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OFB.C.

ISSUES OF INTEREST'
VOLUME NO. 41

POLICE ACADEMY
4180 West 4th Avenue, Vancouver, British Columbia, V&R 4J5

ISSUES OF INTEREST
VOLUME NO. 41

Written by John M. Post
July 1992
TABLE OF CONTENTS
Page#
DESPITE ACCUSED INDICATING HE WISHES TO CONSULT
COUNSEL, HE CONTINUES TO VOLUNTEER INCULPATORY
STATEMENTS
Regina v. Mackenzie - Nova Scotia Court of Appeal
64 c.c. c. (3d) 336 . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . ... . . . . . .. 1
CONSTITUTIONAL VALIDITY OF THE MANDATORY
PRESUMPTIONS RELATED TO BREAK-IN/OUT
OFFENCES
Regina v. Slavens - Court of Appeal for BC
64 C.C. C. (3d) 29, March 1991 . . . . . . . . . . ... .. . . . . . . . . . . . . . . ... . . .. 2

POLICE OFFICER AIMING GUN AT PRISONER TO
DISSUADE HIM FROM FLEEING. GUN GOES OFF AND
PRISONER IS KILLED. MANSLAUGHTER?
Regina v. Gosset - Quebec Court of Appeal
67 C.C. C. (3d) 156, May 1991 .. . . . . . . . .. . . . . . . . .. . . . . . . ... . . . ... . . 5

ADMISSIBILITY OF RESPONSE TO INTITIAL
INVESTIGATIVE QUESTIONS
Regina v. Elshaw - Supreme Court of Canada
67 C.C. C. (3d) 97, September 1991 . . . . . . . ... . . .... . . . . . . . . . . . . . . . . . . 7

RELIGIOUS COMMUNICATION - PRIEST AND PENITENT
PRIVILEGE
Regina v. Gruenke - Supreme Court of Canada
67 C.C. C. (3d) 289, October 1991 .... . . . . . . . . . . . . . .... ... . .. ... . . . . 9

I$~ve.s ~ Interest
Vo fc-ttrie, J\Jo. "ti
Page#
LOUD PARTY INTERFERING WITH NEIGHBOUR'S ENJOYMENT
OF PROPERTY - MEANING OF ENJOYMENT
Regina v. Pheonix - BC Provincial Court
64 C.C. C. (3d), March 1991 . . . . . . . . . . . . . . . . . . . . . . . . . .. .... .. . . . . 11
MEDIA ACCESS TO TAPE-RECORDED CONFESSION
AND RE-ENACTMENT OF A MURDER
Regina v. Vickery and Prothonotary of Supreme
Court of Nova Scotia - Supreme Court of Canada
64 C.C. C. (3d) 65, March 1991 . . . . . . . . . . . . . . . . . . . . . . . . . ... . ... . . . 12
CAN ONE CONSENT TO SUSTAIN BODILY HARM IN A
FIST FIGHT OR BRAWL? THE ISSUE OF CONSENT
Regina v. Jobidon - Supreme Court of Canada
66 C.C. C. (3d) 454, September 1991 . . . . . . .. .. .. . ... . . .. . . . . . . . . . . . . 14

WHAT IS THE TEST TO DETERMINE IF AN OTHERWISE
NEUTRAL OBJECT IN THE POSSESSION OF A
PERSON IS A WEAPON
Regina v. Wees - BC Supreme Court
Vancouver CC 900977, February 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ROADSIDE DEMAND - OFFICER DOES NOT HA VE
DEVICE IN HIS POSSESSION - ACCUSED COULD
NOT COMPLY FORTHWITH
Regina v. Davidson - BC Supreme Court
Prince George 5C22934, April 1992 ... . . . ... . ... . . . . . . . . . . . . . . ... . . . 19

POLICE APPREHENDING MISSING YOUTH UNDER
FAMILY AND CHILD SERVICES ACT
CONSEQUENTLY ARRESTING YOUTH FOR
POSSESSION OF PROHIBITED WEAPON.
LAWFULNESS OF POLICE ACTIONS REASONABLENESS OF SEARCH
Regina v. W. T .B. - BC Supreme Court
Vancouver CC911394, March 1992 . .. . . . . . . . . .. . ... . . . . . . .. . . ... . . . 23
11

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Page#
POLICE RECRUITING AN INFORMER TO ELICIT
A STATEMENT FROM A SUSPECT- RIGHT TO REMAIN
SILENT
Regina v. Broyles - Supreme Court of Canada
68 C.C. C. (3d) 308, November 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. 25

REASONABLE SEARCH - RIGHT TO COUNSEL
ACCUSED CONSENTING TO POLICE ENTERING HIS
APARTMENT EVIDENCE WAS IN PLAIN VIEW - NO
CHARTER VIOLATION
Regina v. Rube - BC Court of Appeal,
Vancouver CAO 12276, January 1992 . . . . . . . . .... .. . . . . . . .. .. . . . ... .. 27

CONSTITUTIONALITY OF "CONSTRUCTIVE MURDER"
Regina v. Sit - (1991) 3 C.S.R. 124,
October, 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

TIDBITS:
CONFESSIONS ADMITTED DESPITE RIGHT TO
COUNSEL VIOLATION
Regina v. Yaeck - 68 C.C.C. (3d) 545 . . . . . . . . . . . ... .... . . . . . . . . . . . . . 31

OBTAINING EVIDENCE BY TRICK DURING
PRE-DETENTION PERIOD
Regina v. Miller - 68 C.C.C. (3d) 517 .... ... . . . . . .. .... . . ... . . ... .. . 32

AGENT - VIS A VIS - INFORMER
Regina v. Khela. and Dhillon 68 C.C. C. (3d), September 1991 . . . . .... . . . . . . . . . . . . . . . . . . . . . ... ... 32

ACCUSED INSISTING ON LAWYER'S PRESENCE
WHEN SUPPLYING BREATH SAMPLES - RIGHT
TO COUNSEL
Regina v. Atchison 68 C.C. C. (3d) 241, November 1991 . . . . .... ... . ... . . . . . .... . . . . . .. . 33
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ADMISSIBILITY OF INMATES' CONVERSATION
- POLICE AGENT?
Regina v. Gray - Ontario Court of Appeal
66 C.C.C (3d) 6, June 1991 . . . . . . . . . . . . . . . . . . . . ... . . . . . ... .. . . . . . 33

CHOKE HOLD - PUNCHES AND PRYING TO OPEN MOUTH
UNREASONABLE SEARCH AND SEIZURE
Regina v. Garcia - Guiterrez 65 C.C.C. (3d) 15, May 1991 . . . ... . . . . . . . . . . . . . . . . . ... . . . . . . . . .. 34

FAULTY SEARCH WARRANT USED TO CONDUCT
SEARCH
Regina v. Silvestrone - BC Court of Appeal
66 C.C.C. (3d) 125, July 1991 . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. 34

MEANING OF THREATENING SERIOUS BODILY HARM
Regina v. McCraw [1991] 3 R.C.S. 72, September 1991 . .. . . . . . . . . . . . . . ... ... . . . . . . . . . . 35

PRISON STAFF SEARCHING A PROSPECTIVE VISITOR
- REASONABLENESS
Regina v. Christie - Victoria Registry 58898
November 1991 . . . . . . . . . . . . . . . . . . . . ... . ... . . . . . .. . . .... . . .. . 35

REFRESHNG MEMORY FROM PICTURE TAKEN OF
ACCUSED FOR PURPOSE OF IDENTIFYING HIM IN
COURT
Regina v. Graham - New Westminster Registry ,
X0126787, November 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

IMPAIRMENT ALONE IS NOT SUFFICIENT TO SHOW
CAUSATION OF BODILY HARM
Regina v. Fisher - Court of Appeal for BC
Vancouver CA013880, March 1992 .. . .. . . . . . . . . . . . . . . . . . .. . . .. .. . . . 36

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Page#

SUSPECT IS ENTITLED TO BE SHOWN
BREATHALYZER READING
Regina v. Partington - BC Supreme Court
Kamloops 39973, February 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IS READING THE DEMAND SUFFICIENT FOR INFORMING
THE DETAINED DRIVER FOR REASON OF THE DETENTION
Regina v. Rae - BC Supreme Court
Kamloops 39971, February 1992 .... .. ... ... . . . . . . . . . . . . . . .... . .... 37

QUALIFIED OPERATOR TAKING BREATHALYZER APART
IN PRESENCE OF ACCUSED - DOES THIS PROVIDE A
REASONABLE EXCUSE TO REFUSE GIVING SAMPLES
OF BREATH?
Regina v. Lamke - Court of Appeal for BC
Vancouver CA014495, February 1992 . . . . . . . .. ... . . . . . . . . . . . . . . . .... 38

BEATING AT SCENE OF ROBBERY - ATTEMPTED
MURDER
Regina v. A.D. Y. - Court of Appeal for BC
Victoria V01443, March 1992 . . . . . . . . . . . . . . .... . . .. .. . . . . . . . . .... 39

DISTINCTION BETWEEN CROSS-EXAMINATION
FOR THE PURPOSE OF IMPEACHING CREDIBILITY
AND SUCH EXAMINATION TO "INCRIMINATE"
Regina v. Kildip - [1990] 3 S.C.R. 618 . . . . . . . . . . . . . . . . . .. . . . . . . .. ... 40

v

DESPITE ACCUSED INDICATING HE WISHES TO CONSULT COUNSEL
HE CONTINUES TO VOLUNTEER INCULPATORY STATEMENTS

REGINA v. MACKENZIE - 64 C.C.C. (3d) 336. Nova Scotia Court of Appeal

In the wake of the murder of three persons the accused was arrested. Due to intoxication he was

left alone for a period of 12 hours. He was then cautioned and told of his Charter rights. In
response the accused told the officers that he was responsible for the killings. He was then told
by the officers that they wished to take a written statement from him. The accused said he
firstly wanted to consult counsel. He phoned a relative who would get hold of a lawyer for him.
Police said that they would not ask him any questions until he has spoken to his lawyer. During
the ensuing 40 minutes, while waiting, the accused told police again how he had killed his three
neighbours and why. The officers simply listened and did not say anything to the accused.
When he had come to the end of his volunteered statement he wanted to know what they were
waiting for. He was reminded that they were waiting for his lawyer. The accused was again
assisted and left in privacy with a telephone. Shortly after the lawyer arrived and needless to
say no further statements were made.
The trial judge had excluded the statement the accused made after he indicated he wanted to
speak to a lawyer, despite the fact that it was volunteered. That statement was very explicit and
descriptive. This was after a consideration of the accused's rights to counsel under s. 11 (d) of
the Charter.
The jury acquitted the accused and the Crown appealed to the Nova Scotia Court of Appeal.
One of the three justices of the Court found that the continued presence of police officers, while
waiting for the lawyer, was an inducement that would lead the accused to believe that he was
under an obligation to speak. The majority of the Court however, found that the police did
nothing to unfairly entice the accused to continue relating the story of the events surrounding the
killing of the three victims. Police had assisted the accused in retaining counsel and refrained
from any further questioning. There was nothing that would bring the administration of justice
into disrepute by admitting the second half of the voluntary statement in evidence.

