such evidence to be admissible. However, if the person
who received the communication and testifies to it, was in the mind of the
accused at the time he made the statement, a person in authority (one who may
effect the path of prosecution), then a prerequisite to the admissibility of
that statement in evidence is voluntariness on the part of the accused. An
involuntary statement cannot be relied upon if the objective is to prove the
truth of its content or to rely in any way on that content.
Prior to 1971, the Courts reasoned that voluntariness was only an issue when
the statement was in any way an admission or a confession (inculpatory). If
it amounted to denial, it could not possibly harm the accused and therefore
such exculpatory statement was admissible in evidence without having to try
the issue (voir dire) of voluntariness.
In the sixties of this century, however, a Mrs. Piche * allegedly murdered her
husband and she made several exculpatory statements to persons in authority
but each was different. The Crown adduced all of the statements, and no doubt
Mrs. Piche did not look very credible to the jury and appeared quite guilty
having to tell several different versions of incidents to continue her
denials. The Supreme Court of Canada reasoned that the Crown relied upon the
exculpatory statements to prove her guilt, and held that all statements made
to a person in authority are inadmissible unless it has, by means of a trial

*

PICHE v. The Queen, [1971] S.C.R. 23

- 12 -

of the issue, been proved that it was given voluntarily.
In the Erven*
decision, some eight years later, the Supreme Court of Canada added that to
determine voluntariness a voir dire is always -required, whether or not the
statement was made at some investigatory or preliminary level or was
volunteered. The only exception to this rule is when the accused waives the
right to a voir dire or where the statement is part of res gestae.
(In this
case, something said that was so closely related to an act that it is part of
that act.)
On the surface it seems that the Supreme Court of Canada said if a trial Court
fails to conduct a voir dire to test the voluntariness of any utterance made
to a person in authority, then an Appeal Court (which cannot conduct such a
trial of an issue) must consider the words spoken inadmissible and of no
weight.
In other words, the statement would be involuntary in an appeal
process simply because no voir dire was conducted. Such was the situation in
this Joseph case.
Firstly, this County Court Judge was of the opinion that the Erven precedent
need not be applied stringently.
In the Erven reasons for judgement, one of
the Supreme Court Justices had observed that a voir dire is only a means to an
end and the main issue always is whether the statement was proven to have been
made voluntarily by whatever proper means.
In some circumstances, not
conducting a voir dire is merely a technical breach. The Court cited a number
of scenarios in which it would be superfluous, if not ridiculous, to conduct a
voir dire. For instance, when a person is tried for failing to give a breath
sample and refusal was by means of the spoken word, then what he said
constitutes the very offence alleged against him. Any simple questions such
as the response to: "Is this your driver's licence?"; the accused requesting
the use of washroom facilities; his request to use the telephone; etc. "The
question is, where is the line to be drawn?", said this Appeal Court Judge.
Another sensitivity is that not conducting a voir dire deprives the accused
from taking the stand on the issue to be tried alone. However, the Court held
that a statement relating facts to a person in authority and responding to a
proposition to accompany an officer to give a sample of breath to avoid a
road-side suspension, are quite distinct from one another and the Judge
concluded no voir dire was necessary in the circumstances.

*

ERVEN v. THE QUEEN. [ 1979] 44 C.C.C. (2d) 76

- 13 -

STOPPING A SUSPICIOUS CAR - CAPRICIOUS
INTERFERENCE WITH FREEDOM - QUESTIONING
SUSPECT ON ROADSIDE RE: SUSPICION ARD RIGHT TO COUNSEL
Regina. v. RELLIN and PARX,

County Court of Vancouver

No. CC851870, December 1986
At 4.20 a.m. a patrol officer saw three young men in an old car coming out of
a street where there are predominantly warehouses and industrial sites.
Break-ins had been prevalent in this zone. The officer stopped the car and
shone his light inside it and saw a pry bar and bolt cutters on the floor as
well as many sealed packages of cigarettes. The officer checked the driver's
licence and registration papers and enquired where the young men had been.
The answers were: "Driving around." "Coming from a friends place", or words
to this effect. The officer then took the appellant, Park, aside, warned him
regarding his right to remain silent and asked bluntly, "Where did you guys
break in?" There was at first no reply and the officer made some suggestions
where the place of crime may have been and said finally, "Was it a catering
truck?" Park first said, "Maybe" and then "Yes". All these youths had also
bulging pants' pockets with change.
All this resulted in Rellin and Park
appealing their conviction for theft over $200. They argued that the officer
had capriciously and arbitrarily interfered with their right to go about
freely.
Secondly, the trial judge had allowed Park's statement in evidence
while the infringement of his right to be informed of his right to counsel
should have resulted in the statement being inadmissible in evidence.
The Crown argued that the officer had a right to stop a car under s. 67 of the
Motor Vehicle Act of B.C. whether or not a traffic law or rule was violated.
In respect to right to counsel, the Crown did not agree that Park was arrested
or detained at the time he had a conversation with the officer on the side of
the road.
The defence rebutted that if s. 67 of the Motor Vehicle act was enacted to
provide police with authority to arbitrarily interfere with and detain
motorists for any or no reason, then it cannot survive a constitutional test
of demonstrable justification in a free and democratic society (see s.l of the
Charter).
He implied the section could only survive if it was intended for
police to identify traffic law offenders or violators. The driver of the car
involved had not committed any such offence and the stop was strictly
arbitrary and because of suspicion regarding criminal activities. B.C. traffic
laws nor our federal criminal laws have a conduit from the one to the other
and each has its own specific provisions to pursue its objectives.
The defence also drew the Court's attention to recent deliberations by Courts
of superior jurisdiction which have established that, when a person is in any
way delayed and asked questions by a person in authority, then he is in a

