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A PEER READ PUBLICATION
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A newsletter devoted to operational police officers in Canada.

IN MEMORIAM
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Down Memorial Page available at www.odmp.org/canada
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“They Are Our Heroes.
We Shall Not Forget Them.”
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inscription on Canada’s Police and Peace Officers’ Memorial, Ottawa

Be Smart & Stay Safe

Volume 11 Issue 4

Volume 11 Issue 4 - July/August 2011

Highlights In This Issue
Waterfield Test Justifies Warrantless Police Entry

6

Charter Violations Can’t Be Loaned

10

Demand Valid Even Though ASD Not Available
Forthwith

13

Police Action A Dynamic Process: Not To Be Over
Analyzed By Parsing Events Into Static Moments

17

Doctrine Of Severability Saves Wiretap
Authorization

20

Search Warrant Lawfully Obtained: $1.3 M Lawsuit
Set Aside

22

Charter Rights Are Personal

24

Officer Had Grounds To Arrest: Search Lawful

32

Reasonable Grounds: A Practical, Non-Technical,
Common-Sense Assessment

35

Legality Of Search Flows From Arrest’s Lawfulness

37

Police To Consider Charter In Their Assessments

41

Detainee Understood Right To COunsel: s. 10(b)
Not Breached

43

National Library of Canada
Cataloguing in Publication
Data
Main entry under title:
In service: 10-8. -- Vol. 1, no. 1 (June 2001)
Monthly
Title from caption.
“A newsletter devoted to operational police
officers across British Columbia.”
ISSN 1705-5717 = In service, 10-8
1. Police - British Columbia - Periodicals. 2.
Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of
British Columbia. Police Academy. II. Title: In
service, 10-8. III. Title: In service, ten-eight.

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.

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

The 8 dimensions of leadership: DiSC strategies
for becoming a better leader
Jeffrey Sugerman, Mark Scullard, Emma Wilhelm.
San Francisco, CA: Berrett-Koehler Publishers,
c2011.
BF 637 L4 S875 2011
Appreciative inquiry: change at the speed of
imagination.
Jane Magruder Watkins, Bernard Mohr, Ralph Kelly.
San Francisco, CA : Pfeiffer, c2011.
HD 58.8 W388 2011
Coping with post-traumatic stress disorder: a
guide for families.
Cheryl A. Roberts.
Jefferson, N.C. : McFarland & Co., c2011.
RC 552 P67 R63 2011
Educational gameplay and simulation
environments: case studies and lessons learned.
[edited by] David Kaufman, Louise Sauvâe.
Hershey, PA: Information Science Reference, c2010.
LB 1029 G3 E34 2010

PAGE 2

Volume 11 Issue 4 - July/August 2011

AGGRAVATED ASSAULT: NO NEED
TO PROVE INTENTION TO
MAIM, WOUND, OR DISFIGURE
R. v. Nanemahoo, 2011 ABCA 182
A man was on his deck socializing
with family and friends when he saw
three young people running in the
alley near his home. It was about
midnight. He grabbed a golf club
and confronted a group of 10 young people behind
his garage. The group attacked him with razor-like
objects. He was also punched and kicked, which
resulted in significant injuries. His face, head, and
throat were slashed and his left ring finger was cut,
causing tendon damage. Four young people,
including the accused, were apprehended shortly
after the altercation. The accused had blood on one
of his shoes and the victim’s blood on his jacket. He
also had possession of the victim’s golf club, which
also had the victim’s blood on it. An X-Acto-type
blade, partially wrapped in black electrical tape, was
found 1-2 feet from where the accused was
detained. Fibres found on the blade matched fibres
from the accused’s jacket. He was charged with
aggravated assault and two counts of possessing a
weapon.

trial judge erred by requiring proof that the accused
used a weapon or that he personally caused the
specific injuries that wounded, maimed, or
disfigured the victim. The Crown also claimed that
the judge erred in assessing the mens rea needed for
aggravated assault.

Party to the Offence: s. 21 Criminal Code
The Court of Appeal found that the trial judge made
a legal error by requiring proof that the accused
used a weapon and/or personally caused the
particular injuries that resulted in the wounding,
maiming, or disfigurement. This was a group attack
and the party to an offence provisions under s. 21(1)
(b) of the Criminal Code (CC), which states that
“every one is a party to an offence who ... (b) does
or omits to do anything for the purpose of aiding any
person to commit it,” applied. The accused’s actions
made him a party to aggravated assault. He “aided
the actual stabbing by ... removing the golf club
from the complainant, thereby depriving him of
some form of protection,” said the Court of Appeal.
“Furthermore, ... he participated in the actual assault
by kicking the complainant.” Thus, the trial judge
erred in requiring that the Crown prove the accused
used a weapon or personally caused the specific
injuries to the victim.

The accused was found not guilty of the aggravated
Mens Rea
assault charge in the Alberta Court of Queen’s
The judge required that the accused have an
Bench. Instead, he was convicted of the lesser and
intention to wound, maim or
included crime of assault causing
bodily harm, as well as two “There is no requirement of disfigure the victim along with the
objective foresight of the specific
weapon offences. The trial judge
proof of an intention to
wounds resulting from the assault or
found the accused, a willing
maim, wound or disfigure
the knowledge that others had
participant in the mob beating, had
kicked the victim and exacerbated the complainant. At law, the weapons in their possession and
were prepared to use them. This was
his injuries in doing so. However,
same mens rea applies to
a mistake. The trial judge erred in
the judge was not satisfied beyond
aggravated assault as it
a reasonable doubt that the
assessing the mens rea necessary for
accused had used any form of
the
offence of aggravated assault.
does to assault causing
weapon during the assault or that
“The mens rea for aggravated assault
bodily harm. The only
he personally caused the victim’s
is the mens rea for assault
specific injuries.
difference between those
simpliciter plus the objective
foresight
of the risk of bodily harm,”
two offences is the extent
The Crown challenged the trial
said the Court of Appeal. It
of the injuries occasioned
judge’s ruling before the Alberta
continued:
Court of Appeal submitting that the
to the victim.”

PAGE 3

Volume 11 Issue 4 - July/August 2011
There is no requirement of proof of an intention
to maim, wound or disfigure the complainant. At
law, the same mens rea applies to aggravated
assault as it does to assault causing bodily harm.
The only difference between those two offences
is the extent of the injuries occasioned to the
victim. In convicting the [accused] of the lesser
charge of assault causing bodily harm, the trial
judge must have held that the [accused] had the
mens rea as would be required for assault
causing bodily harm which is the same mens rea
as required for aggravated assault.

The accused pled guilty in the Alberta Court of
Queen’s Bench to assault causing bodily harm and
uttering threats to cause bodily harm. He had a
minor criminal record that arose after this incident;
he was convicted and sentenced to breaching a
recognizance and obstructing a peace officer after
the attack but before sentencing on it. The judge
described the kick as “a very severe”, “footballstyled kick” that was intended to, and did, “inflict
serious injury”. The officer was completely
vulnerable to attack while making an arrest and
received no warning of it. The assault was a
“cowardly” and “extremely serious attack on a
police officer” and denunciation and deterrence
became the key sentencing factors.

By virtue of the provisions of section 21(1)(b) of
the Criminal Code, the [Crown] need not show
that the [accused], as a party to the offence, had
any greater mens rea than the actual perpetrator
and in particular need not establish an objective
foresight of the specific wounds resulting from
the assault. [paras. 22-23]

The Crown’s appeal was allowed, the assault causing
bodily harm conviction was vacated, and a finding
of guilt was imposed for aggravated assault. The
matter was sent back to the Alberta Court of Queen’s
Bench for sentencing.
Complete case available at www.albertacourts.ab.ca

DENUNCIATION & DETERRENCE
KEY IN SENTENCING OF ATTACK
ON OFFICER
R. v. Patton, 2011 ABCA 199
After hearing squealing tires and
seeing a car parked halfway into the
road blocking a truck, a school
resource police officer approached
the two vehicles and an altercation
ensued. When the officer was kneeling on the back
of a man he was arresting while using both hands for
handcuffing, the 20-year-old accused kicked the
officer in the side of the head. The officer was
seriously injured from the kick, having to attend a
brain injury program and undergoing eight months
of physiotherapy. The harm he suffered prevented
him from returning to his regular work duties for 16
months after the incident and he continued to suffer
migraines and neck problems.

The Crown sought a global sentence of four to five
years imprisonment, less four months credit for a
Charter breach arising from police misconduct
following the arrest and six months credit for the
time spent in custody. Defence counsel, on the other
hand, suggested a sentence range of between 12 to
18 months, less the 10 months credit proposed by
Crown and a further two months credit for the time
the accused spent in custody after his bail was
revoked. The judge imposed a global sentence of 48
months in jail. He then subtracted 22 months; 12
months for the guilty plea, four months for the
Charter breach, and six months for the time served
before being released on bail. Thus, the accused had
26 months left to serve.
The accused appealed his 48 month sentence
arguing the judge erred by failing to follow similar
precedents and not properly applying relevant
sentencing principles, while also giving undue
weight to aggravating factors and insufficient weight
to mitigating ones. But the Alberta Court of Appeal
disagreed:
๏ The police officer was in a position of extreme
vulnerability when the accused kicked him. The
officer was in the process of securing handcuffs
on another person and was kneeling on or
against the back of that person. He was prone
with his head at perfect level for an effective
kick to it.

PAGE 4

Volume 11 Issue 4 - July/August 2011
๏ The victim was a peace officer executing his
duty. Many high schools have single police
officers attached to them. Those officers are
particularly vulnerable to this sort of attack
because they work alone.
๏ The accused was trespassing at the school for
an unlawful purpose; to enforce his own
concept of vigilante justice. This type of
conduct is why there is a need for police at
high schools.
๏ Assault causing bodily harm is to a degree a
consequence-based offence. The severity of the
harm will normally be a relevant factor in
sentencing. It would be expected that a football
style kick to the head would normally result in
substantial harm to its recipient. Such a kick
has a real risk of causing death with the
potential of a second degree murder or
manslaughter charge.
๏ Denunciation and deterrence are
the prime considerations in
sentencing for this type of
serious offence. This was a
dangerous attack on a vulnerable
police officer acting in the
course his duties.

➡ Role in the offence. The accused’s “role in
the offence could not have been more singular.
He alone kicked the officer in the head. He
went to the school with an illicit purpose in
mind and when the officer intervened, he took
it upon himself to attack the officer.”

➡ Post-offence behaviour. Sitting quietly in the
back of the police car after he was arrested was
not mitigating. “By then he was in handcuffs
and was doing no more than what is expected
of all arrested individuals. Raucous behaviour
in a police cruiser may be aggravating, but
compliance with societal norms is not
mitigating.”
Finally, in rejecting the accused’s argument that the
judge ignored the step principle in fixing an
appropriate sentence, the Court of Appeal stated:

We do not see how that principle is at play in
this case. The [accused] was being sentenced as
a near first time offender. His prior
record was essentially unrelated and
“[I]nterfering with a was minimal. What occurred here is
lawful arrest is not a that a relatively young first time offender
committed a serious, life threatening
form of motivation
assault on a vulnerable police officer
that left that officer with significant
that weighs on the
lasting consequences. First time
mitigating side of the offenders are often treated with leniency
sentencing exercise.” but some first offences can be so serious
as to demand significant incarceration.
This is such a case. [para. 26]

The accused also suggested that the
sentencing judge did not consider a
number of mitigating factors which
should have resulted in a lower sentence. But after
review, the Court of Appeal found this argument was
without merit. Some of the factors the court rejected
as mitigating included:

The accused’s appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

➡ Motivation. Although the accused said he was
concerned about his friend being arrested, this
motivation was ignoble. “Interfering with a
lawful arrest is not a form of motivation that
weighs on the mitigating side of the sentencing
exercise,” said the Court. “It is also impossible
to imagine any other positive motive in the
circumstances of the [accused’s] attack on the
vulnerable officer.“

PAGE 5

“[H]e was a peace officer executing
his duty. Many high schools have
single police
officers attached to them. Those
officers are particularly vulnerable to
this sort of attack because they work
alone.”

Volume 11 Issue 4 - July/August 2011

WATERFIELD TEST JUSTIFIES
WARRANTLESS POLICE ENTRY
R. v. Farrah, 2011 MBCA 49
Two patrons using an ATM located
inside the front entrance of a bank at
11:30 pm were confronted by a man
with a sawed-off shotgun. The robber
was wearing a trench coat and a
toque, and had a scarf over his face. When the
robber was distracted the two patrons fled. As one of
the patrons was driving away, the robber fired the
shotgun at his vehicle. No one was injured but the
vehicle was damaged. A few minutes later a police
tracking dog was summoned to the scene. The dog
picked up a scent, began tracking, and led police to
an apartment building about three blocks away. A
belt, commonly used to tie overcoats, was found
inside the building. The dog went to the second floor
and initially showed interest in suite 16, but then
proceeded to the front door of suite 12. The K9
officer noticed water on the floor in front of suite 16
and saw that the door was ajar. The officer knew that
a gun had been fired and considered that more than
one person might be involved, so he ordered that
both suites be secured in the interests of safety by
clearing them of any persons.
After police entered suite 12 with their guns drawn,
the accused was found hiding under a pile of
clothing in a bedroom. He was handcuffed and
escorted from the suite. In suite 16 police found a
sawed-off double-barreled shotgun in a kitchen
closet, which was big enough for a person to walk
into and hide. One live round and one empty shell
were found in the shotgun and it smelled of burnt
gunpowder, as if it had recently been fired. The
officers also found, behind the main door to suite
16, a trench coat without a belt, a pair of wet
runners, two toques, and a scarf. The belt found
inside the building appeared to match the trench
coat found in the suite. The accused was arrested for
robbery and weapons related offences and read his
rights. The police found keys for suites 12 and 16
when they searched him and he told officers that he
was in the process of moving from suite 16 to suite
12.

At trial in the Manitoba Court of Queen’s Bench the
judge found the warrantless search of suite 16 was
unreasonable and breached the accused’s s. 8
Charter rights. She held that the police had acted
without authority when they searched suite 16
because the search was neither incidental to arrest
nor detention, nor did the 911 call cases apply
because the safety concerns in this case arose not in
response to a 911 call, “but rather from the recent
commission of a crime and the officers’ pursuit of
one or more of the suspects”. In applying the
balancing test in Waterfield/Dedman to determine
whether there was a common law basis for the
search, the judge stated:
While the search was clearly conducted in the
execution of police duties, the issue is whether it
involved a justifiable use of police powers in the
circumstances. That is, a balance must be struck
between the competing interest of the police
duty and the privacy of the individual. In my
view, the common law does not authorize the
police to do what they did here. That is, they
were not justified in entering a private dwelling
house for a purpose connected with the arrest of
a suspect or to apprehend a further suspect
without the subjective belief that there were
grounds for arrest.

The judge found that the police had entered suite 16
for a dual purpose. Not only did they enter to
address public and police safety concerns, but also
for a purpose connected to the accused’s pursuit and
their intention to apprehend any other suspects.
Because the police did not have the subjective belief
that there were grounds for arrest when they entered
the suite, their conduct was not justifiable under
Waterfield/Dedman. Thus, the judge held that
common law police powers did not authorize the
officers to enter suite 16 without the subjective belief
that there were grounds for an arrest. The evidence,
however, was admitted under s. 24(2) and the
accused was convicted of two counts of robbery
with a firearm, possession of a prohibited weapon
with ammunition, possession of a sawed-off shotgun
for a dangerous purpose, disguise with intent, and
mischief under $5,000. He was sentenced to seven
years imprisonment, less pre-sentence custody
credit.

PAGE 6

Volume 11 Issue 4 - July/August 2011
The accused then appealed to the Manitoba Court of
Appeal arguing that the trial judge erred in
excluding the evidence resulting from the Charter
violation. He also appealed his sentence.

Side Bar
Can’t Cut It Both Ways

The Entry
In determining whether there was a s. 8 Charter
breach, all of the surrounding circumstances would
need to be considered. This determination involves a
two-step process:
1) The accused must satisfy the court, on a
balance of probabilities, that he had a
reasonable expectation of privacy with respect
to suite 16. In this case the trial judge found the
accused had established that he had a
reasonable expectation of privacy and the
Court of Appeal accepted this finding.
2) If satisfied that an accused has established a
reasonable expectation of privacy, a court will
then inquire as to whether the search was
reasonable. “Normally, the onus falls on the
accused to prove a Charter violation. However,
because warrantless searches are presumptively
unreasonable, it is the Crown that bears the
burden of establishing, on a balance of
probabilities, that the search was reasonable.
The search will be reasonable if the police are
authorized by law (either through statute or
common law) to conduct the search, if the law
authorizing the search is reasonable and if the
search is conducted in a reasonable manner.”

During a voir dire the accused did not
testify. However, he nonetheless argued
that his s. 8 Charter right had been
breached when the police entered suite 16
without a warrant. To prove a breach of his
s. 8 right, he attempted to establish that he
had a reasonable expectation of privacy in
suite 16 by relying upon police testimony
that he said he was still in the process of
moving from suite 16 to suite 12.
Later, however, the accused took the stand
at trial and testified that, at the time of his
arrest, he had no longer been living at suite
16 and that he had not been there for five
days. He was distancing himself from the
suite to avoid being found in possession of
the gun. In essence, he was saying that he
had no privacy interest in suite 16. This was
contrary to the position he took during the
voir dire. Noting the evidence at the voir
dire departed significantly from the
evidence at trial, Justice Chartier stated:

Justice Chartier, writing the Court of Appeal’s
opinion, recognized that the “sources of legal
authority for police to conduct warrantless searches
will arise through statute or common law.” As for the
common law, it will typically provide lawful
authority for warrantless searches when:
✓ there is consent to the search;
✓ the police come upon evidence in the course of
their duties or unexpectedly in plain view;
✓ the search is incident to arrest;
✓ the search is incident to detention; or
✓ the search is ancillary to the common law
police powers and duties to keep the peace and
preserve life (the Waterfield/Dedman test).