Crown's appeal was allowed
New trial was ordered

2

CONSTITUTIONAL VALIDITY OF THE MANDATORY PRESUMPTIONS
RELATED TO BREAK-IN I OUT OFFENCES

REGINA v. SLAVENS - Court of Appeal for BC, March 1991 - 64 C.C.C. (3d) 29

The accused was caught in a secured underground parking garage of an apartment block. When
challenged he ran and found an exit that took him to the lobby of the building. When he tried
to exit that place he walked into the arms of the police and consequently was convicted of
breaking out of a place after having entered it with the intent of committing an indictable offence
therein. For the latter part of this allegation, the Crown relied on the presumption in s. 348 (2)
C.C. that in the absence of any evidence to the contrary, breaking out of a place is done after
entering with the intent to commit an indictable offence therein. This the accused had claimed,
is legislation that infringes his rights to be presumed innocent and violates his right to a trial
based on the fundamental principles of justice. He was unsuccessful, and appealed the
conviction to the BC Court of Appeal by raising the same Charter arguments as he had at his
trial.
Since the Charter came into effect in 1982 the Courts as well as Parliament did rid our criminal
law of several presumptions of guilt. These statutory as well as common law provisions became
subject to various tests to determine their constitutional validity. Pre-conditions had to have a
link of probability to the facts that may be presumed. However, the wording of these
presumptions varied and the Courts divided them into two categories, "mandatory presumptions"
and "reverse onus clauses". A mandatory presumption is the least threatening or aggressive.
The enactment by means of which such a presumption is created usually outlines the conditions
prerequisite to the presumption and then goes on to say that the absence of any evidence (not
proof) to the contrary such conditions are proof of something. The presumption can be rebutted
or avoided by evidence that raises a reasonable doubt about the presumed fact.
A reversed onus clause is far more obnoxious and assertive in law. It also outlines prerequisite
facts to be proven beyond a reasonable doubt by the Crown, but then places the onus on the
accused to displace the presumed fact by proving the contrary on a balance of probabilities. The
presumption of innocence consists of two basic rights: (1) The Crown must prove beyond a
reasonable doubt what it alleges (that burden may not shift), and (2) The accused has a right to
remain silent. It is self-explanatory how presumptions of fact or guilt may run amok of the
Charter, particularly the kind that is a reverse onus clause.
The trial judge had held that the provisions of s. 348 (2) (b) C.C. amount to a mandatory
presumption. She reasoned that the provisions did not make it possible for the accused to be
convicted despite a reasonable doubt. Furthermore the provision did not compel the accused to
break his silence. He did not have to adduce the evidence to the contrary by means of his own
testimony. This could be accomplished by cross-examining Crown witnesses. A simple

3
question relating to the possibility of the reason for his presence on the premises was for the
purpose of finding a place to sleep, could suffice as evidence to the contrary.
The accused had made statements to the Crown witnesses about his presence in the garage. The
trial judge had simply disbelieved them. Had they been believed they apparently were capable
of amounting to evidence contrary to the presumed fact that he had entered with the intent to
commit an indictable offence. The hour (03:00), the prowling among the cars, shining his
flashlight in them, and his panicky flight made his explanations to authorities incapable of belief
held the trial judge. Such, she held, is not evidence of any weight.
The BC Court of Appeal held that the trial judge was wrong and out-of-step with the tenor or
trend of recent judgments by the Supreme Court of Canada. Although these cases were not on
"all-fours" with the very issues in this case, they are in the application of general principles of
law.
Without the provision contained in s. 348 (1) (c) the Crown would have to prove two essential
elements of the crime alleged against the accused. The section relieves the Crown of the burden
to prove that the accused did, or intended to commit an indictable offence. In this case the
Crown has to prove one element (the breaking out) and the accused must take care of the other
element (intent) to rebut the presumption the legislation provides. This means that if the accused
fails to participate in his trial he could be convicted of the crime on the basis of a mandatory
presumption, in the absence of which there could be reasonable doubt that there was the required
mens rea. This is directly in conflict with the fundamental principles of justice (s. 7) and the
presumption of innocence [s. ll(d)]. It means that a jury will have to convict even where there
is a reasonable doubt as to the truth of an accused's statements.
The Court of Appeal quoted other superior Courts on the issue of mandatory presumptions and
reverse onus clauses and seemed to agree that the distinction between these two does not solve
the issue. Both place onus or burden on the accused while the presumption of innocence means
that the Crown must prove beyond a reasonable doubt each element of the offence charged. It
held that the impugned s. 348 (2) (b) C.C. is without any force or effect unless it is justified
under a test described in s. 1 of the Charter. It simply says that reasonable limits to Charter
Rights and Freedoms, "described by law", may be valid if demonstrably justified in a free and
democratic society. The Supreme Court of Canada held in 19861 that where the law overrides
a constitutionally - protected right or freedom its provisions must be of significant and sufficient
importance. To determine the validity of such law the Courts must apply a "proportionality
test". This consists of considering if measures were carefully designed to reach the objective
of the presumption. It simply cannot be based on arbitrary, unfair or irrational considerations.
Then the means the legislation describes for presuming certain facts, must violate as little as
possible the rights and freedoms of an accused person. Lastly, "there must be proportionality

1

R. v. Oakes - 24 C.C.C. (3d) 321. See Volume 23, page 16 of this publication.

4

between the effects of the measures taken and the objective sought to be achieved". In addition,
the "evidentiary assist" must make sense, be needed and be justified on the basis of statistics.
Although the statistics the Court uses were a few years old, it found that in Canada nearly one
half million "breaking & entering", "breaking out" or "being unlawfully in" offences occur per
year. Of these only 20% are cleared. About 17% of the crimes are committed in BC with a
clearance rate of only around 13 %. The Court found that this indicated "epidemic proportions".
The clearance rate clearly indicates that obtaining evidence sufficient for a charge is a daunting
task. The current clearance rate is, to say the least, not a deterrent. Without the evidentiary
assist provided by this well-known presumption the requisite criminal intent is nearly impossible
to prove. Removing the impugned sections from our criminal code would no doubt have an
adverse effect and would make the situation even more deplorable.

The accused's appeal was
dismissed
Conviction upheld

Comment:
It seems fair to say the BC Court of Appeal did not mean to give the Crown a leg-up because

society is inundated with the crime the presumption relates to. The reason for a poor clearance
rate can have causes unrelated to legislation. On the surface one may conclude the justification
the BC Court of Appeal found for not striking down the presumption had more to do with
convenience than law.
The presumption is there for obvious reasons. Without it the law that recognizes by means of
its severe maximum penalties that entering someone else's premises to commit crime is a grave
offence, would be rendered a legislative tiger with severe dental problems. Intent is simply not
provable unless the perpetrator speaks or, for that matter, fails to explain. It seems that the
legislation is in line with the dictum: "There comes a time that a person is so surrounded by
inculpatory circumstances that he either speaks or stands condemned". In R. v. Kowlyk the
Supreme Court of Canada recently upheld the rule of "Recent Possession" which is based on this
dictum. "Intent or knowledge" are most of the time prerequisites to criminal offences. In many
situations we cannot by the standards of proof in criminal law prove that those mental elements
existed. If at common law we have "Recent Possession Rule" then why can we not have a
statutory presumption that is geared to overcome the exact same threshold?

5
POLICE OFFICER AIMING GUN AT PRISONER TO DISSUADE
HIM FROM FLEEING. GUN GOES OFF AND PRISONER IS KILLED.
MANSLAUGHTER?

REGINA v. GOSSET - 67 C.C.C. (3d) 156, Quebec Court of Appeal, May 1991

The accused Gosset was a police officer who had been called to the scene of a man refusing to
pay his taxi fare. The suspect, Tony Griffin, at first gave a fictitious name. When his correct
name was discovered, the accused found that there was a warrant outstanding for Griffin.
Another matter of suspicion was the quantity of cigarettes Griffin had in his possession. Griffin
was taken to the police station. When he was led out of the police car he ran. The accused
drew his revolver and shouted, "Stop, or I'll shoot". At this point the weapon was held at the
accused's side and was pointed towards the ground. Griffin stopped and faced the accused.
When it looked as though he would run again, the accused aimed the gun at Griffin. A shot
rang out and Griffin collapsed with a bullet in the head. The accused claimed that he only aimed
his gun to dissuade Griffin from further flight. When he did so he did not realize that the gun
was cocked, which he deduced must have happened accidentally when he took it out of the
holster. Neither was he aware of having pressed the trigger.
The accused was charged with manslaughter and tried by a jury. He was acquitted and the
Crown appealed this verdict claiming that the judge had not adequately instructed the jury.
The applicable enactments for these circumstances provided that culpable homicide that is not
murder is manslaughter. A person commits culpable homicide when he causes the death of a
human being (1) by means of a unlawful act or (2) by criminal negligence. The indictment
against the accused did not specify either of these two means. The jury was told it had to find
that the accused had been criminally negligent while the Crown claims that it did prove that the
death was caused by the unlawful act of careless use of a firearm.
The accused conceded at trial that the circumstances did not require that he fire at Griffin or
ready his gun to be discharged. He simply did not know that the gun was cocked or that his
finger was on the trigger. This, the defence had argued, left the Crown without proof that their
was any malice or intent on the part of the accused. For careless use of the firearm the Crown
must show at least, that the accused knew the gun was cocked. This to prove that there was
absence of "reasonable precaution" for the safety of Griffin. The Crown rebutted this
submission by saying that the accused should have checked the gun before aiming it a Griffin.
He should have been aware that the gun was cocked. All this amounted to a standard of care
less than a good police officer would have taken in the circumstances. There simply was no
excuse for the accused's conduct which resulted in Griffin's death. The Crown did not say that
the accused was careless because he drew his gun in the circumstances. However, when he did
he exercised inadequate care and that constitutes careless use of a firearm. There simply was
no requirement for the Crown to prove knowledge on the part of the accused that his gun was