- 14 -

position requiring legal advice as to his rights and options. The provisions
of the Charter dealing with rights to counsel apply to a scenario as the
appellants, in this case, found themselves in.
The officer thought it
necessary to make Park aware of his right to remain silent.
This proves,
implied the defence, that the officer was detaining Park.
Only after Park
made his confession did the officer effect the arrest and he then made him
aware of his right to counsel. Detention had occurred long before the arrest.
The trial judge had held that s. 67 of the M.V. Act gives police the
unfettered authority to carry out routine checks for whatever reason. He had
also held that the conversation between the officer and Park on the side of
the road was merely part of a preliminary phase of an investigation into what
appeared a possible breach of the criminal law.
The Appeal Court Judge agreed with the defence that the trial Judge had been
too expansive in his interpretation of the authority section 67 of the M.V.
Act grants police. He quoted from the well known 1985 decision by the Supreme
Court of Canada* in which it reviewed police authority in general and
specifically to conduct roadblocks, and held that:
n
police powers arising from a specific provincial
statute must be exercised only for the purpose indicated
in that statute and for no other purpose as a subterfuge
or pretext .... n

In other words, s. 67 of the M.V. Act was of no assistance to justify the
stopping of the car the officer believed to be suspicious, considering all
circumstances.
As the Supreme Court of Canada did in 1985 to find the roadblock in that case
justified, this County Court turned to the wealth of the common law on this
subject.
(Author's note:
It cannot be said often enough that the Canadian
Constable, regardless of rank, is DQJ; like his counterpart in the U.S. or in
most other nations. Regrettably, unbeknown to the majority of them, they have
the common law status of a surrogate citizen.
nAt common law the principle duties of police officers are
the preservation of peace, the prevention of crime, and
the protection of life and property, from which is derived
the duty to control traffic on the public roads.n

*

R. v. DEDMAN, 20 C.C.C. (3d) 97, or see Volume 22 page 17 of this
publication.

- 15 -

All powers granted by statute or common law are subject to the application of
the doctrine of ancillary powers. This simply means that if one is authorized
by law to do something then that includes authorization to do everything
necessary to carry out the duty. The Supreme Court of Canada* applied this
doctrine when it was asked if the authorization to intercept private
communications in a private place included authorization to break-in to that
place and plant the equipment.
The answer was "Yes".
It was then an
ancillary authorization. (This doctrine does not exist exclusively at common
law. The Interpretation Act (federal) refers to it as well).
Applying this doctrine of ancillary authority to the common law mandate of a
constable, the Supreme Court of Canada had said:
"Provided the powers exercised in any given instance are
reasonably necessary to carry out general police duties,
the common law basis of police power has been derived from
the nature and scope of police duty."
In reiterating words, the Appeal Judge added:
" ..... the rationale of this authority is that it is an
ancillary powers doctrine to enable the police to perform
such reasonable acts as are necessary for the due
execution of their duties."
The Court concluded that a test devised by the Supreme Court of Canada in
1963** (Waterfield test) is still valid and a means to determine if the
actions of a constable (reference to his/her office and not to the rank) are a
reasonable limitation "demonstrably justified in a free and democratic
society." (see s.l of Charter).
Basically, the test is as follows:
(a)

Was the conduct of the officer within general scope of any duty
imposed by statute or one recognized at common law; AND

(b)

Was that conduct, in the circumstances, a justifiable use of powers
associated with the duty?

*

Constitutional Reference to Supreme Court of Canada re: Enforcement
of Privacy Act, see Volume 20 page 13 of this publication.

**

R. v. Wa~erfield, [1963 ] 3 ALL E.R. 659

- 16 -

The test simply deals with discretion; it recognizes the duties of constables,
makes it clear that the execution of these general duties involves
interference with the person or his or her private property, and that the
powers are simply not unlimited.
In the circumstances of this case, the Court found that the stopping of the
car was not covered by the M.V. Act.
It was ancillary to the common law
authority of the constable. He had not acted capriciously and had justifiable
reasons (considering his common law role) to do what he did. His actions were
well balanced considering the appellant's freedoms on the one hand, and the
public interest on the other. The "stop" was simply not objectionable.
The Appeal Judge did have little difficulty in concluding that the occupants
were detained after the officer saw in plain view the incriminating evidence
in the car and that, particularly, Park, who was singled out to be questioned,
should have been informed of his right to counsel at least at the outset of
the questioning. The whole matter of infringements of rights and whether or
not the evidence ought to be excluded and, particularly, the matter of good
faith on the part of the officer, were not addressed at trial. Hence Park's appeal was allowed and a new trial was ordered
Rellin's appeal was dismissed

* * * * * '*

- 17 -

MURDER BY A U.S . CITIZEN ABOARD A FOREIGN REGISTERED SHIP
ON CANADIAN TERRITORIAL WATERS DESTINED FOR A U.S. PORT EXTRATERRITORIAL JURISDICTION - JURISDICTION OF CANADIAN COURT

The Queen v. FRISBEE, B.C. Supreme Court Victoria 39562, November 1986
The accused was awaiting trial for allegedly having murdered his elderly
employer aboard a luxury liner enroute from Victoria, B.C. to San Francisco.
The Supreme Court Justice, assigned to preside over the trial, anticipated
issues of territorial jurisdiction to be raised and he therefore took it upon
himself "to deal with the matter of jurisdiction.w After giving counsel the
opportunity to submit their arguments, the Justice gave reasons for judgement
on those issues.*
Section 433 (1) provides that where a person, whether or not he is a Canadian
citizen, on the territorial sea of Canada commits an offence, that offence is
within the competence of and shall be tried by the Court having jurisdiction
in respect of similar offenses in the territorial division nearest to the
place where the offence was committed. This section seems to say it all and
leave little room to argue that the accused could not be tried by a Court of
superior jurisdiction in Victoria, B.C. However, defence counsel argued that:

1.

