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04'J=E1<'E>3'J<EK'JEF4

“They Are Our Heroes.
We Shall Not Forget Them.”
inscription on Canada’s Police and Peace Officers’ Memorial, Ottawa

Be Smart & Stay Safe

Volume 12 Issue 5

Volume 12 Issue 5 - September/October 2012

Highlights In This Issue
Contents Possession More Than Operating Vehicle

5

Reasonable Grounds Less Than Prima Facie Case

7

Detainee Must Express Desire To Speak With Lawyer

10

Knock & Announce & Break-In-The-Door-If-NoAnswer Rule

11

Limitation On Right To Counsel Still Applies To ASD
Demand Despite Changes

12

Risk Of Danger Need Not Rise To Level Of
Probability In Care Or Control Cases

15

Threat Must Be Taken Seriously

18

Declaration Of Overage As Consistent With
Innocence Not Common Sense

20

Conversational Touching Not Oppressive In
Circumstances: Confession Admissible

20

Unknowns Justify Brief & Focussed Hard Entry

22

‘Realistic Risk’ An Essential Element Of ‘Care Or
Control’

25

Police Leadership Conference

28

National Library of Canada
Cataloguing in Publication
Data

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

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

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

www.policeleadershipconference.com

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

see pages 28-29

Graduate Certificates
Intelligence Analysis
or

Tactical Criminal
Analysis
www.jibc.ca

see
pages
30-31

Volume 12 Issue 5 - September/October 2012
Design for how people learn.
Julie Dirksen.
Berkeley, CA: New Riders, 2012.
LB 1060 D57 2012

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

The emotional life of your brain: how its unique
patterns affect the way you think, feel, and liveand how you can change them.
Richard J. Davidson with Sharon Begley.
New York, NY: Hudson Street Press, c2012.
BF 531 D33 2012

59 seconds: change your life in under a minute.
Richard Wiseman.
Toronto, ON: Vintage Canada, 2010.
BF 637 S8 W548 2011

The end of leadership.
Barbara Kellerman.
New York, NY: Harper Business, c2012.
HD 57.7 K447 2012

Care and candor [videorecording] : making
performance appraisals work.
Coastal AMI; [Virginia Beach, VA: Coastal Training
Technologies Corp., c2006.

Enhancing adult motivation to learn: a
comprehensive guide for teaching all adults.
Raymond J. Wlodkowski.
San Francisco, CA: Jossey-Bass, A Wiley Imprint,
c2008.
LC 5219 W53 2008

1 DVD-ROM (ca. 53 min.)

Presents strategies for conducting performance
appraisals including preparation, separating the
person from the behavior, setting goals, and using
appropriate praise.
HF 5549.5 R3 C37 2006 D536

Change anything: the new science of personal
success.
Kerry Patterson et al.
New York, NY: Business Plus, 2011.
BF 637 C4 C42 2011
Cyber bullying [videorecording].
Edmonton, AB: Native Counselling Services of
Alberta; University of Alberta, Faculty of Extension,
c2012.
1 videodisc (DVD) (23 min.) : sd., col. ; 4 3/4 in.

This documentary provides a rare glimpse into the
kind of bullying that takes place online. It explores
how technology and changes in communication
have affected how kids relate to each other in a
world where hurtful information can become public
in an instant. This program follows the experiences
of four youth and includes interviews with Canadian
expert Dr. Shaheen Shariff.
HV 6773.2 C925 2012 D1474

First-time leaders of small groups: how to create
high-performing committees, task forces, clubs,
and boards.
Manuel London, Marilyn
London. San Francisco, CA: Jossey-Bass, c2007.
HM 736 L66 2007
Groupthink [videorecording].
written & directed by Kirby Timmons; produced by
Melanie Mihal.
Carlsbad, CA: CRM Films, c1992.
1 videodisc (ca. 25 min.) : + 1 leader's guide (12 p.)

The late Dr. Irving Janis first coined the term
groupthink, a natural tendency to achieve agreement
for the sake of group unity despite contrary facts and
potentially dangerous consequences. Historical
events are used to demonstrate the importance of
group decisions. Group interactions that led to the
space shuttle, Challenger, disaster of 1986 are
probed in depth. An interview with Janis and a
detailed analysis of the eight symptoms of
groupthink are also included.
HD 30.23 G78 1992 D529 (Restricted to in-house.)

PAGE 3

Volume 12 Issue 5 - September/October 2012
Handbook of adult and continuing education.
edited by Carol E. Kasworm, Amy D. Rose, Jovita M.
Ross-Gordon.
Los Angeles, CA: SAGE, c2010.
LC 5251 H28 2010
The handbook of experiential learning.
edited by Mel Silberman.
San Francisco, CA: Pfeiffer, c2007.
LB 1027.23 H36 2007
The leadership challenge [sound recording].
James M. Kouzes, Barry Z. Posner.
New York, NY: Gildan Media, p2007.
Two experts in leadership skills share their insights
and stories on what it means to be in charge,
offering a workshop for those interested in
improving their management skills.
HD 57.7 K68 2007
Managing conflict with direct reports.
Barbara Popejoy and Brenda J. McManigle.
Greensboro, NC: Center for Creative Leadership,
c2002.
HD 42 P66 2002
Leaders make the future: ten new leadership
skills for an uncertain world.
Bob Johansen; foreword by John R. Ryan.
San Francisco, CA: Berrett-Koehler Publishers,
c2012.
HD 57.7 J635 2012
The power of habit: why we do what we do in life
and business.
Charles Duhigg.
Toronto, ON: Doubleday Canada, c2012.
BF 333.5 D83 2012
Positive discipline [videorecording]: how to resolve
tough performance problems quickly...and
permanently.
presented by CRM Learning;produced and directed
by Timothy Armstrong.
Carlsbad, CA: CRM Learning, c2006.
1 videodisc (ca. 25 min.): + 1 leader's guide (61 p.) + 1
participant workbook (14 p.) + CD-ROM + reminder cards.

Based on the book: Positive discipline / by Eric Harvey, Paul
Sims.

Dallas, TX: Walk the Talk Company, c2005. ISBN
1885228627
Tr a i n i n g p r o g r a m f o r s u p e r v i s o r s , u s i n g
dramatizations of performance issues and how to
solve them through positive discussion, not punitive
action. It follows a five-step process for correcting
negative performance which includes: identify the
problem; analyze the problem's severity; discuss the
problem; document the discussion; and follow-up
and monitor results.
HF 5549.5 L3 P67 2006 D526

Powerful conversations: how high-impact leaders
communicate.
Phil Harkins.
New York, NY: McGraw-Hill, c1999.
HD 30.3 H371 1999
Public speaking: an audience-centered approach.
Steven A. Beebe, Susan J. Beebe.
Boston, MA: Pearson Allyn & Bacon, c2012.
PN 4129.15 B43 2012
Scenes of compassion: a responder's guide for
dealing with emergency scene emotional crisis.
by Timothy W. Dietz.
U.S.: Behavioral Wellness Resources Pub., 2009.
RC 451.4 D565 2009
Social intelligence: the new science of success.
Karl Albrecht.
San Francisco, CA: Jossey-Bass; Chichester: John
Wiley [distributor], 2009.
HM 1106 A43 2009
Sourcebook on violence against women.
edited by Claire M. Renzetti, Jeffrey L. Edleson,
Raquel Kennedy Bergen.
Los Angeles, CA: SAGE Publications, c2011.
HV 6250.4 W65 S68 2011
Think smart: a neuroscientist's prescription for
improving your brain's performance.
Richard Restak.
New York, NY: Riverhead Books, 2009.
QP 398 R47 2009

PAGE 4

Volume 12 Issue 5 - September/October 2012

CONTENTS POSSESSION MORE
THAN OPERATING VEHICLE

“No rebuttable presumption of knowledge and

R. v. Lincoln, 2012 ONCA 542

possession, based solely on the fact that a

The accused, who was on probation,
was stopped driving a rental vehicle.
Upon further investigation police
discovered cocaine under the car’s
steering column and $800 cash in his
wallet. He was charged with several offences
including possessing cocaine for the purpose of
trafficking (PPT), possessing proceeds of crime and
breach of probation.

Ontario Court of Justice
The judge held there was sufficient
evidence of knowledge and control of the
cocaine to justify a finding of
possession. In doing so, the judge
concluded that anything found in the vehicle was
prima facie in the accused’s de facto possession. As
its operator, the accused had control of the vehicle
and was considered to have control of its contents
unless there was evidence indicating otherwise. He
was convicted of the offences.

Ontario Court of Appeal
The accused successfully appealed
the lower court’s ruling. The trial
jud ge im p r o p e r l y a p pl i ed a
presumption that deemed the
accused, as the vehicle operator, to have knowledge
and control of its contents in the absence of
evidence to the contrary. “No rebuttable
presumption of knowledge and control for purposes
of determining possession, based solely on the fact
that a person is the operator with control of the
vehicle, exists at common law or under the
Controlled Drugs and Substances Act,“ said the
Court of Appeal. “To give effect to such a premise
would constitute an impermissible transfer of the
Crown’s burden of proof to the accused. While the
fact that a person is the operator with control of the
vehicle, together with other evidence, may enable a
trial judge to infer knowledge and control in

control for purposes of determining
person is the operator with control of the
vehicle, exists at common law or under the
Controlled Drugs and Substances Act.”
appropriate cases, it cannot, standing alone, create
such a rebuttable presumption.” The accused’s PPT
conviction was set aside.
Further, because the charge of possessing the $800
knowing that it was obtained from the proceeds of
crime flowed from the PPT charge, the trial judge
applied the same sort of rebuttable presumption
reasoning, concluding that there was no evidence to
the contrary indicating possession of the currency for
any other purpose. This conviction was also set aside
as was the conviction for breach of probation, since
it was founded on the PPT and proceeds of crime
convictions. The accused’s appeal was allowed, all
his convictions were set aside and a new trial was
ordered.
Complete case available at www.ontariocourts.on.ca

SUBJECTIVE BELIEF FOR SAMPLE
SUFFICIENT: OFFICER ‘KNEW’
ASD FAIL MEANT OVER .08
R. v. Harrison, 2012 BCCA 339
As he followed a vehicle from a bar,
a police officer observed it negotiate
a curve in a manner that he felt was
abnormal. He pulled it over. Before
exiting the vehicle on request, the
driver stuffed her mouth full of potato chips. The
officer smelled liquor on her breath and noted her
face was flushed and she had bloodshot eyes. A
second officer arrived on scene and administered an
approved screening device (ASD) test and the
accused failed. The first officer, with the knowledge
the accused had failed the ASD test, then read a
breath demand as follows:

PAGE 5

Volume 12 Issue 5 - September/October 2012
I have reasonable grounds to believe that you
are committing, or within the preceding three
hours have, as a result of the consumption of
alcohol, committed an offence under s. 253 of
the Criminal Code, and I hereby demand that
you provide, as soon as is practicable, such
samples of your breath as are necessary to
enable a proper analysis to be made to
determine the concentration, if any, of alcohol in
your blood and to accompany me for the
purpose of enabling such samples to be taken.

