POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A PEER READ PUBLICATION
A newsletter devoted to operational police officers across British Columbia.

IN MEMORIAL
On December 14, 2005, 25year-old
Laval
Police
Constable Valerie Gignac
was shot and killed after
responding to a call at an
apartment building about an
extremely agitated and
aggressive person. When she knocked at the
suspect's door, Constable Gignac was shot once
through the closed door by a
male suspect armed with a
high-calibre rifle. After being
shot,
her
partner
administered CPR on her until
paramedics arrived. She was
transported to hospital where
she succumbed to her injury.
The suspect barricaded himself in the
apartment, resulting in an armed stand-off with
police SWAT teams from both the Laval Police
Service and the Quebec Provincial Police. The
suspect was known to police and they had
responded to his apartment before. After hours
of negotiation, he surrendered to police with no
further incident.
Constable Gignac had served with the Laval
Police Department for 4 years
and had previously served with
the Police de Repentigny for 8
months. She is survived by her
husband,
also
a
Laval
constable in the K-9 section.
The preceding information was provided with the
permission of the Officer Down Memorial Page:
available at www.odmp.org/Canada

Volume 6 Issue 1
January/February 2006

‘IN SERVICE: 10-8’
NOW IN 6th YEAR
The
Police
Academy’s
“Peer Read Publication”
has entered its sixth year
of printing. Back issues
are available from 2001,
2002, 2003, 2004, 2005 and now 2006 on the
Police Academy website at www.jibc.bc.ca.
From the inaugural issue it was clear that this
newsletter was not about glossy paper, fancy
pictures, or sleek advertising. Rather, it was just
a plain, black letter publication keeping the front
line officer current with issues facing them on
the street. Readers were told to feel free to
copy the newsletter and pass it on to colleagues.
From our tremendous e-mail response, we know
this has happened.
Police officers make decisions every day
requiring careful and prudent deliberation that
will impact people’s lives, in some cases forever.
Errors can be costly. When the cops screw up,
cases, careers, and even lives can be at stake.
“There is an old saying, ‘Doctors bury their
mistakes while lawyers send theirs to prison’.
Police officers do a little of both”1.
This is one reason why the “In Service: 10-8”
newsletter was created. It is a quick way to stay
on top of the game. Of course, it is not the endall-be-all. It is simply one method of bringing
that golden legal nugget from the courtroom to
where it counts, the street. Be smart and stay
safe!!!
1

Holden, R. (1986). Modern Police Management. Englewood Cliffs, NJ: Simon &
Scuster, Inc. at p.243.

Be Smart and Stay Safe

HIGHLIGHTS IN THIS ISSUE
Pg.
6

On-Duty Deaths Rise
No Realistic Opportunity to Consult Lawyer:
RSD Delay OK

7

Last Drink Inquiry Not Required

12

Direct Observation of Driving Not Necessary
for ASD Demand

18

Fail Result Cannot be Used for Grounds
Unless Device ‘Approved’

23

Officer Lacks Subjective Belief for Safety
Search

25

Guns & Grow Operators Don’t Go Together

29

No Charter Issues Arise From Routine
Border Pocket Search

31

Government Toughens Child Sex Laws

38

2006 Police Leadership Conference
40
Unless otherwise noted, all articles are authored by Sgt.
Mike Novakowski, MA (Abbotsford Police). 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 are not
necessarily the opinions of the Justice Institute of British
Columbia. “In Service: 10-8” welcomes your comments
on or contributions to this newsletter. If you would like to
be added to our electronic distribution list e-mail Mike
Novakowski at mnovakowski@jibc.bc.ca
National Library of Canada Cataloguing in
Publication Data
Main entry under title:
In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly.
Title from caption.
"A newsletter devoted to operational police officers
across British Columbia."
ISSN 1705-5717 = In service, 10-8

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

2

‘IN SERVICE: 10-8’
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www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