The territorial waters of Canada are outside of Canada;

2.

No one can be tried in Canada for an offence committed outside of
Canada unless the law specifically provides that the offence is
extraterritorial . (Murder is not one of them); and

3.

Therefore, section 433 (1) C.C. is only a section which provides for
the place of trial (venue) when an extraterritorial offence has been
committed on Canadian territorial seas.

If this was not so, submitted defence counsel, then why does the Criminal Code
of Canada provide that no-one shall be convicted of an offence committed
outside Canada? "The sovereignty of the Queen stops at the low water mark",
reminded the defence lawyer**. Declaration of a 200 mile zone of territorial
seas from canada's shores is for defence, resources and like purposes, but not
to assume criminal jurisdiction, said he.
Fisheries provisions are a prime
example of this he argued. In any event, he submitted that, before a Canadian
Court has jurisdiction over offence below that l ow water mark, the offence

*"

Jurisdiction for a Court to sit with a jury, to so proceed prior to
trial can be found in s. 574 (5) C.C.

**

The Queen v. XEYN, [1876] 2 Ex. D. 63

- 18 -

must be extraterritorial (forging a passport - conspiracy, etc.).The Supreme
Court agreed that in 1878 the Courts in England held that territorial
jurisdiction stops at low tide. However, the British House of Commons reacted
immediately and superseded the Courts by enacting Territorial Waters
Jurisdiction Act. The Court concluded that the territorial seas of Canada are
Canadian territory and the offenses committed by anyone in whatever registered
ship on those Canadian territorial seas can be tried for that offence, whether
extraterritorial or not, in the jurisdiction nearest to the location where the
offence was committed.

******

- 19 -

ASSAULTING LIQUOR STORE EKPIDYEE WHILE REMOVING
INTOXICATED CUSTOMER. WEAPON DANGEROUS TO THE PUBLIC PEACE

Regina v. SIU.ARS, County Court of Yale Vernon Registry 15665, December 1986
The accused was in an intoxicated condition in a Government Liquor Store. As
this is contrary to the Liquor Control and Licensing Act, the store's
Assistant Manager "escorted" the accused to the exit without, in the Court's
view, using excessive or unreasonable force.
The accused returned
immediately, threatening to come back with weapons and do very uncivilized
things to the store's personnel.
When asked again to leave, the accused
punched the Assistant Manager in the face, causing breaking of the skin and
bleeding. Another employee put a headlock on the accused to subdue him while
police were called. Bystanders observed how the accused, while being in the
embrace, had an unopened jack-knife in his hand.
Before it was opened (if
that was the accused's intent), two people wrestled the knife away from the
accused.
Shortly after, police arrived, an arrest was effected and the
accused was prosecuted for assault causing bodily harm and possession of a
weapon dangerous to the public peace.
One would expect that the legality of the accused's removal from the premises
would be considered under the trespass provisions in the criminal code in
regards to real property (s. 41 C.C.). However, defence counsel steered the
trial Judge in the direction of the provincial liquor laws to consider the
issue.
He argued that the Assistant Manager had no authority to remove the
accused from the liquor store and therefore the accused, despite his
intoxicated condition, was justified in resisting the Assistant Manager. Even
if the store is a public place, the manager, who is not a peace officer, is
not authorized to arrest an intoxicated person (s. 43 [2] L.C. + L. Act).
This Act does authorize a licensee or his employees to forbid an intoxicated
person from entering or remaining on the premises.
Defence counsel argued
that a liquor store is not licensed premises and, again, it did not authorize
the assistant manager to remove the accused as he did.
The Court agreed in regard to the category of the premises, but reasoned:
"He knew that he was not allowed to sell or give liquor to
an intoxicated person.
It was obvious to him that Mr.
Sillars (the accused) was intoxicated at that particular
time. I am satisfied that the powers that are granted to
a licensee, or an employee of a licensed establishment, to
request a person to leave, is the same power,. and within
reasonableness in this particular case, to permit Mr.
Griffin (the assistant manager) to request Mr. Sillars, as
an intoxicated person, to leave the liquor store . "

- 20 -

This, in addition to the assistant manager acting reasonably and without
excessive force, he was justified in removing the accused,
The defence argument in regard to the knife not being a weapon in the
circumstances as the Crown could not show intent to use it as a weapon, or
sufficient time to form such an intent, was, particularly in view of the
threats uttered before and during exhibiting the knife, rejected.
Accused was convicted of both allegations

Comment:
Considering the specificity of the L.D., and L. Act, it seems the Judge went
perhaps too far afield in finding authorization under that Act for the
removal. Section 41 C.C. seems the appropriate enactment to rely on in these
circumstances.