6
cocked or that his finger was on the trigger. All the Crown claims it had to show is that the
care the accused ought to have taken was not met by him. The Crown affirmed that the accused
did not fire his gun deliberately or did intent to harm Griffin. This means, the Court confirmed,
that he did not invoke the shield law contained in s. 25 of the Criminal Code or used excessive
force (s. 26 C.C.), or used force to prevent an offence (s. 27 C.C.). However, what should
have been explained to the jury was the meaning of "without lawful excuse" for the careless use
of a firearm.
The Court of Appeal was of the opinion that it was "objectively imprudent as regards Griffin's
safety" for the accused to consciously point the gun at Griffin. To do so with a loaded gun is
not prudent, particularly not while the index finger is on the trigger and without ascertaining if
the revolver is cocked. There certainly was a causal link between the accused's actions and
Griffin's death. In criminal law, however, the drawing of a gun to dissuade a person under
arrest from fleeing may be a lawful excuse and a justified action.
The instruction the jury received emphasized the essential mental element of criminal intent or
malice on the part of the accused to find him criminally negligent. For that they were instructed
to include in their consideration all events from the very beginning of the accused's contact with
Griffin until after the shot was fired. Did his attitude or behaviour towards Griffin show any
malice? This was inadequate for instructions to determine if the accused had been careless in
the way he handled his firearm. The essential elements of that offence are substantially different
from criminal negligence. Careless handling of a firearm is a crime of general rather than
specific intent. The criminal intent required is the intent to do the act which constitutes the
offence or wrongful act - in this case to handle, without lawful excuse, a firearm in a careless
manner. In addition, to make out the crime of manslaughter the Crown has to show that the
accused knew that his action did put Griffin at risk of some harm. In other words the jury was
instructed to find graver elements than were necessary.

Crown's appeal was allowed
New trial was ordered

7

ADMISSIBILITY OF RESPONSE TO INITIAL
INVESTIGATIVE QUESTIONS
REGINA v. ELSHAW - Supreme Court of Canada, September 1991 - 67 C.C.C. (3d) 97.
Two neighbours living adjacent to the public park saw the accused walking in a crouched
position into some bushes. He was holding two boys (one 5 and 6 years old) by the hands. One
of the witnesses notified police and the other approached the bushes to see and hear what was
going on. The accused was found "wrapped around" one of the boys and heard to say, "This
is our little secret".
When police arrived the accused tried to flee but was apprehended and told to be under
investigation for possible child molestation. He was then placed in the rear of the police van
while the officers spoke to the witnesses. This took five minutes. The officers then opened the
doors of the van and had a brief conversation with the accused. He was asked, "What would
have happened if we had not come along?" The accused explained that he could not help
himself when he had "these urges". He said to be more attracted to girls than to boys and said
that five or six year old children were his main target. He complained not to know how to get
help and was then told by the officers that they could arrange that for him. This conversation
prior to an official arrest became the kernel issue at trial as well as the subsequent appeals from
conviction of attempted sexual assault. The trial judge had admitted the conversation in evidence
and this was upheld by the BC Court of Appeal. 2 Claiming that his right to counsel had been
violated as he was detained at the time he gave his statement and had not been informed by then
of that right, the accused appealed to the Supreme Court .of Canada (S.C.C.).
The issue of detention was not problematic. The Courts at the provincial level held (and the
Crown conceded) that the accused was detained at the time he made the statement in issue.
However, those Courts also held that the detention was reasonable and brief. Although the
accused's right to counsel had been violated admitting the statement in evidence would not bring
the administration of justice into disrepute. The sole issue before the S.C.C. was the application
of the exclusionary rule [s. 24 (2) Charter] in these circumstances.
The S.C.C. was of the opinion that the BC Court of Appeal had erred in allowing the length of
the accused's detention before he made the statement, to affect their judgment. The police did
put a question to the detained accused and received an inculpatory reply prior to fulfilling their
obligation under the Charter. This is the issue and not how long the accused was detained when
the question was put to him. That violation was serious; the accused was denied his right to
know that he had access to legal advice and the fact that he needed not to respond. This at a
time when he needed those rights the most. The statement contributed considerably to his

2

See Volume 35, page 23 of this publication.

8
conviction and was a link to the similar fact evidence which was the foundation for his
indeterminate sentence as a dangerous offender.
It was necessary in the circumstances to place the accused in the patrol wagon and detain him
while the officers gathered information, but it was no urgency that justified violating his Charter
rights. The S.C.C. recognized that there are circumstances where urgency and necessity justify
the questioning of a suspect prior to advising him of his rights to counsel. The urgency of
detention, as in this case, is no excuse to violate that right. Although the S.C.C. stressed that
even if there was "good faith" on the part of the officers, it would not have mitigated the
Charter violation. In the circumstances there was no "good faith" to be considered, but even
if there was, it (good faith) cannot serve as support to admit evidence to cure an unfair trial as
a result of admission of self-incriminating evidence. Even though the legal requisites for "good
faith" did not exist the Court observed that what would have taken away from the common
understanding of that phrase was the officers omitting to even give the accused the common law
caution regarding his right to remain silent.

The S.C.C. seemed in complete disagreement with the BC Court of Appeal decision on this case
and ...... .

Allowed the accused's appeal
and ordered a new trial

9
RELIGIOUS COMMUNICATION - PRIEST AND PENITENT PRIVILEGE

REGINA v. GRUENKE - Supreme Court of Canada, 67 C.C.C. (3d) 289, October 1991

The accused (a 22 year old reflexologist) had an 82 year old client who befriended her and her
mother. Mr. B. (the client) became a surrogate father to the accused. He willed a life interest
in his estate to her; he lent her money to start her own business; and she moved in with him
in a platonic relationship. The "living-in" arrangement did not last long as Mr. B. demonstrated
jealousy over her relationships with other men and insisted on sexual favours.
One day Mr. B. announced that he would come to see the accused. She arranged for her
boyfriend to stand by in case of trouble. What happened after is somewhat murky, but all three
went out of the populated area and Mr. B. was murdered. Both the accused and her boyfriend
were convicted of murder. The verdict was upheld by the Manitoba Court of Appeal and the
Supreme Court of Canada granted the accused leave to appeal her conviction.
The accused had decided to confess to the murder which was planned for the purpose of gaining
the benefits of the B's will and to stop the sexual harassment. To do so she attended the office
of the minister of the protestant church she attended attimes. She spoke to the minister as well
as a church counsellor. She wanted to know if she could be forgiven for what she did. She told
the minister and counsellor in considerable detail what happened and that she had beaten B. to
death. The minister and counsellor were subpoenaed and testified for the Crown. The
statements were admitted despite the defence's submission that the conversation was privileged
and guaranteed to be so under the Charter provision for freedom of religion.
History shows that the British and Canadian Courts have not as a matter of practice, compelled
members of the clergy to disclose information that is confidential religious communication.
However, there is no common law that protects such communication. It seems fair to say that
the defence position was, that if the Court found that there was no such common law the Court
should create it in this case. Section 2 (a) of the Charter guarantees us Freedom of Religion and
a primafacie privilege of communication in the exercise of this Freedom, will give it full effect.
Solicitor-client communications are primafacie privileged in that they are inextricably linked to
the effective operation of the legal system. Penitent or communications between a member of
the clergy and a person who seeks religious personal advice .o r relief from a matter of
conscience, may be socially desirable but it is not linked to the legal system. All relevant
evidence is admissible unless proven otherwise. Consequently, no primafacie privilege should
be created for this type of communication, held the Court.

10
Then the Court considered if there ought to be a "case-by-case" priest and penitent privilege.
In other words, should there be a principled approach taken to this question, which takes in
account the circumstances of each case. In 19873the S.C.C. referred to the impact of the now
entrenched freedom of religion in regards to privilege for religious communications. Prior to
the Charter coming into effect there was a freedom of thought and belief. "With the
enshrinement of this freedom we now also embrace a right to manifest religious belief by
worship and practice or by teaching and dissemination". "Though this enhances a claim that the
religious communication with an ordained minister or priest should be afforded privilege", its
applicability must be determined on a case-by-case basis. In other words, the privilege is not
absolute.
One of the fundamental prerequisites to the privilege is an understanding and expectation of
confidentiality. This expectation is on the part of the penitent person (the one who feels sorrow
for sins committed). After all it is his/her privilege and not that of the minister or priest.
In this case there was no suggestion of confidentiality. As a matter of fact the accused told the
reverend that she intended to go to the police and "take the blame" for the murder.
Another prerequisite to privilege in regards to religious communication, is that its purpose must
be religious or spiritual. One may deduce from this that the privilege is only available were
"confession" is part of the theological doctrine of the denomination the penitent belongs to. The
Court did however, emphasize that such a formal practice is not in and of itself determinative.
In this case the communication was to relieve emotional stress and was not for a spiritual or
religious purpose.

Accused's appeal dismissed
Conviction for first degree
murder upheld

3

R. v. Church of Scientology - 31 C.C.C. (3d) 449.

11

LOUD PARTY INTERFERING WITH NEIGHBOUR'S ENJOYMENT
OF PROPERTY - MEANING OF ENJOYMENT

REGINA v. PHOENIX - 64 C.C.C. (3d), BC Provincial Court, March 1991

The accused hedonistically pursue his love for hard rock music and partying until 5:00 am. The
neighbours and their children were deprived of sleep. Police attended twice at the accused's
home but all was to no avail. Consequently he was charged with mischief. The Crown alleged
that the accused had wilfully interfered with the neighbour's lawful enjoyment of property.
The accused was represented by counsel who entered a plea of guilty on behalf of the accused.
When the Judge heard the circumstances he refused to accept the plea and ordered a trial. When
the accused appeared for trial, he again attempted to plead guilty but was again refused.
The operating words in the allegation are "wilful" and "enjoyment". Continuation of the infernal
noise despite police pleadings and warnings was just about as inconsiderate as one can get and
leads one to draw the inference that the accused and his friends were totally indifferent to the
inconvenience and annoyance they caused. Although this does not show that they intended to
do so, it does show that they were wilful.
"Enjoyment" commonly means pleasure. Not being able to sleep in your own home is far from
pleasurable. But the Court held that in law enjoyment has a different meaning. If "enjoyment"
was measurable in decibels and had to be taken at its common meaning, the use of power tools,
planting a tree that obstructs view and many other acts would become indictable offences if
someone objected to the noise or the tree.
"Possession" and "enjoyment" are used
interchangeably in law. It means that we have a right to possess real property without legal
challenge of the title. When Parliament enacted the section under which the accused was
charged it did not intend to create a crime for interfering with the pleasure, comfort or
convenience of the use of real property. The accused had not interfered with the complainant's
legal possession of the property and he was consequently acquitted.