PAGE 7

[T]his contradiction is troublesome. The
concern and unease are clear: an accused
should not be able to successfully argue a
position at a voir dire based upon evidence
of, or from him, and then entirely disavow or
attempt to disavow that position at trial based
upon a change in his evidence. Here, the
position he took regarding a privacy interest
at the voir dire allowed him to obtain a
favourable Charter breach ruling. How can
he then be allowed to withdraw from his
earlier position and argue that he had no
privacy interest in suite 16 and thus cannot
be linked to the shotgun found in that suite?
The maxim quod approbo non reprobo
comes to mind: one cannot approbate and
reprobate at the same time.

Volume 11 Issue 4 - July/August 2011
Noting that “an individual’s dwelling house is
deserving of special protection from police
intrusion,” Justice Chartier found that “any authority
to perform the search conducted by the police
would emanate from ... the ancillary police powers
and duties to keep the public peace and preserve
life, specifically to ensure public and police safety.”
In determining whether the entry and search
amounted to a lawful exercise of their common law
powers (and was therefore authorized by law), the
two-pronged Waterfield/Dedman test had to be
satisfied. The Crown needed to show that:

reason for entry into suite 16, was to address
public and police safety concerns. As a result,
the police entry to address such concerns would
fall within the general scope of the common law
duties of the police.

(1) the search “fell within the general scope of the
duties of a police officer under statute or
common law”, and

As well as the “‘justifiability’ factors, there must be
an evidentiary basis underlying the police safety
concern,” said Justice Chartier. “The police must not
be speculating or acting on a hunch. They must have
reasonable grounds for the concern.”

(2) the “interference with liberty [was] necessary
for the carrying out of the particular police duty
and [was] reasonable, having regard to the
nature of the liberty interfered with and the
importance of the public purpose served by the
interference”.

The second part of the test is whether the
carrying out of that duty was “reasonable,
having regard to the nature of the liberty
interfered with and the importance of the public
purpose served by the interference”. Put another
way, was it a justifiable use of powers associated
with the duty? [references omitted, paras. 37-39]

In this case the Court of Appeal found the forced
entry into the suite was a justifiable use of police
powers to address public and officer safety
concerns.
[T]he information available to the police at the
time of entry into suite 16 was that they were in
“hot pursuit” of a suspect(s) involved in a
robbery at a bank and that a gun had been
discharged. They were aware that there was
possibly more than one suspect. The tracking
dog had led them first to suite 16 and then to
suite 12. An unarmed suspect was found in suite
12. The gun had not yet been located. Their
attention returned to suite 16. It must be
remembered that a live round of ammunition
had already been discharged in the direction of
one of the complainants. I can easily conclude

Justice Chartier ruled that the trial judge “erred in
law by conflating, in her ‘justifiability’ analysis, the
common law police duty to ensure public and
police safety with any ancillary action that may have
been required following the entry (arresting
suspects)”:
In my opinion, whether the police believed they
had grounds to arrest was not determinative of
whether they were justified to enter the suite in
the particular circumstances of this case. What
mattered was first, whether the police action (the
warrantless entry into a dwelling) “fell within the
general scope” of any duty imposed by law or
recognized at common law and second, if it did,
whether that action was in line, in the
circumstances of this case, with the second
prong of the Waterfield/Dedman test.

The justifiability of an officer’s conduct depends on a
number of factors including:

On the first part of the test (whether the search
fell within the general scope of police duties), it
is trite law that the common law powers of the
police include the protection of life and
property. Any number of cases have also
indicated that the police common law duties
includes safety concerns. ... In this case, the
principal duty to be performed, and the main

• the duty being performed,
• the extent to which some interference with
individual liberty is necessitated in order to
perform that duty,
• the importance of the performance of that duty to
the public good,
• the liberty interfered with, and
• the nature and extent of the interference.

Waterfield/Dedman Justifiability Factors

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Volume 11 Issue 4 - July/August 2011

“A legal warrantless entry into a dwelling will often arise in an emergency setting, where it
would be impractical to obtain a warrant because of the fluidity and potential volatility of
the situation ... or the dangerousness of the conditions”
that, on these facts, the police had reasonable
grounds to be concerned for public and officer
safety.
Finally, it must be determined whether the
forced entry into the dwelling to address public
and officer safety concerns was justifiable
considering the totality of the circumstances.
The justifiability analysis is a contextual one
and, for that reason, the circumstances of each
case will inform the validity of the warrantless
search.
Although the police had reasonable grounds for
concern, they had no way of knowing, with
certainty, who or what they would find upon
entry into the suite. They were confronting an
unpredictable and potentially volatile situation
with a real possibility that the safety of the
public or police officers may be imperilled if
time were taken to obtain a warrant. Waiting for
a warrant was simply not a viable option. There
may have been an injured party in that suite, a
hostage may have been taken or an armed
suspect may have suddenly exited the
suite. Immediate action was required to address
these safety concerns. There is considerable
authority on the need for the police to act
quickly when a gun is involved to address the
risk posed to the community and the police.
[references omitted, paras. 42-44]

Additionally, “where extraordinary
circumstances exist (such as a
legitimate cause for concern with
respect to the safety of those at the
scene or of the public generally), ...
the police are permitted to enter the
dwelling without a warrant to
conduct a ‘sweep search’ for other
persons”:
A legal warrantless entry into a
dwelling will often arise in an
emergency setting, where it would
be impractical to obtain a warrant
because of the fluidity and potential

volatility of the situation (in response to 911
calls) or the dangerousness of the conditions (as
in this case, where a shot had been fired and the
police were in pursuit of the suspect). To be
clear, because of the “high value” placed on the
security and privacy of the home, situations
calling for a warrantless non-consensual entry in
a dwelling will be the exception. [reference
omitted, para. 47]

In this case, the trial judge was preoccupied with the
apprehension of suspects (making an arrest) as the
purpose of police entry and their lack of a subjective
belief that there were grounds to do so when they
entered. Instead, the principal reason for entry into
suite 16 was to secure the premises as a result of
public and officer safety concerns, not to make
arrests. Even though the police did make an arrest, it
was ancillary to safety reasons for entry.
The Waterfield/Dedman test had been met and the
entry into and the search of suite 16 was authorized
by law. The manner in which the search was
conducted was also reasonable. It was limited to
what was necessary to meet the ends - clearing the
premises of any immediate threat inside:

The police entered the suite and conducted ... a
search “proportionate to [the] concern” ... The
purpose of the entry and search was to
clear the suite of any persons who may
“[T]here must be an cause harm. In such circumstances, it is
evidentiary basis
reasonable to limit the interference with
the person’s privacy to a search of any
underlying the police part of the suite which might provide a
safety concern. The space for a person to hide. It is
uncontested that that is what occurred
police must not be
here. One of the places searched was a
speculating or acting closet which was large enough to hide a
person. That is where they found the
on a hunch. They
gun. In my view, the search that
must have
occurred here was, in all of the
circumstances, conducted in a
reasonable grounds reasonable manner. [para. 51]

for the concern.”

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Volume 11 Issue 4 - July/August 2011
The accused’s s. 8 rights were not violated. And,
even if the Charter was breached, the evidence was
nonetheless admissible. “Although the expectation
of privacy in one’s dwelling is prima facie high, the
fact that a Charter breach occurred in such a setting
does not inevitably lead to the conclusion that the
admission of evidence would bring the
administration of justice into disrepute,” said Justice
Chartier. He then went applied the three s. 24(2)
lines of inquiry to the trial judge’s analysis:
•

the seriousness of the Charter-infringing state
conduct. The search of suite 16 was an attempt
by the police to ensure public and officer safety
and they acted in good faith. Their conduct was
driven by real, immediate, and understandable
safety concerns. It was not the kind of action a
court needed to distance itself from in order to
protect the integrity of the justice system.

•

the impact of the breach on the Charterprotected interests of the accused. The search
was proportionate to the safety concern. It was
limited and focussed and not particularly
invasive. The suite was almost bare because the
accused had essentially completed his move
from suite 16 to suite 12. Nor was he accused’s
dignity compromised when suite 16 was
cleared.

•

society’s interest in adjudication on the merits.
The gun was reliable evidence and was vital to
the Crown’s case. The exclusion of it would
have a greater negative effect on the repute of
the administration of justice than would its
inclusion.

The accused’s appeal was dismissed.
Complete case available at www.canlii.org
The s. 24 (2) analysis (Grant test) requires the
court to consider:
(1) the seriousness of the Charter breach,
(2) the impact of that breach on the accusedʼs
Charter-protected rights, and
(3) the societal interest in having criminal matters
adjudicated on their merits.
see R. v. Grant, [2009] 2 S.C.R. 353

CHARTER VIOLATIONS CAN’T BE
LOANED
R. v. Schmidt, 2011 ABCA 216
A drug user rented a one-room
apartment in a building known to the
police for violence, drug trafficking,
and gang member activity. He asked
an area patrol officer for assistance in
removing unwanted guests staying at and taking over
his suite. The officer said he would stop by, knock,
and make sure everything was okay. The first time
the officer checked two unwanted guests were found
sleeping in the man’s bed. They were ejected and
banned from the building due to their gang
affiliation and their history of violence, drug use,
and trafficking. A sawed off rifle was also removed
from the residence. The drug user told police he did
not have the courage to tell unwanted guests to
leave and feared that he would suffer physical
violence if he tried to eject them or bar them from
entering. He also feared that he would suffer
physical violence if word got out that he was
cooperating with the police or asking for their
assistance. As a result of those concerns, a safe word
was agreed upon for future conversations that would
indicate the man felt safe to speak openly with
police.
On a subsequent occasion police performed a
routine patrol of the apartment building and stopped
at the man’s suite. When they knocked on the door,
the man opened it and, when prompted, replied that
“friends” of his were in the suite. He then backed
away from the door and waved his arm which the
officers took as an indication for them to enter. That
gesture was understood to mean that there were
unwanted people in the suite. Because the man did
not use the safe word, police were concerned that
these “friends” were unwanted gang members, drug
users, or drug dealers. The suite was fairly dark and
there were four other people in it, including the
accused who was sitting semi-conscious on a bench.
Clothing and bags were strewn about the apartment
and there was drug paraphernalia on a table. The
officer approached the accused to identify him and
saw his hand on the handle of a steak knife that was
resting on a bench. The knife was pointing towards

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Volume 11 Issue 4 - July/August 2011
the officer. The officer was concerned about the
situation escalating into a lethal force encounter
because of the accused’s state and the fact that
police were outnumbered 5 to 2 in the small
confined space of the suite. He grabbed the
accused, pulled him away from the knife, and
pushed him up against the fridge, arresting him for
possessing a weapon. The accused was patted down
and an object was felt in his pocket. The officer
pushed the object up and determined that it was a
shotgun shell. Two to three feet from where the
accused had been seated was a black gym bag lying
open on the floor. Using a flashlight to see inside
and pushing the flaps apart a little bit, the officer
observed a sawed off shotgun (a prohibited firearm).
It was not loaded, but a shotgun shell was found in
the kitchen area which matched the brand and
calibre of the one found in the accused’s pocket.
These shells could be discharged from the sawed-off
shotgun. The accused was also bound by an order
prohibiting him from possessing any firearms or
ammunition.

evidence of consent to search the suite and in
finding that there were grounds to detain and search
him. But these arguments were rejected.

Consent

The Court of Appeal concluded there was sufficient
evidence for the trial judge to determine that the
police had consent to enter and search the
apartment. The trial judge disbelieved the evidence
given by the tenant. Furthermore, “even if the police
officers did not have the consent of the tenant to
enter and search his apartment, their conclusion that
they had his consent was reasonable and means that
they acted in good faith in searching,” said the
Court. This would have been a significant factor in
admitting the evidence under s. 24(2) has a
constitutional violation been found. As well, “a
Charter breach is not something that can be loaned
by one citizen to another. If the police were wrong
in their understanding that they had consent to
search the apartment, that might have been a
Charter breach vis-à-vis the tenant,”
“A Charter breach is not
said the Court. “That breach of the
tenant’s right does not protect the
something that can be
[accused].”

An Alberta Provincial Court
judge found that police had
consent to enter the apartment
loaned by one citizen to
and he did not believe the
tenant’s testimony that the
The Pat-Down Search
another.”
officers were not invited in on
As for the pat-down search, which resulted in the
the day in question. As well, the judge concluded
discovery of the shotgun shell, it was lawful either as
that the accused did not have a reasonable
a search incident to arrest or incident to investigative
expectation of privacy in the apartment in any event.
detention:
Moreover, the judge held that the pat-down search
upon arrest was reasonable because it was done for
The search was conducted after the officer
officer safety reasons as a direct result of observing
observed the [accused] either in a state of sleep
the accused holding a steak knife. No Charter
or near sleep, or of extreme intoxication, with a
breaches were found. The black bag was in plain
knife under his hand. The scenario included
view. It was close to where the accused was sitting
what can only be described as a dark drug den
and a shotgun shell was found in his pocket. The
with several people in a small confined space,
only rational conclusion was that the accused was
all apparently in a stupor of some sort.
aware that the shotgun was in the black bag and that
he had knowledge and possession of it. The accused
The officer believed that the purpose of the knife
was convicted of possessing a prohibited firearm
involved danger to the police or the others in the
with ammunition and two counts of possessing a
apartment. Although the [accused] was not
convicted of the charge that flowed from his
firearm/ammunition contrary to a prohibition order.
having the knife, the standards required for an
arrest and a conviction are substantially
The accused then challenged his conviction to the
different. The officer had the requisite grounds to
Alberta Court of Appeal arguing, in part, that the trial
make an arrest; search of the person incident to
judge erred in finding that there was sufficient

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Volume 11 Issue 4 - July/August 2011

arrest does not result in a Charter breach. In R. v.
Mann ... the Supreme Court held that police
officers who have reasonable grounds to suspect
that an individual is connected to a particular
crime may detain the individual for investigative
purposes, and may also conduct a pat-down
search of the individual for the purposes of
officer safety and the safety of others. That is
exactly what the police did here. ... [paras.
21-22]

THE GROW-OP
•
•

The accused’s appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

•

DEMONSTRATING FORFEITURE’s
DISPROPORTIONALITY RESTS
ON OFFENDER

•

R. v. Trieu, 2011 BCCA 303

•

The police obtained a search warrant
for the accused’s home and found
492 marihuana plants in two
separate rooms. There was evidence
the home was lived in and the
accused was the sole owner of it. He had bought the
house in 2001 for $303,000, of which $193,000 was
secured by a mortgage. The most recent property
assessment valued the home at $665,000. At trial the
accused denied that the marihuana grow operation
was his and that, unknown to him, it was the work
of tenants renting the house. A British Columbia
Provincial Court judge did not believe the accused’s
testimony, concluded that the operation belonged to
him, and entered convictions for unlawfully
producing marihuana and possessing marihuana for
the purpose of trafficking. The judge considered the
size of the marihuana grow operation, its
profitability, the absence of any criminal record, and
the absence of any evidence that a criminal
organization was involved. He found that the impact
of a forfeiture order on the home was not
disproportionate to the factors mentioned in s.
19.1(3) of the Controlled Drugs and Substances Act
(CDSA) and ordered the accused’s entire house
forfeited to the Crown. A 12 month conditional
sentence was also imposed, as was a weapons
prohibition and an order for DNA sampling. He then

•
•

•

•
•

•

•

PAGE 12

medium size grow operation of low to
moderate sophistication;
281 vegetative marihuana plants found in a
downstairs room, all about 20” tall. The
room was equipped with high intensity
lights and fans;
high intensity lights and 211 small
marihuana “clones” or cuttings found in
another downstairs room, all about 1 1/2 “
tall;
many used plant pots with dried soil in them
found in another downstairs room;
another room had been equipped to grow
marihuana but no plants were found there;
the exhaust system of the house furnace had
been disconnected;
21 new high intensity lights, one with the
accused’s fingerprints on it, were found in a
box on the landing of the basement stairs;
two drying marihuana plants were hanging
upside down in the closet of an upstairs
bedrooms. There was also oscillating fan
and a quantity of flexible venting in the
closet;
more light bulbs along with a boxed fan
were in another bedroom;
more high intensity light bulbs along with
the clear plastic tops for the flats in which
the clones are grown were in an upper floor
hallway closet;
there was evidence of tampering with the
electrical system of the house and there
were holes for various attempts at
ventilation throughout the house; and
the assessed value of actual crop $123,500
while the potential annual yield between
$250,000 up to $616,000.