******

- 21 -

VIDEO TAPING SUSPECTED CRIMINAL ACTIVITIES
EDITING
WHAT EVIDENCE MUST COKPLIKEl!IT THE TAPE
HILLER an.d The Queen, County Court of Westminster No. X017367, November 1986
The accused, a cashier for the Liquor Control Board of B.C., was convicted of
two counts of theft from her employer. She appealed the convictions. For a
number of hours on two different days, a van equipped with "one way" glass and
a video camera was parked outside the window in front of which the cash
register assigned the accused, was situated. A number of transactions between
the accused as her employer's agent and customers were taped.
The Crown
alleged that, particularly, two of those transactions amounted to thefts on
the part of the accused. The cash register was a computerized one, commonly
seen in stores.
When the purchase is rung up a monitor displays to the
customer the individual amounts for each item and the aggregate sum he/she has
to pay.
The registers the accused used were of a kind that allowed the
cashier to scan the price list in the event the item the customer presented
was not properly marked. When this is done, the price will be displayed on
the monitor, the cash drawer will open and the register's tape will record the
query as a "no sale." The customer is not likely to be aware that the sale is
not recorded as, for the layman there appears to be no distinction between the
events that amount to a properly registered sale and the scan.
The camera man taped various transactions and stopped his machine when there
were no customers or when persons obstructed the lense's path of vision. In
cross-examination, defence counsel extracted the following answers from the
camera man in respect to him stopping the filming from time to time:
"I feel a responsibility to make the tape pertinent to what my client wants to
see, keeping in mind that I don't want to bore him to tears ...... "
This, of
course, begged the subsequent questions:
"Who are you to say what is
pertinent? Is that the function of the Court?" And: "You have only shown us
an edited ... your edited version of what happened." ...... "You actually cut it
down where you didn't think it was appropriate, is that correct?" When the
witness did not agree with the "appropriate" aspect the questions suggested,
he clarified: "Not pleasant to watch." ...... etc.
Never did the Crown bring out evidence to show that (in respect to the
transactions where sales were not recorded due to the alleged feigned
procedure followed by the accused) what was presented ·on the tape was the
entire transaction in respect to each instance the Crown claimed amounted to
theft. Without that evidence and, in this case, the issue being compounded by
a Crown witness who agreed that what the Court saw on the video screen was his
edited version of the events, the video tapes were inadmissible.
Said the
Court:

- 22 -

" ... if the camera operator had said with respect to each
of these instances that this portion of the video tape
contains a true and accurate reproduction of the scene
as it was that day without gap or interruption by my
turning the camera off and if, on viewing the tape, the
learned trial judge concluded that there was no gap or
interruption and that the tape truly and accurately
portrayed the
transaction (all of the
transaction)
then .... at least that portion of the videotape could have
been admitted."
(Emphases are mine)

For this and other reasons, the accused's
appeal was allowed. Acquittal was directed.

******

- 23 -

CONSTITUTIONAL PROPRIETY OF THE PRESUMPTION THAT ONE
WO POSSESSES OR 1JITERS COUNTERFEIT KONEY. IS GUILTY OF
THAT POSSESSION UNLESS HE SHOVS IAVFDL .JUSTIFICATION OR EXCUSE

Regina v. BURGE, B.C. Court of Appeal CA 004363, November 14, 1986
(See also Volume 22, Page 16 of this publication)
The accused had been found to possess one counterfeit U.S. one hundred dollar
bill.
He was charged with possession and uttering counterfeit money.
He
entered a plea of not guilty and immediately attacked the constitutionality of
sections 408 and 410 of the Criminal Code which place the burden of proving
that there was a lawful justification or excuse for possessing or uttering
counterfeit money on the person accused.
He argued that the sections are
inconsistent with the presumption of innocence.
The County Court Judge,
before whom the accused appeared for trial, agreed and quashed the indictment.
He had reasoned that the presumption of knowledge that money is counterfeit
cannot rationally arise from simple possession.
When a person possesses
counterfeit money, knowledge of the counterfeit nature is not a probable
consequence.*
It often requires an expert to determine if money is
counterfeit and it was therefore not justified in the circumstances to shift
the onus to prove lawful justification or excuse on to the accused. The Court
seemed to imply that, had the accused, for instance, been caught with a
suitcase full of counterfeit money, it would be proper to reverse the onus of
proof in respect to "knowledge".
The Crown appealed the quashing of the
indictment and the issue was argued before the B.C. Court of Appeal.
In summing up the substance of the legal debate, the B.C. Court of Appeal said
it simply had to decide if :
(a)

knowledge that the money an accused had in his possession or uttered
was counterfeit, is an essential element of the charge that has to
be proved beyond a reasonable doubt by the Crown, .Ql:

(b)

knowledge that the money is counterfeit may be presumed upon proof
that the accused possessed or uttered counterfeit money, and then
the accused,
in his defence, can show on the balance of
probabilities that the possession was innocent in that he did not
know of the counterfeit nature of the money.
Innocent possession,
of course, is a lawful justification or excuse.

Even prior to the Charter coming into effect, there was doubt about the
meaning of the sections in question. As a matter of fact, the Ontario Court

*

See R. v. OAKES, Volume 23, Page 16 of this publication.

- 24 -

of Appeal followed (a) above in 1973* and (b) in 1976**. In 1978***, one of
the Justices of the B.C. Court of Appeal made an off-the-cuff statement that
he disagreed with the 1976 decision by the Ontario Court of Appeal. However,
the trial Judge, in this case, based his reasons on the Charter arguments and
precedents.
The B.C. Court of Appeal decided that knowledge of the nature of the money is
part of "lawful justification or excuse".
If one is unaware that money he
possesses is counterfeit, the possession is innocent, but he is obliged to
show unawareness of the fact that the money was counterfeit. The burden of
that proof, of course, is on the balance of probabilities. To arrive at this
conclusion, the Court observed that:
(a)

it is not difficult to prove lack of knowledge .... "unless indeed he
had such knowledge" .... ;

(b)

possession of counterfeit money supports the inference of knowledge
and therefore there is a rational connection between possession and
guilty knowledge;

(c)

sections 408 and 410 of the criminal code do not demand an accused
to disprove an essential element of the offences they create; and
that

(e)

.... "this is not a case where the burden of proof with respect to
some essential ingredient of the offence is placed on the accused
without first requiring the Crown to produce some evidence with
respect to that ingredient."
Crown's Appeal allowed Indictment restored.
Trial to continue.