Examination in chief
Crown: Officer ... what was your understanding of what a
fail meant on an approved screening device?
Officer: A fail meant to me that the individual who had –
that the ASD had detected alcohol present in their
system and that it was above – it was over the .08
limit, well over, at that point.
Crown: When you say alcohol in her system, do you mean
just what part of their system was the alcohol in,
your understanding?

British Columbia Provincial Court
The judge found the officer demanding
the breath sample had the results of the
ASD passed onto him. The officer testified
he “knew” the accused had an alcohol
level over the .08 limit. In the judge’s view, this was
sufficient to constitute reasonable and probable
grounds for a belief that the accused had committed
an offence under s. 253 of the Criminal Code. The
breathalyzer demand followed and the accused
refused to provide a sample. She was convicted.

British Columbia Supreme Court
The accused argued the police officer
who made the breath demand did not
hold the necessary subjective belief that
an offence was committed under s. 253
for the purposes of making a demand under s.
254(3). The appeal judge agreed. “Nowhere in his
evidence does [the officer] give the opinion that the
results of the ASD test constituted reasonable and
probable grounds for his belief that [the accused]
had committed an offence contrary to s. 253 of the
Code,” he said. Therefore, the demand was invalid
since there was no evidence of the demanding
officer’s subjective opinion, an essential element of a
demand. The accused’s conviction was overturned
and an acquittal was entered.

Officer: That there’s alcohol present in their – in their – in
their body at that point. That was – I knew that they
had consumed alcohol and that it was in a
concentration greater than 80 milligrams percent,
and I knew that – like, now I know that it’s greater
than 99 milligrams percent, but at the time, I – I just
knew that it was well above.

had a blood alcohol level above the legal limit
because he knew the failed ASD test meant a blood
alcohol level over .08. Plus, the breath demand
included the statement that the officer had the
required belief. The accused, on the other hand,
submitted that the officer never gave the required
opinion.
Justice Saunders, speaking for the Court of Appeal,
found the appeal judge erred and “relied heavily
upon the absence of testimony from the police
officer (apart from reading the demand) that he held
an opinion or belief that an offence had been
committed.” But he overlooked the officer’s
testimony that he “knew” an ASD fail meant that the
individual had consumed alcohol and that it was in
a concentration over the .08 limit:

British Columbia Court of Appeal
The Crown submitted, in its view,
that there was evidence to support
the required opinion or subjective
belief that the accused was
committing an offence. The officer knew the accused

PAGE 6

Although this police officer was not versed in the
technical terminology of blood alcohol levels, it
is apparent the officer considered that [the
accused] had a blood alcohol concentration
over that allowed by s. 253(1)(b) – .08 has no
other significance in the context of alcohol
related offences. While this evidence would not
support a finding of subjective belief for the
purposes of s. 253(1)(a) [impaired driving], it
does support such a belief of an offence under
s. 253(1)(b) [over 80 mg%]. It was open, in my
view, to the judge to interpret this evidence as
evidence the officer “knew” the concentration of
alcohol was greater than permitted by the
Criminal Code. Rather than use the words

Volume 12 Issue 5 - September/October 2012
“opinion” or “belief”, he used the stronger, more
certain word, “knew”. In my view, it was open to
the judge to infer that an officer who “knew”
that the alcohol concentration “was over the .08
limit, well over” had a subjective belief that the
concentration of alcohol was greater than was
permitted by s. 253(1)(b), thus satisfying that
aspect of s. 254(3). [para. 14]

Saskatchewan Provincial Court

The Crown’s appeal was allowed, the accused’s
acquittal was set aside and the conviction for
refusing to provide a breath sample was restored.
Complete case available at www.courts.gov.bc.ca

REASONABLE GROUNDS LESS
THAN PRIMA FACIE CASE
R. v. Gunn, 2012 SKCA 80
A police officer observed a vehicle
being operated in an erratic manner
late at night when bars were closing.
It sat at a four-way stop sign with the
right of way for six to eight seconds
and seemed to wait for the officer to go first. The
vehicle made an awkward right hand turn, almost
went up onto a curb, failed to straighten out
immediately afterwards and drove for some time
down the middle of the road. The vehicle appeared
to be driven without a destination or to avoid the
officer. It drove onto a side street and then turned
around and retraced its route. The officer suspected
the driver might be impaired and stopped the
vehicle. The accused exhibited physical symptoms of
alcohol impairment - glassy and bloodshot eyes,
slurred speech and an odour of liquor on his breath.
These symptoms confirmed the officer’s suspicion
such that he felt he had sufficient grounds to
demand a breathalyzer sample under to s. 254(3) of
the Criminal Code. The accused was arrested for
impaired driving and a breath samples were
demanded. When walking to the patrol car the
officer noticed that the accused’s movements were
slow and deliberate and he seemed to be
concentrating on walking. At the police station he
provided breath samples that were twice the legal
limit. He was charged with driving while impaired,
driving while over 80mg% and driving while
disqualified.

At trial the judge found the accused had
been arbitrarily detained under s. 9 of the
Charter by the investigating officer during
the roadside stop. Although he concluded
that the officer had reason to be suspicious that the
accused’s ability to operate a vehicle might be
impaired by alcohol, the officer lacked the objective
basis to elevate that suspicion to the level of
reasonable grounds for belief. In his view, the officer
provided no evidence of post-arrest signs of
impairment, failed to conduct roadside investigative
tests and found alternate inferences or explanations
other than impairment for the accused’s behaviour.
So even though the officer honestly believed the
accused was impaired, the belief was not objectively
sustainable. The Certificate of Analyses was
excluded as evidence under s. 24(2) of the Charter
and the accused was acquitted of impaired driving
and over 80mg%. However, he was convicted of
driving while disqualified and given a one year
driving suspension.

Saskatchewan Court of Queen’s Bench
The Crown appealed, arguing there was
no arbitrary detention. But the appeal
judge upheld the trial judge’s ruling. He
too found the officer had only a
reasonable suspicion the accused had alcohol in his
body but that the factual basis was not strong
enough to support the officer having reasonable and
probable grounds to make a breath demand. The
accused’s acquittal was upheld.

Saskatchewan Court of Appeal
The Crown again challenged the
lower courts’ rulings. The Crown
alleged that the appeal judge erred
in assessing the reasonableness of
the investigating officer's belief that the accused was
impaired. In starting the Court’s analysis, Justice
Caldwell, delivering the unanimous judgment, first
examined the legal standard of “reasonable grounds
to believe”:

PAGE 7

Volume 12 Issue 5 - September/October 2012
A police officer may not demand a breath
Given the standard to be met, any inference
sample of an individual unless the officer has
useful to a police officer when attempting to
"reasonable grounds to believe" the individual
satisfy it must logically tend to support either (a)
has, within the preceding three hours, driven
a belief that the individual has driven within the
while impaired or while over the proscribed
preceding three hours, or (b) a belief that the
limit. This means the officer must subjectively (or
individual's ability to operate a vehicle is
honestly) believe the individual has driven while
impaired or that the individual is "over .08". The
impaired or "over .08" within the preceding
fact an individual has operated a motor vehicle
three hours and that belief must be rationally
is, usually, readily established on the evidence
sustainable on an objective basis. This does not
without recourse to inferences of fact. However,
mean that the Crown has to demonstrate a prima
an impairment assessment necessarily calls for
facie case for conviction, let alone prove its case
the officer to draw one or more inferences from
beyond a reasonable doubt; rather, the standard
his or her own observations and the surrounding
of "reasonable grounds to believe"
circumstances. Where the
is one of lesser probability which
reasonableness of the officer's
“When determining whether
simply requires the reviewing
belief is challenged in court, the
court to determine whether the
the standard of "reasonable officer must be in a position to
factors articulated by the officer
clearly articulate sufficient
who made the breath-demand grounds to believe" has been observations and to point to other
were reliable and were capable of met, it is important to keep in evidence which would rationally
supporting the officer's belief that
and reliably sustain the officer's
mind that a police officer
the individual had driven while
belief of impairment on an
impaired or "over .08" within the
o b j e c t ive b a s i s . [ r e f e r e n c e s
need only believe an
preceding three hours.
omitted, para. 7-10]

individual's ability to drive is

Where an individual challenges
slightly impaired.”
And further:
the validity of a breath-demand
on the basis that the police officer's belief was
I n a vo i r d i r e h e l d t o d e t e r m i n e t h e
not reasonable, the question for the trial judge is
reasonableness of the police officer's belief, the
whether, on the whole of the evidence adduced,
trial court must consider whether the
a reasonable person standing in the shoes of the
observations and circumstances articulated by
officer would have believed the individual's
the officer are rationally capable of supporting
ability to operate a motor vehicle was impaired.
the inference of impairment which was drawn
This is a question of law and a trial judge's
by the officer; however, the Crown does not
answer to it is measured on appeal against the
have to prove the inferences drawn were true or
yardstick of correctness.
even accurate. In other words, the factors
articulated by the arresting officer need not
When determining whether the standard of
prove the accused was actually impaired. This is
"reasonable grounds to believe" has been met, it
so because that is the standard of proof reserved
is important to keep in mind that a police officer
for a trial on the merits (i.e., proof beyond a
need only believe an individual's ability to drive
reasonable doubt). [para. 15]
is slightly impaired. ... [F]or the purposes of s.
253(1)(a) of the Criminal Code, an impaired
In this case, Justice Caldwell found the Crown had
ability to operate a vehicle may be established
been held to proving an overly onerous standard
where the Crown proves any degree of
beyond “reasonable grounds to believe” to one of
impairment from slight to great. As such, the
proving a prima facie case or possibly even beyond
precondition to an officer's authority to make a
a reasonable doubt.
breath-demand may be satisfied where,
objectively speaking, an officer has reasonable
Post-Arrest Signs of Impairment
grounds to believe an individual's ability to drive
is even slightly impaired by the consumption of
The Court of Appeal rejected the notion that postalcohol.