Volume 11 Issue 4 - July/August 2011
challenged the forfeiture order to the British
Columbia Court of Appeal arguing its impact was
disproportionate and that the judge erred in failing
to consider partial forfeiture of the property.
Section 19.1(3) of the CDSA requires a forfeiture
order not be “disproportionate” having regard to the
nature and gravity of the offence, the circumstances
surrounding its commission, and the criminal
record, if any, of the offender. The burden for
demonstrating that an order of forfeiture is
disproportionate, whether full or partial, rests on the
offender. Here, the accused contended, in part, that
a complete forfeiture order was disproportionate and
should be set aside, emphasizing that he was an
immigrant and hardworking family man with no
criminal record. The Crown, on the other hand,
submitted that the forfeiture order was not
disproportionate and the statutory factors set out in
s. 19.1(3) were a complete code. In its view, the
circumstances of the offender, other than his
criminal record, were not to be considered in the
proportionality analysis.
The Court of Appeal found the sentencing judge
properly considered the factors set out in s. 19.1(3).
In agreeing that the order for complete forfeiture was
not disproportionate, taking into account all of the
circumstances, Chief Justice Finch stated:
The [accused] does not have a criminal record
and there is no evidence of any links to
organized crime. However, this was a
commercial grow operation in an urban setting.
The profits from the operation were significant.
Th e p r o p e r t y wa s a l t e r e d i n o r d e r t o
accommodate the grow operation, including
evidence of tampering with the electrical system.
The risk of danger from fire and drug-related
violence was always present. [at para. 19]

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

Note-able Quote
”The right to do something does not mean that
doing it is right.” - William Safire

DEMAND VALID EVEN THOUGH
ASD NOT AVAILABLE
FORTHWITH
R. v. Degiorgio, 2011 ONCA 527
Police received information that
someone was slumped over the
steering wheel of a vehicle stopped
in front of a driveway. Its lights were
on and its motor was running. The
attending police officer approached the vehicle and
observed that the window was down. The accused
was sitting in the driver’s seat. She was alert, her
eyes were glassy, and there was a strong odour of
alcoholic beverage coming from the area of her
mouth. She denied consuming alcohol that day and
said she was tired, having come from her friend’s
house. She also seemed confused about her
whereabouts. The officer concluded that there were
reasonable grounds to suspect that she had alcohol
in her body and he made a demand under s. 254(2)
of the Criminal Code (CC) for a sample of her breath
into an ASD, even though he did not have one with
him. The accused responded, “I am not blowing into
anything”. After requesting she step out of the
vehicle, the officer asked her if she understood the
demand. She said, “Yes, I’m not blowing into
anything”. The officer told the accused that refusing
to comply with the demand was a criminal charge
with the same penalty as impaired driving or driving
over the legal limit and that it would result in an
automatic 90-day driver’s license suspension. He
made it very clear that she was legally required to
provide a breath sample. The officer re-read the
demand and asked the accused if she understood.
Again she responded, “Yes, but I’m not blowing into
anything.” She was arrested for refusing to provide a
sample into an ASD, advised of her right to counsel,
and subsequently released on an appearance notice,
departing in a taxi. She was charged with refusing to
provide a breath sample under s. 254(5).
The Ontario Court of Justice found that the accused
did not have a “reasonable excuse” for not
complying with the demand and she was convicted
of refusing to provide a breath sample, even though
no ASD was available at the scene.

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Volume 11 Issue 4 - July/August 2011
On appeal to the Ontario Superior Court of Justice,
the accused argued that the ASD demand was
invalid as it did not comply with s. 254(2). She
argued that she was under no legal obligation to
provide a breath sample because there was no
evidence that the officer was in a position to
administer the test “forthwith” since he did not have
access to an ASD. The appeal judge disagreed and
held that the offence was complete when the
accused refused to comply with the demand. “[T]he
offence is complete once the demand, which
conforms with the conditions in s. 254(2) reasonable grounds to suspect that a person has
alcohol or drugs in their body and has operated a
motor vehicle or had its care or control within the
preceding three hours - is not complied with,” said
the appeal judge. “If an accused agreed to provide a
sample and one is not taken ‘forthwith’, the sample
cannot be used in evidence. To require the Crown to
prove that a sample can be taken forthwith
whenever an accused has refused to provide a
sample engages a theoretical exercise; whereas, if
the accused complies with the demand and a
sample is not taken forthwith, the Court adjudicates
the actual facts.”
The accused further appealed, this time to the
Ontario Court of Appeal. She again contended that
the “forthwith” requirement mandated by s. 254(2)
did apply to an outright refusal. In her view, a
demand was only valid if the police were in a
position to administer the ASD test forthwith. She
suggested that the forthwith requirement in s. 254(2)
imposed a duty on the police to be in a position to
administer the test, even in the face of a refusal. If
they were not, then the demand was not valid. She
submitted that if the demand was not valid under
254(2), she could not be convicted under s. 254(5).

The demand that was given: I demand
that you provide a suitable sample of
your breath directly into an approved
screening device forthwith to enable a
proper analysis of your breath to be
made and that you accompany me for
the purpose of enabling a sample to be
taken. Do you understand?

s. 254 of the Criminal Code
Justice Laforme, writing the Court of Appeal’s
opinion, first considered s. 254 as a whole:
•

•

•

•

•

•

•

•

PAGE 14

Parliament created a two-step detection and
enforcement procedure that necessarily
interferes with rights and freedoms guaranteed
by the Charter, but only in a manner that is
reasonably necessary to protect the public’s
interest in keeping impaired drivers off the
road.
s. 254(2)(b) authorizes peace officers, on
reasonable suspicion of alcohol consumption,
to require drivers to provide breath samples for
testing on an ASD. These screening tests, at or
near the roadside, determine whether more
conclusive testing is warranted.
s. 254(3) allows peace officers having the
requisite reasonable and probable grounds to
demand breath samples for a more conclusive
breathalyzer analysis.
Breathalyzers determine precisely the alcohol
concentration in a person’s blood and thus
permit peace officers to ascertain whether the
alcohol level of the detained driver exceeds the
legal limit. Breathalyzer results can provide the
police with evidence to charge the motorist
with driving offences such as s. 253(b) – over
80mg%.
The admissibility of breathalyzer results can
depend on whether the police had the requisite
grounds to make the demand. Sometimes the
only evidence of reasonable and probable
grounds for the breathalyzer demand is the
ASD results obtained by the police.
There are two ways in which an ASD breath
sample can be legally obtained: (i) by way of a
valid demand under s. 254(2 or (ii) voluntarily.
s. 254(5) provides that “[e]veryone commits an
offence who, without reasonable excuse, fails
or refuses to comply with a demand made
under this section.”
“Forthwith” means “immediately” or “without
delay”. The “forthwith” requirement in s. 254(2)
allows for its constitutional integrity. If it were
not for the immediacy requirement, s. 254(2)
would violate ss. 8, 9 and 10 of the Charter.

Volume 11 Issue 4 - July/August 2011
The “forthwith” requirement is a corollary of
the fact that there is no opportunity for contact
with counsel prior to compliance with the ASD
demand. Both the police demand and the
driver’s response must be “forthwith” or
immediate; the requirement is for “a prompt
demand by the peace officer, and an immediate
response by the person to whom that demand is
addressed”
In rejecting the accused’s argument that an ASD
must be available “forthwith” in order for a demand
to be valid, Justice Laforme found that neither the
text of ss. 254(2) or (5) or the cases that have
considered these provisions supported this view:

BY THE BOOK:
ASD Demand: Criminal Code
s. 254(2)(b) If a peace officer has reasonable
grounds to suspect that a person has alcohol ...
in their body and that the person has, within
the preceding three hours, operated a motor
vehicle ... the police officer may, by demand, require the
person... (b) to provide forthwith a sample of breath that, in
the peace officer’s opinion, will enable a proper analysis to
be made by means of an approved screening device and, if

The meaning to be given to s. 254(5) must be
i n f o r m e d by i t s p u r p o s e . Th e s e c t i o n
criminalizes a refusal to provide potentially
incriminating evidence. In doing so, it provides
the police with a powerful tool in their efforts to
curtail, investigate and prosecute drinking and
driving related offences. The deaths and
substantial societal costs associated with
drinking and driving fully justify the existence of
this extraordinary criminal offence.

necessary, to accompany the peace officer for that purpose.
.........
s. 254(5) Everyone commits an offence who, without
reasonable excuse, fails or refuses to comply with the
demand made under this section.

with his or her obligation to take the sample
“forthwith”. Nor can I understand why, as a
matter of criminal law policy, a driver who has
unequivocally refused to forthwith provide a
breath sample should escape criminal
responsibility for that refusal based on events
subsequent and totally unrelated to the refusal.
How is the culpability of the person who refuses
to comply with a demand reduced because, as
events may have developed, the officer may not
have been able to take the sample forthwith?

The conduct criminalized by s. 254(2) consists of
a proper s. 254(2) demand and an unequivocal
refusal to comply with that demand. The offence
is completed when the refusal is given. There is
nothing in the language of s. 254(2) that would
require the Crown to prove that had the driver
not refused to provide the sample, the
demanding police officer could have complied

s.254 - a two-step detection & enforcement procedure
Step One

Step Two

Demand section

s. 254 (2)

s. 254 (3)

Test type

screening test

conclusive test

Triggering threshold

reasonable suspicion

reasonable grounds to believe

Means of testing

approved screening device (ASD)

approved instrument (breathalyzer)

Purpose

to determine whether more conclusive testing is
warranted

to determine precisely the alcohol concentration in a person’s
blood

Evidentiary value

ASD results can provide the reasonable
grounds needed for the breathalyzer demand

can provide the evidence to charge the motorist with s.
253(b) – over 80 mg%

s. 10 (b) Charter

suspended if sample taken forthwith

informational and implementational components applicable

PAGE 15

Volume 11 Issue 4 - July/August 2011
effectively suspended by operation of s. 1 of the
Charter for the time period captured by the
requirement that the sample be taken
“forthwith”. If the demand is made and the
sample provided within the forthwith window
of time, the Charter is not breached. If,
however, the forthwith window expires, then
the taking of a sample without first providing
the detainee an opportunity to contact counsel
is an infringement of s. 10(b) that cannot be
saved by s. 1.

I read the text itself of s. 254(5) as requiring the
Crown to prove the following constituent
elements of the offence:
1. The preconditions set out in s. 254(2);
2. A demand that the individual “provide
forthwith a sample of breath”;
3. The individual of whom the demand was
made understood the demand;
4. The individual refused to comply with that
demand; and
5. The individual did not have a reasonable
excuse for failing to comply with the demand.
[reference omitted, paras. 41-43]

•

“Forthwith”
Justice Laforme also considered a number of points
in determining whether the demand was valid only if
the officer was in a position to administer the test
forthwith:
•

The “forthwith” period is the time
in which Charter rights are
justifiably infringed, i.e. the time
in which a detained person can be
required to comply with an ASD
demand and the time in which a
person’s response to that demand
– be it blowing and registering a
Fail, or be it refusing or failing to
blow – can incur criminal liability
that is unaffected by the Charter.

If the demand is otherwise proper and the
outright refusal occurs during the “forthwith”
timeframe (as in this case), the accused’s 10(b)
rights are not engaged and cannot affect the
accused’s liability under s. 254(5). If, however,
the refusal is made outside of the “forthwith”
timeframe it will engage Charter rights such as
when a refusal does not immediately follow the
demand but instead the driver refuses only
when presented with the ASD.

“There is no
requirement that a
police officer have a
reasonable belief
that he or she could
‘make the demand
good’ at the time it is
made.... [N]either is
there a requirement
for the Crown to
prove that the police
could have made the
demand good (i.e.
that an ASD would
have been available)
within the ‘forthwith’
period.”

•

What would otherwise be an
impermissible violation of Charter
rights is rendered justifiable
because of the “forthwith”
requirement.

•

The question to be decided is
whether the police were in a
position to receive into an ASD
the breath sample the suspect was
prepared to provide – or had not
refused to provide – during the
period of time that no realistic
opportunity to consult counsel
existed, i.e. “forthwith”.

•

The right to counsel is triggered upon detention
at the roadside. That right is, however,

The Court of Appeal found the Crown
does not have to prove that the sample
could in fact have been taken in
accordance with the provisions of the
Criminal Code to secure a conviction
on a charge of refusing to comply with
the demand. “There is no requirement
that a police officer have a reasonable
belief that he or she could ‘make the
demand good’ at the time it is made,”
said Justice Laforme. “[N]either is there
a requirement for the Crown to prove
that the police could have made the
demand good (i.e. that an ASD would
have been available) within the
“forthwith” period. Such a requirement
is not apparent from the text or purpose
of the provision; neither can it be
necessitated by Charter considerations,
because during the ‘forthwith’ period
any such considerations are validly
suspended under s. 1.” A police officer’s
ability to actually take the sample in
accordance with the demand is not
relevant to culpability on a charge of refusing to
provide the sample:

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Volume 11 Issue 4 - July/August 2011
The offence created by s. 254(2) is complete
upon the refusal. In the face of such a refusal,
the police are not obliged to carry on as if there
had been no refusal and the court is not obliged
to speculate as to what might have happened
had the police officer carried on. The offence is
complete upon proof that the preconditions to
the demand in s. 254(2) existed, the officer
demanded a sample “forthwith”, and the
[accused] unequivocally refused, without any
reasonable excuse, to provide that
sample. [para. 65]

Footnote Word of Caution: The Ontario Court of

Appeal noted that an officer making a demand but
never intending to actually take a sample, instead
hoping that the driver would refuse so that the driver
could be charged with refusing to provide a sample,
would raise significant abuse of process concerns.

POLICE ACTION A DYNAMIC
PROCESS: NOT TO BE OVER
ANALYZED BY PARSING EVENTS
INTO STATIC MOMENTS

And further:

R. v. Amofa, 2011 ONCA 368

[T]here are two scenarios that are contemplated
involving ss. 254(2) and (5). The first is a
demand and the legitimacy of the process
thereafter of the motorist’s providing selfincriminating evidence of an offence; the second
is a demand and a refusal or failure to comply.
In the first scenario, both the police demand and
the driver’s compliance must be accomplished
“forthwith” or immediately. That is to say, the
police officer must be able to receive the breath
sample, which the person has agreed to provide
or has not refused to provide, before there is any
realistic opportunity for the detained person to
consult counsel.
In the second scenario, where there has been an
outright refusal to provide a breath sample, the
offence is made out if the demand was properly
made. The Crown is not required to establish
that the ASD was present at the scene, or that it
could have been present at the scene within the
“forthwith” period. [paras. 67-69]

In this case, the accused immediately and
unequivocally refused on three occasions to provide
the sample despite being told of the potential penal
consequences. She clearly understood that she was
required to provide the sample then and there. The
police did not have to continue with the process of
locating or deploying an ASD at the scene. The
accused’s appeal was dismissed and her conviction
for refusing to provide a breath sample was upheld.
Complete case available at www.ontariocourts.on.ca

Two plain clothed police officers
were on duty to observe and
investigate people loitering in the
Toronto Transit Commission’s (TTC)
Warden subway station as part of a
broader police initiative, the Robbery Reduction
Program. This program was in response to a number
of recent swarming incidents in subway stations
involving groups of youths surrounding, threatening
and/or assaulting victims, and forcing them to give
up possessions. The Warden TTC station was
identified by police as a high risk area for crime.
There had been robberies and shootings in the
past. The two officers observed the accused and
another young man at the top of the stairs leading
down to a bus bay at the station. They were blocking
the flow of passengers walking from the mezzanine
to the bus platform. At the same time they appeared
to be making no effort to board a bus; two buses
came and went during the period of police
observation. The officers formed the opinion that the
two men were loitering. After about 20 minutes the
men left the stairs and entered a small “to go”
bakery on the mezzanine level. One at a time,
taking turns, they would leave the bakery, look
around outside, and then return. Police thought that
the two men were looking for particular people and
were concerned that their conduct might be leading
towards something serious, such as a robbery,
mugging, or something similar.
The two officers approached the accused and the
other man in the bakery, identified themselves as
police, and told them they were being investigated

PAGE 17

Volume 11 Issue 4 - July/August 2011
under Ontario’s Trespass to Property Act (TPA) for
loitering on TTC property. They cooperated by
identifying themselves and producing valid drivers’
licences. An officer wanted to conduct a “pat down”
search for safety reasons. The accused was advised
that he was being investigated for an arrestable
offence. He was told that he was not under arrest,
but that the officer would like to search him. The
accused responded by saying, “No, I’ll search
myself.” He pulled some harmless objects out of his
pockets and returned his hands to them, refusing to
put his hands out where they could be seen. He said
he did not want to be searched because he had not
done anything. As he was speaking, the accused did
not face the officer directly. Instead, he “bladed” his
body - police jargon for hiding or obscuring
something. The accused was then arrested for
trespassing. He resisted and attempted to escape, but
was prevented from doing so and a violent struggle
ensued. After backup arrived the accused was
subdued, searched, and a loaded .45 calibre semiautomatic handgun was found in the waistband of
his pants.
At trial in the Ontario Court of Justice the judge
found that the two men were detained while being
questioned. However, the detention was not
arbitrary because the police had a reasonable belief
that the men were loitering and they were entitled to
question them. The search was lawful and the
accused was convicted of possessing a loaded,
unauthorized, and restricted firearm under s. 95(1)
of the Criminal Code.

truly incidental to his arrest nor to an investigative
detention. Instead, he contended that the arrest was
incidental to the search and therefore the search was
illegal. The Ontario Court of Appeal, however,
rejected these arguments:
1. “There was nothing arbitrary or improper in the
police surveillance of the subway station or in
the arrest,” said Justice Blair, speaking for the
unanimous Appeal Court. He continued:
The Robbery Reduction Program was well
within the scope of the duty of the police to
protect the public. I see nothing inherently
objectionable in the police monitoring the
subway station for suspicious-looking
people – given the history of criminal
incidents there, at any rate – and invoking
the power to investigate and arrest under
provincial trespass legislation were the
factual circumstances existed to underpin
such action, as they did here. The power to
investigate and arrest under provincial
trespass legislation is not being abused, or
used as a pretext, where the police have the
necessary grounds in the circumstances to
resort to them. [para. 15]