Comment:
Reading the Supreme Court of Canada's views on reversed onus clauses and the
tests that were devised in R. v. Oakes (see Volume 23, page 16)r, I predict
that this B.C . decision would not survive an appeal to the Supreme Court of
Canada.

*

Regina v. CACCAHO and CACCAHO, [1973] 21 C.R.N."S. 83

**

Regina v. SANTERAMO, [1976] 36 C.R.N.S.

***

R. v. SAGLIOCCO, [1978 ] 3 WR 193

- 25 -

RESTORATION OF SEIZED GOODS
TAYLOR, HANSON & STEWART and THE QUEEN,

B.C. Supreme Court -

Nos. XOllO 79-80-81 and 82, October 1986
In February of 1982 a robbery took place at a food supermarket that yielded
the perpetrators $50,000.
In January of 1983, a nUJ1ber of search warrants
were executed by police and virtually thousands of articles were seized, as
well as $13,000 in cash, from the residences and storage lockers of the three
applicants. In early 1984, the applicants were convicted in the B.C. Supreme
Court in regard to possessing the "thousands of articles" and given
substantial jail sentences. They had also been charged with the robbery, but
the Crown stayed proceedings. The $13,000 was not tendered in evidence. The
order of the Justice of the Peace, issued upon the seizure of all the goods
and funds, stipulated that one police officer was to detain everything seized.
In 1984, after the stay of proceedings was entered on the robbery charge, and
subsequent to the sentencing of the applicants, re the possession charges, the
insurance company, which had honored the $50,000 claim by the food
supermarket, applied for the $13,000 seized from the applicants. In September
of 1984, without any notice to the applicants or application to the Justice of
the Peace who had ordered the funds detained, police turned the money over to
the insurance company. When the applicants became aware of this transaction,
they filed a notice of motion with the Supreme Court of B. C. seeking the
return of $13,000 to them.
Things did get a little complicated in that the goods were properly seized and
detained under the old s. 446 C. C. while the application and supporting
arguments were under the provisions contained in the new s. 446 C.C. It seems
the applicants petitioned the Supreme Court (instead of applying to the
Justice of the Peace who had granted the warrants and issued the retention
order) as a continuation or aftermath of their criminal trial over which the
petitioned Justice presided.
The Supreme Court Justice considered this a questionable honor and, to say the
least, was reluctant to deal with the petition. The criminal code is quite
clear that in these circumstances (see s. 446 (7) (C) C.C.), the Justice of
the Peace had jurisdiction to deal with the application. However, a court of
superior jurisdiction has inherent jurisdiction over all matters assigned to
inferior courts.
Being very cognizant of the dangerous precedent he was
setting and the possibility that he would affront the dignity of the Justice
of the Peace, the Supreme Court Justice agreed to sit as Justice of the Peace
to avoid a waste of precious court time.
It must be remembered that the applicants were not suing the Crown or the
Police Department for $13,000 in a civil dispute over an indebtedness. There
was nothing to prevent them from doing so. However, they petitioned for the
return of the money seized from them, the very money ordered detained by the
Justice of the Peace and the money that was released unauthorized to make
restitution. Section 446 C.C. is part of the criminal process and does

- 26 -

deal with compensation for articles seized, but the return and restoration of
the very articles taken and detained. The same applies to funds seized in a
criminal investigation. The ·very money is detained and, unless continuity is
preserved, it is not admissible in evidence; or if a restoration order is
made, it can only be in relation to that very money.
The criminal process
(with very few exceptions) deals with restoration and not compensation.
Firstly, the applicants based their petition on the provisions in subsections
(10) and (11) of s. 446 C.C. These subsections are provided for persons who
are the lawful owners or lawfully entitled to possession of items seized (not
necessarily from them). They filed no documents supporting or claiming either
status and changed their applicant standing to those recognized under
subsections (7) and (9) which refers to •persons from whom anything has been
seized." Hence, the provision in subsection (11) (d) of s. 446 C.C., the only
provision for compensation to the lawful owner of a person entitled to lawful
possession in lieu of restoration of the very article seized, did not apply to
the applicants.
The applicants' counsel suggested the Supreme Court Justice, having inherent
jurisdiction over civil disputes, order compensation in the sum of $13, 000.
The Justice declined and reminded counsel he was sitting as a Justice of the
Peace who has no jurisdiction in such disputes. Furthermore, a process is in
place if the applicants wish to proceed civilly.

Applications dismissed.
Note:
Another area in which similar provisions apply in respect to "tracing" is in
the event of "cash" bail. Release of a prisoner upon deposit of money and the
restoration of those funds, when the prisoner has lived up to the conditions
of the bail, are interesting and can be found in some pretty ancient cases.
Firstly, where money is deposited and the prisoner released, the depositor is
not entitled to a receipt for those funds. The liberty of the prisoner, in
other words his body, is the receipt.
When the depositor claims the bail
money at the appropriate time (or wishes to abandon the bail where the
depositor and the prisoner are not one and the same), he must receive the ver.y
money he deposited.