‘IN SERVICE’ LEGAL ROAD
TEST
The “In Service” Legal
Road Test is a simple
multiple choice quiz
designed to challenge
your understanding of the law. Each question is
based on a case featured in this issue. See page
37 for the answers.
1. Firearm ownership in Canada is…
(a) a constitutional right
(b) a privilege
2. When searching as an incident to lawful arrest
the police need not consider exigent
circumstances (ie. whether or not obtaining a
warrant would be practical).
(a) true
(b) false
3. When a police officer relies on a roadside
breath test “fail” result for reasonable
grounds the Crown must prove the testing
apparatus was an approved screening device
under the Criminal Code.
(a) true
(b) false
4. A protective pat down search by police
incident to an investigative detention is an
automatic power without the need for a
legitimate safety concern.
(a) true
(b) false
5. A pocket search at the border by Customs
officers is part of the routine screening
process and does not give rise to any Charter
issues.
(a) true
(b) false

Note-able Quote
Courage is fear that has said its prayers—

TWO COMMUNICATIONS
SUFFICIENT TO MEET
‘REPEATEDLY’ REQUIREMENT
R. v. Ohenhen,
(2005) Docket:C41405 (OntCA)
The accused was arrested and
sentenced to 30 days in jail and
three years probation after
persistently calling the victim
and eventually threatening to rape and kill her
and bomb her house and family. Shortly after
the trial the victim received a card from the
accused stating, “I hope you had a Merry
Christmas.” She threw it away and moved on with
her life. About nine years later the victim
received a letter from the accused with a hand
written heart on it stating, “Get back to me.”
The letter had a return address from a mental
institution and the victim felt threatened by it.
She contacted the police and the letter was
copied and mailed back to the institution marked
“return to sender.”
Eighteen months later the victim received
another upsetting letter from the accused that
was post marked from Toronto. This letter
scared the victim. The victim called police and
the accused was charged with uttering threats
under s.264.1 and criminal harassment under
s.264(2)(b), both Criminal Code offences. He was
acquitted of the threatening charge, but
convicted of criminal harassment by a judge and
jury.
The accused appealed to the Ontario Court of
Appeal arguing his conduct in sending two letters
over 18 months did not amount to “repeatedly
communicating”, as required by s.264(2)(b). The
accused’s argument was mainly based on a British
Columbia Court of Appeal decision in R. v. Ryback
(1996) where a judge stated, “Three
communications would seem to be the minimum
number sufficient to justify being described as
‘repeatedly’”.

Dorothy Bernard

Volume 6 Issue 1
January/February 2006

www.jibc.bc.ca

3

Justice MacFarland authoring the unanimous
judgment of the Ontario Court of Appeal,
however, disagreed with the accused. She
stated:
In my view, the dictionary definitions of the
words “repeat” and “repeated”, from which the
adverbial form “repeatedly” is derived, lead me
to conclude that conduct which occurs more
than once can, depending on the circumstances
of the case, constitute “repeated” conduct or
conduct which is “repeatedly” done and the
section is met. In my view, it is unnecessary
that there be a minimum of three events or
communications. “Repeatedly” obviously means
more than once but not necessarily more than
twice.
While one instance of unwanted conduct can
be sufficient to satisfy s. 264(2)(c) and (d), it
will not be sufficient to satisfy s. 264(2)(b).
More than one instance of unwanted conduct
will be necessary to meet paragraph (b);
however, in my view, there is not and should
not be any minimum number of instances of
unwanted conduct beyond this to trigger these
subsections. Provided the conduct occurs more
than once, in my view, the actus reus can be
made out. It will be a question of fact for the
trier in each case whether there has been
repeated conduct. The approach is a
contextual one. The trier will consider the
conduct that is the subject of the charge
against the background of the relationship
and/or history between the complainant and
accused. It is in this context that a
determination will be made as to whether
there has been repeated communication. On
the facts of this case, it was clear that
neither of the communications could be
characterized as innocuous or accidental. In
the context in which they were made, these
two communications would be sufficient to
constitute “repeatedly” communicating as set
out in s. 264(2)(b). In my view, it was entirely
appropriate for the trial judge to use the
standard charge language on this point. [paras.
31-32]