2. The officers had more than ample grounds to
investigate, detain, and arrest the accused for
loitering under the TPA:

The accused appealed his conviction to the Ontario
Court of Appeal arguing his Charter rights were
violated in the course of the investigative detention
and arrest, and that the trial judge erred in failing to
exclude the firearm under s. 24(2) of the Charter. He
suggested that the police conducted an arrest
incidental to a search rather than a search incidental
to arrest. In his view, the Robbery Reduction
Program was illegal because it formed part of an
overall police strategy that amounted to monitoring
sites for suspicious-looking people and invoking the
power to investigate and arrest under provincial
trespass legislation as a pretext to search them. He
submitted that the search of the accused was not

PAGE 18

The flow of the investigative detention, the
arrest and the search was a dynamic
process. Section 8 analyses ought not to be
reduced to an over-analytical parsing of
events into static moments without practical
regard for the overall picture.
[The officer] had reasonable and probable
grounds to arrest the [accused] when he ...
first approached the two men, but exercised
restraint instead and chose not to do
so. Although [the accused’s lawyer] submits
that the power to search incidental to arrest
is not automatically triggered by arrest, he
conceded that if [the officer] had arrested
the [accused] at this time he could have
performed a non-intrusive pat-down search
of the [accused]. In my view, the fact that
the [accused] remained under investigative

Volume 11 Issue 4 - July/August 2011

detention at that point in time did not alter
this prerogative. [paras. 19-20]

And further:

of the continuum of conduct from the time
[the officer] told the [accused] he “was
going to search him” until the physical
search was completed, is of little
significance. The search
“The flow of the investigative was justified on either
interpretation in the
detention, the arrest and the circumstances. [paras.
23-26]
search was a dynamic

The officers were properly safetycautious in the circumstances. They
were rightly concerned about the
prospect of potential danger, given
the underpinnings of the Robbery
process. Section 8 analyses The search process was
Reduction Program itself, the history
lawful and did not violate
ought not to be reduced to
of violence at that particular subway
station, and their observations of the an over-analytical parsing of the accused’s s. 8 rights.
However, even if there was
two men on the stairway and at the
events into static moments
bakery. [The officer] therefore had
a s. 8 violation, it was of a
“reasonable grounds to believe that
without practical regard for very minor nature, the
his ... safety or that of others [was] at
breach was slight, and the
the overall picture.”
risk” in the circumstances and he
evidence was nonetheless
would have been justified in
admissible under s. 24(2).
conducting a pat-down search at the point
If the grounds to conduct a search were insufficient,
of investigative detention.
they were not missing by much. The loaded firearm
was real evidence and was essential to the Crown’s
But he did not conduct a physical search at
case. The circumstances as a whole strongly
that time. Instead, the situation continued to
favoured inclusion of the evidence. The accused’s
evolve.
appeal was dismissed.
There is a continuum of conduct to
Complete case available at www.ontariocourts.on.ca
consider here. It started with the officer’s
telling the [accused] that the officer was
going to search him. It then continued
through the [accused’s] efforts to avoid a
search by the officer, the arrest, the
attempted escape and the ultimate retrieval
of the weapon – all as outlined in more
detail above.
Power of Arrest: Ontario’s TPA

BY THE BOOK:

In my opinion, [the officer] had reasonable
grounds to arrest the [accused] when he
first told the [accused] that he was being
investigated for an arrestable offence but
was not then being arrested, and the actual
arrest that occurred a few moments
later. Thus, the grounds to arrest for
trespassing continued to exist. The arrest
was lawful and the circumstances outlined
above amply justified a search incidental to
that arrest – even if one assumes (as I do
not) that there were not sufficient grounds
to conduct a search incidental to the
original investigative detention. Whether
the “search” consisted of the physical patdown exercise itself, or whether it consisted

Arrest without warrant on premises
s. 9(1) A police officer, or the occupier of
premises, or a person authorized by the
occupier may arrest without warrant any
person he or she believes on reasonable
and probable grounds to be on the premises in
contravention of section 2.

Note-able Quote
“If you have integrity, nothing else matters. If you
don't have integrity, nothing else matters.” - Alan
Simpson

PAGE 19

Volume 11 Issue 4 - July/August 2011

DOCTRINE OF SEVERABILITY
SAVES WIRETAP
AUTHORIZATION

assist in the investigation of drug-related
offences. The terms of those two authorizations
are identical in all respects, e.g., who could be
intercepted and where those interceptions could
be made. Accordingly, as long as there was a
basis for granting one of those authorizations,
interceptions made pursuant to the formal order
were lawful. [para. 27]

R. v. Ahmed, 2011 BCCA 254
Agents designated by the Attorney
General of British Columbia and the
Solicitor General of Canada jointly
made an application for a wiretap
authorization under s. 186 of the
Criminal Code in relation to the investigation of
firearm and drug related offences. The authorization
perm itt ed the po lice t o i n t e rc e p t pr iva t e
communications at various places, including cellular
telephone calls. The primary targets of the
authorization were the accused and three other
men, two from Pakistan. The firearms offences
involved efforts to acquire a large cache of
automatic weapons while the drug-related offences
involved the ongoing importation and distribution of
heroin.
In British Columbia Supreme Court the accused
accepted that the sworn affidavit filed in support of
the authorization satisfied the reasonable grounds
requirement for the drug-related offences. But he
suggested that it failed to satisfy the reasonable
grounds requirement for the firearms offences. The
judge rejected this argument and upheld the
authorization, finding the police had met the
reasonable grounds requirement for both the drug
and firearms offences.
The accused renewed his objection to the validity of
the authorization before the British Columbia Court
of Appeal and sought an order quashing his
convictions and directing acquittals, or at least a
new trial. The Court of Appeal, however, did not find
it necessary to decide whether the authorization was
properly issued with respect to the firearms offences
because the doctrine of severability applied:

Since the drug-related parts of the authorization
could be separated from the firearm-offence related
parts, the order could be divided. The valid drugrelated portion was preserved, which then formed
the basis for the authorization. The interceptions
made under the valid drug-related portion were
therefore admissible.
The accused had also contended that the
investigative-necessity requirement for the
authorization was not met and that it was
prematurely granted. Under s. 186(1)(b) a judge can
only grant an authorization if satisfied “that other
investigative procedures have been tried and have
failed, other investigative procedures are unlikely to
succeed or the urgency of the matter is such that it
would be impractical to carry out the investigation
of the offence using only other investigative
procedures.” In the accused’s view, the police
informer’s and/or DEA agents one-party consent,
coupled with surveillance and other techniques, was
a practical alternative at that stage of the
investigative process. But Justice Frankel noted that
the investigative necessity requirement must be
assessed from a practical perspective, having regard
to the objectives of the investigation:

In the case at bar, there were, in effect, two
separate authorizations granted within one
formal order: one at the request of the Attorney
General of British Columbia to assist in the
investigation of firearms offences; the other at
the request of the Solicitor General of Canada to

... “There must be, practically speaking, no other
reasonable alternative method of investigation,
in the circumstances of the particular criminal
inquiry.” (Emphasis in original.) Further, and of
importance, is the fact that this requirement is to
be considered having regard to the investigation
as a whole, and not just with respect to those
named as the targets of the authorization.
In this case, there were reasonable grounds to
believe that [the accused] and others in Canada
were involved in an international heroindistribution scheme and that the interception of
private communications would assist in the
investigation of their activities. As the trial judge

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Volume 11 Issue 4 - July/August 2011
observed, [the accused’s] imminent meeting
with an undercover D.E.A. agent presented the
police with “a unique opportunity to gather
evidence from discussions which might be
generated from that meeting.” The interception
of those discussions would likely result in the
police determining who was involved in that
scheme and how they operated. From a practical
perspective, there was no other reasonable
alternative method of pursuing the investigation
of those criminal activities in a meaningful
way. ... [O]ther investigative procedures alone
were unlikely to provide evidence as to the full
extent of the drug-related activities of not only
[the accused], but also those who worked with
him, and those who supplied the drugs.
[references omitted, paras. 31-32]

Crown never called the first officer on scene nor the
ambulance attendants to testify.
The Crown appealed, submitting before the New
Brunswick Court of Appeal that the judge failed to
consider the accused’s statement that was made to a
police officer at the scene. When he was asked what
time the accident occurred the accused replied,
“You were there ten minutes after it happened,”. But
this statement was inconclusive because other
Crown evidence demonstrated that it could not be
taken literally. The evidence suggested that the
police likely arrived more than 10 minutes after the
accident. Furthermore, how the accused assessed
the 10 minute delay between the accident and
police arrival was unknown. The accused’s appeal
was dismissed.

The accused’s appeal was dismissed.

Complete case available at www.canlii.org

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

CROWN MUST ESTABLISH TWO
HOUR WINDOW FOR
PRESUMPTION TO APPLY
R. v. Corey, 2011 NBCA 6
After drinking some alcohol with
others, the accused lost control of his
truck and left the roadway, coming to
rest in a roadside ditch. One of his
passengers was injured. At some
point, the vehicle’s OnStar system reported the
accident to police. Police attended, demanded,and
obtained two breath samples, both over 80mg %.
The accused was charged with impaired driving
causing bodily harm and causing an accident
resulting in bodily harm while over 80 mg %.
At trial in New Brunswick Provincial Court the
accused was acquitted. The Crown’s success hinged
upon the evidence of the breathalyzer results and
their relation back to the time of the offence by
application of the statutory presumption of
equivalency found in s. 258(1)(d) of the Criminal
Code. The trial judge found the Crown failed to
discharge its burden of establishing beyond a
reasonable doubt that the first breath sample was
taken no later than two hours after the offence. The

Editor’s note: Remember, in order to give the
breathalyzer demand under s. 254(3) of the Criminal
Code, a police officer only need formulate their
demand within three hours of the alleged driving.
The standard for the breath demand is reasonable
grounds. The two hour statutory presumption of
equivalency provided by s. 258(1)(d), however, is
triggered when the Crown establishes that the first
breath sample was taken within two hours of the
alleged driving. The standard for this is proof beyond
a reasonable doubt.

PRIOR SEX CONVICTION
MANDATES LIFE LONG ORDER
R. v. Baisley, 2011 NBCA 33

The accused pled guilty in New
Brunswick Provincial Court to
sexual assault under s. 271(1)(a) of
the Criminal Code. Although the
accused had two prior convictions
for sexual assault under s. 271, the sentencing judge
ordered under s. 490.012 of the Criminal Code that
he comply with the registration requirements of the
Sex Offender Information Registration Act for only
20 years, not life.
The Crown’s appeal to the New Brunswick Court of
Appeal that the order should have been for life was

PAGE 21

Volume 11 Issue 4 - July/August 2011
successful. “The wording of s. 490.012(3) and s.
490.013(5) is clear and unambiguous, as is the
inclusion of sexual assault (s. 271) as a designated
offence under s. 490.011(1),” said the Court of
Appeal. “The trial judge judge had no authority to
order that the duration be for any term other than
life.”
Complete case available at www.canlii.org

SEARCH WARRANT LAWFULLY
OBTAINED: $1.3 M LAWSUIT SET
ASIDE
Neumann v. Canada, 2011 BCCA 313

The plaintiff then sued the CRA in British Columbia
Supreme Court alleging it had negligently obtained
the search warrant and had violated his Charter
rights in the search of his home. He testified he was
humiliated by the search and that neighbours
witnessing the police at his house did not accept his
explanation that the CRA was investigating someone
else. He also said that he could not get over the
effect the search had on him mentally or physically
and that his business and many other aspects of his
life had suffered. A psychiatrist testified that the
plaintiff was traumatized from the shock of the
unannounced search and was experiencing
depression and post traumatic stress disorder, which
would not have occurred if advance notice of the
search had been given. The plaintiff argued that s. 8
of the Charter imposed a duty on the investigator to
minimize the intrusiveness of any search undertaken
in the course of an investigation and that the CRA
investigator negligently failed to do so when he
sought and obtained the search warrant. The CRA
investigator, on the other hand, said that a search
warrant would give more assurance at getting all of
the sought after documents, rather than simply
asking for them (voluntary consent), or obtaining a
production order, due to the relationship between
the plaintiff and the investigation’s target.

The plaintiff was the principal of a
company that bought and sold used
mining and construction equipment.
His private residence was the
registered office of the company. He
used a room on the second floor for that purpose. A
person receiving over $400,000 in commissions
from the plaintiff on the sale of heavy machinery
became the target of a Canada Revenue Agency
(CRA) investigation for tax evasion. Neither the
plaintiff nor his business were targets of the
investigation. A criminal investigator for the CRA
obtained a warrant to search the plaintiff’s house for
The British Columbia Supreme
the purpose of locating and seizing
Court judge concluded that the
cheques and other business “The arrival of police officers CRA agents owed a duty of care to
documents related to the CRA
the plaintiff in this search by tax
at one’s home armed with a
target. At 9:00 am CRA officials,
investigators. A jury found that
warrant to search is
along with two armed police
CRA employees infringed the
officers to keep the peace, rang the
doubtless an upsetting and
plaintiff’s s. 8 Charter rights and
doorbell. The plaintiff answered
had
negligently obtained and
frightening event for anyone
and was advised of the warrant.
executed the search warrant. The
who experiences it.”
He was told that he was not the
judge awarded the plaintiff
subject of the investigation. Some
$1,300,000.
files were downloaded from his office computer and
he was also asked to produce other documentation
The Attorney General of Canada and the CRA
from files stored in his basement. One of the police
appealed the verdict to the British Columbia Court
officers left between 10:00-10:30 am, a couple of
of Appeal. Justice Ryan, speaking for the Court of
the searchers left at 11:30 am, and by noon
Appeal, found there was no evidence that the search
everyone was gone except two CRA employees who
warrant was improperly obtained or executed nor
asked the plaintiff for a written statement. They left a
any evidence of negligence or a Charter breach.
half hour later.
“The arrival of police officers at one’s home armed
with a warrant to search is doubtless an upsetting

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Volume 11 Issue 4 - July/August 2011
and frightening event for anyone who experiences
s. 8 Charter Breach
it,” she said. “That said, the search warrant is an
important and accepted enforcement tool utilized by
The Court of Appeal found that the search warrant
those charged with investigating crime. If a search
was justified and therefore there was no Charter
warrant is lawfully obtained and
b r e a ch . “A s e a rch wh i ch i s
executed, those subjected to it
conducted
under a valid warrant
“[T]he search warrant is
cannot seek compensation for its
must be said to be a reasonable
an important and accepted search unless the search itself is
unintended repercussions.”
conducted unreasonably,” said
enforcement tool utilized
Negligent Investigation
Justice Ryan. The fact that CRA
by those charged with
agents were accompanied by two
investigating crime. If a
Th e l a w r e c o g n i z e s t h a t a n
uniformed and armed police
investigating police officer owes a
officers
did not render the manner
search warrant is lawfully
duty of care to a suspect in the
in which the search was conducted
obtained and executed,
course of an investigation. The
unreasonable. “Police are asked to
standard of this duty of care is the
those subjected to it
accompany CRA agents in order to
standard of a reasonable police
keep
peace. In this case, as it
cannot seek compensation
officer in like circumstances. But in
turned out, there was no trouble
for its unintended
this case the plaintiff was not a
that the police needed to deal with.
suspect; he was a third party.
[ Th e p l a i n t i f f ] a c c e p t e d t h e
repercussions.”
Assuming that the trial judge was
authority of the warrant and was
correct in holding that the CRA had a duty to the
co-operative. Not long into the search the officers
plaintiff in carrying out the least intrusive search in
left the premises. Nothing in these events could be
the circumstances (an issue the Court of Appeal left
said to make the search unreasonable.” Nor did
for another day), the search was reasonable. The
investigators unnecessarily intrude into other places
investigator chose to obtain a search warrant, rather
within the plaintiff’s home. They searched in only
than relying on other investigative alternatives,
two places where company records were kept and
because of the close relationship that may have
no other part of the house was searched. There was
existed between the target of the
no evidence to support a claim
investigation and the plaintiff. The
“A search which is conducted
of an unreasonable search and
investigator could not be sure that
the issue should not have been
under a valid warrant must be
the plaintiff would produce all of
left with the jury.
said to be a reasonable search
the records pertaining to the
commissions paid if simply asked.
The finding of negligence and
unless the search itself is
And it didn’t matter whether the
the Charter breach were set
conducted unreasonably”
investigator actually held this belief
a s i d e a n d t h e c a s e wa s
at the time he sought the search
dismissed.
warrant, or whether he was simply justifying his
Complete case available at www.courts.gov.bc.ca
actions at the time of trial. “The question is whether
a reasonable investigator, knowing what [the
Note-able Quote
investigator in this case] knew, would have
concluded that a search warrant was necessary in
“My grandfather once told me that there are two
this case,” said Justice Ryan. “In my view, it would
kinds of people: those who work and those who
have been open to an investigator to reach that
take the credit. He told me to try to be in the first
conclusion. In fact, one might argue that the
group; there was less competition there.” - Indira
investigator would have failed in his duties to his
Gandhi
employer to do otherwise.”