****'**

- 27 -

CARE AND CONTROL OF A MOTOR VEHICLE
Regina. v. REID, County Court of 'Westminster No. X017053, November 1986
The accused left a drinking establishment in early morning hours . He quickly
discovered that he was in worse shape than he thought and parked his pick-up
truck on a parking lot, stretched out on the seat and went to sleep with his
feet in the pedal recess below the steering wheel.
The truck was properly secured in that the lights were off, the brakes and
transmission properly set. The keys were in the ignition. A couple of hours
later (after parking the truck) police attended at the scene and demanded a
breath test and nearly three hours after parking the truck, the accused blew a
".170 mlg".
Consequently, the accused was tried for "over .80 mlg while in
care and control" and impaired driving.
He was acquitted of the latter
charge, but convicted of the former.
He appealed that conviction claiming
that the certificate of analysis, in the absence of additional evidence, was
only capable of proving the blood-alcohol content any time within two hours
preceding the giving of the breath sample.
It was established that the
admitted driving was done more than two hours previous to the test.
The
accused consequently argued that there was no evidence to support the
conviction of "over . 80 mlg" as he did not have the care or control of his
truck when the police officer attended the parking lot and made the demand.
He, of course, relied heavily on the Supreme Court of Canada decision in
September of 1985* in the B.C. Toew's case, in which our highest Court said
that the wrongful and culpable act is the assuming of care or control when the
blood-alcohol level is "over 80 mlg".
The accused argued that instead of
assuming that control, he had done the opposite and abandoned it.
The constable who made the demand of the accused, stood by while the latter
removed the keys from the ignition and locked the truck up. Apparently, the
Crown drew these actions to the Court's attention as being evidence of care
and control within two hours from the breath test. The Court commented:
" .... these acts were done upon the express suggestion of
Constable C. , and in his presence, I would exclude them
from the kind of acts .... referred to in Toews."
The County Court Judge who heard the appeal, agreed with the accused, firstly,
that the issue of care or control is "almost precisely" the situation as arose
in the Toew' s case and, secondly, that the certificate was only capable of
proving the blood-alcohol level for the two hours preceding the taking of the
breath sample. The truck had been parked at 1:25 a.m; the demand was made at

*

R. v. TOEWS, see Volume 22, Page 24 of this publication

- 28 -

3:30 a.m. when the officer found the accused in the truck in such
circumstances which did not amount to Heare and controlH and the breath sample
that indicated ".170 mlg" was taken at 4:04 a.m.
The certificate was
therefore of no assistance to prove the blood-alcohol level at 1:25 a.m. when
the accused did have the care and control of the truck.
Appeal allowed;
Requital directed.

Comment:
Although this was not argued, the certificate actually had no evidentiary
value at all as the demand was made two hours and five minutes after the
offence of "over .80 mlg - care and control" occurred. It may be of interest
as well that the Appeal Judge was more than subtle in expressing surprise that
the Trial Judge had acquitted the accused of impaired driving. Apparently, he
felt that there had been ample evidence to convict on that charge. However,
that acquittal was not for him to review as the Crown had not appealed it.

******

- 29 -

LEGAL TID-BITS
APPLICATION FOR RELF.ASE OF KDRDER. INVESTIGATION FILE
The accused was convicted of murdering one woman in November 1984 and another
in March of 1985. 'While the accused was in custody, in December of 1985, a
third woman was murdered in a jurisdiction near by the one in which the
murders occurred for which the accused was convicted. The last murder bears a
remarkable similarity, in circumstances, to the first two, leading one to
believe that all three were committed by one and the same person. The accused
appealed the convictions which includes an application to the B.C. Court of
Appeal for access to the evidence of the third murder. Although police were
cooperative with the appellant's counsel, they refused to show their file to
him. Counsel, in a preliminary application, asked for an order from the B.C.
Court of Appeal that the investigation file be released to him.
The B.C.
Court of Appeal did not dismiss the application but neither did it grant the
order.
It, instead, asked for the Crown and Defence Counsel to agree on a
statement of fact which would obviate the necessity for police to release a
confidential file.
Then, when dealing with the pending appeal, the Court
would review the application for presentation of new evidence and all matter
ancillary thereto.

The Queen and EVANS, B.C. Court of Appeal , Vancouver CA 005498 November 1986

******
ADMISSIBILITY OF EXPERT EVIDENCE
The accused called a psychologist as an expert witness on.
"Eye witness
testimony."
The criminal allegation was armed robbery and the defence was
that the Crown had failed to prove, beyond a reasonable doubt, that the
accused was the person who committed the crime. The victim of the robbery,
and a customer in the store in which the crime took place, identified the
accused in a line-up held two weeks after the robbery. · The line-up had not
been all it could be or should be, particularly in the accused's height being
different from the other participants in the identification parade. He had
been the only one over six feet.
The psychologist had testified that the
line-up was instead a "show-up".
The trial Judge had ruled the expert's
testimony superfluous and inadmissible. He held the jury was capable of

- 30 -

coming to a proper conclusion on the identification evidence without the
assistance of the expert in that his testimony (during the voir dire, in the
absence of the jury) did not contain any scientific information likely outside
the experience and knowledge of the jury or the judge.
The B.C. Court of Appeal agreed with the Supreme Court Trial Justice on this
point and dismissed the accused appeal regarding his conviction of armed
robbery .