The accused’s appeal was dismissed

REASONABLE & PROBABLE
GROUNDS MORE THAN
SUSPICIONS
R. v. Legere, 2005 NBCA 100
The accused was involved in an
accident for no apparent reason
and had an odour of alcohol on
his breath. There were five
others in the vehicle and alcohol was found
outside it. The officer had a suspicion the
accused had been drinking and was impaired
while driving. He was also told by one of the
passengers that all the occupants had been
drinking. At the hospital the officer read the
blood demand and blood samples were taken.
At trial in New Brunswick Provincial Court on
charges of impaired driving causing death and
dangerous driving causing death the trial judge
concluded the officer did not have reasonable
and probable grounds to justify the blood
demand because he only had enough to support a
suspicion. The trial judge stated:
[The police officer] testified that he
concluded that the driver may have been
drinking, may have been impaired while
driving, and that he had to look further into
it. And as I said earlier, it – it is a suspicion,
yes, a reasonable one, that they were drinking
and he was driving. Then he testified that
…he read the blood demand since he believed
he had enough grounds. This is not to say that
the officer must state his conclusions in
every case. For instance, where the signs of
impairment are overwhelming. This was far
from being the case here. You have an
accident which could be attributed to driver
inexperience, distraction, speed, as much as
the consumption of alcohol factor. The
accused in no way was behaving like a person
under the influence of alcohol. I would even
go so far as to say that it looked the
opposite. Then you have an officer testifying
about suspicions where there – the available
information that the officer had and the

Complete case available at www.ontariocourts.on.ca

4

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

observation that he made only appear to
support suspicions…

Moss ruled that the officer violated the
accused’s Charter rights. He stated:

Since the blood demand was unlawful, the
collection of the samples violated the accused’s
rights under s.8 of the Charter. The results of
the tests were then excluded under s.24(2). The
Crown then appealed to the New Brunswick Court
of Appeal arguing the trial judge used the wrong
analysis in deciding whether the officer had the
requisite belief to make the demand.

If you look at the case authority, his obligation
is to not delay the taking of breath samples
into the approved screening device. I do not
see any mala fides on his part. He seemed to
think he was doing the accused a favour.

Justice Deschenes, writing the judgment of the
court, dismissed the appeal. The Crown bears the
burden of proving that the officer had the
necessary grounds to make the demand.
Reasonable and probable grounds requires an
officer hold a subjective belief in their mind and
the grounds must be objectively justified—a
reasonable person standing in the shoes of the
officer would conclude there were reasonable
and probable grounds. If the Crown cannot prove
the necessary grounds, the demand is
unauthorized and unlawful. The Court of Appeal
concluded the trial judge made no error in
coming to his conclusion.
Complete case available at www.canlii.org

ROADSIDE TEST MUST BE
GIVEN FORTHWITH: FIVE
MINUTE DELAY TOO LONG
R. v. McConville, 2005 BCPC 488
The accused was stopped for
traffic infractions and the
officer formed a reasonable
suspicion she had alcohol in her
body. There was a faint odour
of alcohol on her breath, her eyes were
bloodshot and glassy, and there was some
discussion about her consuming alcohol earlier.
The officer waited five minutes to ensure there
was no mouth alcohol present even though he had
no reason to believe there was any. During a voir
dire in British Columbia Provincial Court, Judge

Volume 6 Issue 1
January/February 2006

One has to remember that the police have the
accused in their care and under their
detention in order to obtain the roadside
breath sample, thereby limiting Charter
rights. Section (1) provides for this to take
place. If there is no reason to wait the five
minutes, then, in my view, his obligation is to
forthwith obtain the test. Clearly, he could
have done so. He chose to wait the five
minutes, thereby, in my view, taking him
outside of the realm of reasonableness for
obtaining the breath sample into his approved
instrument. [para. 6-7]