12

MEDIA ACCESS TO TAPE-RECORDED CONFESSION
AND RE-ENACTMENT OF A MURDER

REGINA v. VICKERY AND PROTHONOTARY OF SUPREME COURT OF NOVA
SCOTIA - Supreme Court of Canada, March 1991, 64 C.C.C. (3d) 65.

We have recently experienced an increased interest on the part of the "media" in using actual
trials for the purpose of competing for ratings in their commercial enterprise. Listening to the
networks' excuses and reasons for this interest one would nearly be convinced that the objective
is educational and a patriotic pursuit of the common law constitutional right of the public to be
informed. Far be it from them to exploit the process and real human tragedy, to sell
commercials. A "public trial" is a right and what we are about to get, if the media has its way,
may be more than we bargained for or what the creators of this constitutional right had in mind.
In this case the respondent Mr. Nugent was convicted at trial of second degree murder. The
Crown filed as an exhibit, an audio tape of an interview of Nugent where he confessed to the
police to have committed the murder. The Crown also produced a video tape of Nugent reenacting the crime. The news media applied for access to and use of the tapes for their
purposes. The application was originally granted and later dismissed. The issue of access of
the media to exhibits of this kind reached the Supreme Court of Canada. The thresholds for
those who opposed this media access, was the freedom of expression and press and that, A trial
is a public event. What transpires in the court room is public property. Those who see and
hear what transpired can report it with impunity." (US Supreme Court 1947, Craig v. Harvey)
II

A matter that had to be considered as well as the fact that although the tapes were held to be
admissible by the trial judge and the content was viewed by the jury, the Court of Appeal held
that the tapes were inadmissible. Nugent's conviction was consequently quashed. Needless to
say Mr. Nugent did not want to be exposed on television as a person who de facto committed
a murder but escaped all consequences via the Charter escape hatch. At least this will be the
view and opinion of probably the majority of the viewing public. At law, Mr. Nugent, is due
to the verdict of the Courts, an innocent person. Furthermore the Courts, the custodians of
exhibits, were interested in receiving some clear directions from our Court of last resort.
It should also be noted that the media's application was only for access to the tapes, not the right
to copy them or to air them. Another matter that makes this case somewhat a restricted or
conditional precedent is that the S.C.C. felt that it should not entertain Charter arguments in
regard to freedom of expression or press. This as these issues were not raised in the Courts
below and therefore it had blocked those who may have wished to intervene in these important
questions. The S.C.C. was in essence deprived of the submissions and arguments interested
parties may have raised.

13

The S.C.C. observed that scrutiny of the judicial process is essential. Particularly where judges
have issued some process or judicial licence in camera (Search warrants or authorizations for
interception). Such scrutiny is constructive and keeps the system accountable. When all is over,
the media, on behalf of the public should have access to all information and exhibits. In this
case the trail of Nugent was public, as was the appeal hearing. No one was impeded to attend
and disseminate by whatever means, what was said, submitted, and decided. The exhibits the
media wanted access to where part of the procedures and all details of it were revealed and
examined. No meaningful contribution could be made, in as far as scrutiny is concerned, by
broadcasting the tapes.
Confessions of this kind will by themselves, undoubtedly persuade the public that Nugent was
factually guilty. His legal innocence will not likely impress many people. This, considering that
"Not guilty" is our only verdict to express lack of guilt, (whether this is exoneration, "not
proven" or technical and legal innocence only) would make the inevitable dramatization of the
confessions unfair to the acquitted person.
The S.C.C. observed an exhibit is not the property of the Court but is simply in its custody for
a specific purpose. When that purpose has been served it should be returned to the person with
a propriety interest in it. Police, who probably owned the tapes, were not one of the competing
claimants before the Court.
This left Mr. Nugent, as a participant to the creation of the tapes, and who was to suffer the
consequences of the anticipated use of the tapes by the media, as a person with a superior claim.
However, the Courts have the inherent right to restrict the use of exhibits it returns or releases.
In this case the public interest in the tapes had been met during the public trial and appeal
procedures. Our Court said, (quoting the US Supreme Court)

" .... the requirement of a public trial is satisfied by the opportunity
of members of the public and the press to attend the trial and to
report what they have observed."

Application dismissed
Media was refused·the exhibits

14

CAN ONE CONSENT TO SUSTAIN BODILY HARM
IN A FIST FIGHT OR BRAWL? THE ISSUE OF CONSENT.
Regina v. JOBIDON4 - 66 C.C.C. (3d) 454, Supreme Court of Canada, September 1991.

Manslaughter, a culpable homicide, includes causing the death of a human being by means of
an unlawful act. It follows, that when an assault is committed and death thereby caused the
assailant committed, manslaughter unless he can negate the assault, in this case by means of the
defence of consent. The question however, is whether we can in law consent to being wounded,
having bodily harm inflicted or have death caused?
The accused Jobidon was involved in a consensual fight in which he with a voracious first blow
got the better of his opponent. Despite the limpness of the victim he continued to punch his
head. Injuries sustained caused the death of the willing partner in this fight. To prove
manslaughter the Crown had to show that the accused had committed an unlawful act that caused
the death. That unlawful act was assault, which is defined as applying force intentionally to
another person without that person's consent. Needless to say, the fight had been the equivalent
of ballroom dancing in terms of consent. The question therefore was where the boundaries are
of our ability to give permission to another person to inflict injury on us. In civil law,
particularly where it involves contract and agreements there is an immense body of common law
known as, "he who consents, _fannot receive injury". (Volenti non fit injuria)
Section 7 C.C. in essence states that common law defences established by the criminal law of
England are available in Canada except as altered, modified, varied or affected by the C.C. or
any other statute of Canada. The Criminal Code provides that "no consent (to assault) is
obtained" where the victim submits or does not resist by reason of the application of force to
the victim or someone else; threats or fear of the application of force to the victim or other
person; fraud; or exercise authority. Defence counsel argued that this s. 265 (3) C.C. had
altered or revised the common law. The victim in this case had undoubtedly consented to the
fight and that consent had not been obtained by any of these means hence there was consent and
no assault argued Jobidon' s lawyer.
Centuries ago one man chopped another man's hand off so he would be eligible to make a living
begging. This had been done upon the initiative of the victim and with his full consent. The
Courts held that the consent in the circumstances was nullified.

In another case the English Courts held that one man cannot licence another person to beat him

4

See Volume 35, page 35 of this publication for detailed circumstances and the decision
of the Ontario Court of Appeal here reviewed by the Supreme Court of Canada.

15

In another case the English Courts held that one man cannot licence another person to beat him
up. A fight by mutual consent is no excuse in criminal law for assault. These nullifications of
the defence of consent were carried forward with Canadian juris prudence. Therefore the
nullifications of consent provided for in 265 (3) C.C. do not limit the common law but reflect
it. In others words the section is not exhaustive.
Reviewing all the Canadian cases the S.C.C. came to the conclusion that the provincial Courts
of Appeal are rather divided on this issue. Said the Court, " .... there is certainly no crystal-clear
position in the modern Canadian Common Law .... ". However, it found that the common law
always incorporated persistence to minimize the validity of a consent to have bodily harm
inflicted in a fight.
The S.C.C. also considered this issue of consent on the basis of social policy. Unlimited
consent to assault would be a step regressive in terms of civilized norms of conduct. Brawls and
consensual fights are useless in social value. The harm and injury they cause is sometimes
devastating. In this Jobidan case, a young man died on his wedding day, for absolutely no
reasonable or defensible purpose. Common law limitations on what we can consent to will serve
as an essential deterrence to fights and brawls. Consensual fights must not be a license to take
advantage of others. Said the Court:
"The sanctity of the human body should militate against the
validity of consent to bodily harm inflicted in a fight" .
The Court concluded that in a weaponless consensual fist fight between adults consent is vitiated
where force intentionally applied causes serious hurt or non-trivial bodily harm. In the factual
circumstances of this case this is the limitation common law must place on what we can consent
to.
Further limitations may be established on a case by case basis. The S.C.C. emphasized that this
ruling avoids nullification of consent where the results of the application of force in a fight
results in minor hurt or trivial bodily harm. The bodily harm we cannot consent to is found in
s. 267 (2) C.C.:
" .... . any hurt or injury to the complainant that interferes with the
health or comfort of the complainant and that is more than merely
transient or trifling in nature" .

The S.C.C. made special mention of assaults and consent during sports activities. It warned that
the precedent they established in this case for brawls and fist-fights will not affect sporting
events. When a person of his own free will participates in a rough game there is consent on his
part as long as the force applied is within the customary norms and rules of the game.
The injuries the victim of the consensual fist fight with the accused sustained were the results

16
of the latter's sole objective, to strike the deceased as hard as he physically could, until his
opponent either gave up or retreated. The victim's consent was nullified.
Appeal dismissed.
Conviction of manslaughter
upheld

17

WHAT IS THE TEST TO DETERMINE IF
AN OTHERWISE NEUTRAL OBJECT IN THE
POSSESSION OF A PERSON IS A WEAPON

REGINA v. WEES - BC Supreme Court, Vancouver CC 900977, February 1992.
The accused was searched incident to his arrest for possession of cocaine. Police found in one
of his trouser pockets a knife with an eight centimetre blade. The trial judge was satisfied that
the accused did not know that the knife could be opened automatically by the application of
centrifugal force, until the arresting officer demonstrated it. The officer asked the accused if
he carried the knife for protection. The closest he came to admitting that was by saying, " ... .it's
the area, like the people are not good". His main purpose was to, " ... clean my fingernails and
cut things with it". The accused was convicted of carrying a concealed weapon and appealed
the verdict to the BC Supreme Court.
It was common ground that this pocket knife was not designed to cause death or injury to

persons. The only issue to be resolved then, was if the trial judge was wrong in finding that the
accused had the knife in his possession with the intent to use it as a weapon. (See definition of
weapon ins. 2 C.C.C.).
The complexity of this issue is that where the person who possesses an otherwise neutral object
is carrying it to use it as a weapon in an existing scenario, he has the prerequisite intent to the
offence alleged here. However, is that also the case where the person carries that neutral object
in the event a scenario may arise where he may want to use it as a weapon? In others words,
must the intention be immediate to use it as a weapon? It is only the intent of the possessor who
can convert a neutral object into a weapon.
Despite some conflicting judicial opinions on this issue, the law by means of precedents, dictates
an explicit test that must be applied in circumstances like these. The trial judge had held that
there was no reason why the Crown had to show an immediate intention on the part of the
accused to use the knife as a weapon. However, the BC Supreme Court decided that the correct
test was established in 19795 • The reasons for judgment in that case indicate circumstances not
dissimilar to the issue in this case. The relevant portions of those reasons are as follows:
" ...... there is not one tittle of evidence that the appellant had ever
used the knife as a weapon, nor, in my view, is there anything to
suggest that he, certainly at the time of his possession in the beer
parlour, intended to use it as a weapon. The test applicable to
such an intention of possession is a subjective one at the time in
question ..... "

5

R. v. Halvorssen - 46 C.C.C. (2d) 543.

18
In view of this there was no evidence beyond a reasonable doubt that the knife was intended to
be used for any purpose for which law abiding citizens carry a pocket knife.
That was precisely the case here. Although the trial judge in this Wees case, could, based on
the evidence before him have found that the knife was a weapon, he had used the wrong test.
This means that the accused's appeal should be allowed and that a new trial must be ordered.
However, since the Crown proceeded by summary conviction and the events took place over
three years ago, the Court entered a verdict of not guilty.