arrest signs of impairment are required in assessing

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Volume 12 Issue 5 - September/October 2012
ability to operate a vehicle is impaired by
alcohol for the purposes of arrest or a breath
demand. The evidence of a "fail" result is also
strong objective evidence which will assist the
court in its after-the-fact assessment of the
reliability of the officer's belief. However, if the
officer already believes he or she has
objectively-sustainable grounds to arrest or to
make a breath-demand, then the conduct of a
roadside screening device test, while prudent
and easily-arranged, is not strictly necessary. The
same can be said for sobriety tests. What I mean
to say here is that while each type of roadsidetest will certainly permit the arresting officer and
the courts to better ascertain the objective
reasonableness of the officer's subjective belief,
[W]hile it would be helpful, the Crown is under
it cannot be said that the conduct of any such
no legal obligation to proffer evidence to
test is intrinsic to an objectively reasonable
establish that the arresting officer has continued
belief of impairment. This is so because the
to observe signs of impairment after he or she
Crown can and has often successfully met an
has formed the subjective belief that the s.
accused's challenge (it certainly did so before
254(3) standard had been met (i.e., presumably,
the advent of roadside screening devices)
prior to the time the officer
through sufficiently compelling
arrested the accused or made the
“A roadside screening test
evidence of the arresting officer's
demand). Axiomatically then, the
observations and the surrounding
fact the Crown has not adduced
may be conducted on the
circumstances which objectively
post-arrest or demand evidence of
standard of "reasonable
supports the reasonableness of
impairment from the arresting
the officer's belief. Accordingly,
officer does not serve to
suspicion". If a "fail" results
by holding the Crown to either
undermine the reliability of the
from the use of a roadside
proffer evidence of the results of
officer's pre-arrest or demand
roadside investigatory tests or to
belief. While evidence of the
screening device, the officer
satisfactorily explain why it has
existence or lack of post-arrest or
may use that information
not done so, a court mistakenly
demand signs of impairment may
certainly assist in the assessment when forming a belief that the elevates the evidentiary and
persuasive burden imposed on
of the reliability of the officer's
individual's ability to operate the Crown and, thereby, holds the
belief, the absence of evidence
Crown to establish its case on
can be of no assistance.”
a vehicle is impaired by
more than a standard of
alcohol for the purposes of
reasonable grounds to believe.
Roadside Investigative Tests
[para. 21]
arrest or a breath demand.

the objective reasonableness of an officer’s belief.
“The assessment of the reasonableness of this belief
must be centred around the factors which actually
led the officer to conclude there were reasonable
grounds to believe [the accused’s] ability to operate
a vehicle was impaired thereby satisfying the
standard imposed under s. 254(3) of the Criminal
Code,” said Justice Caldwell. “Therefore, albeit that
the initial evidentiary burden is on the accused [to
prove a Charter violation], the Crown must, of
necessity, adduce evidence tending to substantiate
the reasonableness of its officer's belief.” He
continued:

The Court of Appeal also found that
sobriety tests or roadside screening tests are not a
requirement to reasonable grounds. While it would
have been prudent for the investigating officer to
have conducted roadside sobriety and alcohol
screening device tests they are not a necessity:
A roadside screening test may be conducted on
the standard of "reasonable suspicion". If a "fail"
results from the use of a roadside screening
device, the officer may use that information
when forming a belief that the individual's

Inferences & Alternate Explanations
While there may well have been rational alternative,
innocent or innocuous explanations for each of the
observations which led the officer to draw the
negative inference that the accused’s ability to
operate a vehicle was impaired by alcohol, this did
not render the officer's inferences that objectively
supported his belief unreliable. “The standard of
‘reasonable grounds to believe’ does not require that
the arresting officer be in the position to dispel

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Volume 12 Issue 5 - September/October 2012
innocent or innocuous inferences which might also
be reasonably drawn from his or her observations,”
said Justice Caldwell. But he also cautioned:
This is not to say that the availability of other
rational inferences is irrelevant; rather, the fact
innocent or innocuous inferences may be
rationally drawn from the circumstances may,
depending on the soundness or cogency of those
inferences, serve either to undermine or to
reinforce the reliability of the inference of
impairment drawn by the officer; but this
requires factual determinations to underpin the
inferences, a judicial assessment of the reliability
of the inferences drawn and then the weighing
of conflicting inferences in context and against
the soundness and cogency of the officer's
inference of impairment, which did not occur
here. [para. 23]

In conclusion, the lower courts misapprehended the
burden of proof imposed on the Crown and the legal
standard of ‘reasonable grounds to believe’.
However, the Court of Appeal could not determine
whether the investigating officer had or did not have
grounds to make the breath demand. Thus, the
Crown’s appeal was allowed, the accused’s acquittal
was set aside and a new trial was ordered. The issue
of whether reasonable grounds existed was left to a
new trial judge after rehearing the evidence.
Complete case available at www.canlii.org

DETAINEE MUST EXPRESS
DESIRE TO SPEAK WITH LAWYER
R. v. Fuller & White, 2012 ONCA 565

men were sleeping. On entering the house, the lead
investigator smelled a strong odour of marijuana and
saw a bong on the kitchen table. Four occupants,
including Fuller, were detained in the living room of
the main floor for conspiracy to possess marijuana
for the purpose of trafficking. They were advised of
their right to counsel and cautioned about making
statements. Each indicated they understood and
declined to call a lawyer at that time. White was
found in his basement bedroom and was advised of
his right to counsel and told he had the right to say
nothing. He was also cautioned about making a
statement and answered “not now” when asked if he
wished to call a lawyer.
White told police there was “just some weed and
mushrooms in the closet”, but police found a small
safe in it. White said Fuller had the key to the safe.
When asked for the key, Fuller initially denied
knowing where it was but eventually produced a set
of keys from a desk drawer in his bedroom. Fuller
said the safe belonged to both him and White, and
told the officer there was “a bit of weed inside.”
Police also found another key to the safe on a set of
White’s keys police located in his bedroom. When
the safe was opened police found baggies,
packaging materials, a digital scale, $80, bags
containing 440.92 grams of marijuana, a bag
containing 207.9 grams of psilocybin and a film
canister containing 9.6 grams of cannabis resin. The
men were arrested, taken to the police station, reread their rights and offered an opportunity to
contact counsel. They were charged with possession
and possession for the purpose of trafficking.

Ontario Court of Justice

Following a joint forces operation
dubbed “Project Ulverston” police
believed that four suspected drug
dealers were living at a two story
residence. Police obtained a search
warrant for the suspects’ residence to be executed in
the middle of the night. One of the four bedrooms
on the main floor belonged to the accused Fuller
and a bedroom in the basement belonged to the
accused White. But neither of these two men were
any of the four targeted suspects. Four police officers
executed the warrant at about 3:40 am while the

The trial judge found the police told the
accuseds about their right to retain and
instruct counsel without delay and of the
existence and availability of legal aid and
duty counsel - thereby complying with the
informational obligation under s. 10(b) of the
Charter - but breached the implementational
component. The judge then went on to exclude the
accuseds’ statements admitting they had marihuana
and magic mushrooms stashed in the safe under s.
24(2). They were acquitted.

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Volume 12 Issue 5 - September/October 2012

“The police’s implementational obligations arise only when detainees express a wish to exercise
their right to counsel.”

Ontario Court of Appeal
The Crown challenged the trial
judge’s ruling contending that he
erred in finding that the
implementation component of the
s. 10(b) right had been breached.
Justice Laskin, speaking for the Court of Appeal,
agreed. “The guarantee of the right to counsel in s.
10(b) of the Charter imposes three obligations on the
police – the first is informational and the second and
third are implementational,” he said. “The police’s
implementational obligations arise only when
detainees express a wish to exercise their right to
counsel.” Thus, the police must first inform a
detainee of their right to retain and instruct counsel
without delay and of the existence and availability of
legal aid and duty counsel. Then, if the detainee
indicates a desire to exercise this right, the police
must (1) provide them with a reasonable opportunity
to do so (except in urgent and dangerous
circumstances) and (2) refrain from eliciting
evidence from the detainee until they have had a
reasonable opportunity (except in cases of urgency
or danger).
In this case, the police met their informational
obligation - they told the men about their right to
counsel. The implementational obligations, however,
are only triggered when a detainee indicates a desire
to exercise the right to counsel. But there was no
evidence from any witness that either accused Fuller
or White asked for a lawyer or indicated a desire to
speak to one. The trial judge erred in finding a
breach of s. 10(b) and his ruling excluding the
statements could not stand. The Crown’s appeal was
allowed, the accused’s acquittals were set aside and
a new trial was ordered.

KNOCK & ANNOUNCE & BREAKIN-THE-DOOR-IF-NO-ANSWER
RULE
R. v. Pan & Ban, 2012 ONCA 581
Police obtained a search warrant for
a house where they believed there
was a marijuana grow
operation. They went to the house,
knocked repeatedly and announced
that they were the police with a warrant. No one
answered and, after waiting 30 to 40 seconds, the
police rammed open the door with a bettering ram
and entered the house. Inside they found 1,370
marijuana plants and arrested two people inside,
including the accuseds Ban and Pan. Both were
charged with production of marijuana, possession
for the purpose of trafficking in marijuana and theft
of electricity.

Ontario Court of Justice.
The judge stayed the charges against Ban,
in part, on the ground that the police had
breached the knock-and-announce
rule. As for the search, the judge found it
was not conducted reasonably under s. 8 of the
Charter. In his view, the police conducted a
“dynamic entry” without any grounds to do so. “The
failure of someone to answer the door within 60
seconds, when one expects fans to be running is not
an exigency that justifies a dynamic entry,” he said.
“The knock-and-announce rule is not a knock-andbreak-in-the-door-if-no-answer rule. It means that
non-violent execution of the warrant must be
attempted.”