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Volume 11 Issue 4 - July/August 2011

CHARTER RIGHTS ARE
PERSONAL

FACTORS THE OFFICER SAID
GROUNDED HIS SUSPICION

R. v. Ramos, 2011 SKCA 63
Police stopped a Jeep for speeding. It
was clocked on radar travelling at
150 km/h in a 110 km/h zone. The
officer advised the male driver that
he had been travelling a little quickly.
There were two other occupants. A female passenger
was in the front seat and the accused, a female
passenger, was in the back of the vehicle lying on
top of a blanket. The officer told the accused that she
should be wearing a seatbelt, but she did not react.
After making several observations, the officer
considered a number of factors which in his
experience led him to have a reasonable suspicion
of drug trafficking. However, there was no source
information, no tips, no anonymous information, no
electronic surveillance, or no other police
information suggesting a drug offence. About 10 to
12 minutes after the initial stop, the officer advised
the driver he was being detained for transporting a
controlled substance and that he was not free to go.
He was informed of his right to contact a lawyer and
also given the police warning. The passengers,
however, were not apprised of the situation and
remained in the Jeep. A police dog was run around
the vehicle’s exterior and it made a positive
indication, sitting at the rear of the Jeep.
After considering his observations and the dog’s
response, the officer believed that there were drugs
in the vehicle and all three occupants were arrested
for drug trafficking. The vehicle was then searched
and an after-market compartment was discovered in
the rear cargo area beneath where the accused was
laying at the time the vehicle was initially stopped.
The compartment was operated by two electronic
locks and a hydraulic lift. Inside the compartment
was a bag with two bricks of cocaine, each weighing
just over one kilogram. A black and white purse
containing the accused’s identification and a camera
was located in the vehicle. The purse, which had
been held in police custody, was searched again 11
days after the arrest. In it, a telescopic automotive
magnet was found that could be used to open the
after-market compartment. The accused was charged

(1) The driver was operating a third party vehicle. In the officer’s
experience and drug enforcement training, he was aware that
couriers often use third party vehicles. The driver had a shocked
look on his face when asked who the vehicle belonged to and
stated that it was not his vehicle. When asked for the car
registration, the driver responded that it was not his rather than
producing the registration. In the officer’s experience, people
transporting drugs try to distance themselves in this way from
the vehicle and its contents.
(2) The officer believed that the driver did not know in whose name
the vehicle was registered. He believed the driver was reading
the registration to confirm who the vehicle belonged to, although
he said the vehicle was owned by Tran. The officer felt that this
behaviour was consistent with the use of a third party vehicle to
transport drugs and not the innocent motoring public.
(3) The driver was nervous and continued to be nervous as the
stop continued contrary to innocent members of the motoring
public who are only nervous initially when stopped by the police.
In the officer’s experience, drug couriers continue to be nervous
until the drugs are found and then there is a de-escalation in
their display of nervousness.
(4) Sleeping blankets and pillows in the vehicle suggested that the
occupants of the vehicle were spending extended periods of
time in the vehicle and possibly rotating drivers. In the officer’s
experience, drug traffickers want to get from point A to point B
as soon as possible to minimize the risk of contact with law
enforcement and also do not want to stay in hotels because
they do not want to leave the drugs unprotected.
(5) The passenger (accused) lying in the vehicle made little eye
contact and no attempt to correct her seating position after the
comment about her not wearing a seatbelt. The officer became
suspicious that the accused did not correct her seating position
because there might be something under the blanket that she
was trying to conceal.
(6) Although the driver volunteered the reason for his trip and
provided his student permit, the officer found this to be
suspicious because drug couriers often rehearse stories and
documents ready to legitimize their trips if questioned.
(7) The vehicle was travelling from west to east and, according to
the officer, drugs generally move from west to east and cash
moves from east to west.

with possessing cocaine for the purpose of
trafficking.
A Saskatchewan Court of Queen’s Bench judge
found that the accused was not detained prior to her
arrest and therefore her s. 9 Charter rights were not
breached. In addition, the accused did not assert any
power or control over the vehicle or the contents of
the cargo area. Thus, she failed to establish any
reasonable expectation of privacy in the vehicle or

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Volume 11 Issue 4 - July/August 2011

“The law is well
in the contents of the cargo area. The
temporally connected to her arrest
accused’s s. 8 rights were not established that section 8 and the search so as to render the
breached by either the dog search or
evidence in the purse obtained in a
Charter
rights
are
the search of the vehicle. However,
manner which violated the Charter.
the judge determined that the
personal rights. To
Thus, in her view, exclusion under s.
accused did have a reasonable exclude evidence under s. 24(2) was available.
expectation of privacy with respect to
her purse and that searching it was 24(2), the applicant must Justice Ottenbreit, speaking for the
unanimous Saskatchewan Court of
unreasonable. The judge then went
prove that his or her
Appeal,
ruled that the trial judge
on to consider the breaches of the
personal
privacy
rights,
erred
by
excluding the contents of
the driver’s Charter rights in relation
not just another person’s the purse against the accused
to the lawfulness of the accused’s
because of a breach of the driver’s
arrest. The judge concluded that the
rights, were violated.”
rights.
“The law is well established
police did not meet the reasonable
that
section
8 Charter rights are
suspicion standard in detaining the driver or for
personal rights,” he said. “To exclude evidence
using the sniffer dog. But for the driver’s rights not
under s. 24(2), the applicant must prove that his or
being breached, the accused would not have been
her personal privacy rights, not just another person’s
arrested and her purse would not have been
rights, were violated.” Justice Ottenbreit summarized
searched. The breaches to the driver’s rights rendered
the applicable principles as follows:
the accused’s arrest unlawful and the search of the
purse unreasonable; it was conducted as an incident
1. A claim for relief under s. 24(2) of the Charter
to an unlawful arrest. The contents of the purse were
can only be made by the person whose Charter
excluded as evidence under s. 24(2) and the
rights have been infringed.
accused was acquitted.
2. Like all Charter rights, s. 8 protects people, not
The Crown appealed the accused’s acquittal to the
places; it is a personal right.
Saskatchewan Court of Appeal arguing the trial
3. The right to challenge the legality of a search
judge erred by excluding the contents of the purse
depends upon whether the accused had a
on the basis that it had been obtained as a result of a
reasonable expectation of privacy, which is to
violation of the driver’s Charter rights rather than the
be determined on the totality of the
accused’s own personal rights. Furthermore, the
circumstances.
Crown submitted that the driver’s ss. 8 and 9 Charter
rights were not violated and that the trial judge
In this case, the Court of Appeal agreed with the trial
demanded too high a standard for reasonable
judge that the accused was
suspicion. Finally, the Crown
“The power of search incidental not detained prior to her
suggested that the evidence was
arrest. But, unlike the trial
to arrest has long been an
admissible under s. 24(2). The
judge, it found the accused’s
accused, on the other hand, exception to the general rule that arrest lawful, as was the
suggested that the trial judge
search that followed. “The
properly considered the facts, a search conducted without prior power of search incidental to
applied the appropriate standard of
authorization is presumptively
arrest has long been an
reasonable suspicion, and properly
unreasonable. Such a search
exception to the general rule
excluded the evidence under s.
that a search conducted
24(2). As well, she contended that does not require reasonable and without prior authorization is
the trial judge correctly considered
probable grounds beyond the
presumptively unreasonable,”
breaches of the driver’s rights in
said
Justice Ottenbreit. “Such
grounds that were sufficient to
relation to her arrest and the search
a search does not require
support the lawfulness of the
of her purse. The driver’s Charter
reasonable and probable
b r e a ch e s w e r e c a u s a l l y a n d
arrest itself.”
grounds beyond the grounds

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Volume 11 Issue 4 - July/August 2011
that were sufficient to support the lawfulness of the
arrest itself.” He continued:

‘POLICE OFFICERS ARE NOT
ABOVE THE LAW’

[T]the starting point for determining whether [the
accused’s] arrest was lawful must be the
circumstances vis-à-vis her and not [the driver].
Although it is not clear whether the drugs were
already found when she was initially arrested,
the reason for her arrest was certainly the
positive indication by the dog. The trial judge
had already concluded that [the accused] had
no reasonable expectation of privacy in the
vehicle and its contents, and that her s. 8 Charter
rights had not been breached by the dog search.
The refusal by the trial judge to exclude the
drugs as against [the accused] is consistent with
that lack of breach of [her] Charter rights. There
was therefore no basis for excluding the dog
search from the factors which inform the
presence of reasonable and probable grounds for
arrest in the analysis of whether the arrest was
lawful.

R. v. Kelly, 2010 NBCA 89
The accused’s mobile home came to
the attention of police as a byproduct of an active drug trafficking
investigation, named “Operation
Jellybean”, and warrant was sought
to search warrant it. Operation Jellybean included
searches of police databases, an undercover
operation, confidential informants, search warrants,
tracking warrants, number recorder warrants,
wiretap authorizations and extensive daily
surveillance, both electronic and physical. But none
of the information gathered directly implicated the
accused or his residence in the drug trafficking
activities. He was not named as a target of the initial
investigation nor identified as a participant in any of
the communications intercepted. However, over a
period of nearly four months, surveillance personnel
spotted one of the suspects and his vehicle at the
accused’s mobile home on four occasions. There
was nothing in the ITO for the search warrant,
however, to indicate that the suspect actually met
the accused or entered his residence, or retrieved
anything from or made a delivery to the residence. A
FLIR check on the accused’s residence was negative
for a heat source which would have been consistent
with a marihuana grow-operation.

The police are empowered to arrest a person
under the authority of ss. 495(1)(a) and (b) of the
Code, which reads as follows:
495.(1) A peace officer may arrest without
warrant
(a) a person who has committed an indictable
offence or who, on reasonable grounds, he
believes has committed or is about to commit an
indictable offence;
(b) a person whom he finds committing a
criminal offence...
The positive indication by the dog and the
subsequent finding of drugs justified [the
accused’s] arrest on either the basis of a criminal
offence being committed or reasonable grounds
to believe that an offence had been or would be
committed as contemplated by s. 495(1) of the
Criminal Code. Her arrest was therefore neither
baseless nor capricious, in the words of Grant,
supra, and was not arbitrary and did not infringe
the Charter. The arrest of [the accused] was
lawful and the subsequent search of her purse
incidental to her arrest was therefore lawful as
well. [paras. 27-28]

The contents of the accused’s purse were admissible,
the Crown’s appeal was allowed, the acquittal set
aside, and a new trial was ordered.
Complete case available at www.canlii.org

Police attended the accused’s home and tried to buy
cocaine from him, but this was not successful. The
following day the main suspect and two other
targets, were arrested. Cocaine was seized during
personal and vehicular searches incidental to those
arrests. While an officer attended before a Provincial
Court judge to swear the ITO and seek the search
warrant for the accused’s home, four other officers
were dispatched to the residence. A superior officer
as headquarters told the officers to enter and
“secure” the premises so incriminating evidence
could not be removed or destroyed, even though the
superior was not acquainted with the circumstances
nor have any source information that there was a
real danger of the imminent elimination of evidence.
The officers knocked on the front door, but received
no response. No vehicles were in the driveway and

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Volume 11 Issue 4 - July/August 2011

there was nothing to indicate a
“[P]olice officers are not
punctilious possibility of persons being inside
above
the
law
and
t h e r e s i d e n c e . Th e o f f i c e r s
strictly attentive to minute
Canadians rightly expect
nonetheless forced open the front
details of form in action or
door and entered, identifying
and assume they will
themselves as “police”. They
conduct; showing great
discharge their professional
searched every room to confirm the
attention to detail or correct
residence was unoccupied. Once
responsibilities with
this two minute search was
behaviour.
punctilious respect for the
completed, the officers withdrew.
law. After all, the official
Nothing was removed. Within an
grounds to believe the “things to
hour the search warrant was issued,
be
searched for” were inside. He
motto of the RCMP is
but the ITO did not include the
also submitted that the evidence
failed cocaine solicitation nor the “maintiens le droit”, not “the should have been excluded under
warrantless entry. When the search
end justifies the means”.”
s. 24(2).
warrant arrived it was executed and
seven pounds of marihuana and other drug
The Court of Appeal found the ITO did not provide
paraphernalia was found inside the accused’s trailer.
the necessary reasonable grounds for its issuance
and did not disclose information that the ITO
At trial in New Brunswick Provincial Court none of
deponent had to know was both relevant and
the officers testifying could identify a presenting
significant. Chief Justice Drapeau, delivering the
circumstance indicative of a real risk of the
Court’s opinion, first noted:
destruction or removal of incriminating evidence
from the premises. They said they complied with the
[I]t is necessary to state a truism: police officers
are not above the law and Canadians rightly
instructions to enter that had been given by their
expect and assume they will discharge their
superior. The trial judge found the ITO contained
professional responsibilities with punctilious
enough evidence allowing the issuing judge to infer
respect for the law. After all, the official motto of
there were reasonable grounds for the belief that the
the RCMP is “maintiens le droit”, not “the end
things to be searched for “could” be in the accused’s
justifies the means”. Indeed, the proposition that
residence and that the police had suspicions that
our country is founded upon principles that
there may have been drugs there. However, she held
recognize the supremacy of the rule of law is
that the accused’s s. 8 Charter rights were violated
enshrined in the introduction to the Canadian
by the prior warrantless forced entry and search. In
Charter of Rights and Freedoms. That text, the
her view, there were no “exigent circumstances” that
contents of which form part of the supreme law
could justify the warrantless entry and search under
of the land, goes on to enunciate a number of
s. 11(7) of the CDSA. “While the police could have
rights that all Canadians, no matter how modest
their station in life, are entitled to enjoy to the
attended at the trailer and secured the premises from
fullest extent, free of unauthorized state
anyone entering until the warrant arrived, I cannot
interference. Of those rights, one of the most
find the grounds to justify the warrantless entry on
cherished is guaranteed by s. 8, the right to be
‘exigent circumstances’,” she said. Nonetheless, the
secure against “unreasonable” search or seizure,
the marihuana seized pursuant to the warrant was
and its breach in relation to a person’s home is
admitted under s. 24(2). The accused was convicted
viewed by most citizens, and all courts, as
of possessing marihuana for the purpose of
particularly offensive. It is now settled law that a
trafficking and sentenced to 26 months in jail.
police search complies with s. 8 only if it was
executed in a reasonable manner and was
The accused appealed his conviction to the New
authorized by a law, which itself meets
Brunswick Court of Appeal arguing, in part, that the
minimum constitutional standards. [para. 1]
trial judge erred in finding there were reasonable

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Volume 11 Issue 4 - July/August 2011

The Warrantless Entry & Search

outright falsehoods nor what might be called lies of
omission have their place in the application process,
The forcible entry and warrantless search of the
the deponent’s duty to the court, and to the
accused’s residence were unlawful and breached s.
administration of justice in general, being to ensure
8 of the Charter, a matter conceded by Crown. No
the ITO, in essence, tells the truth, the whole truth
prior judicial authorization had
and nothing but the truth.” As for how s.
been obtained and police knew of
11(1)
enabled a search, he stated:
“[T]he warrantless
no exigent circumstances that
entry and search of
Under s. 11(1) of the CDSA, the issuing
might have legitimized their
judge
must be satisfied that the thing to be
conduct. For unexplained reasons, [the accused’s] home
searched
for is in the place to be searched.
a superior officer issued the order
was
carried
out
with
In
the
case
at bar, the issuing judge had to
to enter. There was no evidence
be
satisfied
the ITO demonstrated: (1) the
provided for the existence of shocking insouciance
deponent believed an offence had been
exigent circumstances. “I can only
for the law and [his]
committed; and (2) evidence of that
conclude the warrantless entry and
offence
would be found in [the accused’s]
search of [the constitutional rights.” r e s i d e n c e . Th e I TO a l s o h a d t o
accused’s] home
demonstrate this belief was based upon
insouciance - was carried out with shocking
reasonable grounds. In contrast, the question for
lack of care or insouciance for the law and [his]
the trial judge was whether “there was sufficient
credible and reliable evidence to permit [the
concern. constitutional rights,” said Justice
issuing judge] to find reasonable and probable
Drapeau. He continued:
grounds to believe that an offence had been
committed and that evidence of that offence
[Section] 11(7) of the CDSA allows a police
would be found at the specified time and place”.
officer to search a place for a controlled
[para. 39]
substance without a warrant if the conditions
precedent to issuance exist “but by reason of
The Court of Appeal found “the trial judge applied
exigent circumstances it would be impracticable
to obtain one”. Exigent circumstances exist
an impermissibly low standard” in concluding that it
when the thing to be searched for is at imminent
was reasonable to conclude there was a possibility
risk of disappearance.
that incriminating evidence could be
found at the mobile home. Mere
“[P]ositive results
It is trite law that positive results do not
police suspicion or the possibility of
retroactively clothe a search with the
do not retroactively finding evidence at the specified
mantle of reasonableness: the search
place, even if reasonable, is not a
must be authorized at law before it is clothe a search with sufficient basis for the lawful issuance
undertaken. However, evidence gathered
the mantle of
of a search warrant. Although the
as a result of a search that, in one way or
substantive
sufficiency of the ITO
another, violates s. 8 may yet form part reasonableness: the
stands to be assessed on both the
of the record at trial if its admission
search must be
evidence that is explicitly articulated
would not bring the administration of
and
all inferences that may be
authorized
at
law
justice into disrepute. [paras. 3-4]
reasonably drawn from the record, at
before it is
best the ITO only gave rise to
The Warrant
undertaken.”
suspicions.
Section 11(1) of the CDSA allows a judge
to issue a search warrant only if satisfied by
information on oath that there are reasonable
grounds to believe the thing to be searched for,
commonly a controlled substance, is in the place to
be searched. But Justice Drapeau cautioned, “neither

Furthermore, “in seeking a search warrant, the ITO
deponent must not only set out the relevant facts
fully and truthfully, he or she must do so ‘plainly’,”
said Chief Justice Drapeau. “Misleading statements
and exaggerations of the available intelligence are

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Volume 11 Issue 4 - July/August 2011
not acceptable. Moreover, the deponent’s disclosure
obligations require him or her ‘to reveal, not to
conceal, any unconstitutional investigative step by
which the authorities have secured information
relevant to the ongoing investigation’.” Here, the ITO
did not inform the issuing judge of several things,
including the ITO deponent’s unsuccessful attempt
at purchasing drugs from the accused prior to
applying for the warrant nor of the prior forcible
police entry and warrantless search of the mobile
home. The failure of the deponent to incorporate this
information in the ITO can only be viewed as an
“extremely egregious breach of his duty ... (1) to
make full, fair and frank disclosure to the issuing
judge; and (2) to set out the relevant facts truthfully,
fully and plainly.”