19
ROADSIDE DEMAND - OFFICER DOES NOT HA VE DEVICE
IN HIS POSSESSION - ACCUSED COULD NOT COMPLY FORTHWITH

REGINA v. DAVIDSON - BC Supreme Court, Prince George, 5C22934, April 1992.

Ms. Davidson, the accused was demanded to supply a sample of breath for the purpose of
analysis, in a hand held roadside screening device (ALERT). As the officer did not have such
a device he "radioed" for one to be delivered. The accused refused "to do anything for you
guys". The officer explained the consequences of a refusal and repeated the demand in simpler
terms. Again there was an indication that no sample would be given. The accused, upon a third
demand, again promised to refuse. By this time the "device" was delivered to the scene and a
fourth demand met with the same results. At no time did the officer make the accused aware
of his right to counsel.
The accused was convicted. She appealed this verdict to the BC Supreme Court. Both counsel
stressed that the Court give guidance to police on the issues involved as the rulings of the lower
courts are inconsistent with one another.
The Supreme Court referred the parties to Supreme Court of Canada rulings in April of 19886
(R. v. Thomsen and R. v. Hufsky). Mr. Thomsen refused to give a sample of breath for analysis
in a road side screening device. Two demands had been made of him. He was not arrested but
an appearance notice was served on him. He was not informed of his right to counsel.
In the Hufsky case the circumstances were slightly different. Where Thomsen was stopped for
having one headlight, Hu.fsky was stopped arbitrarily in a "road-check" to inspect documents and
the condition of the motor vehicle and to discover the sobriety of the driver. Hufsky also
refused to blow in a road side screening device. He also was not made aware of his right to
counsel. (In this case the arbitrary detention issue was also settled)
The Supreme Court of Canada had held that when police stopped the cars, Thomson and Hu.fsky
were detained. What also caused detention was the demand for a sample of breath for the
roadside test. Both men had a right to be informed of their right to counsel, particularly as
refusing to give such a sample is a criminal offence. The Supreme Court of Canada said that
the section that provides for the roadside test implies an operational requirement that limits the
right to counsel, as there is simply no opportunity for contact with counsel prior to giving a
roadside breath sample. S. 254 (2) implies that the demand must be made upon finding a person
operating a motor vehicle who must then forthwith comply with that demand. This causes a
limit to be placed on the right to counsel and the section was tested for justification under s. 1

6

R. v. Thomsen - Volume 31, page 10 of this publication - (1988) 40 C.C.C. (3d) 411
R. v. Hufsky - Volume 31, page 10 of this publication .

20
of the Charter. Considering the havoc caused by the drinking driver the limitation to the right
to counsel is reasonable and justified in our free and democratic society said the Supreme Court
of Canada.
Since the Thomsen and Hufsky decisions in 1988, the Supreme Court of Canada reviewed, the
acquittal of a Mr. Grant of refusing to proivde a sample of breath for analysis with a roadside
device. The officer had the device delivered to the scene and it arrived 30 minutes after the
demand was made. This delay had brought the police action outside the relevant criminal code
provisions. Mr. Grant who by law was to comply forthwith, committed no offence when he
refused 30 minutes later. The acquittal was upheld. (R. v. Grant [1991] 3. S. C.R. 139).
One would reason that all the Supreme Court Justice had to do was follow the precedents related
above. However, since the Thomsen and Hu/sky decisions the so-called "roadside" breath test
provisions in the criminal code have slightly changed. The words, "roadside screening device"
was changed to "approved screening device". The demand can be made not only of drivers but
also of boats operators, pilots and railroad engineers. These people are not likely found on the
"roadside". In the earlier decisions the Supreme Court of Canada had attached some weight
to the word "roadside" as it signified the test had to happen right then and there. It was argued
that the removal of "roadside" makes the case distinct from the Thomsen and Hufsky decisions.
These arguments were however, to no avail. When the Supreme Court of Canada decided the
appeal by Grant, it reiterated what it had ruled in Thomsen and said that the word, "forthwith"
was the key word.
The BC Supreme Court held that where a police officer cannot provide the test immediately, he
will be required to inform the suspect of his right to counsel. Not having an approved device
in his possession makes compliance with what the law requires for a roadside test impossible.
The examples of margin of leeway the court gave were:
1.
2.
3.

walking back to the police car to get the device;
mouthpiece falling off causing the test about to be administered to be delayed as long as
it takes to put back on; or
momentary delay to ensure device is working properly

The accused's right to counsel had been violated in the circumstances as they were. As the
officer was not in a position to administer the test immediately, the accused should have been
informed of her right to counsel

Accused's appeal allowed
Acquittal entered

21

Comments:
If one reads the Grant decision, it seems that the Supreme Court of Canada did not address the
issue of right to counsel. It had already decided that in the Thomsen case. In Grant, the
Supreme Court of Canada seemed to have held that a demand was made with which the suspect
was to comply "forthwith". Due to the officer not having a device to administer the test the
His
suspect could not comply "Consequently Grant was under no obligation to comply."
refusal did therefore, not amount to an offence. It appears that no right to counsel warning
would have remedied this.

Residual alcohol and the roadside test
Trying to give guidance to police, the BC Supreme Court, (dealing with the meaning of
"forthwith") explored the problem of residual alcohol in the mouth of the "roadside" suspect who
may have consumed an alcoholic beverage within 15 minutes of blowing in the approved device.
The officer could take the sample "forthwith" and the reading would, of course, be inaccurate
to the detriment of the suspect. Police may then arrest the suspect and the analysis of breath on
the breathalyzer would with all its safeguards give an accurate reading. If that is below the legal
limit the suspect will then be released. This process, the Justice felt, was a lesser evil than
waiting 15 minutes before administering the roadside test. He reasoned that few people have
consumed alcohol within 15 minutes of being demanded to blow in a roadside device. Waiting
for 15 minutes at the "roadside" for the residual alcohol, if any, to dissipate would
inconvenience all persons who are tested.
The day before the Supreme Court Justice expressed this opinion in this Davidson case, a
brother Justice decided on this very issue in Regina v. Gartrell (Penticton Registry No. 18314).
The officer demanded that Gartrell provide a sample of breath for analysis in the screening
device. He waited for 15 minutes for any possible residual alcohol to dissipate before
administering the test. A "fail" reading resulted and a demand to accompany the officer was
made. The breathalyzer readings supported an "over 80 milligrams" charge. The Provincial
Court Judge had acquitted Gartrell as the 15 minute delay had invalidated the "fail" result as
a basis for the demand to accompany and provide samples of breath for the breathalyzer. The
Supreme Court decided that the roadside test should have been administered as soon as possible.
The Court held that the test must be administered with a minimal infringement of the suspect's
Charter right. The 15 minute delay had placed his actions outside the ambit of the roadside
demand and testing provisions. [s. 254 (2) C.C.].
Crown's Appeal was dismissed
Acquittal was upheld

Note:
R. v. Elder - Penticton Registry No. 18314. The circumstances in that case were identical to
those in Gartrell. The Crown's appeal in Elder was for the same reasons dismissed.

22
REGINA v. DEDEMUS - BC Supreme Court, New Westminster, X030420, March 1992.
The accused was stopped after a brief chase. He showed signs of impairment by alcohol. He
was told of his right to counsel and was subsequently demanded to provide a sample of his
breath for analysis in the roadside screening device. Based on the precedents the officer was
not obliged to "Charter" the accused at this stage of his investigation. However, he was told
he had that right and should have been afforded an opportunity to consult counsel. The accused
was left with the impression of having a right to counsel before he had to provide a sample of
breath. As he was not given an opportunity to exercise that right he had an excuse to refuse
giving a sample. At least this was the defence's position.
The BC Supreme Court Justice who heard the accused's appeal held that the officer's mistake
could not give the accused a right he did not have in law. The accused was taken to have known
that he had to provide the sample demanded from him.

23
POLICE APPREHENDING MISSING YOUTH UNDER
FAMILY AND CHILD SERVICES ACT
CONSEQUENTLY ARRESTING YOUTH FOR POSSESSION
OF PROHIBITED WEAPON. LAWFULNESS
OF POLICE ACTIONS - REASONABLENESS OF SEARCH

REGINA v. W.T.B. - BC Supreme Court, Vancouver CC911394, March 1992

A police officer encountered the accused youth (who appeared to be about 16 years of age) on
a public street. According to CPIC information he was a permanent ward of the Superintendent
of Family and Child Services. He was listed as "missing" in that he had very recently walked
away from a Social Service group home. The absence was a repeat occurrence. The officer
arrested the accused youth and told him that he would be returned to the group home. He then
explained to the youth that he would be searched before being transported. With this the youth
took a switch blade knife from under his clothing and gave it to the officer. With that he was
arrested for carrying a concealed weapon and possession of a prohibited weapon .
When at his trial an issue was made over the reasonableness of the search, the trial judge held
that the weapon was not discovered by means of a search but was voluntarily surrendered. The
youth appealed the resulting convictions to the BC Supreme Court.
The Supreme Court Justice disagreed with the trial judge. He held that there was a search. The
consent indicated by voluntarily turning the knife over to police is due to "the authorization and
coercive nature of police authority" without meaning. Hence the knife was discovered by means
of a search.
As the search was warrantless the Crown had to show that it was reasonable. In this case the
search was incident to an arrest. This is lawful at common law. However if the arrest is
unlawful then so is the search incident thereto. 7
The arrest which prompted the search was obviously not under the Criminal Code. The officer
did testify that he had apprehended the youth under the Family and Child Services Act. The
applicable provisions of that Act do authorize the apprehension of a child that is in need of
protection. The Superintendent or a police officer may do so on having reason to believe that
there is need for such protection. They may also apprehend (take in custody) a child who is
"absent from his home in circumstances that endanger his safety or well being".