Ontario Court of Appeal

Complete case available at www.ontariocourts.on.ca

Note-able Quote
“Don't judge each day by the harvest you reap but
by the seeds that you plant.” - Robert Louis
Stevenson

PAGE 11

The Crown argued that the trial
judge erred in holding that the
police did not comply with the
knock-and-announce rule. Justice

Volume 12 Issue 5 - September/October 2012
Laskin, authoring the Court of Appeal’s judgment,
agreed:
Unless exigent circumstances exist, the police
must knock and announce their presence before
entering a home. The knock-and-announce rule
has been part of our law for over 400 years. ...
The rationales for the rule are well known: the
protection of the dignity and privacy interests of
the occupants of the house, and the
enhancement of the safety of the police and the
public. [paras. 35-36]

Knock-and-Announce Rule
Except in exigent circumstances, the police must
knock-and-announce their presence before
entering a dwelling house. In doing so, the police
must give:
1. NOTICE OF PRESENCE by knocking or
ringing the door bell;
2. NOTICE OF AUTHORITY by identifying
themselves as law enforcement officers; and
3. NOTICE OF PURPOSE by stating a lawful
reason for entry. + wait a reasonable amount of

So although there were no exigent circumstances
time to give occupants time to
that would justify a departure from knocking-andanswer before entering.
announcing, the police
be so egregious that it would
nonetheless did comply
“Unless exigent circumstances exist, the
turn
this case into one of those
with the rule. They gave
police must knock and announce their
exceptional
cases requiring a
notice of presence (they
stay.” Since the trial judge erred
presence before entering a home. The
knocked several times),
in
principle and exercised his
notice of authority (they
knock-and-announce rule has been part
discretion
unreasonably in
announced who they
staying
the
charges,
Ban’s stay
of our law for over 400 years.”
were) and notice of
was set aside and a new trial was
purpose (they stated
ordered.
their reason for being there – to execute a search
warrant). Justice Laskin concluded that the knockComplete case available at www.ontariocourts.on.ca
and-announce rule is a knock-and-break-in-thedoor-if-no-answer rule. “If the police receive no
LIMITATION ON RIGHT TO
answer, they are entitled to force entry into a home,”
COUNSEL STILL APPLIES TO ASD
he said. Since the police did not depart from the
knock-and-announce rule and complied with its
DEMANDS DESPITE CHANGES
three components, the judge erred in holding that
R. v. Jaycox, 2012 BCCA 365
the Crown was required to justify why police
departed from it.
The accused drove up to and through
a police roadblock without
However, the knock-and-announce rule also
stopping. She was pursued for a short
requires the police to give the occupants of a home
time and pulled over. A strong smell
a reasonable amount of time to answer. The police
of alcohol was detected and signs of
must properly implement the knock-and-announce
impairment were noted. Two approved screening
rule by waiting long enough before forcing entry. In
device (ASD) demands were made but the accused
this case, the Court of Appeal would let a judge at a
refused to provide a breath sample on both
new trial decide whether the 30 to 40 seconds the
occasions, even though the jeopardy she would face
police waited was a reasonable amount of time
if she failed to comply was explained to her. The
before entering.
accused was then detained for refusing to comply
with an ASD demand and impaired driving, and was
Justice Laskin also opined that “even if [police] did
informed of her Charter rights. She asked to speak to
depart from the knock-and-announce rule – by, for
counsel and did so when she was taken to the police
example, not waiting long enough before forcing
detachment. After obtaining legal advice, the
entry into the home – that departure would hardly

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Volume 12 Issue 5 - September/October 2012
accused advised the police that she had been
mistaken and now wanted to provide a breath
sample. She was told it was too late to do so and
was charged with impaired driving and failing to
comply with an ASD demand.

British Columbia Provincial Court
The judge acquitted the accused on the
impaired driving charge because the
evidence was insufficient. As for the
failure to comply with the ASD demand,
the jude ruled the demand was unconstitutional.
Prior to the July 2, 2008 amendment to the ASD
demand provision, an officer could only make an
ASD demand in circumstances where the officer
reasonably suspected a person had alcohol in their
body at the time of the demand and they also had
alcohol in their body at the time of driving. An
immediate temporal connection to the suspicion and
the driving was required. Now, however, the ASD
demand provision authorizes a demand where the
officer reasonably suspects that a person has alcohol
or a drug in their body and has operated a motor
vehicle within the previous three hours. There is no
requirement for the officer to also suspect the person
had alcohol in their body at the time of driving. The
judge found the new wording “allows a search or
seizure in circumstances where there is no reason to
think that the results will provide evidence that an
offence had been committed.” He then read an
a m e n d m e n t i n t o s . 2 5 4 ( 2 ) t o r e m e dy i t s
constitutional flaw. In this case there were no
reasonable grounds to suspect an offence had
occurred. The demand was unlawful, contrary to s. 8
of the Charter and could not be saved under s. 1.
The judge also found that a person required to
provide a breath sample for an ASD analysis is
detained and has the right to counsel under s. 10(b),
which could not be limited under s. 1. This was
different than case law under the previous legislation
where the limitation on the right to counsel had
been found to be justified because of the policy
behind the demand and the practical need to obtain
a breath sample quickly. “The legislative objective of
s. 254(2) is now outweighed by the abridgement of
s. 10(b) rights, given that a refusal to provide a
breath sample, in the circumstances set out in the

new punishment sections of 255 (2.2) and (3.2), can
result in respective punishments of up to 10 years,
and life, imprisonment,” said the judge. Since the
ASD demands the accused had refused were
unlawful when they were made, her refusal to
comply with them was not unlawful. The accused’s
refusal was excluded under s. 24(2) of the Charter
for the s. 10(b) breach and she was acquitted.

British Columbia Supreme Court
A Crown appeal was successful. The
appeal judge found the trial judge had
jurisdiction to read in an amendment to
remedy the constitutional flaw in s.
254(2) but that he erred in failing to apply s. 254(2),
a s j u d i c i a l l y a m e n d e d , t o t h e a c c u s e d ’s
circumstances. The trial judge also erred in
concluding that the demand was unlawful and that
the refusal was not. Plus, he mistakenly found the
accused’s s. 10 (b) right to counsel was violated and
also erred in excluding evidence of her refusal under
to s. 24(2). The accused’s acquittal was set aside and
a guilty verdict was entered.

British Columbia Court of Appeal
The accused appealed, contending
that the 2008 amendments
significantly overhauled the ASD
demand provisions such that the
implicit suspension of the s. 10(b) Charter right
formerly recognized no longer applied to the current
wording of s. 254(2). She also submitted that the
advent of a 24-hour duty counsel system and the
ubiquity of cellular telephones have altered the
landscape addressing the concern regarding changes
to blood alcohol that might occur during a lengthy
delay in contacting counsel. In her view, the earlier
justification for suspending the right to counsel
resulted from the roadside screening test being
administered forthwith at the place where the
motorist was stopped and the prompt testing was
necessary having regard to the overall two hour time
limit, if the scheme was to work. But now, with the
new amendments, the subject of the demand can be
anyone reasonably suspected of driving or operating
a vehicle (including those who did not actually drive
or operate a vehicle) within the preceding three

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Volume 12 Issue 5 - September/October 2012
hours. Further, although the testing must still be
forthwith, the time and place of the demand can
now be within three hours of the suspected driving
at any location where the suspected driver or
operator is located and there need no longer be a
logical connection between the time of the demand
and any overall two hour time limit.
Justice Hinkson, however, found the advent of 24hour duty counsel, the widespread access to cellular
telephones, nor any of the differences pointed out by
the accused did not change the applicability of a
limitation on the right to counsel following the 2008
amendments. Nor is a temporal link between the
consumption of alcohol and the alleged driving
required:

ASD demand prior to July 2, 2008:

s. 254(2) Where a peace officer reasonably suspects that a
person who is operating a motor vehicle or vessel or
operating or assisting in the operation of an aircraft or of
railway equipment or who has the care or control of a
motor vehicle, vessel or aircraft or of railway equipment,
whether it is in motion or not, has alcohol in the person’s
body, the peace officer may, by demand made to that
person, require the person to provide forthwith such a
sample of breath as in the opinion of the peace officer is
necessary to enable a proper analysis of the breath to be
made by means of an approved screening device and,
where necessary, to accompany the peace officer for the
purpose of enabling such a sample of breath to be taken.
ASD demand as amended on July 2, 2008:

s. 254(2) If a peace officer has reasonable grounds to
suspect that a person has alcohol or a drug in their body
and that the person has, within the preceding three hours,
operated a motor vehicle or vessel, operated or assisted in
the operation of an aircraft or railway equipment or had
the care or control of a motor vehicle, a vessel, an aircraft
or railway equipment, whether it was in motion or not, the
peace officer may, by demand, require the person to
comply with paragraph (a), in the case of a drug, or with
either or both of paragraphs (a) and (b), in the case of
alcohol:
(a) to perform forthwith physical coordination tests
prescribed by regulation to enable the peace officer to
determine whether a demand may be made under
subsection (3) or (3.1) and, if necessary, to accompany the
peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the
peace officer’s opinion, will enable a proper analysis to be
made by means of an approved screening device and, if
necessary, to accompany the peace officer for that
purpose.

I do not accept [the accused’s] contention that
the Thomsen suspension of the right to counsel
“forthwith” depends upon a temporal link
between the consumption of alcohol and the
alleged driving, nor to the two or three hour time
limits applicable to evidentiary breath demands
and blood alcohol presumptions. Rather, the
right to counsel is suspended under Thomsen
and its progeny ... because of the brevity of the
detention and the obligation of the detainee to
provide a sample “forthwith”. The requirement
that a breath sample be provided “forthwith” is,
from a pragmatic point of view, incompatible
with the exercise of a right to counsel before
responding to the demand, particularly if the
testing is to interfere as little as possible with the
flow of traffic, of both drivers subjected to
demands, and of other vehicles using the roads.
Moreover, ... the two and now three hour limits
relate to the presumptions upon which the
Crown may rely in s. 258 of the Code, but not to
the admissibility of the breath sample evidence,
and in the result, I conclude that the change
from a two to a three hour limit does not affect
the applicability of the Thomsen suspension of
the right to counsel. [paras. 45-46]

ASD demand as amended by judge:

The Court of Appeal also ruled that the implied
limitation of the right to counsel under s. 254(2)
(ASD demand) was not inconsistent with the lack of
such an implied limitation under s. 254(3) (breath
demand) where there is an entitlement to advice as
to the right of counsel and the exercise of that right.

s. 254(2) "If a peace officer has reasonable grounds to
suspect that a person has alcohol or a drug in their body
and that the person has, within the preceding three hours,
operated a motor vehicle or vessel, operated or assisted in
the operation of an aircraft or railway equipment or had
the care or control of a motor vehicle, a vessel, an aircraft
or railway equipment, whether it was in motion or not,
with alcohol or a drug in their body, the peace officer may, by
demand, require the person to comply with paragraph (a),
in the case of a drug, or with either or both of paragraphs
(a) and (b), in the case of alcohol: ..."