duties of candour and full disclosure; (5) the
rights violations are not minor or technical in
nature and relate to [the accused’s] home; (6) the
evidence seized is a controlled substance that
has acquired a reputation, deserved or not, for
being less deleterious than certain other illegal
drugs ...; and (7) the charge does not involve a
serious violent crime. [para. 63]

And further:
In closing, I would add that, if this Court were to
rule against evidential exclusion in a case such
as the present one, it might be seen as paying
mere lip service to the importance of s. 8 rights
in relation to a dwelling-house and trivializing
the duties of ITO deponents. In my respectful
judgment, doing right according to law requires
exclusion of the marihuana seized at [the
accused’s] home ... . [para. 65]

Section 24(2)
After considering the factors in the s. 24(2) analysis
(the seriousness of the Charter-infringing state
conduct, the impact of the breach on the Charterprotected interests of the accused, and society’s
interest in the adjudication of the case on its merits)
the Court of Appeal found that the admission of the
marihuana seized from the accused’s home would
bring the administration of justice into disrepute:
To summarize, the record reveals: (1) four RCMP
officers attended at [the accused’s] residence,
broke open its front door, entered and
conducted a search of its interior, all without any
prior judicial authorization and in the absence
of exigent circumstances; (2) the hearing before
the issuing judge proceeded to its conclusion on
the basis of an informational record that the ITO
deponent knew was incomplete in material
respects; (3) the key provision of the ITO
purporting to tie, in a direct way, [the accused’s
home] to the drug trafficking operation under
investigation (as a drug selling and storage
location) is misleading in significant respects; (4)
both searches were unreasonable because the
requisite reasonable grounds for the issuance of
a warrant did not exist. The first was also
unreasonable because there were no exigent
circumstances. As for the second search, it
cannot be legitimized by the warrant because of
the ITO deponent’s egregious breaches of his
duties to the issuing judge, most notably his

The accused’s appeal was allowed, his conviction
was set aside, the evidence was excluded, and an
acquittal was entered.
Complete case available at www.canli.org

FAILURE TO MENTION ABSENCE
OF ODOUR DID NOT
UNDERMINE SEARCH WARRANT
R. v. Nguyen & Nguyen, 2011 ONCA 465
After receiving detailed information
from an anonymous first time tipster
that a house was being used as a
marijuana grow-op, the police went
to the premises and confirmed
much of the information provided by the tipster: all
the windows and doors, except one, were covered;
in the one uncovered window, a single ceiling light
could be seen; the grass was not well kept; there was
moisture damage on the roof of the house that was
not visible on any other roof in the neighbourhood;
there were two exterior timers on the house; and
there was no snow accumulated by the vents, unlike
similar snow covered vents on neighbouring
roofs. Marijuana could not be smelled, nor were any
fans or blowers heard. Other police investigation
revealed no garbage or recycling placed at the curb,

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Volume 11 Issue 4 - July/August 2011
a license plate number was registered to one of the
accuseds, and a thermal imaging device detected an
unusual amount of heat emitting from the chimney
and vents on the roof. Hydro consumption records
at the house indicated that consumption was lower
than that of the neighbouring houses of similar size
and was not sufficient to support a marijuana grow
operation, leading police to believe there was theft
of electricity. A second anonymous source provided
information that no one lived at the property but an
Asian male and female had been seen loading
garbage bags into a van at the house. An ITO was
sworn, which, in addition to summarizing the
information and other police observations, stated the
officer had experience and training related to indoor
and outdoor marihuana growing operations. A
search warrant under the Controlled Drugs and
Substances Act was obtained and police found a
significant marihuana grow operation inside the
residence. The two accuseds, who were present at
the property at the time of the search, were charged
with producing marihuana and possessing it for the
purpose of trafficking.

reasonable and probable grounds to justify the
search.
Justice Blair, authoring the unanimous Ontario Court
of Appeal judgment, first summarized the legal test
for reviewing the sufficiency of a search warrant:
The ultimate test is whether – after excising any
offending portions of the ITO – there remains a
sufficient basis on the record before the issuing
justice, as amplified on the review, for issuance
of the warrant. Other factors may be taken into
account when arriving at that assessment. For
example, misleading statements made to obtain
the warrant, or a failure to make full and fair
disclosure in the ITO – depending on the nature
and severity of these faults – may provide a basis
for challenging the decision to grant the warrant.
Care must also be taken to confirm the reliability
of information obtained from tipsters where that
information forms a material basis for the
application. [references omitted, para. 23]

And later, while noting that few applications for a
search warrant are perfect, stated:

The Ontario Superior Court of Justice concluded that
the search warrant should not have been issued. The
judge found that some of the statements in the ITO
were misleading and that there were several
omissions of fact that should have been included.
She concluded that the ITO “was carelessly drafted,
materially misleading and factually incomplete.” The
warrant was struck down, the search was
unreasonable under s. 8 of the Charter, and the
evidence was excluded under s. 24(2). Acquittals
followed.
The Crown appealed the acquittals, suggesting that
the trial judge erred, among other grounds, by
finding that there were misleading statements
contained in the ITO and that the officer failed to
disclose certain facts that he did not observe. As
well, the Crown suggested that there were

[T]he central consideration on the review of a
search warrant is whether on the record as it
existed before the issuing justice and as
amplified at the hearing, with any offending
portions of the ITO excised, there remains a
sufficient basis upon which the warrant could be
issued. Police conduct is clearly relevant to that
consideration. However, the review is not an
exercise in examining the conduct of the police
with a fine-toothed comb, fastening on their
minor errors or acts or omissions, and
embellishing those flaws to the point where it is
the police conduct that is on trial rather than the
sufficiency of the evidence in support of the
application. This is particularly so where, as
here, the trial judge has specifically found that
the applicant did not intend to mislead the
issuing justice. [para. 57]

“[T]he review [of a search warrant] is not an exercise in examining the conduct of the police
with a fine-toothed comb, fastening on their minor errors or acts or omissions, and
embellishing those flaws to the point where it is the police conduct that is on trial rather than
the sufficiency of the evidence in support of the application.”
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Volume 11 Issue 4 - July/August 2011

Training

disclosure that would undermine the issuance of the
warrant,” said Justice Blair.

One of the alleged misstatements that the trial judge
found to be misleading was that the officer said he
had “training” in grow-operations. He had stated:
I have experience and training relating to indoor
and outdoor Marihuana growing operations. As
a result of previous Marihuana growing
operation investigations, I have become familiar
with the signs and appearance of the buildings
being used to house such operations.

An applicant for a search warrant has a duty to make
full, frank, and fair disclosure of all material facts in
the ITO supporting the request, which includes the
duty not to omit material facts. But “the absence or
reference to something not seen, not heard, or not
done, will [in most cases] lead to the sensible
inference that whatever it is was not seen, not heard
or not done.” In this case, the facts were not known
or matters not observed by the police. This was
different than cases where facts known to the police
at the time were not disclosed in the ITO. “Although
there may be circumstances in which the duty to
provide full and fair disclosure will require an
applicant for a search warrant to negative something
unseen or not done, I would expect such
circumstances to arise infrequently,” said Justice
Blair. He continued:

The Court of Appeal, however, found the the officer
did have training in the investigation of marijuana
grow operations. Although it was not some sort of
“formal” training, such as a classroom course, he did
have “on the job training”, including training from
other experienced officers. “‘Formal’ training is one
form of training, to be sure, but on the job practical
training is valuable and counts
as well,” said Justice Blair. “It
“[T]he absence or
ought not to be discounted out
reference to something
of hand.” Further, although the
officer’s experience was not
not seen, not heard, or
extensive, he did have some.
not done, will [in most
He had been involved with six
to nine other marijuana grow
cases] lead to the
operation investigations. There
sensible inference that
was nothing misleading or
whatever it is was not
inconsistent with his statement.

The obligation on applicants for a search
warrant is not to commit the error of
material non-disclosure. “Materiality” is
something that bears on the merits or
substance of the application rather than
on its form or some other inconsequential
matter. There is no obligation on
applicants to anticipate, and to explain
away in advance, every conceivable
indicia of crime they did not see or sense
and every conceivable investigative step
seen, not heard or not
they did not take at the time in order to
Omitting the Not Seen,
counter the creative arguments of able
done.”
Not Heard, Not Done
defence counsel on a review hearing
many months or years after the event. Here, for
The trial judge was critical of the officer for not
the most part, the impugned “omissions of fact”
expressly negativing several facts in the ITO, which
relied upon by the trial judge fall into the latter
were characterized as omissions. These included
type of category, or they are simply immaterial,
such things as not stating that there was no smell of
or were not omissions at all.

marijuana or that fans or blowers were not heard. As
well, the ITO did not mention that there was no
evidence of electricity theft, no actions of a grow-op
aside from that provided by the anonymous sources,
and no observations of suspicious activity. However,
the Court of Appeal disagreed with this. “In my view,
these alleged failures to address things not seen or
investigative steps not taken – considered
individually or taken as a whole in the context of all
‘omissions of fact’ – do not amount to material non-

PAGE 31

The failure by [the officer] to note that he had
failed to smell the pungent odour of marijuana
or to hear the sound of fans or blowers that are
characteristic of marijuana grow operations
warrants some consideration. He admitted in
cross-examination that he had tried to smell
marijuana, but had not, and that he had not
heard the sound of fans or blowers. He also
acknowledged that sometimes the smell of
marijuana can be sensed and that, on such

Volume 11 Issue 4 - July/August 2011

OFFICER HAD GROUNDS
TO ARREST:
SEARCH LAWFUL

occasion, he is able to tell the issuing justice that
he believes there is a grow operation in the
home based on that. However, the trial judge
failed to advert to [the officer’s] additional
evidence that he had only been able to smell the
odour of marijuana outdoors at two of the eight
or nine grow operations he had previously
attended, and to hear fans or blowers on one of
those occasions. He testified that on most
occasions “you cannot detect the odour of
marijuana outside”, and “it’s not very often that
you can [hear fans or blowers].”

R. v. Perjalian, 2011 BCCA 323

Thus, there is nothing on the record to indicate
that the absence of the smell of marijuana or the
sounds of fans outside a grow operation home is
a common indicia of the absence of a marijuana
grow operation inside. I see little need for the
applicant to postulate such a possibility in the
ITO and then explain it away. The record, as
amplified, explained it away in any event. I
agree with the observations of [the officer] in
cross-examination that the issuing Justice would
likely have assumed from the fact that he did not
say he had smelled the odour of marijuana or
heard the sounds of fans or blowers, that he had
not. These alleged omissions are insignificant.
[references omitted, paras. 51-53]

The purported omissions were not material nor, for
the most part, properly characterized as omissions in
the circumstances.

Section 24(2)
Since there was no s. 8 breach it was unnecessary to
address s. 24(2). However, even if there was a s. 8
breach, the Court of Appeal would have admitted
the evidence.
The Crown’s appeal was allowed, the order quashing
the search warrant was set aside, and a new trial was
ordered.
Complete case available at www.ontariocourts.on.ca

Note-able Quote
“There is no pillow so soft as a clear conscience.” French Proverb

Police saw a vehicle turn abruptly
into a lane, speed well over the
limit, and stop behind an apartment
building. The passenger quickly got
out and entered the building. Two
police officers followed and stopped behind the car.
As the driver (accused) was getting out of the
vehicle, he was detained for the purpose of
investigating the speeding violation, an offence
under British Columbia’s Motor Vehicle Act. The
officer asked the accused for his driver’s licence and
registration, but only a licence was produced. A
half-full bottle of beer was observed in the centre
console of the car. When asked again for the car’s
registration, the accused turned towards the car as if
he intended to get the registration and appeared to
deliberately position himself to block the officer’s
view. The officer saw the accused reach with his
right hand and drop a plastic film container on the
floor, making no attempt to pick it up or look for the
registration. He just turned back and said he could
not find it. The officer, a 28 year veteran with 10
years on a drug squad, formed the belief there were
drugs in the film container and that the accused was
arrestable for either possessing the drugs for the
purpose of trafficking or for simple possession. He
ordered the accused out of the car, retrieved the film
container, and opened it, finding 13 “rocks” of crack
cocaine and a “ball” of powder cocaine. The
accused was then arrested for possessing cocaine for
the purpose of trafficking, handcuffed, searched, and
advised him of his right to retain and instruct
counsel. The accused said he wished to speak with a
lawyer. The car was then searched and a scoresheet
(a form of a drug-trafficker’s bookkeeping) was
found. Cash in the amount of $270 was also seized.
While waiting for police transport, the officer asked
the accused if he had a crack pipe or needle, to
which he responded, “Do I look like a fucking
junkie?”

PAGE 32

Volume 11 Issue 4 - July/August 2011
At trial in British Columbia Provincial Court the
officer testified that he believed the film container
held drugs because of the accused’s obvious attempt
to dispose of it without detection and, in his
experience, containers are used extensively by drug
dealers to store and transport their drugs. The officer
also said that he did not believe he was prohibited
from questioning a suspect who had asked to speak
to counsel. He said he had done so in the past. The
judge found the accused was under detention when
the officers approached him initially to investigate
the traffic violation. Police breached ss. 10(a) and (b)
of the Charter because they failed to immediately
inform him of the reason for his detention or of his
right to counsel at the outset of the investigation and,
later, when the officer came to believe the accused
was in possession of drugs. Sections 10(a) and (b)
were only complied with when the accused was
arrested, some three minutes after the investigation
began.
As for the search, it was reasonable. The officer’s
subjective belief that the film container held drugs
was credible and objectively reasonable based on
the officer’s experience and the circumstances in
which he observed the container. His belief was not
based on a mere hunch. The seizure and search of
the container were lawful. Even though the accused
was not actually arrested until shortly after the search
the officer had reasonable grounds to arrest the
accused when the search occurred; it was therefore
justified as a search incidental to arrest. As for the
accused’s statement, the officer committed a “clear,
conscious and flagrant breach” of s. 10(b) in
obtaining it by questioning the accused after he
indicated he wished to speak to counsel but had not
yet been given an opportunity to do so. Although the
Crown did not seek to admit the statement, the judge
considered this s. 10(b) breach to be relevant as part
of a pattern of Charter abuse in the s. 24(2) analysis
for the drugs and score sheet. The evidence was
ultimately admitted and the accused was convicted
of possessing cocaine for the purpose of trafficking.

excluded. In his view, the Crown did not establish
the subjective or objective grounds for his arrest. He
had no record for drug offences and the police had
no information linking him or the vehicle to drugrelated activity, nor did the officer see or smell drugs.
Although the presence of an opaque film canister in
the car and his conduct may have been suspicious, it
fell far short of providing reasonable grounds to
justify the arrest for a drug offence.

The Search
Justice Neilson, writing the unanimous judgment,
first noted that the “search of the film container was
prima facie unlawful because it was conducted
without a warrant.” However, an exception to this
rule exists when a search is conducted as an incident
to arrest. A lawful arrest requires reasonable grounds,
which encompasses both a subjective and an
objective component. In this case, (1) the officer was
required to honestly believe he had grounds to arrest
the accused for a drug offence, and (2) a reasonable
person standing in the officer’s position would need
to find that belief objectively reasonable. In Justice
Neilson’s view, it was not established that the trial
judge erred in concluding the officer honestly
believed the accused was “arrestable” at the time of
the search since the officer had seen drug dealers use
film containers many times. As for the objective
grounds, the Court said this:

The accused appealed, arguing (in part) before the
British Columbia Court of Appeal, that the judge
erred in failing to find that police breached his s. 8
Charter rights and the evidence should have been

PAGE 33

The evidence relevant to that determination
includes the following. [The officer] had 28
years’ experience with the Vancouver Police
Department, ten years of which was with the
drug squad. He estimated he had conducted
50,000 drug investigations and made about
4,000 arrests, 85 percent of which dealt with
cocaine. In his experience, film containers were
used extensively by drug traffickers to store and
secrete their drugs. He had encountered this
several hundred times. He saw a vehicle with
two occupants speed down a laneway and stop
behind an apartment building, where the
passenger quickly got out and went into the
building. [The officer] asked the driver twice for
proof of registration. On the second request, the
driver turned toward the car door as if attempting
to look for the registration, but made no effort to
do so. Instead, he positioned himself in a manner

Volume 11 Issue 4 - July/August 2011
indicative of an attempt to shield his
actions from [the officer], and dropped a
film canister from his right hand onto
the floor of the car on the driver’s side.
He then turned back to [the officer] and
said he could not find the registration.
The standard of proof for reasonable
grounds is reasonable probability. This is
something more than mere suspicion,
but less than the civil standard of proof.
In considering whether that standard has
been met the circumstances must be
considered in their totality, rather than
on a piecemeal basis.
In the context of those principles, and
viewed from the perspective of [the
officer’s] knowledge and experience, I
am satisfied that a reasonable person
would conclude there were objectively
reasonable grounds to believe the film
canister held drugs. [The accused’s]
attempt to surreptitiously dispose of that
canister in the presence of police leads
to an inevitable inference that it held
something illegal. [The officer’s]
extensive experience with the use of
such containers in the drug trade forms
a proper basis for a conclusion that it
was reasonably probable it contained
drugs. [paras. 51-53]

“The standard of
proof for
reasonable
grounds is
reasonable
probability. This is
something more
than mere
suspicion, but less
than the civil
standard of proof.
In considering
whether that
standard has been
met the
circumstances must
be considered in
their totality, rather
than on a
piecemeal basis.”