Regina v. BROWN, B.C. Court of Appeal Vancouver 004199, February 1987

******
•GIVE BLOOD .... OR ELSE• - ADMISSIBILITY OF ANALYSIS
The accused was involved in a serious accident and treated for injuries. The
investigating officer asked if he was willing to give a sample of his blood
and responded to the accused's:
"What if I don't?", that refusal would
trigger a demand for such a sample. The accused had said the demand was not
necessary and gave a sample that proved to contain 352 milligrams of alcohol
per 100 millilitres of blood. In other words, the accused was in an advanced
state of intoxication and he was consequently convicted of impaired driving.
He appealed the conviction and argued that he had not voluntarily given the
sample as he had said, "What if I don't?" He had then given the sample only
because of the threat, "If you don't, I'll make a demand." Therefore, there
was no consent to the taking of the sample and the results of the analysis are
therefore inadmissible in evidence.
The Court rejected the accused's submissions.
The officer had the right to
make the demand and simply had informed the accused of that law and that he
would use it. There is no threat in that and hence the sample was voluntarily
given. Furthermore, the accused had been informed of his rights and did not
raise the issue of understanding his options due to his advanced state of
intoxication.
Appeal Dismissed

Regina v. lfATE, County Court of Yale Revelstoke 04228, November 1966

- 31 -

Note:
Since the date of the offence in this Mate case, the Courts have struck down
s. 220.2 (1) C.C. under which the officer intended to make the demand.
See
Regina v. Chatham and Xetole, [1986) 23 C.C.C. (3d) 434.

******
IS A MOTORIST WO COMPLIES VITH ROADSIDE SOBRIETY KDJlCISES. DETAIBED?
The accused was asked to alight from his car and do some physical tests to
determine his level of sobriety. He complied and failed badly. When he was
tried for a criminal code drinking-driving offence, the accused argued that he
was detained while performing the tests.
He was not informed of right to
counsel and, consequently, his right to be so informed was infringed and the
evidence of the failure should not have been admitted in evidence, argued the
accused, when he appealed his conviction to the County Court of Yale (B.C.).
The reasons for judgement by the trial Judge already indicate that he placed
considerable weight on the evidence of impairment demonstrated in the sobriety
test in issue. As a matter of fact, without that evidence, the trial court
had no other evidence to rely on to conclude the accused drove while his
ability to do so was impaired.
There is no legal obligation to comply with the request to perform a sobriety
test for diagnostic purposes. As a matter of fact, it is a voluntary activity
that either exonerates the suspect or by means of which evidence adverse to
the suspect' s interest is supplied.
However, the County Court Judge found
that whether there is detention depends on the circumstances. If one does not
wish to perform the tests, but does so because of the conduct of the police
officer, then there is detention. On the other hand, one may be pleased to
comply to show he is not impaired and, clearly, then there is no detention.
In this case, there was nothing in the circumstances that caused the
compliance with the request to render the accused detained at the time.
Even if "I am wrong", said the Appeal Court Judge, the evidence should be
admitted as there was good faith on the part of the officer and admitting the
evidence would not bring the administration of justice into disrepute.
The appeal was dismissed.

R. v. BONOGOFSXI, County Court of Yale Kelowna 86/35, December 1986

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SUBJECUVITY
Many issues in law are subject to tests, some of which are subjective and
others objective in nature. For instance, if a suspect makes a statement to
an under-cover officer, then he or she spoke to a person in authority if we
apply an objective test.
It would then follow that "voluntariness" is a
prerequisite to such a statement. However, the test, whether the officer is a
person in authority, is a subjective one; what the suspect (accused) believed
the person he spoke to, to be, determines the officer's status. If he did not
realize he was speaking to a person "who will effect the path of prosecution",
then the officer was not a person in authority in the issue of the statement's
admissibility in evidence.
When the act of an accused is judged for excuse or justification (defence of
necessity), the test again is a subjective one. What appeared to be to the
actor is paramount to establish his mind to determine if there was an excuse
or justification.
Subjectivity determines what is real. but does not guarantee reality: it is a
means to establish reliability but fails to ensure validity: it mirrors what
appears to be. but not necessarily what is.

AUTHOR

******
ACCUSED'S ENTITLEMENT TO ACCESS TO AFFIDAVIT SUPPORTING
APPLICATION FOR AUTHORIZATION TO INTERCEP'.r THEIR PRIVATE COHKPNICATION
While tried for drug related offenses, two of the accused applied for access
to the affidavit that supported the Crown's application for judicial
authorization to intercept their private communication. The Crown intended to
rely on the evidence resulting from the interception and one of the persons
mentioned in the authorization as a target was on the Crown's witness list.
Unless they could gain access to the content of the affidavit, they were
unable to prepare a full answer and defence to the allegations.
In preCharter days the Courts would not allow the opening of the packet containing
all the documents related to the authorization.
If a packet was opened, it
was most certainly for cause and not as of right.
Cause, particularly in
respect to the affidavit, would be such things as misleading information, non
disclosure, fraud or material error on the part of the police or Crown. The
trend in the post-Charter days is leading to access by an accused as of right.
Section 7 of the Charter is always quoted as a reason for that right.
(No
deprivation other than by a process based on the principles of fundamental
justice). This Court did not quite go that far, and said that the accused, in

- 33 -

this case, had a right to the affidavit because one of the targets, named in
the authorization, was to be a Crown witness. In other words, the Disclosure
Order this Vancouver Court Judge granted was for cause. Furthermore, opening
a packet for disclosure of content of affidavit and opening it for the purpose
to determine justification for and/or validity of authorization, are quite
distinct from one another in consideration whether to open a packet.
The
Order for Disclosure was granted with the proviso that Crown counsel firstly
could, in Chambers, make submissions regarding the editing of the affidavit.
Another case, quite similar in terms of legal issues, was at about the same
time before the Westminster County Court. At first, Defence Counsel applied
for the packet to be opened to challenge the authorization, but then switched
to an application based o_n s. 7 of the Charter giving right to disclosure of
all pertinent information to make a full defence.
Said the Judge of the
Westminster County Court when granting the accused access to an edited version
of the packet:
"It appears that the trend now is that the opening of the
packet
expresses
concern for accountability and
accessibility, but not to the extent of harming the
innocent, disclosing identity of informants or impairing
the efficiency of police methods of investigation. In my
view, there should be no difficulty, subject to the above,
of disclosing to an accused all information which might be
of value in producing his defence."