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Volume 12 Issue 5 - September/October 2012
Further, the creation of new offences and the
increase in the potential penalties for refusals to
provide breath samples did not warrant a departure
from the limitation of the right to counsel. These
changes did not alter the “forthwith” requirement
that is the foundation for the limitation of the right to
counsel for an ASD demand. The need for testing
remains immediate and investigative in nature. Since
the implicit suspension of the s. 10(b) Charter right
applied to the current wording of s. 254(2) as
amended by the trial judge, the accused’s appeal
was dismissed.
Complete case available at www.courts.gov.bc.ca

RISK OF DANGER NEED NOT
RISE TO LEVEL OF PROBABILITY
IN CARE OR CONTROL CASES
R. v. Smits, 2012 ONCA 524
A nearby resident found the accused
passed out in the back of a van
parked on the side of a narrow
country road in the morning hours
and called police. Police arrived and
located the van. It was not running, but its hood was
warm to the touch. The officers looked into the van
and saw the accused passed out on the rear seat. An
officer entered the van through the unlocked driver’s
side door after knocking but receiving no
response. He saw a cell phone flipped open on the
driver’s seat and the keys were in the ignition. After
several attempts to rouse the accused by calling out
to him, he awoke. He looked disoriented, was
directed to exit the van and stumbled as he got
out. He appeared “haggard” and his eyes were
bloodshot and glassy, his breath smelled of alcohol
and he swayed. He had scabbed cuts around his
right eye and on his nose, and his jeans were
torn. Describing him as “obviously intoxicated”,
police arrested him for impaired care or control of a
motor vehicle.
In the van police saw a glass of orange juice in the
centre cup-holder, a partially empty unsealed bottle
of vodka between the two front seats, an open can of
Budweiser on the floor in the rear passenger area, an
empty Budweiser can underneath the driver’s seat

and a red duffle bag on the floor with another can of
beer on top of it. The van had an opening between
the back seat and the front seats where a middle seat
may have been removed and a person could move
up to the driver’s seat from the back seat area with
no obstruction. When the tow truck arrived to
remove the van, the accused asked the officers to
take his cell phone out of it. When they did, it was
noted that the phone’s battery was almost dead. The
tow truck driver was able to start the van with one
turn of the key and drove it off the grass onto the
roadway without any difficulty. The van had an
automatic transmission. The accused was taken to
the police station and provided two breath samples,
registering 147mg% and 138mg%. He also denied
driving the van, instead admitting to sitting in the
driver’s seat just before he passed out. He said that a
friend had driven him to where the van was parked,
but the friend had left. He would not provide his
friend’s name to the police nor would he say who
own the van. He insisted that he was just a
passenger passed out in the van.

Ontario Court of Justice
At trial the accused conceded he was
impaired but argued there was no
evidence of a risk that he would have set
the vehicle in motion. The trial judge
disagreed, finding the accused was in care or control
because he may have changed his mind and decided
to drive while still impaired. Plus, she held that even
if the accused had been trying to wait out the
impairment, just “because he was difficult to rouse
does not support an inference that he would have
remained passed out until he had achieved a state of
sobriety and thus not pose a risk to set the motor
vehicle in motion while impaired”. In her view,
there was a concrete and tangible likelihood the
accused would have woken up and decided he was
going to move the van while he was still impaired.
The accused was convicted of care or control while
impaired and sentenced to four months in jail
followed by two years probation and a three year
driving prohibition. He had also pled guilty to
breaching his probation by consuming alcohol.

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Volume 12 Issue 5 - September/October 2012

Ontario Superior Court of Justice

“The Crown can

control after the voluntary
consumption of alcohol or a drug.
The actus reus is the act of
assumption of care or control
when the voluntary assumption of
alcohol or a drug has impaired
the ability to drive. [paras. 47-49]

The accused argued the trial establish care or control
judge erred in finding that he
of a motor vehicle in a
was in care or control of his
variety of ways. Where
motor vehicle. He submitted
the statutory
an individual found asleep in the back
seat of a vehicle does not create the presumption is rebutted In this case, the actus reus of the
public risk that s. 253(1) was designed to
offence of care or control was at
prevent and there was no more than a or is not available on the issue. As was noted in a previous
mere possibility that he would have
evidence, as in this
decision (R. v. Wren (2000), 144
changed his mind and endangered
case, the Crown can
C.C.C. (3d) 374 (Ont.C.A.)), “in
society by choosing to drive while
order
to establish care or control of
rely on what is
impaired. The appeal judge overturned
a motor vehicle, the act or conduct
the conviction and found the Crown commonly referred to as of the accused in relation to that
failed to prove that the accused had been
motor vehicle must be such that
de facto or actual care
in care or control of his vehicle. In his
there is created a risk of danger,
or control.
view, the trial judge’s decision was based
whether from putting the car in
on speculation that the accused would
motion or in some other way.”
still be impaired when he awoke and decided to
Proof of a risk of danger is a necessary ingredient to
drive.
establish the actus reus of care or control and three

Ontario Court of Appeal
Th e C r ow n t h e n a p p e a l e d
suggesting the Superior Court judge
erred in applying the correct
standard of review and substituted
his own opinion for that of the trial judge’s in
deciding whether the accused had care or control of
the motor vehicle. Justice Brown, delivering the
Court of Appeal’s opinion, first reviewed the law
regarding care or control:
The Crown can establish care or control of a
motor vehicle in a variety of ways. The first is by
relying on the statutory presumption found in s.
258(1)(a) of the Criminal Code. Where an
accused is found in the driver’s seat, the accused
must establish on a balance of probabilities that
he or she did not occupy the driver’s seat for the
purpose of setting the vehicle in motion.

risks of danger have been identified in the cases
where an intoxicated individual uses a motor vehicle
for a non-driving purpose:

1. The risk that the vehicle will unintentionally
be set in motion;
2. The risk that through negligence a stationary
or inoperable vehicle may endanger the
individual or others; or
3. The risk that the individual who has decided
not to drive will change his or her mind and
drive while still impaired.
It was the third risk of danger - the “change of mind”
ground for care or control - that applied to this case.
Justice Brown noted:
In order to find care or control based on the
change of mind ground, the Crown must prove
there was risk that the [accused] would have
decided to drive while still impaired. The risk
does not have to rise to the level of
probability. ...

Where the statutory presumption is rebutted or is
not available on the evidence, as in this case,
the Crown can rely on what is commonly
referred to as de facto or actual care or control.

That being said, what risk of danger must exist to
establish actual care or control based on the
change of mind ground has been the subject of
much debate. The topic has generated

The mens rea for having the care or control of a
motor vehicle is the intent to assume care or

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Volume 12 Issue 5 - September/October 2012

“[I]n order to establish that an accused has created a risk of danger in change of mind cases,
the Crown must demonstrate a risk that an accused, while impaired, would change his or her
mind and put the vehicle in motion.”
considerable judicial attention in the courts
below. ... [paras. 56-57].

•
•
•

And further:
Although the courts below have applied different
modifiers, what all the authorities, including this
court, seem to be saying is that in order to
establish that an accused has created a risk of
danger in change of mind cases, the Crown must
demonstrate a risk that an accused, while
impaired, would change his or her mind and put
the vehicle in motion. That risk must be based
on more than speculation or conjecture. Saying
that any person whose ability to operate a motor
vehicle is impaired to any degree might change
his or her mind is not sufficient. The trier of fact
must examine the facts and determine if there is
an evidentiary foundation that such risk of
danger exists.

•
•
•

•

•
•

I appreciate that this task is not without its
challenges because a finding of whether a risk of
danger arises in circumstances where an
accused is not actually driving requires the trial
judge to engage in an assessment of what in all
the particular circumstances may occur in the
not too distant future. However, that is all part of
the fact-finding process for the trier of fact.

•
•
•

Whether a risk of danger arises on the facts is
determined by assessing circumstantial
evidence. [paras. 60-62]

Relying on an earlier case (R. v. Szymanski, 2009
CanLII 45328 (ON SC)), the Court of Appeal cited a
list of factors a court might look at when engaging in
the risk of danger analysis on the basis of
circumstantial evidence:
•

•

Whether the vehicle was running;
The location of the vehicle;
Whether the accused had reached his or her
destination or if the accused was still required
to travel to his or her destination;
The accused’s disposition and attitude;
Whether the accused drove the vehicle to the
location where it was found;
Whether the accused started driving after
drinking and pulled over to “sleep it off” or
started using the vehicle for purposes other
than driving;
Whether the accused had a plan to get home
that did not involve driving while impaired or
over the legal limit;
Whether the accused had a stated intention to
resume driving;
Whether the accused was seated in the driver’s
seat regardless of the applicability of the
presumption;
Whether the accused was wearing his or her
seatbelt;
Whether the accused failed to take advantage
of alternate means of leaving the scene;
Whether the accused had a cell phone with
which to make other arrangements and failed to
do so.