The accused’s secretive conduct was sufficient to
raise the officer’s subjective suspicion to an objective
level. The trial judge did not give too much
deference to the officer’s intuition or experience and,
therefore, did not effectively render the objective
element of the inquiry meaningless. The officer had
reasonable grounds to arrest the accused for a drug
offence at the time of the search, the search was
lawful as an incidental to arrest, and did not violate
s. 8 of the Charter.

Other Breaches
The Court of Appeal also found the police were not
required to advise the accused of his right to counsel
under s. 10(b) when they initially detained him to
investigate the traffic violation. Although s. 10(b) is
engaged when a suspect is detained for a motor

vehicle offence, the police are not
required to advise the detainee of the
right to counsel. However, when the
officer decided the accused was
“arrestable” for possession of illicit
drugs, the focus of the investigation
changed from a traffic offence to a drug
offence and the accused should, at this
point, have been immediately advised
of his right to counsel. Instead, the
officer ordered him to the rear of the
vehicle while he looked in the film
canister. It wasn’t until he was arrested
that he was advised of the reason for
his arrest and his right to counsel. There
was a breach of s. 10(b) when the
detention continued after the officer
formed the belief that the accused was
in possession of illicit drugs.

Although the trial judge’s s. 24(2)
analysis was upheld, the accused’s
conviction for possessing cocaine for
the purpose of trafficking was set aside
and a conviction for simple possession
substituted. This was a circumstantial
case and a conviction for possessing
drugs for the purpose of trafficking
required that offence to have been the
only reasonable inference that could be drawn from
the facts. Since there was information provided by
the drug expert that the trial judge failed to consider,
along with an absence of other indicia typically
found with trafficking, simple possession was an
equally reasonable conclusion.
Complete case available at www.courts.gov.bc.ca

Note-able Quote
“He who does not prevent a crime when he can,
encourages it.” - Seneca

www.10-8.ca

PAGE 34

Volume 11 Issue 4 - July/August 2011

REASONABLE GROUNDS:
A PRACTICAL, NON-TECHNICAL,
COMMON-SENSE ASSESSMENT
R. v. Ballendine, 2011 BCCA 221
Italian police arrested a person
involved in the production and
i n t e r n e t d i s t r i b u t i o n o f ch i l d
pornography. His business records
disclosed that approximately a year
earlier a British Columbia resident (the accused)
ordered over two dozen child-pornography videos
(DVDs) by email in 2005. That information was
passed on to Canadian police in February of 2007.
In September 2007 the police subsequently obtained
a telewarrant under s. 487.1 of the Criminal Code
(CC) to search the accused’s home for the DVDs as
well as any computers/computer-related equipment.
Although the police did not find any of the DVDs
ordered from Italy, a forensic examination of the
accused’s hard-drive disclosed a large number of
other child-pornography videos and a short clip from
one of the DVDs. The examination of another harddrive showed visits to child-pornography websites.
A British Columbia Supreme Court judge upheld the
warrant despite several objections raised by the
accused about its validity and execution. The
evidence was admitted and the accused was found
guilty of both accessing and possessing child
pornography.

Telewarrant Impracticability
Under s. 487.1(1) of the CC, an application for a
search warrant may be made by telephone or other
means of telecommunication if the peace officer
believes that it would be impracticable to appear
personally before a justice to make the application.
All telewarrant applications in British Columbia have
been made to JJPs at its Justice Centre for about the
last 10 years. In this case, the officer said it was
impracticable for him to apply for a warrant in
person because he had contacted the local
courthouse and was told that a local JJP was not
available. He did not contact a different courthouse
located some 20 kilometers away, nor one located
about an hour’s drive away, to see whether he could
make his application in person at either one of those
places. However, there was no evidence as to
whether a JJP was available or would have been
available to personally deal with an application for a
search warrant at either of these other courthouses.
The onus on proving a s.8 Charter breach on a
balance of probabilities was on the accused.
Therefore, he was the one required to establish a
violation of his rights by the police officer’s resort to
the telewarrant process. But he failed in
demonstrating that the impracticability standard was
not met. Justice Frankel stated:

The accused’s conviction was challenged to the
British Columbia Court of Appeal. He argued,
among other grounds, that the police officer
submitting the ITO by fax to the judicial justice of
the peace (JJP) did not meet the impracticability
requirement. He also contended that the information
was stale and there was not reasonable grounds to
believe the accused was in current possession of
child pornography. Further, he suggested that the
scope of the warrant was overly broad and that
another search warrant was required before the
police could conduct a forensic examination of the
seized hard-drives. Justice Frankel, writing the
unanimous Court of Appeal’s decision, rejected all
of these submissions.

PAGE 35

Before submitting his application to the Justice
Centre, [the officer] ascertained that there was
no judicial officer at the Victoria courthouse who
could deal with it on an in-person basis. That he
did not make a similar inquiry at either the
Colwood or Duncan courthouses does not, of
itself, render his resort to the telewarrant process
improper. Of those two locations, only Colwood
could be considered a possible practical
alternative. However, ... there was no evidence
that the application could have been dealt with
on an in-person basis there.
It is important to keep in mind that the ITO [the
officer] submitted by fax to the Justice Centre
contained a statement that, on its face, satisfied
the requirements of s. 487.1(1). That being so,
the onus was on [the accused] to establish that
an in-person attendance, either in Victoria or
elsewhere, was not impracticable. This he failed
to do. [paras. 37-38]

Volume 11 Issue 4 - July/August 2011

Reasonable Grounds for Current Possession

Warrant Scope: Evidence of Residency

The accused submitted that there was nothing in the
The accused had contended that the scope of the
ITO capable of supporting reasonable grounds to
warrant was overly broad and should have been
believe that child pornography would likely be
more limited. In rejecting this argument, the Court of
found at his residence when the warrant was
Appeal noted that not only were there reasonable
executed. In his view, by September 2007, the
grounds to believe that evidence related to child
information with respect to having ordered childpornography would be found on computers
pornography videos in 2005 had
(including hard-drives), the warrant
“[A] reasonablebecome so stale as to be undeserving
also allowed police to search for
of any consideration. Justice Frankel, grounds determination is evidence of residency, which was not
however, found this not so. He held
restricted to hard copies, but could
based on a practical,
that the trial judge did not err in
also include evidence found on
finding that there were reasonable
computers:
non-technical, and
grounds to believe that the videos
common-sense
In addition, as the warrant properly
ordered by the accused were at the
authorized
a search for “evidence
assessment
of
the
premises:
of residency”, the police were
totality of the
entitled to search for such evidence
As has been oft stated, a
in
electronic form. In possessory
circumstances.”
reasonable-grounds determination
offences,
evidence of occupancy or
is based on a practical, nonresidency
is often tendered by the
technical, and common-sense assessment of the
Crown
to
establish
that
an accused was in
totality of the circumstances. In the case at bar,
control
of
premises
and,
therefore,
in possession
that determination includes a consideration not
of
the
prohibited
item
found
therein. For
only of when the Marzola videos were ordered,
example,
the
presence
or
absence
of such
but also their contents, how they were ordered,
evidence
is
often
an
important
fact
in
marihuana
the number ordered, and the cost.
grow-operation prosecutions. ... It is self-evident
that documents bearing the name of, or related
Merely because information is “dated” does not
to, a particular person can serve to connect that
mean it is “stale”. While the length of time that
person to the place where those documents
has passed is to be taken into account in a
were found. ...
reasonable-grounds determination, it is but one
factor. [paras. 53-54]
In this case, [the accused] accepts that the police
had reasonable grounds to search for what are
And further:
sometimes referred to as “hard-copies” of such
things as documents and photographs that could
In my view, the trial judge was correct when he
assist in establishing who had control of the Old
concluded that, as a matter of common sense, it
Esquimalt Road premises. In my view, they
is reasonable to infer that someone who spends
equally had grounds to search for electronic
approximately $1000.00 to acquire more than
versions of those things. An electronically-stored
two dozen child-pornography videos over the
version of a letter or photograph that connects a
internet is likely be a collector of such
person to premises is as cogent a piece of
prohibited material and is likely to retain them
evidence as a hard-copy of the same thing.
for a considerable time. [para. 57]
[references omitted, paras. 62-63]
Thus, the passage of time alone did not necessarily
demonstrate the information was stale.

“An electronically-stored version of a letter or photograph that connects a person to
premises is as cogent a piece of evidence as a hard-copy of the same thing.”
PAGE 36

Volume 11 Issue 4 - July/August 2011

Hard-Drives Searches
The accused argued that the warrant gave the police
authority to search his residence and seize any
computers, but it did not authorize them to conduct
a forensic examination of those devices. He
suggested that a second warrant was required before
the police could examine them. Justice Farnkel
disagreed:
[T]here were reasonable grounds to believe that
the Old Esquimalt Road premises were being
used as a residence. There were also reasonable
grounds to believe that a computer used in the
commission of the offence being investigated
would be found there. As well, the justice of the
peace was made aware that an on-site forensic
examination of any computer would be
impracticable. Far from being implicit, the
warrant expressly authorized the police to
“search for and seize”, amongst other things,
computers.
In this case, the police were authorized, on the
basis of the warrant, to remove the computer
and related equipment from the Old Esquimalt
Road premises and to examine them for the
purpose of locating any electronically-stored
data covered by the warrant. [paras.69-70]

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

LEGALITY OF SEARCH FLOWS
FROM ARREST’S LAWFULNESS
R. v. Nicholson, 2011 ABCA 218
After police received two tips from
confidential informants that an
individual named “Josh” was selling
drugs, they set up surveillance on the
accused. Although no suspicious
activity was observed on five days of police
surveillance, on another day police saw five
encounters involving the Escalade owned and driven
by the accused. Unknown individuals were
observed enter and exit the vehicle. Each of these
encounters lasted between four and thirty seconds.
Just over two weeks later police saw the accused
driving a Plymouth van owned by him. He did a

heat check - a manouevre done by drug traffickers to
see if they are being followed by the police. He
made a U-turn, turned into a cul-de- sac, and waited
in his vehicle before turning back and continuing in
the same direction he was originally headed. Some
25 minutes later a car pulled up beside the van in a
grocery store parking lot and its passenger entered
the van carrying what appeared to be a full
knapsack. After about one minute the passenger
exited the van with a knapsack that appeared to be
lighter. Believing the accused was a drug trafficker
and that a drug transaction had taken place, the
investigator instructed an uniformed police officer to
arrest him for drug trafficking. Shortly afterwards the
van was searched without a warrant as an incident
to arrest. A blackberry and cell phone were seen on
the floor and a black Louis Vuitton bag was between
the driver and passenger seats. It contained a plastic
bag with 500 grams of cocaine. The accused was
read his Charter rights, cautioned, and expressed a
desire to speak to a lawyer, but was not allowed to
do so until some nine hours later. The investigator
wanted to search the accused’s residence before
permitting a phone call. During this time, two
attempts were made to question the accused before
being he was given the opportunity to exercise his
desire to speak with counsel.
At trial in the Alberta Court of Queen’s Bench the
judge found that the vehicle search was reasonable
and therefore s. 8 of the Charter was not breached.
However, he concluded that s. 10(b) - the right to
counsel - had been violated because of the delay in
providing the accused access to counsel. He,
characterized the police conduct as blatant,
unreasonable, and unacceptable. The evidence
arising from the seizure was nonetheless admitted
under s. 24(2). The accused was convicted of
possessing cocaine for the purpose of trafficking.
The accused then appealed his conviction to the
Alberta Court of Appeal contending, in part, that the
trial judge erred in finding that police had
reasonable grounds to arrest him. The search that
followed was therefore unlawful and the judge
should have excluded the evidence. Furthermore, he
submitted that the judge failed to consider whether
the Crown had proven possession beyond a
reasonable doubt.

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Volume 11 Issue 4 - July/August 2011

Arrest
The Court of Appeal found the
accused’s arrest and vehicle
search to be lawful:

Possession

“The legality of a search
incident to arrest is
derived from the legality
of the arrest. The person
instructing the arrest must
subjectively believe that
there are reasonable
grounds to make the
arrest and those grounds
must be objectively
reasonable.”

Proving possession beyond a reasonable
doubt is an essential element of the
offence of possessing cocaine for the
purpose of trafficking. Here, the accused
“was the owner and sole occupant of a
motor vehicle in which a Louis Vuitton
bag containing 500 grams of cocaine
was found within arms reach of his
position as the driver of the vehicle,”
said the Court. “The finding of a
prohibited item within a motor vehicle
owned and operated by an accused is
prima facie proof of possession by the
accused.” Even though the trial judge
made no express finding that the
accused was in possession of the substance seized
from his van, it was inevitable that the judge would
have concluded that the evidence established
beyond a reasonable doubt that he was in
possession of it.

Th e l e g a l i t y o f a s e a rch
incident to arrest is derived
from the legality of the arrest.
The person instructing the
arrest must subjectively believe
that there are reasonable
grounds to make the arrest and
those grounds must be
objectively reasonable. The
trial judge noted that [the
officer] testified that he
believed the accused was
engaged in drug trafficking and instructed a
uniformed officer to arrest him. The trial judge
referred ... to seven instances of evidence which
gave rise to that conclusion (the tips from two
confidential informants, the five exchanges with
other vehicles on April 1, 2008 and the
exchange with the black Acura on April 17,
Section 24(2) Charter
2008) in concluding that [the officer] had
reasonable and probable grounds for the arrest.
The Court of Appeal also agreed that the evidence
While the trial judge did not
was still admissible even though the
use the word “objectively
accused’s
s. 10(b) Charter rights were
“The finding of a prohibited
reasonable”, these seven
breached. There was no connection
instances can logically be
item within a motor vehicle
between the s. 10(b) infringement, which
interpreted as meeting the
owned and operated by an occurred after the search and seizure of
objective component of the
the drugs, and the reliable and critical
test. (references omitted,
accused is prima facie
nature of the evidence.
para. 15]

proof of possession by the
accused.”

The trial judge properly
concluded that the officer had
reasonable grounds for instructing the accused’s
arrest. Thus, there was no s. 8 infringement.

The accused’s appeal was dismissed.

Complete case available at www.albertacourts.ab.ca

A Word of Caution
Although the Alberta Court of Appeal upheld the accused’s conviction, they noted that this case “was certainly not a
model police investigation.” The police failed to follow basic police procedures, such as:
police did not tag and label the bag containing the drugs seized from the accused’s vehicle on the day it was seized;
police did not respond to several requests to attend the police detachment to identify the seizure;
police denied the accused’s right to counsel for about nine hours from the time of his arrest, during which two attempts
were made to question him after he had asserted his desire to speak with counsel and before being given that
opportunity. The trial judge characterized this conduct as blatant, unreasonable and unacceptable.
The justices did not want their judgment to be taken as condoning these investigative failings.

PAGE 38

Volume 11 Issue 4 - July/August 2011

REASONABLENESS OF SAFETY
SEARCH TO BE DETERMINED IN
LIGHT OF PARTICULAR FACTS

At trial in New Brunswick Provincial Court the
officer testified it was his standard practice,
especially when it was busy and alcohol was
involved, to place a person in the back seat of his
police car while he wrote the ticket up as well as
R. v. Aucoin, 2011 NSCA 64
perform a pat-down search for weapons. He wanted
The accused was stopped driving
to ensure his safety, and that of the accused, even
shortly after midnight in a downtown
though he had no idea what the accused had in his
area during a busy Apple Blossom
possession that could be used for harm. The trial
weekend. The licence plate on his
judge concluded that the accused's s. 8 Charter
car was for another type of motor
rights had not been violated by the pat-down search.
vehicle. While checking the insurance and
“Police officers face any number of risks everyday in
registration for the vehicle and the accused’s newly
the carrying out of their policing function, and are
issued licence, the officer smelled alcohol and
entitled to go about their work secure in the
demanded a roadside screening test. The accused
knowledge that risks are minimized to the greatest
was asked to step out of his vehicle and go back to
extent possible,” she said. “Where an officer has
the police car, two or three car lengths away. He was
reasonable grounds to believe that his or her safety
told he was not under arrest and was placed in the
is at risk, the officer may engage in a protective patback seat of the police car with the door open and
down search of the detained individual. The search
his feet outside. Although the screening test
must be grounded in objectively discernible facts to
indicated a result (20 mg%) below the legal limit,
prevent ‘fishing expeditions’ on the basis of
the accused was still in breach of a zero tolerance
irrelevant or discriminatory factors.” She found this
policy for a newly licenced driver. The officer
case involved some very unusual circumstances. It
decided to issue the accused a summary offence
was late at night and there was no place to write out
ticket for having alcohol in his system as a newlythe ticket other than in the police car. Plus, it would
licensed driver, so he wanted
have been inappropriate and unlawful for
to put the accused in the back
the
officer to leave the accused seated in
“We are to consider the
seat of the police car while he
his own vehicle; it would have been a
reasonableness of [the
wrote the ticket in the front
continuation of the offence. Finally, it was a
officer’s] actions in light
seat. The accused’s vehicle
very busy time and there were many people
was going to be towed and
around.
“Given all the circumstances, it
of the particular
the officer was concerned the
was reasonable for [the officer] to request
circumstances he faced,
accused could walk away and
[the accused] to be seated in his police car
disappear while he was
while he was writing out the ticket,” said
not in the context of
writing the ticket. The officer
the trial judge. “And it was also reasonable
other fact situations that
did a safety pat-down and felt
in all the circumstances for [the officer] to
may arise.”
something in the accused’s
do the very quick pat-down search that he
right pocket. When asked
did, and the short conversation that he had
what it was, the accused said it was ecstasy. He was
with [the accused] before [he] was placed in the
arrested and two small baggies containing 100 green
back seat of that vehicle. Office[r] safety is a
pills (which later turned out not to be ecstasy) and
legitimate concern in this particular fact-situation.”
eight bags of cocaine were removed from his pocket.
After an expert said that the cocaine was possessed
He was subsequently charged with possessing
for trafficking, rather than for personal use, the
cocaine for the purpose of trafficking as well as
accused was convicted of possessing cocaine for the
possessing a substance held out to be ecstasy for the
purpose of trafficking but not the ecstasy related
purpose of trafficking.
charge. He was sentenced to two-years in prison.