7

R. v. Klimchuk - Volume 40, page 19 of this publication
Cloutier v. Langlois - Volume 37, page 5 of this publication

24
The defence argued that apprehending a child is distinct from arresting him/her. Arrest
exclusively relates to breaches of criminal law. Although the Court agreed with this reasoning,
the issue became academic as the Court found that the apprehension was unlawful due to a lack
of evidence that the youth was found in circumstances that endangered his safety or well being.
The distinction is also in the functions of the police officer in the enforcement of criminal law
and rendering assistance as a public servant by returning a child home, or to protect the health
and welfare of children. When a police officer apprehends a child under that Act, the wellbeing
of the child is paramount. Said the Court:
"I have no difficulty in concluding that the appellant was
unlawfully arrested. The arrest exceeded the jurisdiction granted
to a police officer under the provisions of the Family and Child
Service Act and accordingly the warrantless search conducted,
following the arrest was unreasonable.
Although the officer was dealing with the youth under social service legislation designed to
protect the child, he immediately effected a criminal arrest when the youth voluntarily gave him
the prohibited weapon. The officer had a legitimate interest to ensure that the youth had no
weapons on him before he transported him, but "he had no legitimate interest in punishing the
accused for his cooperation. "
The original arrest or apprehension was improper and the search was unreasonable. Accordingly
the evidence of the knife was inadmissible.
Appeal was allowed
Acquittal recorded

25
POLICE RECRUITING AN INFORMER TO ELICIT
A STATEMENT FROM A SUSPECT- RIGHT TO REMAIN SILENT

REGINA v. BROYLES - Supreme Court of Canada, 68 C.C.C. (3d) 308 - November 1991

The accused lived with his grandmother who went missing on June 26. On July 3 the accused
was arrested for fraud arid made aware of his right to silence and counsel. He was at the time
of arrest found in possession of his grandmother's van and her cheque book. He was then not
suspected of having anything to do with his grandmother's disappearance, not even when her
body was found in a plastic bag under the stairwell of her basement suite.
When the accused did become a suspect in his grandmother's death the investigators recruited
the assistance of a friend of the accused. They arranged for an unsupervised visit by the friend
at the Youth Detention Centre. By means of a body pack police learned that the accused was
aware of his grandmother's death on the day of her disappearance. Needless to say that
knowledge carried weight in the case against the accused for second degree murder.
Defence counsel argued that the taped conversation was obtained by a means that infringed the
accused's right under s. 7 Charter and that the evidence was inadmissible. That right, of course,
is the right to remain silent. The accused had clearly indicated to police that he wanted to
exercise that right. Despite that awareness police obtained incriminating evidence from the
accused by surreptitious means and did thereby violate the accused's right to remain silent. 8
In the Hebert case, a police officer had posed as a cell mate and had elicited a statement from
Hebert - a statement he had refused to make when he was officially questioned by police
investigators. The police officer was "an agent of the State". For the Hebert decision by the
Supreme Court of Canada to apply in this Broyles case, the accused's friend must be "an agent
of the State" in the circumstances as they were. Another weighty aspect is whether the "friend"
had "elicited" the inculpatory statement. Said the Supreme Court of Canada when comparing
Hebert with this Broyles case:
"The right to silence will only be infringed where it was the
informer who caused the accused to make the statement, and where
the informer was acting as an agent of the State or its agents?"
This includes situations where there is no pre-existing relationship between the authorities and
the informer, where the authorities have provided incentives for the eliciting of incriminating

8

R. v. Hebert - (1990) 57 C.C.C. (3d) 1.
publication

See Volume 37 , page 16 of this

26
statements by making it generally known that they are willing to pay for such information or that
they will reward the informer with reducing outstanding charges against them.
In this case the informer was held to be an agent of the state. He would probably not have
visited the accused if it was not for the intervention of police. He was specifically instructed
to inquire from the accused whether or not he had murdered his grandmother and, no doubt, the
conversation was specifically riddled with questions to elicit this information from the accused.
Questions were asked to elicit this information from the accused, and the informer to undermine
the accused's confidence in his lawyer who had advised him to remain silent.
Hence the informer was an agent of the state and "the form and manner" in which the
conversation with the accused took place was very much influenced by the intervention of the
authorities. Consequently the informer had, as an agent, solicited a statement from the accused.
This made the Hebert decision applicable in this case.
The evidence of the self-incriminating statement the accused made to the informer is quite
distinct from evidence that is "real" and existed regardless of the breach of the accused's Charter
Right by which it was obtained. 9 The former affects the fairness of a trial as the State had
conscripted the accused against him or herself. Where that fairness is in question if the evidence
is admitted, excluding the evidence will not bring the administration of justice into disrepute.
If the statement had been omitted from the evidence, the jury may have had a reasonable doubt
as to the accused's guilt.
The accused's appeal was
allowed and a new trial was
ordered.

9

R. v. Collins - See Volume 27, page 1 of this publication.

27
REASONABLE SEARCH - RIGHT TO COUNSEL
ACCUSED CONSENTING TO POLICE ENTERING HIS APARTMENT
EVIDENCE WAS IN PLAIN VIEW - NO CHARTER VIOLATION

REGINA v. RUBE - BC Court of Appeal, January 1992, Vancouver CAO 12276

A man was found unconscious in a pool of blood on a loading platform in a back alley. Bloody
footprints, obviously made by "NIKE" running shoes, were found at the scene.
The accused arrived at the scene on his bicycle and started a conversation with the investigating
officers. He inquired about the injured man's condition and he supplied information regarding
conversations he had overheard from people who probably had something to do with the beating
of the injured man. He even pointed out a vehicle that was used by the men whose conversation
he overheard. One officer said to the accused, "I don't believe anything you are telling us."
The officer made it clear that he thought the accused was directly involved in the assault or was
a witness to it. The accused denied these allegations.
The officers felt the accused should be brought to the attention of the detectives who would do
the follow-up investigation. As they were not too sure about the.. accused's veracity, he was
asked if he did mind if the officer (the one who found the footprints) would follow him to the
nearby address where he claimed he lived. The accused did not object; neither did he object to
the officer following him into his building right up to his apartment and holding the door open
for him so he could get his bike inside. There, 8 feet from the door, inside the apartment were
a pair of "NIKE" running shoes with blood splatterings on them. The constable entered the
apartment upon consent by the accused who first said he did not own running shoes. He later
said they did belong to him and not to the other man who also lived in the apartment. The
accused was arrested and charged with aggravated assault. He was told of his rights but did not
indicate any desire to exercise them. He then said he had kicked the injured man about four
times in the head and had left his buddies to finish the guy off. He also admitted that a piece
of clothing at the scene belonged to him.
The victim died and the accused was convicted of second degree murder. He appealed that
conviction claiming that the statements he made and the running shoes, should not have been
admitted in evidence. The latter had been obtained by a means that violated s. 8 of the Charter
and the statements he made to police (prior to his arrest) were obtained before he was given his
right to counsel.
The BC Court of Appeal held that the accused was not detained until immediately after his
running shoes were spotted and seized. That is when he became a suspect. He had consented
to everything and there was in the circumstances no obligation on the officers to inform the

28
accused that he needed not to cooperate. The seizure was reasonable and lawful and the accused
was informed of his right to counsel as soon as he was detained. All the evidence had been
properly admitted at trial.

Accused's appeal dismissed
Conviction upheld

29

CONSTITUTIONALITY OF "CONSTRUCTIVE MURDER"

REGINA V. SIT - (1991) 3 C.S.R. 124, October 1991
The accused appealed his conviction of second degree murder to the Supreme Court of Canada
(S.C.C.). The reasons for judgment by that Court do not give the facts that led up to the
charge, but it is obvious that the accused was a party to a crime listed in section 230 C.C. That
section provides that if a death is caused during the commission by anyone of those crime,
whether or not death was intended, that causation amounts to murder. Apparently the accused
had not caused the death himself. A person he was aiding or abetting and had "an intent in
common" with [s. 21 (1) and (2) C.C.] was the one who caused the death of the victim.
The trial judge had instructed the jury that there were for them to consider three different
grounds by means of which they could return a verdict of guilty:
Aiding or abetting intentional killing;
Having an intent in common with the person who caused the death, to commit a crime
listed in s. 230 C.C.
Having an intent in common with the person who caused the death by stopping the breath
of the victim.

1.
2.
3.