Did the accused’s conduct in relation to the motor
vehicle create a risk that he, while impaired, would
put the vehicle in motion and thereby create a
danger? The Court of Appeal found that it was open
to the trial judge to conclude that it was so:

The level of impairment, which is relevant to
the likelihood of exercising bad judgment and
the time it would take for the accused to
become fit to drive;
Whether the keys were in the ignition or readily
available to be placed in the ignition;

PAGE 17

In this case, there was ample circumstantial
evidence to support the trial judge’s conclusion
that the [accused] was in care or control of the
van. Her finding that the [accused] would have
decided to drive while still impaired was
supported by the following:
· The presence of the keys in the ignition and
ease with which the van could be put into
motion;

Volume 12 Issue 5 - September/October 2012

THREAT MUST BE TAKEN
SERIOUSLY

· The [accused’s] intention to return to his home
in Barrie;
· The van’s remote location, the lack of available
public transportation, and the [accused’s] lack of
any alternate plan to get home;
· The degree of the [accused’s] intoxication,
which was such that his judgment was
significantly impaired;
· The [accused’s] “volatility in mood and
response” as evidenced in the DVD, which
augmented concerns about his judgment;
· The accessibility of the driver’s seat;
· The [accused’s] earlier presence in the driver’s
seat when he contemplated driving. [para. 71]

R. v. Tutino, 2012 QCCA 889

The appeal judge erred in overturning the accused’s
conviction. “The findings of the trial judge were
based on more than mere speculation,” said Justice
Brown. “There were a constellation of factors that
were relied upon by the trial judge, apart from
simply the breathalyzer readings of the [accused], in
reaching her conclusion there was a risk of danger
sufficient to establish the [accused’s] care or control
of the motor vehicle.” The Crown’s appeal was
allowed and the accused’s conviction and sentence
were restored.
Complete case available at www.ontariocourts.on.ca

A NEW SUPREME
On October 5, 2012 the Right Honourable Beverley
McLachlin, Chief Justice of Canada, welcomed the
appointment by Prime Minister Stephen Harper of
Mr. Justice Richard Wagner to the Supreme Court of
Canada. “Justice Wagner is a judge of the highest
ability, integrity and intellect”, said Chief Justice
McLachlin. “In addition to his extensive experience
on the Bench, he brings a profound expertise in civil
and commercial litigation. I look forward to the
contribution of this distinguished jurist to the work
of the Court.”
Justice Wagner, who sat as a judge of the Quebec
Court of Appeal, was sworn sworn-in as a judge of
the Supreme Court in a private ceremony on
October 11, 2012. A formal welcome ceremony will
take place on December 3, 2012.

Two uniformed patrol officers with
the Société de Transport de Montréal
saw a man in his late forties flip a
subway turnstile with his hand and
pass through without paying, thereby
committing an offence. They both called out to him
and asked him to return. The accused, furious at
being caught, aggressively kicked the metal fixture
holding the turnstile. The officers then asked him to
identify himself but he refused on three occasions.
He finally complied by giving his health insurance
card but told police to “fuck off” when they asked
for his address, which was required to complete the
statement of offence under the Code of Penal
Procedure. He then complied, giving them a blue
hospital card. They asked him to state his address,
but it did not match the one on the card. When
asked for his correct address the accused responded
by pushing the officer on the chest with his right
hand. Both officers then forcibly took the accused
face down to the ground and arrested him for
assault. He was handcuffed and searched for
dangerous objects. The accused then said “If I see
your face again, I'm going to kill you.” He was then
immediately arrested for uttering death threats and
re-read his rights. He replied, “I'm going to hit your
face with a baseball bat.” The accused was charged
with two counts of uttering death threats and assault.

Court of Quebec
The judge concluded that the threats
directed at the two officers could not
have been taken seriously given the
context. “I believe that considering the
whole context of the arrest, that a reasonable person
would not consider that those threats could have
been serious just by the fact that they were told,”
said the judge. “The accused was facing two agents
wearing uniforms, who were in a position of
authority and who were in force concerning the
accused.” The accused was acquitted of the uttering
threats charges. On the assault charge, the judge
expressed uncertainty as to what actually had

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Volume 12 Issue 5 - September/October 2012
happened and whether the accused had in fact
pushed the officer or not. The accused was also
acquitted on the assault charge.

Quebec Court of Appeal
The Crown appealed the verdicts
of acquittal entered by the trial
judge on the two counts of uttering
death threats and the assault.

Uttering Threats

Nor did the trial judge find that the threat had to be
so serious that it could have been carried out
immediately. “All the trial judge did was consider
the general context in which the threats were made,
namely the fact that the persons to whom the threats
were directed were officers in a position of authority,
and that the [accused] was in custody when the
threats were made,” said the Court of Appeal. “This
case is no precedent for the view that it is open
season on uniformed officers to be recipients of
death threats with impunity.” The accused’s acquittal
on the threatening counts was affirmed.

The Crown argued that the trial judge did not
Assault
properly consider the relevant factors respecting the
uttering death threats charges. But the Court of
As for the assault charge, the trial judge did err.
Appeal disagreed. “It is not sufficient for the words
“There was consistent, uncontradicted evidence as
used to constitute a threat to bring about a
to the circumstances that resulted in [the officer]
conviction,” said the Court. “Rather, the context in
being pushed in the chest,” said the Court.
which the words were uttered, and the impact the
“ M o r e o v e r, i t i s c l e a r t h a t
words would have on the persons
“[T]he threats had not been
immediately after the assault
to whom they were directed, must
occurred, the [accused] was
uttered in a way that a
be taken into account in assessing
forcibly
taken to the ground,
whether a criminal offence was
reasonable person, in the
handcuffed and placed under
committed.” So even though there
same circumstances, would
arrest. There is no plausible
was no doubt that the words the
accused pronounced, if looked at have objectively feared for his explanation in the evidence that
suggests any reason other than the
in isolation from their context,
or life, nor had it been
assault for the two patrol officers to
would constitute a death threat or
established that the
have acted in that fashion.” The
a threat to cause bodily harm,
more was required to engage the [accused] intended the patrol judge gave inadequate reasons for
holding that there was a reasonable
accused’s criminal liability:
officers to take them
doubt. The accused’s acquittal was
Here, the trial judge did not
set aside and a new trial was
seriously.”
render section 264.1(1)(a) Cr. C.
ordered on the assault charge.
inapplicable to suspects who are in the custody
of police officers simply because the threat
Complete case available at www.canlii.org
could not be carried out immediately. Instead,
she analyzed the facts of the case, and found
IN SERVICE: 10-8
that the [accused] had lost his self-control,
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resenting the way in which he had been treated
for such a trivial infraction as not paying for his
All back issues of the newsletter are available online
subway ticket, and who had uttered the
at www.10-8.ca. If you would like to be added to
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Moreover, the threats had not been uttered in a
simply go to www.10-8.ca and subscribe. When the
way that a reasonable person, in the same
circumstances, would have objectively feared for
newsletter is completed it will be sent directly to
his or life, nor had it been established that the
your email address so you won’t miss out on any of
[accused] intended the patrol officers to take
the case law featured in each issue.
them seriously. [para. 14]

PAGE 19

Volume 12 Issue 5 - September/October 2012

DECLARATION OF OVERAGE AS
CONSISTENT WITH INNOCENCE
NOT COMMON SENSE
R. v. Ashley, 2012 ONCA 576
The accused arrived at Toronto’s
Pearson International Airport on a
flight home from Jamaica. She was
accompanied by her two and a half
year old daughter and had several
pieces of checked luggage. She was routed to a
secondary inspection after declaring an overage of
alcohol and several agricultural products. During an
inspection by Canada Border Services officers, two
of her largest suitcases were found to contain items
of produce, including six large compressed balls of
cocoa wrapped in cellophane. When the cocoa balls
were cut they were found to contain plastic wrapped
marihuana weighing 20.2 kg (44 lbs) in total with a
value of between $51,175 and $57,850. The
accused was arrested and charged with importing.

Ontario Superior Court of Justice
At trial the he Crown alleged that the
accused was acting as a drug courier. The
accused, on the other hand, provided a
long story to explain why she had no
knowledge of the contents of her luggage. She said
she had been planning to take this trip with her
daughter for some time and argued that her
declaration of an alcohol overage was indicia of
innocence. In her view, as a matter of common
sense, it was unlikely a drug importer would
knowingly make a declaration that would send her
to a secondary inspection. The trial judge flatly
rejected the accused’s evidence and, in assessing her
credibility, took judicial notice that (1) the
declaration of an alcohol overage is not uncommon
in cases where drugs are found expertly hidden in a
traveller’s belonging in drug importing cases at
Pearson airport and (2) the almost last minute cash
payment for the ticket was out of the ordinary and
consistent with what is often seen in drug
importation cases. The accused was convicted of
importing a controlled substance and sentenced to
18-months imprisonment to be served in the
community.

Ontario Court of Appeal
The accused contended that the
trial judge improperly took judicial
notice. This argument, however,
was rejected. As for the declaration
of the alcohol overage, the trial judge had extensive
experienced with similar prosecutions for drugrelated offences. The accused’s position that
declaring an overage was consistent with innocence
was not a common sense inference. Plus, the judge
did not use the accused’s declaration of overage as
evidence against her.
As to the last minute cash ticket purchase, it was out
of the ordinary. The accused said she had planned to
take this trip with her daughter for some time, but
common sense would suggest that in those
circumstances the tickets would have been
purchased during the planning process, not last
minute and in cash. It was open to the trial judge to
conclude that this conduct was inconsistent with the
accused’s story and consistent with what is often
observed in drug importing cases.
Moreover, the trial judge’s reliance on judicial notice
for these two factors did not play a significant role in
his assessment of the accused’s credibility given the
abundance of other factors, which were far more
devastating to her credibility. The accused’s appeal
was dismissed and her conviction upheld.
Complete case available at www.albertacourts.ab.ca

‘CONVERSATIONAL TOUCHING’
NOT OPPRESSIVE IN
CIRCUMSTANCES:
CONFESSION ADMISSIBLE
R. v. Pappas, 2012 ABCA 221
Following the discovery of a
deceased male, who had been shot
once in the back and once in the
head with a 9 mm handgun, the
accused was placed under
surveillance. He was seen throwing items into a
garbage can outside a 7–11 store and into a

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Volume 12 Issue 5 - September/October 2012
dumpster behind a gas station across the street.
Police retrieved the victim’s credit card, numerous
items of apparel stained with the victim’s blood and
a receipt for a $2,500 cheque made out to the
accused. The police also ascertained that the
accused was the registered owner of a 9 mm
handgun. He was subsequently arrested at an airport
about to board a plane for London, England. The
accused was Chartered and cautioned, taken to a
holding centre and given the opportunity to phone a
lawyer. After meeting with his lawyer for about an
hour, the accused was moved to a small,
windowless interrogation room with two chairs and
a small table where he met with a detective. The
accused said he did not want to talk without his
lawyer being present but, without much prompting,
went on to give exculpatory evidence. He then again
said he did not want to answer any more questions
without his lawyer. Questioning stopped and after a
half hour dinner break, the detective changed tactics
for the interview.
The detective said he was convinced that the
accused had executed the victim in the basement of
the victim’s house. He began to confront the
accused with the evidence the police had already
gathered linking him to the murder. His chair was
reasonably close to the accused and the detective
occasionally placed his hand on the accused’s knee
in what would seem to be a gesture of intimacy and
understanding. The detective advised the accused
that the evidence against him was overwhelming
and exhorted him to tell why someone who was not
a criminal would have shot the victim, forged one of
his cheques and stolen his credit card – using the
card later to buy three airline tickets to London.
When this failed to produce a confession, the
detective became more aggressive. He moved his
chair closer to the accused and called him greedy.
He began tapping the accused on the knee from
time to time. For the most part, the accused had
remained mute and invoked his right to silence,
saying that on his lawyer’s advice he would not
answer further questions. The detective said he was
not asking questions and continued to talk,
confronting the accused with evidence. After a short
pause the accused began to confess, ultimately
admitting to shooting the victim.