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Volume 11 Issue 4 - July/August 2011
That is not to say that in other circumstances, if
[the officer] followed "his usual practice" of
placing someone to whom he is going to issue
an alcohol - related motor vehicle ticket in the
back seat of his car and doing a pat-down
search, such detention and pat-down search
would not be a breach of s. 8 of the Charter. We
are to consider the reasonableness of [the
officer’s] actions in light of the particular
circumstances he faced, not in the context of
other fact situations that may arise. [para. 26-28]

The accused appealed his conviction to the Nova
Scotia Court of Appeal arguing, among other
grounds, that the trial judge erred in finding that his
s. 8 rights had not been breached by the pat-down
search.

The Safety Search
A search incidental to the police power of
investigative detention is a warrantless search and is
presumed unreasonable unless it can be justified.
This requires a determination of whether the search
was authorized by law, if the authorizing law itself
was reasonable, and if the manner in which the
search was conducted was reasonable. In agreeing
that the search was reasonable, Justice Hamilton, for
the two member majority, stated:
The issuance of the motor vehicle
ticket to [the accused] was the final
step of [the officer’s] investigation
into [the accused’s] breach of the
MVA. He had a duty to complete
this stage of the process. He had to
do this in a situation where he had
essentially no back-up, it was late
at night, he needed the light in the
front seat of the police car to write
the ticket, he could not place the
[accused] in the car he had been
driving because it was being
removed, and because it may be a
continuing offence given the
alcohol in the [accused’s] blood,
a n d h e wa s c o n c e r n e d t h e
[accused] may take off if left on his
own outside the police car. In such
circumstances, the brief detention
of the [accused] in the back seat of
the police car is within the scope
of the doctrine of investigative
detention and is reasonable.
Having decided to place [the
accused] in the back seat of the
police car, it was also reasonable
for the officer to do a pat-down
search to ensure that the [accused]
had no weapons that he could use
to harm the officer or himself.

The accused’s appeal was dismissed.

A Different Opinion

Justice Beveridge, unlike his colleagues, concluded
that the search was not authorized by law and was
unreasonable under s. 8. Although the officer had
lawful authority to stop the accused
under the MVA and to engage in a
“ In such circumstances,
more intrusive detention once the
the brief detention of the smell of alcohol was detected, he did
not have carte blanche to do what he
[accused] in the back
did. There was no arrest to trigger the
seat of the police car is
long recognized common law power
within the scope of the
of the police to search incident to a
lawful
arrest. Instead, he was
doctrine of investigative
detained pursuant to an impaired
detention and is
driving investigation which ended
when the accused tested below the
reasonable. Having
legal limit. By then, the officer was
decided to place [the
merely engaged in writing a summary
accused] in the back
offence ticket for a newly licensed
driver having alcohol in their blood.
seat of the police car, it
The officer’s direction for the accused
was also reasonable for
to sit in the rear of the police car
created the officer safety issue. Had
the officer to do a patthe officer just wrote the ticket
down search to ensure
without requiring the accused to sit in
that the [accused] had
the rear of the police car, there were
no
officer safety concerns and no
no weapons that he
need to search. Furthermore, the
could use to harm the
search itself went beyond one
officer or himself.”
reasonably limited to locating
weapons.
Complete case available at www.canlii.org

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Volume 11 Issue 4 - July/August 2011

POLICE TO CONSIDER CHARTER
IN THEIR ASSESSMENTS
R. v. Timmons, 2011 NSCA 39
At about 10:30 pm, a 24-year-old
woman (Nadine) called her mother.
She said she was having a fight with
the accused, with whom she was
living, and wanted to be picked up.
Since the family vehicle was not available, the
mother called police to have them go for her
daughter. The mother told the dispatcher that Nadine
was being abused and that the accused “deals in
drugs and has a big Rottweiler.” The mother said she
did not know whether or not there were weapons in
the accused's house. Two police officers receiving
the call began to search for the accused's home
since the mother did not know exactly where it was
and had only provided a very vague description.
Police called the mother back to get more details.
She again confirmed her belief that her daughter was
being abused and provided a cell phone number.
Police called the daughter. She laughed and said, "so
my mother called." The daughter insisted that she
was fine, did not need the police, and refused to tell
police where she was located. Nonetheless, the
police located the accused’s residence, arriving at
just after midnight, approximately two hours after
the original call was reported. Police were aware the
accused had outstanding charges for obstructing
police and impaired driving, considered him violent,
and believed he was involved in drugs.
Shortly after arriving, a scream was heard coming
from inside the residence. Seeing a dog dish and
chain outside, suggesting a possible guard dog,
police drew their weapons. They pounded on the
door, demanded entry, and ordered the dog be
secured. The daughter opened the door and said
everything was fine. She said that no assault had
taken place and there was only a verbal argument.
She had wanted to leave, but the accused did not
want her to take his truck. An officer saw a person
(the accused) lying on a bed, went straight to him,
asked him to get out of bed, and patted him down
for officer safety reasons. The house was then
cleared. Each room was entered and spaces that
could hold a person were checked to ensure that no

one was hiding and that there were no firearms
present. Seeing evidence of drugs in plain view (eg.
marihuana on top of a clothes basket, a garbage bag
containing dried marihuana plants in the kitchen,
170 marihuana seeds in a basket in the basement,
Miracle Grow, buckets, insulation venting, lamp,
timers, heater, dark plastic) police obtained a
warrant authorizing a search of the premises.
The trial judge ruled that the police had a
responsibility to enter the residence whether invited
or not. “The perceived scream meant that either [the
daughter] was lying about being okay, or had been
subsequently threatened, or that someone else inside
was in trouble,” said the judge. “Police had to
investigate and check the entire house for the
presence of other persons.” The judge found there
was no qualitative difference between a 911 call
arising from within the residence and one where the
mother had phoned police out of concern for her
daughter's safety. The entry by the police was not
only justified but entirely necessary. The judge also
held that the police were justified in checking the
house to ensure that there were no other occupants
and in searching the accused to ensure he had no
weapon. There were no Charter breaches and the
accused was convicted of cocaine and marijuana
possession and for possessing marijuana for the
purposes of trafficking. The accused then challenged
the trial judge’s ruling to the Nova Scotia Court of
Appeal.

Warrantless Entry and Search
The accused argued that the police violated his
rights under s. 8 when they entered and searched his
home without a warrant. First, the call was not a 911
call or a distress call made from the home. Second,
the police were not justified in entering when
Nadine opened the door and said that she was fine.
Third, once the police had entered, clearing the
house was not justified.
The Court of Appeal noted that an individual is
entitled to privacy in his or her own home. “The
unauthorized presence of state agents such as the
police constitutes an invasion of that privacy,” said
Justice Olund. But there are exceptions, such as hot

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Volume 11 Issue 4 - July/August 2011
pursuit, exigent circumstances, or statutory
authorization. In this case, the police entry before
the search warrant was issued was a warrantless
search and prima facie unreasonable. For the search
to be lawful it would need to be authorized at
common law.

Once it has been demonstrated that a search is a warrantless
one, the burden is on the Crown to show, on a balance of
probabilities, that the search was a reasonable one. 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
conducted is reasonable.

house who was in trouble, they could have
obtained that information from Nadine Shaw,
outside the house. They could also have asked
whether there were any firearms or weapons
there. If she said that there was someone who
needed assistance, the officers would have
reasonable grounds to believe that that person's
safety was a risk. They then would have been
justified in entering the house to locate and
protect him or her.

The Court of Appeal rejected the accused’s argument
that the complainant’s call was simply a request by a
mother looking for a ride for her daughter, and not
akin to a 911 call. “In the particular circumstances
of this case, the fact that the call which triggered
police response was not through 911, by the alleged
victim, or from the house is not material,” said
Justice Olund. It was reasonable for the police to
search for the alleged victim and go to the accused’s
home. Although Nadine told police at the door that
she was fine, her statements could have been
involuntary and made pursuant to threats of
violence. She was still inside with the person
reported to have abused her and was possibly under
his control. If they had simply accepted what was
said at the door at face value and left, the officers
could have been abandoning an alleged victim of
abuse in the company of her alleged abuser and in a
remote and secluded location, without ever seeing
or speaking with her alone.
The police entry, however, was unlawful and thus
unreasonable under s. 8 of the Charter. The person
who had been reportedly abused came and opened
the door. “If the police were concerned that her
assurances that all was well might not be genuine or
made of her own free will, they could have asked
[the daughter] to step outside the house [and] could
then have questioned her face to face and away from
any possible influence by the accused,” said Justice
Olund, continuing:
If she had been in any danger, Nadine then
could have simply left with the five officers. She
had been located and was safe with them. There
would have been no reason or need to enter the
residence.
The police had no information that there was
anyone in the house other than [the accused]
and Nadine Shaw. However if, because of the
perceived scream or otherwise, they were
concerned that there might be anyone else in the

If Nadine refused to step outside the house when
asked, the police might have suspected that [the
accused] was threatening her from behind the
door or farther away, and that he was armed. In
that case, they would have had to decide how
next to proceed. Depending on the
circumstances, one reasonable option might
well be a warrantless entry with the object of
protecting Nadine's safety.
But the police did not ask Nadine to step outside
the house. Instead three officers entered. Nadine
Shaw told them that she was fine. There was no
one nearby or who was interfering with their
conversation. The only person in view was a
man lying on a bed in a bedroom. There was no
evidence that he either moved or reached for
something suddenly, or indeed at all.
Nevertheless the police went straight into the
bedroom, had him get up, did a pat-down
search to which the man cooperated, and then
proceeded to search his house. [paras. 43-46]

The trial judge failed to consider alternatives to the
warrantless entry and the search of the home.
Despite the police often being required to make
rapid assessments and decisions in potentially
dangerous situations, they must always include in
their considerations the rights of individuals under
the Charter. The accused’s appeal was allowed, his
convictions were set aside, and a s. 24(2) analysis
was left for a new trial.
Complete case available at www.canlii.org

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Volume 11 Issue 4 - July/August 2011

DETAINEE UNDERSTOOD RIGHT
TO COUNSEL: s. 10(b) NOT
BREACHED
R. v. J.W.C., 2011 ONCA 550
The accused, who suffered from
bipolar disorder and depression, was
a voluntary patient in a hospital’s
psychiatric unit. He was receiving
treatment that included medication,
therapy, recreational programming, and community
passes. He called police one day from the hospital
and said that he wanted to confess to sexual
offences that he had committed in the past when he
worked as a residential counsellor at various group
homes for persons with special needs. The victims
were developmentally handicapped, unable to
communicate or testify, and never made complaints
against the accused. Two officers went to the
hospital and confirmed that the accused had called
the police. He agreed to go to the station for an
interview. He was then taken to the police cruiser
where he was informed of his right to counsel. He
agreed that he understood his rights. When asked if
he wanted to call a lawyer he said, “Not right now.”
He was then taken to the police station and was
again advised of his right to counsel. He said he
understood and when asked again whether he
wished to call a lawyer said, “Ah I don’t know.” The
interview began and the accused explained that he
had been a voluntary patient at the hospital. As the
interview continued, he admitted to sexually
assaulting a number of patients who were in his
care. He provided details of the assaults, identified a
number of the victims by their first name or their
bedroom location, and gave particulars of the
facilities where the assaults took place.
At trial in the Ontario Superior Court of Justice the
accused claimed, in part, that his s. 10(b) Charter
rights were breached. During a voir dire he said that
he did not fully understand what the officer was
saying to him. While he understood he could call a
free lawyer, he did not know how to do so. He said
“I don’t know” because he was confused and
nervous. He was trying to think about whether or not
he should have a lawyer. As for his statement, he
said it was untrue and the product of voices telling

him that he had committed sexual offences and that
he must be punished and would be killed in jail. The
trial judge concluded that the accused had a
reasonable time to consider whether he should
exercise his right to counsel. He was given his right
to counsel twice, once in the police car on the way
to the station and again at the station. There was
about 12 minutes between the first and second
cautions to consider his right to counsel and make a
decision whether to exercise that right. Plus, the
interview began with open-ended questions as
opposed to questions immediately focused on the
crimes. “I find that the twelve or so minutes between
the first reading of his right to counsel and caution to
the beginning of the interview gave a person of his
education, admittedly depressed at the time,
sufficient time to ask for counsel,” said the judge. He
was convicted of several sexual offences.
The accused appealed his convictions to the Ontario
Court of Appeal submitting, among other grounds,
that when he answered “Ah I don’t know”, it was an
equivocal response, and the police were required to
obtain a clear waiver that he did not wish to consult
counsel. After all, the police knew the accused was
suffering from depression and had been removed
from a psychiatric facility. In his view, his confession
should have been excluded under s. 24(2).

Right to Counsel
In rendering judgment, Justice Rosenberg, speaking
for the Court of Appeal, first summarized the s. 10(b)
framework. He noted there are two components of
the right to counsel:
1. the informational component: police must tell
the detainee about their right to consult counsel,
which includes the availability of duty counsel.
2. the implementation component: police must
give the detainee an opportunity to exercise their
right to counsel. This implies a duty on the
police to hold off questioning until the detainee
has had a reasonable opportunity to consult with
counsel. In some circumstances, a detainee is
entitled to a second opportunity to consult
counsel: (1) where the police seek to resort to
non-routine procedures involving the detainee,
such as asking the detainee to participate in a

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Volume 11 Issue 4 - July/August 2011
physician was of the opinion that it was
appropriate that he be allowed to participate in
the police interview that he sought. Moreover,
the [accused] understood his right to counsel
and appreciated that he could have exercised
that right. He had adequate opportunity to
consider whether he would do so. In the face of
the [accused’s] statement that he did not know
whether to consult counsel, [the officer]
reiterated in plain language that the [accused]
could have immediate access to free legal
advice. Given these circumstances, in my view,
the police were not required to do more than
[the officer] did. [para. 30]

line-up; (2) there has been a change in jeopardy
because the investigation has taken a new and
more serious turn as events unfold; and (3) as
events proceed, there is reason to question the
detainee’s understanding of the right to consult
counsel.
In this case, however, the accused’s response to the
second caution, “Ah, I don’t know”, was not a
positive indication that he did not understand the
right to counsel. He said he understood and
admitted as much on the voir dire. “‘Ah, I don’t
know’ was not an expression of uncertainty about
the content of the right,” said Justice Rosenberg.
“Nor was it an invocation of the right to counsel
and, by itself, would not trigger an obligation on the
police to obtain a clear waiver.” Even after he said
“Ah, I don’t know”, the officer confirmed with the
accused that he understood his rights.
As for the accused’s psychiatric condition, the Court
of Appeal stated:
Even taking into account the [accused’s]
psychiatric condition as was appropriate, there is
nothing to indicate that the [accused] did not
understand that he had the right to immediately
consult counsel, if he wished to do so. There is
no aspect of the interview that indicates that the
[accused] did not understand his right to counsel
or that he was in any way deprived of the
opportunity to exercise that right had he chosen
to do so.

Complete case available at www.ontariocourts.on.ca

The Police Station Caution
OFFICER: Um now I’m gonna read a couple of things to you. I’ve
already read them to you once but I’m gonna go over them again.
ACCUSED: Okay
OFFICER: Alright. Ah it’s my duty to inform you that you have the
right to obtain and instruct [counsel] without delay. You have the
right to telephone any lawyer you wish.You also have the right to
free advice from a Legal Aid Lawyer. If you are charged with an
offence you may apply to the Ontario Legal Aid Plan for legal
assistance. 1-800-265-0451 is a toll free number that will put you in
contact with Legal Aid Duty [Counsel] Lawyer for free legal advice
right now, do you understand?
ACCUSED: Mm huh
OFFICER: Ah do you wish to call a lawyer now?

In addition, the police were not required to go
further and obtain a clearer waiver from the
accused. He understood his jeopardy and there was
no reason to doubt his understanding of the right to
counsel. This was not a case where the detainee was
unsure of the nature of the allegations. It was the
accused who contacted police. He had exclusive
knowledge and control over the information about
the abuse he said he committed:
In another case, a particular detainee’s mental
illness could be a very important factor, that
might well lead to a finding that the detainee did
not understand the right to consult counsel.
However, in this case the [accused] was a
voluntary patient at the hospital and his treating

The accused failed to establish a s. 10(b) violation
and his appeal was dismissed.

ACCUSED: Ah I don’t know.
OFFICER: Okay. Um but you do understand this [is] a, a phone
number for free legal advice?
ACCUSED: Mm huh
OFFICER: And that we’ll provide you with an opportunity to call
that number, you do understand that right?
ACCUSED: Right
OFFICER: Um do you wish to say anything in an, now you’re not
charged with anything right now. Um do you wish to say anything ah
you’re not obliged to say anything unless you wish to do so but
whatever you say may be given in evidence do you understand that?
ACCUSED: Mm huh
OFFICER: We’re recording this and that we can use it as evidence?
ACCUSED: Okay
OFFICER: Okay. So what I’ll do is I’ll, I’ll get you to um, ah just tell
me a little bit about yourself and tell me why you called today. Okay?

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