Regina v. BICKNELL. CURRIE, GRANT, and KYHL, Vancouver Registry C.C. 860297,
November 1986
Regina v. BRAKER ee al, New Westminster Registry X016910, October 1986

******
•CHARTERING• OBLIGATIONS ON POLICE IN EVENT OF •ARCII.IARY" DETENTION

The accused was arrested on September 6 for aggravated assault which occurred
on the same date.
His custody continued until at least September 20 and
possibly beyond.
The detective in charge of the aggravated assault charge
spoke to a couple of his colleagues who were investigating a murder that was
committed in a hotel room sometime between August 29 and September 4, and
advised them to speak to the accused about the murder. He predicted that an
interview would meet with success. Furthermore, the accused's palm print was

- 34 -

found in the room and a shoe print, similar to the print the accused's shoes
would leave, was found on the floor.
On September 20, the two detectives
ordered the accused to be brought to an interview room. One of the officers
had a tape recorder secreted on him and a conversation which was not prefaced
by any warnings regarding rights took place. The Crown sought to have this
conversation admitted at the accused's trial for murder in the B.C. Supreme
Court and a voire dire was conducted for this purpose. The Crown relied on
the accused having been "chartered" and warned when he was arrested on
September 6. His arrest and detention had been uninterrupted since that date
when he was interviewed on September 20.
Defence Counsel argued that the
interview amounted to an "ancillary" detention and that the chartering and
warning of September 6 could not serve as evidence of compliance with the
accused's right in respect to this separate detention regarding the murder
charge .
The Court found that there was a detention separate from the one in respect to
the unrelated aggravated assault charge. Detention is not only physical but
also measured on whether the circumstances are such that the detainee may be
in need of legal counsel. Applying a subjective test, the Court found that
the accused had not likely believed he had any choice in staying in the room
for the interview. He was detained on a matter separate and distinct from the
matter for which he was already in detention .
The latter, as it were, was
only convenient to accommodate the former.
Hence, s. 10 of the Charter
applied separately and the "voluntary" statement was ruled inadmissible
because of that Charter violation.
Regina v. BR!MN, Vancouver C.C. 850003, February 1986

******
NOT SHOVING RADAR READING TO SPEEDER - BEST EVIDENCE RULE
An alleged speeder alighted from his car when stopped and demanded from the
officer to see the radar reading. The officer said then, and testified that
he could not do as was requested because the reading was already erased. The
speeder appealed the finding by the Justice of the Peace that the speeding
took place, arguing that he had been deprived of a full answer and defence to
what was alleged and that the Crown failed to present the best possible
evidence.
In 1745, an English Lord said:
" ....• there is but one general rule of
evidence, the best the nature of the case will allow." This has become known
as "the best evidence rule. " The erasing of the radar reading did not only
deprive the alleged speeder of a defence but also the Crown from adducing the

- 35 -

best possible evidence the nature of this case did allow. The Appeal Judge
(the County Court of Vancouver) held that "best" in this rule does not mean
"the most perfect", but means the "most reliable" the nature of the case
permits. This has often meant that where the primary evidence was available
and secondary evidence was adduced, it should, despite its apparent
reliability, be decided (by the trier of facts) what weight should be given to
such secondary evidence. If the radar evidence was primary, and the officer's
admissible evidence about the radar reading secondary, then, particularly
since the alleged speeder did not contradict the officer's evidence, the
Justice of the Peace was entitled to act upon that secondary evidence. The
County Court Judge seemed to warn where the evidence is contradicted or where
it is shown that it was erased to suppress or conceal evidence, such premature
erasure could become a nmatter of concern" at trial. In the absence of such
contradiction or deliberate erasure to deprive the speeder of evidence, the
grounds for appeal failed.

ELLISON and The Queen, Vancouver Registry C.C. 861747, February 1987

******
Violence while stealing can be robbery, as well as attempted
Convictions of both arising from one act of violence are permissible.

murder.

The accused had broken into the apartment of a 69 year old woman.
He had
beaten her badly and had taken things of value out of the apartment.
He
pleaded guilty to break and enter, and robbery, but found himself charged,
subsequently, with attempted murder. The B.C. Court of Appeal held that any
violence while stealing is sufficient to constitute robbery. The measure of
violence, in this case, was such that it amounted to attempted murder as well.
A further appeal to the Supreme Court of Canada was to no avail. The violence
had been such that it was distinguishable from the intent when applying
violence to accommodate a theft to constitute robbery. Therefore, two charges
could properly arise from the one incident of applying violence. However, due
to a ruling by the Supreme Court of Canada on the matter of intent for
attempted murder (specific intent to cause death), which was not concluded at
the time of the accused's trial, the matter was inadequately addressed at
trial to support a conviction of attempted murder.
The Supreme Court of
Canada did substitute a conviction of causing bodily . harm with intent to
endanger life as an included offence to attempted murder.

Wigman v. The Queen, Supreme Court of Canada, April 1987
See Volume 15, page 32 for B.C.C.A. judgement.