Alberta Court of Queen’s Bench
At trial the accused argued, among other
things, that his right to silence under s. 7
of the Charter was breached and,
therefore, his confession was not
voluntary. He contended that during the second half
of the interview - after the dinner break - the
detective created an atmosphere of oppression by,
among other things, moving his chair closer to him
and repeatedly tapping his thigh. The trial judge
twice reviewed the video tape of the interview and
concluded the detective, although persistent, was
not threatening, hostile or intimidating. The judge
ruled that the Crown had proven beyond a
reasonable doubt that the accused’s statements and
confession were voluntary. Thus, there was no
breach of the accused’s s. 7 right to silence and the
statements were admissible. A jury found the
accused guilty of second degree murder.

Alberta Court of Appeal
The accused appealed his
conviction suggesting, among
other grounds, that the trial
judge made an error by
misapprehending the evidence concerning the
physical force applied by police. The accused
submitted that the physical contact by the police
was more than mere “body language,” as
characterized by the trial judge, and consisted of the
continuous poking of his leg during the aggressive
phase of the interview, as well as a shake of his body
when he was looking away. In his view, the
detective’s conduct “took on the character of
assaulting a detainee” and the physical contact to
gain his attention during questioning interfered with
his constitutional right to remain silent. The poking
and touching were uninvited, nor did he consent to
either. In his opinion, the constant physical contact
was designed to make it difficult, if not impossible,
for him to ignore the questions and to escape the
relentless onslaught of his interrogator. He
acknowledged that the detective did not use
“violent” physical force but a lesser form of physical
force that constituted a continuous series of assaults

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Volume 12 Issue 5 - September/October 2012
u p o n h i s p e r s o n t h a t c r e a t e d o p p r e s s ive
circumstances which, together with the persistent
and relentless interrogation, broke his will so that he
was induced to make an involuntary confession. He
submitted, as well, that his right to remain silent was
effectively overcome by the physical contact so that
he could not ignore the questions or otherwise be
inattentive to them.
Although the physical touching went beyond mere
“body language” - the term used by the trial judge to
describe the contact - a majority of the Alberta Court
of Appeal concluded that the persistent questioning
and touching of the accused’s body by the police
officer did not overbear his ability to exercise his
free will and deprive him of a meaningful choice as
to whether or not to speak to the police:
Here the trial judge heard [the detective’s]’
evidence and watched the video of the interview
twice. She concluded that the confession was
voluntary, because the conduct of the police did
not exceed the bounds of reasonable persuasion,
and that the [accused] had chosen, through the
exercise of an operating mind, to speak to the
police. We have also viewed the video. We are
not persuaded the trial judge erred in her
assessment of the police conduct and the
voluntariness of the confession. [The detective]
did place his hand upon the wrist, knee and
thigh of the [accused] from time to time during
the questioning. The touching, for the most part,
was properly characterized by both defence
counsel at trial, and by the trial judge, as
“tapping”, in an apparent effort to concentrate
the [accused’s] attention, and in some instances
as a seeming expression of the officer’s concern.
The [accused] showed no signs of discomfort
with the touching; he made no attempt to push
the detective’s hand away, nor did he ask that the
touching cease. From an objective standpoint,
the touching was not offensive nor intimidating,
and the [accused] did not give evidence of any
subjective feelings to the contrary. The touching
could properly be described as conversational
touching, which in ordinary human discourse
would not be characterized as an assault. Each
case will, of course, be fact-specific, and the
degree of any touching and the reaction to it will
be relevant. Our conclusion should not be

construed as a condonation of physical assault
as a legitimate means of persuasion. [para. 42]

The accused’s right to remain silent was not
breached and the confession was admissible. The
accused’s appeal was dismissed and his conviction
upheld.
Complete case available at www.albertacourts.ab.ca

UNKNOWNS JUSTIFY BRIEF &
FOCUSSED HARD ENTRY
R. v. MacKay, 2012 ONCA 671
Canada Border Services officers
opened a package addressed to the
accused and discovered four wooden
statues containing hidden rough
diamonds. The police obtained a
general warrant authorizing the installation of an
alarm and a tracking device in the package so that
investigators would know when the package was
opened. A controlled delivery of the package using
an undercover officer posing as a courier was made.
The police decided to use its Emergency Response
Team (ERT) due to two perceived security concerns:
1. Investigators were unable to conclusively
identify the accused before the raid, precluding
a complete threat assessment, and
2. The accused’s office was located in a high rise
commercial building in the hub of Toronto’s
jewellery district. Police knew that jewellers
typically operated from offices equipped with
controlled access doors, closed circuit security
monitoring, and other security measures.
Because of the potential high value of the
diamonds, police were also concerned about
the presence of weapons.
About 10 minutes after the package was delivered,
police received notification that it had been opened.
The undercover officer immediately returned to the
office, claiming to have forgotten her gloves. She
was buzzed through the outer door of the office.
ERT, with weapons drawn, then breached the inner
door and secured the premises. The accused was

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Volume 12 Issue 5 - September/October 2012
arrested and ERT left the premises seven minutes
after entry. The two-room office suite was searched
and police seized 54 diamonds valued at about
$12,900. The accused was charged with importing
diamonds contrary to the Export and Import of
Rough Diamonds Act and acquiring illegally
imported goods and smuggling contrary to the
Customs Act.

was judging dynamic operational decisions made by
the police with the benefit of hindsight and the
determination that the precise placement of the
officers was excessive amounted to an impermissible
after-the-fact assessment. The accused’s acquittals
were quashed and a new trial was ordered.

Ontario Court of Justice

The accused then appealed,
suggesting the acquittals be
reinstated. He did not challenge
the initial police decision to deploy
ERT in the raid on his office but asserted that the
police had a duty to reassess the situation after the
undercover officer entered the premises the first time
which should have led to a decision to downgrade
the “hard entry” nature of the raid to the point that
the ERT would play a back-up role to regular police
officers. But, as Justice MacPherson noted, the
parameters for judicial review on the powers of a
police tactical unit making a “hard entry” include
the following propositions from R. v. Cornell, 2010
SCC 31:

At trial the judge concluded that the
police planning and threat assessment for
the warrant’s execution was reasonable.
“The officers took all, in my view,
appropriate and reasonable steps to ensure that the
search proposed to be conducted would be effective
and not dangerous to any persons involved,
including the officers and the defendant and any
other person who might be in the vicinity at the time
of the search,” said the judge. “The officers’ original
concerns were well founded and I do not fault the
preparation that they took prior to the search being
executed.” However, the judge found the manner in
which the warrant was executed to be unreasonable.
The entry of ERT members, each armed with two
loaded firearms, was an unnecessary “show of
significant arms.” In the judge’s view, the undercover
officer could have simply approached the accused
with the ERT show of force in the background,
behind her at the doorway, to ensure that there was
no difficulty with the arrest. The search was ruled
unreasonable under s.8 of the Charter, the evidence
was excluded and the accused was acquitted.

Ontario Court of Appeal

•

The decision by the police must be judged by
what was or should reasonably have been
known to them at the time, not in light of how
things turned out to be. Just as the Crown
cannot rely on after-the-fact justifications for
the search, the decision about how to conduct
it cannot be attacked on the basis of
circumstances that were not reasonably known
to the police at the time. Whether there existed
reasonable grounds for concern about safety or
destruction of evidence must not be viewed
“through the ‘lens of hindsight’”;

•

The police must be allowed a certain amount of
latitude in the manner in which they decide to
enter premises. They cannot be expected to
measure in advance with nuanced precision the
amount of force the situation will require. It is
often said of security measures that, if

Ontario Superior Court of Justice
A Crown appeal was successful. Since the
police threat assessment was wellfounded and the presence of the ERT was
reasonable, the trial judge’s finding that a
“show of force in the background” would have been
adequate amounted to speculative second-guessing
in hindsight. The appeal judge found the trial judge

“Given the many unknowns, particularly the possibility of weapons inside the premises,
there is no basis for concluding that the ERT ‘hard entry’ in this case – brief and focussed
– amounted to an unreasonable search.”
PAGE 23

Volume 12 Issue 5 - September/October 2012
something happens, the measures were
inadequate but that if nothing happens, they
were excessive. These sorts of after-the-fact
assessments are unfair and inappropriate when
applied to situations like this where the officers
must exercise discretion and judgment in
difficult and fluid circumstances. The role of
the reviewing court in assessing the manner in
which a search has been conducted is to
appropriately balance the rights of suspects
with the requirements of safe and effective law
enforcement, not to become a Monday
morning quarterback.
In this case, the trial judge erred in respect to both
of these propositions. Even after the undercover
officer had been inside the accused’s office,

information critical to the imminent raid remained
unknown, including: the size of the office, the
number of rooms, the number of people inside and
whether anyone inside had access to weapons.
There was nothing in the undercover officer’s brief
visit to the premises to remove the extremely
important concern about the presence of weapons.
“Given the many unknowns, particularly the
possibility of weapons inside the premises, there is
no basis for concluding that the ERT ‘hard entry’ in
this case – brief and focussed – amounted to an
unreasonable search,” said Justice MacPherson.
There was no Charter breach, the accused’s appeal
was dismissed and the order of a new trial was
confirmed.
Complete case available at www.ontariocourts.on.ca

“The relationship between debtors and creditors is
common to both licit and illicit commerce. Debtors owe.
Debtors are expected to pay. Creditors are owed.
Creditors expect to be paid.
Some debtors pay their debts on time and in full. Others
lag behind and require reminder or encouragement to
discharge their obligations. The methods used to remind
debtors of their obligations and to encourage repayment
vary. Some follow conventional methods. Others take
different approaches.
In this case, some drug purchasers fell behind in their
payments to their suppliers. To remind them of their
indebtedness and to encourage repayment, their suppliers
shunned dunning letters and threats of litigation in favour
of a more direct approach: a baton and a handgun.”
Ontario Court of Appeal Justice Watt - R. v. Pelletier, 2012 ONCA 566
PAGE 24

Volume 12 Issue 5 - September/October 2012

‘REALISTIC RISK’ AN ESSENTIAL
ELEMENT OF ‘CARE OR
CONTROL’
R. v. Boudreault, 2012 SCC 56
The accused, inebriated and unfit to
drive, decided to leave the apartment
of a lady that he met earlier at a bar.
He had her call for a taxi and it was
expected that two drivers would
attend — one to take him home and the other to
drive his vehicle. He left the apartment into minus
15 degrees Celsius weather with blowing wind at 40
km/h. He got into his truck — which was in a private
driveway, on level terrain, its automatic transmission
set to park — started the engine, turned on the heat
and fell asleep. The taxi driver arrived about 45
minutes after the first call and saw the accused
sleeping in the driver’s seat. Instead of waking him,
the driver called police. The accused’s ability to
drive was manifestly impaired, he was arrested and
subsequently provided two breathalyzer test samples
of 250mg% and 242mg%. He was charged with
impaired care or control and over 80mg% under s.
253(1) of the Criminal Code.