Considering the wording of section 21 (2) and 230 C.C. the trial judge told the jury that they
could return a verdict of guilty even if they found that the accused did not know and had no
reason to know that the victim's death would result from committing the crime listed under s.
230 C.C . The jury returned a verdict of guilty and the Court of Appeal for Ontario upheld that
verdict.
A similar issue was raised in the S.C.C. in 198710 In that case Vaillancourt's partner in an
armed robbery, shot and killed someone. By the combined operation of sections 21 (2) and 230
(a) C.C. Vaillancourt was found guilty of second degree murder. He had argued that the
sections of the Criminal Code which where so constructed that he could be convicted of the most
serious crime without having committed or even intended that crime. That, he argued, is
contrary to the fundamental principles of justice and therefore in violation of s. 7 Charter as well
as the presumption of innocence. Parliament, by means of the Constitution Act of 1982
guaranteed that it would not violate those rights and that any legislation that does, is without
force or effect. Consequently, s. 230 C.C. is unconstitutional he argued. This section is known
as the constructive murder section and is a left over of British Common Law. A few centuries
ago, it was reasoned that if the act that caused the death of a person was unlawful, the offender
committed murder. If a person shot an arrow at wildlife he was entitled to hunt and killed a
person, the death was accidental. If however, it was unlawful to hunt that wildlife the act

10

R. v. Vaillancourt - Volume 30, page 1 of this publication, 25 C.R. 636 (1987)

30
amounted to murder. Although s. 230 C.C. lists the most serious crimes for constructive
murder, it still renders a person liable for murder while he did not cause or intended death to
ensue.
Our Parliament also contradicts itself in the culpable homicide provisions of the Criminal Code.
It defines murder as an offence requiring specific intent (an offence that can only be committed
by means of another offence) and then includes a person in the crime of murder, who does not
even need to foresee the possibility of death to a human being being caused. As demonstrated
in this and other cases if one becomes a party to a crime mentioned ins. 230 C.C. and the death
of a human being occurs in circumstances as mentioned in the subsection of s. 230, that person
also becomes a party to murder whether the murder was foreseeable or not.
The S.C.C. held that s. 230 infringes the rights and freedoms guaranted by s. 7 of the Chart
(Right to life, liberty and freedom of the person and not be deprived thereof except in
accordance with the principles of fundamental justice). The Court also held that s. 230 C.C.
could not be saved by s. 1 of the Charter. For that the Court would have to find that despite
the section being inconsistent with the Charter it is demonstrably justified in a free and
democratic society. Abouts. 21 (2) C.C., (which provides that parties who have a criminal
intent in common to carry out an offence, who ought to have known the probable consequences
of carrying out their common purpose, are each criminally liable for the actions of any of them)
the S.C.C. held that it also is inconsistent with the Charter "with respect to offences to which
subjective foresight is a constitutional requirement in so far as it permits a party to be convicted
on the basis that he ought to have known the probable consequences of carrying out a common
purpose". In as far as this subsection (2) of s. 21 C.C . is inconsistent with the Charter, it also
fails to be justified in a free and democratic society.
In view of the above, the S. C. C. allowed the accused's appeal and ordered a new trial.

TIDBITS:

31

CONFESSIONS ADMITTED DESPITE RIGHT TO COUNSEL VIOLATION

The accused was arrested for murder and was on several occasions told of his right to counsel.
As the accused made no move to call a lawyer he was asked in the booking area if he wanted
to call counsel. He accepted the offer and was taken to a private area. As he walked in the
phone room he volunteered (no questions were asked) an inculpatory statement. This was
followed by a number of similar statements without any prompting by the officer. After one
half-hour, the accused was asked again if he wanted to phone a lawyer. He said, "What can a
lawyer do for me anyway?" A little later the accused changed his mind and did leave a message
for a lawyer to call him back. As there was no return call the police got the accused the duty
Legal Aid counsel. Three hours later the accused's lawyer attended at the police station. The
statements were admitted in evidence. The trial judge held that the first confession made as the
accused entered the room was voluntary and free of any violation of the accused's Charter
rights. The subsequent confessions were made while the right to counsel was violated as police
did not assist the accused in contacting his lawyer. However, they were also admitted. The
s.tatements were not elicited and he made them while he full well knew he had no obligation to
do so. Hence, admitting the statements could not bring the administration of justice into
disrepute. Upon appeal by the accused, the Ontario Court of Appeal agreed with the trial judge
and .....
Dismissed the appeal and upheld the murder conviction.

R. v. YAECK - 68 C.C.C. (3d) 545.

*******

32
OBTAINING EVIDENCE BY TRICK
DURING PRE-DETENTION PERIOD
The accused was questioned several times regarding a murder. He finally informed police that
he retained counsel and would not speak to them anymore. Although police had enough to arrest
the accused they did not do so as they wanted to obtain a sample of his handwriting. This to
compare it with a note the perpetrator left at the scene of the crime. The investigators persuaded
the accused's employer to obtain that sample. It had to be hand printed and it was not expected
that the accused would cooperate to provide it for investigation purposes. The manager of the
car lot where the accused was a "jockey" had him make advertising cards to place in the car
windows. These were used for comparison with what was found in the victim's apartment.
This, the accused claimed, was evidence obtained in a manner that infringed his right to remain
silent, which prior to an arrest or detention exists at common law. The defence argued that this
right is in these circumstances incorporated in s. 7 of the Charter as one of the fundamental
principles of justice. Hence the crucial evidence ought to have been excluded. The Court of
Appeal for Ontario to which the accused appealed his conviction, held that the common law right
to silence had never extended to police tricks in pre-detention periods. The fact that the officer
had the grounds to arrest the accused but did not so he could obtain the evidence without running
amok of the Charter, did not cause the accused to be technically detained when he provided the
evidence to an agent of the police (the employer). The handwriting samples and the evidence
related thereto were admissible in evidence.

Regina v. MILLER - 68 C.C.C. (3d) 517

*******
AGENT - VIS A VIS - INFORMER
The accused conspired to blow up an aircraft while in flight. The accused had several meetings
with a police informer to supply some ancillary equipment and information. The informer, upon
instructions of the police, introduced the police officer to the accused who was supposed to be
the explosives expert he needed. At trial the accused demanded that the informer be produced
as a witness and the Crown objected on the basis of the Supreme Court of Canada's decision in
Bisaillon v. Keable (1983) 11 The trial judge agreed with the Crown. The accused appealed
successfully to the Quebec Court of Appeal. It held/ that the informer's direct evidence was
used; he was no longer an informer who simply told police what he knew by means of his
relations with the accused. He had been replaced by the undercover officer and had continued
his relationship with the accused on behalf of the police. He was no longer an informer but an
agent.
Appeal was allowed. New trial was ordered.

Regina v. KHELA and DHILLON - 68 C.C.C. (3d) , September 1991.

11

See Volume 15, page 3 of this publication.

33
ACCUSED INSISTING ON LAWYER'S PRESENCE WHEN
SUPPLYING BREATH SAMPLES - RIGHT TO COUNSEL
The accused was arrested for impaired driving. He was told his rights and put in a phone room
with a list of lawyers names. The accused requested a particular lawyer by name and the officer
provided him with the phone number. Between 10:00 p. m. and 11 :00 p. m. (when the lawyer
finally arrived) the accused made three calls to "his lawyer" and said that he would not give any
breath samples until he arrived. When the lawyer arrived he was surprised that the accused had
not yet supplied the demanded samples. He spoke to his client in private and then said to the
officer, "Where is your breathalyzer, we'll go and blow." He attempted to accompany his client
into the breathalyzer room but was refused. The accused did blow and was convicted of over
80 m.g. but appealed his conviction to the BC Supreme Court claiming that refusal for the
lawyer to be present amounted to a violation of his right to counsel. The Supreme Court held
that the accused's claim was without merit. His lawyer had ample access to the accused and was
able to advise him to his heart's content. There was no reason for the lawyer to be present in
the breathalyzer room. Appeal dismissed.
Regina v. ATCHISON - 68 C.C.C. (3d) 241, November 1991.

*******
ADMISSIBILITY OF INMATES' CONVERSATION - POLICE AGENT?
An inmate of a correctional institute was assisting police on various investigations. When
interviewed about the progress he was making the inmate asked if police were interested in the
accused who was awaiting trial for murder. The inmate was shortly afterwards sentenced and
was very upset about the jail term he received. Because of this he withdrew himself from
assisting the police. However, a few months later he raised the matter again and the officer took
a statement from the inmate that following his preliminary hearing the accused had shown the
transcript of his preliminary hearing to the inmate to have his changes at trial assessed. During
this discussion the accused had admitted to the murder. The inmate testified at the accused's
The
trial and the defence unsuccessfully reminded the Court of the Hebert 12 decision.
accused appealed his conviction to the Ontario Court of Appeal which found that the discussion
between the inmate and the accused was upon the initiative of the inmate without instructions
or requests on the part of the police. The inmate was not a police agent in the circumstances
and the accused's rights were not subverted or infringed. Appeal dismissed, conviction upheld.
Regina v. GRAY - 66 C.C.C. (3d) 6, Ontario Court of Appeal, June 1991.

12

See R. v. Hebert - 57 C.C.C. (3d) 1. Also see Volume 37, page 16 of this publication.

34

CHOKE HOLD - PUNCHES AND PRYING TO OPEN MOUTH
UNREASONABLE SEARCH AND SEIZURE

A police officer observed the accused selling a substance he removed from this mouth. Other
officers who were made aware of this observation, grabbed the accused by the throat
simultaneously to identifying themselves. A command to open his mouth was to no avail,
neither were two blows to the stomach area. The accused held his mouth tightly shut until one
officer used his handcuffs as a pry-bar to force the teeth apart. This caused profuse bleeding
and the accused opened his mouth. A balloon with cocaine was found. At trial the evidence
was excluded as all of the search in relation to the mouth were held to be unreasonable. The
Crown appealed the acquittal to the BC Court of Appeal which held that the choke hold was to
preserve evidence incidental to the lawful arrest of the accused. The accused had been in control
of the violence to which he was subjected held the Court. All he had to do was open his mouth
and it would have ended. Hence there was no infringement or denial of the accused's rights.
Crown's appeal allowed, new trial ordered.

Regina v. Garcia - Guiterrez - 65 C.C.C. (3d) 15, May 1991.

*******
FAULTY SEARCH WARRANT USED TO CONDUCT SEARCH

Police were granted a search warrant under the Narcotic Control Act. Their information had
come from a reliable informer. They discovered while looking for the place to be searched, that
the address on the warrant was wrong. Nevertheless they did find the place the informer had
directed them to and the police executed the flawed warrant. The officers found all kinds of
evidence of trafficking. Due to the family dog acting up, a noxious repellant was sprayed and
everyone had to leave the premises for a while. This time period was used to get a new search
warrant from the same Justice of the Peace. After the fumes had dissipated the search was
continued and a considerable amount of drugs and paraphernalia were found and seized. The
trial judge had held that the faulty warrant had not caused the accused's rights under s. 8 of the
Charter to be infringed and admission of the evidence resulted in a conviction. The accused
appealed to the BC Court of Appeal. This Court held that the first warrant did not authorize
the search police conducted. Consequently the search was warrantless and unreasonable.
Appeal allowed, acquittal entered.

Regina v. SILVESTRONE - 66 C.C.C. (3d) 125. BC Court of Appeal, July 1991.