Court of Quebec

therefore erred in considering a lack of intention to
drive as proof that there was no risk of setting the
vehicle in motion. In it’s view, “there was such a risk
given the [accused’s] advanced state of intoxication,
since his blood alcohol level was more than three
times the legal limit and this might have greatly
affected his judgment had he woken up”.
Convictions were entered.

Supreme Court of Canada
Th e a c c u s e d t h e n
appealed to Canada’s
Supreme Court. The
Crown submitted that a
risk of danger was not an essential element of the
offence of care or control under s. 253(1) of the
Criminal Code. In its view, even where the
presumption of “care or control” under s. 258(1)(a)
is not engaged, the Crown suggested it only needed
to prove the voluntary consumption of alcohol
beyond the legal limit or leading to impairment and
“some use of the car or its fittings and equipment.”
Justice Fish, speaking for himself and five other
justices, however, disagreed. In his view, a realistic
risk of danger is an essential element of “care or
control” under s. 253(1).

Risk of danger?

The trial judge held that there was no risk
of the accused putting the motor vehicle
in motion and therefore care or control
within the meaning of s. 253(1) had not
been established. Although the accused was
intoxicated, he knew what he was doing, took all the
necessary precautions and had a concrete and
reliable plan to get home without driving, which was
thwarted when the very taxi driver he had been
summoned called the police. The accused was
acquitted of both counts.

Quebec Court of Appeal
T h e C r o w n ’s a p p e a l w a s
allowed. The Court of Appeal
considered that an intention to
drive was not an essential element
to impaired care or control and the trial judge had

Justice Fish noted that Parliament’s objective in
enacting s. 253 was “to prevent a risk of danger to
public safety.” Thus, an accused’s “conduct that
presents no such risk falls outside the intended reach
of the offence” because Parliament’s intention was to
criminalize only conduct that creates a realistic risk
of danger.
The essential elements of “care or control” under s.
253(1) are:
1. an intentional course of conduct associated
with a motor vehicle;
2. by a person whose ability to drive is impaired,
or whose blood alcohol level exceeds the legal
limit;
3. in circumstances that create a realistic risk of
danger to persons or property.

PAGE 25

Volume 12 Issue 5 - September/October 2012
As noted, this risk of danger must be realistic and
not just theoretically or remotely possible. However,
the level of risk need not be probable, or even
serious or substantial. Justice Fish stated:
To require that the risk be “realistic” is to
establish a low threshold consistent with
Parliament’s intention to prevent a danger to
public safety. To require only that the risk be
“theoretically possible” is to adopt too low a
threshold since it would criminalize
unnecessarily a broad range of benign and
inconsequential conduct. [para. 35]

And further:
A realistic risk that the vehicle will be set in
motion obviously constitutes a realistic risk of
danger. Accordingly, an intention to set the
vehicle in motion suffices in itself to create the
risk of danger contemplated by the offence of
care or control. On the other hand, an accused
who satisfies the court that he or she had no
intention to set the vehicle in motion will not
necessarily escape conviction: An inebriated
individual who is found behind the wheel and
has a present ability to set the vehicle in motion
— without intending at that moment to do so —
may nevertheless present a realistic risk of
danger.

not be “automatic” unless a realistic risk of danger
(which is a finding of fact), in the particular
circumstances of the case, is established by the
Crown. This is a low threshold which will normally
be established by impairment or an excessive blood
alcohol ratio behind the wheel of a motor vehicle
with nothing to stop an accused from setting it in
motion, either intentionally or accidentally. Then, to
avoid conviction, an accused will in practice face a
tactical necessity of adducing credible and reliable
evidence tending to prove that the inherent risk of
danger is not a realistic risk in the particular
circumstances of the case. For example, an accused
may escape conviction “by adducing evidence that
the motor vehicle was inoperable or, on account of
its location or placement, could, under no
reasonably conceivable circumstances, pose a risk of
danger. Likewise, use of the vehicle for a manifestly
innocent purpose should not attract the stigma of a
criminal conviction.”

Alternate Plan
In this case, the accused had an “alternate plan” to
ensure his safe transportation home. The affect an
alternate plan has on the risk involved depends on
two considerations. First, whether the accused’s plan
was objectively concrete and reliable. And second,
was the plan in fact implemented by the
accused. Justice Fish continued:

In the absence of a contemporaneous intention
to drive, a realistic risk of danger may arise in at
least three ways. First, an inebriated person who
initially does not intend to drive may later, while
still impaired, change his or her mind and
proceed to do so; second, an inebriated person
behind the wheel may unintentionally set the
vehicle in motion; and third, through
negligence, bad judgment or otherwise, a
stationary or inoperable vehicle may endanger
persons or property. [paras. 41-42]

A plan may seem watertight, but the accused’s
level of impairment, demeanour or actions may
demonstrate that there was nevertheless a
realistic risk that the plan would be abandoned
before its implementation. Where judgment is
impaired by alcohol, it cannot be lightly
assumed that the actions of the accused when
behind the wheel will accord with his or her
intentions either then or afterward.

The six member majority held that “anyone found
inebriated and behind the wheel with a present
ability to drive will — and should — almost
invariably be convicted.” However, a conviction will

For example, even where it is certain that the
taxi will show up at some point, if the accused
occupied the driver’s seat without a valid excuse
or reasonable explanation, this alone may

“[C]are or control”, within the meaning of s. 253(1) of the Criminal Code, signifies (1) an
intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to
drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that
create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

PAGE 26

Volume 12 Issue 5 - September/October 2012
persuade the judge that “his judgment [was] so
impaired that he [could not] foresee the possible
consequences of his actions”. The converse,
however, is not necessarily true. Even where it is
probable that the taxi will appear at some point
and the accused occupied the driver’s seat with
a valid excuse or reasonable explanation, the
trial judge may nonetheless be satisfied beyond
a reasonable doubt that there remained a
realistic risk of danger in the circumstances.
[reference omitted, paras. 52-53]

these findings were not reviewable on the Crown’s
appeal. The accused’s appeal was allowed, the
judgment of the Quebec Court of Appeal was set
aside and the acquittals were restored.

A Different View

In this case, the Crown only alleged that the accused
would, at some point, intentionally set his vehicle in
motion thereby causing a risk of danger. The trial
judge applied the correct legal test to the evidence
and concluded there was no risk that the accused
would at any point intentionally set the vehicle in
motion. He also correctly recognized that the
absence of an intention to drive was only relevant to
rebutting the presumption in s. 258(1)(a) and that a
risk of danger was an essential element of care or
control. Even if the trial judge’s findings of fact were
viewed unsatisfactory or unreasonable to others,

Justice Cromwell, delivering a dissenting
judgment, was of the opinion that a risk
of danger, whether realistic or otherwise,
was not an element of the offence of care
or control. He found that such an interpretation
would seriously undercut the provision’s preventive
purpose. In his view, a person “is in care or control
of a motor vehicle when one acts to assume the
present ability to operate the vehicle or has its
superintendence or management.” Finally, even if
the creation of a risk was an essential element of the
offence, Justice Cromwell concluded that the trial
judge erred in law by finding that it had not been
proven in this case. He would have dismissed the
accused’s appeal.
Complete case available at www.scc-csc.gc.ca

‘CARE or CONTROL’

under s. 253(1) of the Criminal Code requires (1) an intentional
course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose
blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or
property. There are two ways the Crown can prove this.
Presumptive Care or Control

Non-Presumptive (Actual or De Facto) Care or Control

• s. 258(1)(a) of the Criminal Code creates a legal
presumption which provides that an accused who
was found in the driver’s seat of a motor vehicle
“shall be deemed to have had the care or control of
the vehicle . . . unless the accused establishes that
the accused did not occupy that seat or position for
the purpose of setting the vehicle . . . in motion . . .”

• An intention to drive is not an essential element of
the offence.

• This reverse onus provision can be rebutted if the
accused establishes they had no intention to drive.
• An inebriated person found behind the wheel cannot
be convicted of care or control if that person satisfies
the court that he or she had no intention to set the
vehicle in motion.
• If the presumption is rebutted, care or control can
nonetheless be established by proving nonpresumptive care or control.

• There must be a realistic risk of danger to persons or
property. This is a low threshold which is more than
a theoretical or remote possibility, but less than a
probable, serious or substantial risk.
• An intention to set the vehicle in motion is sufficient
in itself to create a realistic risk of danger.
• A realistic risk of danger may also arise when:
1. an inebriated person who initially does not
intend to drive may later, while still impaired,
change his or her mind and proceed to do so;
2. an inebriated person behind the wheel may
unintentionally set the vehicle in motion; or
3. through negligence, bad judgment or otherwise, a
stationary or inoperable vehicle may endanger
persons or property.

PAGE 27

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

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

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

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

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

Entrance Requirements:
Proof of completion of bachelor degree; OR
A minimum of two years of post secondary
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Applicants are required to write a 500-1000
word essay on a related topic of their
choice.
For detailed requirements please visit the
JIBC Website.

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

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

Intelligence Theories and Applications

Intelligence Communications

Advanced Analytical Techniques

A survey course that introduces the student
to the discipline of intelligence and provides
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Competitive Intelligence
This course explores the business processes involved in
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Tactical Criminal Intelligence
This course is an introduction to law enforcement
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This course examines the nature and scope of financial crimes
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