35
MEANING OF THREATENING SERIOUS BODILY HARM

The accused wrote anonymous letters to three young women outlining in detail what sexual acts
he desired to perform with them. This included sexual intercourse, "even if I have to rape
you?" He emphasized to be serious about this by writing, "Even if it takes me till the day I die"
he would carry out his intentions. One woman received a second letter ordering her to meet
with the accused. If she failed to show he would come and get her. Consequently the accused
was charged under s. 264.1 C.C. in that he knowingly caused these women to receive a threat
that "serious bodily harm" would be inflicted. The trial judge held that what the accused
threatened to do was not "causing serious bodily harm". Whether or not this was so ended up
in the Supreme Court of Canada. It held the "serious bodily harm" means any hurt or injury,
whether physical or psychological, that interferes in a substantial way with the integrity, health
or well-being of a victim". The accused did threaten "forcible sexual penetration without
consent through the use of violence or threats of violence" . The accused was convicted.

Regina v. MCCRAW - [1991] 3 R.C.S. 72, September 1991.

*******
PRISON STAFF SEARCHING A PROSPECTIVE VISITOR - REASONABLENESS

The accused attempted to visit a prisoner in a provincial gaol. She was suspected of smuggling
drugs to the prisoner. Prison staff prepared for her visit and planned to search her. A female
staff member said to her, "You are going to have to submit to a skin search before you can
come in." The accused made it clear that she would not submit to a search. She was then told,
"Stay here, I'm going to phone police". The accused then gave a balloon containing narcotics
to the staff member. Consequently she was charged with possession for the purpose of
trafficking. The accused claimed in her defence that the seizure was unreasonable and that the
evidence as well as the statements she made at the time were inadmissible. The BC Supreme
Court trial justice agreed with the defence. Although the search as well .as the seizure were
lawful, they were not reasonable. All warnings on the walls of the visiting area and the relevant
pamphlets indicate that a person wishing to visit a prisoner may be searched. The accused
indicated she wanted to visit a prisoner. When she said that she would not submit to a search
she was detained instead of being given an opportunity to leave. "No search - no visit". The
staff had acted as law enforcement officers. This made the seizure unreasonable and contrary
to s. 8 of the Charter. Admitting the evidence would bring the administration of justice into
disrepute held the Court and ruled accordingly.
Regina v. CHRISTIE - Victoria Registry 58898, November 1991

36
REFRESHING MEMORY FROM PICTURE TAKEN OF ACCUSED
FOR PURPOSE OF IDENTIFYING HIM IN COURT

Some 7 months after having processed Graham for a drinking driving offence, the arresting
officer attended the accused's trial. He looked for the accused in case an identity defence was
included in the defence strategy. As he did not see the accused he went to the detachment and
took a look at the photograph he had taken of the accused on the evening the arrest was effected.
When he returned to the Courtroom he instantly recognized the accused who was indeed placed
among the public in the gallery. The officer admitted having looked at the photograph but was
very strong in his testimony that, "I had immediate recognition of him. I wouldn't have needed
the picture at all". However he agreed that it would never be known if looking at the picture
assisted him at all in identifying the accused. The defence prepared a "booklet" of cases where
a witness had firstly looked at a photograph and then identified a person in a line-up. It is then
questionable if the witness identifies the "culprit at the scene" or the person in the photograph.
Upon appeal the BC Supreme Court agreed with the trial judge who had held that the officer did
identify the accused, as the person he apprehended 7 months ago. All the "line-up" cases are
distinct from this situation. In essence, the Court held that refreshing his memory from the
photograph is the equivalent to reading notes taken at the time of an event to refresh one's
memory for the purpose of giving evidence. The accused was not a latent person to the officer.
He personally dealt with the accused and took a picture of him. Appeal dismissed, conviction
upheld.

Regina v. GRAHAM - New Westminster Registry, X0126787, November 1991

*******
IMPAIRMENT ALONE IS NOT SUFFICIENT
TO SHOW CAUSATION OF BODILY HARM
The accused struck a pedestrian in a crosswalk while her blood-alcohol content was 0.15.
Consequently she was charged with impaired driving causing bodily harm to another person.
The trial judge had found that the accused was indeed impaired which had beyond a minimal
degree contributed to the victim's bodily harm. The precedents on this issue establish that the
test for "causation" is not satisfied with proof of impairment alone. There must be additional
evidence from which an inference of causation can be drawn. The trial judge did not say from
what proven facts he had drawn such an inference. The accused appealed the conviction to the
Court of Appeal for BC. It held that the Crown had not adduced evidence from which an
inference could be drawn that the accused's condition and her manner of driving had beyond a
minimal degree contributed to the pedestrian's bodily harm.
Accused's Appeal allowed,
acquittal registered.

Regina v. FISHER - Court of Appeal for BC, Vancouver CA013880, March 1992

37

SUSPECT IS ENTITLED TO BE SHOWN
BREATHALYZER READING

The accused demanded to see for himself what the reading was on the breathalyzer as a result
of the analysis of his breath. The operator refused to let the accused look at the dial. The trial
judge had held that the request was reasonable and, in a way, part of "disclosure" to which an
accused person is entitled as a fundamental principle of justice. This resulted in an acquittal the
Crown appealed to the Supreme Court of BC. This Court agreed with the trial judge and said
that the entitlement to this disclosure exists for three reasons; 1. the officer misreading the
instrument; 2. wrongly recording the reading or; 3. deliberate falsification. The request was
also reasonable as the condition of the accused was not such that showing him the dial would
be absurd or verge on the ridiculous. Crmvn's appeal dismissed, acquittal upheld.

Regina v. PARTINGTON - BC Supreme Com1, Kamloops, 39973, February 1992

*******
IS READING THE DEMAND SUFFICIENT FOR INFORMING THE
DETAINED DRIVER FOR REASON OF THE DETENTION

The Charter of Rights and Freedoms provides that we are promptly to be informed of the
reasons for an arrest or detention. In this case the police officer made a demand for a sample
of breath and told the accused of his right to counsel. The closest he came to telling the accused
the reason for the detention was a part of the demand, " ...... committed an offence under section
253 of the Criminal Code .... ". The question in this Crown's appeal from an acquittal of
impaired driving and "over .08", is whether reading the breath test demand is sufficient to
comply with the right to be informed of the reasons for the detention. The BC supreme Court
Justice held that the accused, at the time, was not charged with anything but was detained for
the purpose of obtaining tests. The wording of the demand was sufficient for the accused to
make a decision to decline or submit to the detention and whether to contact counsel. However,
"You are being investigated for a drinking I driving offence" or words akin thereto, may prevent
the Charter challenge as raised in this case. Crown's appeal allowed, new trial ordered.

Regina v. RAE - BC Supreme Court., Kamloops, 39971, February 1992

38
QUALIFIED OPERATOR TAKING BREATHALYZER APART
IN PRESENCE OF ACCUSED - DOES THIS PROVIDE A REASONABLE
EXCUSE TO REFUSE GIVING SAMPLES OF BREATH?

After having been warned by a police officer not to drive his car due to his impaired condition,
the accused was seen driving 20 minutes later. He was taken to a breathalyzer operator who
used an instrument that had just been returned from the lab where it had been serviced. For
shipping purposes a "shipping screw" was installed in the instrument and the operator had to
remove that screw before the instrument could be used. In the presence of the accused the
operator dismantled the breathalyzer, removed the screw and put everything back together again.
When the time came for the accused to blow he refused claiming that the breathalyzer was not
working. As he obviously thought the operator had repaired the instrument, the reason for the
dismantling was explained to the accused and the tag that said, "Please remove the shipping
screw" was shown to him. This was to no avail. The accused claimed that the operator had
tampered with the breathalyzer.
The trial judge found that the accused had, in the circumstances, no "reasonable excuse" to
refuse complying with the demand for breath samples. The accused appealed this decision to
the Court of Appeal for British Columbia. This Court held that if the accused had a firm
foundation to believe that the instrument would not eventually analyze his breath, he could have
a reasonable excuse to refuse. In the circumstances (the exhaustive explanation given to him for
the procedure to remove a safety device) there was no firm foundation for such belief.

Regina v. LAMKE - Court of Appeal for BC, Vancouver CA014495, February 1992

*******

39

BEATING AT SCENE OF ROBBERY - ATTEMPTED MURDER

The accused youth and a boy who was three years younger than he, robbed and severely beat
a service station attendant. The attendant, a man of around 50 years of age sustained serious
injuries, some of which will have a permanent effect on him. The youths were convicted of
robbery and attempted murder. This youth appealed the conviction of attempted murder. He
claimed not to have had the required intent for such a conviction. For attempted murder the
Crown must prove mens rea as well as actus re us, that is in relation to the latter some steps
towards carrying out the intent that go beyond mere acts of preparation. The completion of the
offence involves a killing. One cannot intend to commit an unintentional killing. Hence for
attempted murder the Crown must show that the accused specifically intended to kill and
committed acts towards that, but failed to complete the intended act. The youth claimed that the
Crown fell short of proving such an intent. They subdued and beat the attendant to prevent him
from leaving the scene. However, the attendant testified that the one youth had said, "Oh he
has seen us. Now we have to kill him". This was also said by one of the youths in a statement
to his foster mother. He just didn't want any witnesses. This was all consistent that the youths
attempted to carry out the announced killing of the only witness. Appeal dismissed, conviction
upheld.

Regina v. A.D.Y. - Court of Appeal for BC, Victoria V01443, March 1992

*******

40
DISTINCTION BETWEEN CROSS-EXAMINATION FOR THE PURPOSE
OF IMPEACHING CREDIBILITY AND SUCH EXAMINATION TO "INCRIMINATE"

Due to an appeal the accused was tried twice on the same information that he had left the scene
of an accident to escape civil or criminal liability. His testimony during the second trial was
inconsistent with the evidence he gave at his first trial. The prosecutor cross-examined the
accused on the inconsistency solely to attack his credibility. The accused claimed that this was
an infringement of his right against self-crimination by virtue of s. 13 Charter:
"A witness who testifies in any proceedings has the right not to
have any incriminating evidence so given used to incriminate that
witness in any other proceedings, except in a prosecution for
perjury or for the giving of contradictory evidence."

This dispute ended up in the Supreme Court of Canada which held that there is a clear
distinction in cross-examination for the purpose of impeaching a witness' credibility and crossexamination to "incriminate" him/her. The former is to establish the weight the testimony
deserves while the latter is to prove guilt on the part of the witness. The Crown simply unveiled
that the accused had, under oath, given two different versions of events. Any witness, whether
or not he/she is an accused, vouches for his/her credibility when testifying and opens the door
to having his/her trustworthiness challenged. The accused's rights had not been violated and he
was convicted.

Regina v. KILDIP - [1990] 3 S.C.R. 618

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