And further:
I am of the view he did not commit simply a
technical breach but rather, a fundamental
breach in waiting the five minutes. He had an
incorrect, or a misunderstanding of his
obligations. I feel sorry for the officers when
they get faced with this sort of a conundrum,
but I cannot find that on the facts of this
case he had any right to wait the five minutes
to take the sample and to talk to the
accused. She was being detained roadside. His
obligation was to provide her with her Charter
rights, and waiting for five minutes here, in my
view, is far too long, with no reason. [para. 11]

The evidence was excluded under s.24(2) of the
Charter.
Complete case available at www.provincialcourt.bc.ca

Note-able Quote
When we long for life without difficulties,
remind us that oaks grow strong in contrary
winds and diamonds are made under pressure—

Peter Marshall

www.jibc.bc.ca

5

ON-DUTY DEATHS RISE
On-duty peace officer
deaths in Canada rose
by four last year. In
2005, 11 peace officers
lost their lives on the
job. This matches the
10-year highs of 11
deaths in 1997 and
2002.
Over the last 10 years motor vehicles, not guns,
posed the greatest risk to officers. Since 1996,
35 officers have lost their lives in circumstances
involving vehicles, including automobile and
motorcycle accidents (24), vehicular assault (2),
and being struck by a vehicle (9). These deaths
account for nearly 44% of all on-duty deaths,
which is more than twice the next leading causes
of gunfire (14) and aircraft accidents (12). On
average, eight officers each year lost their lives
during the last decade, while 1996, 1998, 1999,
and 2003 had the least deaths at six per year.

2005 Roll of Honour
Constable Anthony Gordon
Royal Canadian Mounted Police, CAN
End of Watch: March 3, 2005
Cause of Death: Gunfire
Constable Lionide Johnston
Royal Canadian Mounted Police, CAN
End of Watch: March 3, 2005
Cause of Death: Gunfire
Constable Brock Myrol
Royal Canadian Mounted Police, CAN
EOW: Thursday, March 3, 2005
Cause of Death: Gunfire
Constable Peter Schiemann
Royal Canadian Mounted Police, CAN
End of Watch: March 3, 2005
Cause of Death: Gunfire

Constable J.M.J. (Jean) Minguy
Royal Canadian Mounted Police, CAN
End of Watch: June 3, 2005
Cause of Death: Drowned
Constable Jose Agostinho
Royal Canadian Mounted Police, CAN
End of Watch: July 4, 2005
Cause of Death: Automobile accident
Constable Andrew Potts
Ontario Provincial Police, ON
End of Watch: July 20, 2005
Cause of Death: Automobile accident
Constable Daniel Rathonyi
Niagara Regional Police Service, ON
End of Watch: September 15, 2005
Cause of Death: Heart attack
Wildlife Protection Officer Nicolas Rochette
Ministère des Ressources Nature, QC
End of Watch: November 5, 2005
Cause of Death: Aircraft accident
Wildlife Protection Officer Fernand Vachon
Ministère des Ressources Nature, QC
End of Watch: November 5, 2005
Cause of Death: Aircraft accident
Constable Valérie Gignac
Police de Laval, QC
End of Watch: December 14, 2005
Cause of Death: Gunfire

“They are our heroes.
We shall not forget them.”2
During 2005, the U.S. lost 150 peace officers. In
the U.S. the top cause of death was gunfire (59)
— including accidents — followed by automobile
accident (32), heart attack (15), and vehicular
assault (14). The state of California lost the
most officers (18), followed by Texas (13).

2

Inscription on Canadian Police and Peace Officer Memorial—Parliament Buildings
Ottawa, Ontario.

6

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

Canadian Peace Officer On Duty Deaths (by year)
Cause

2005

Aircraft accident
Assault
Auto accident
Drowned
Fall
Gunfire
Heart attack
Motorcycle
accident
Natural disaster
Stabbed
Struck by vehicle
Training accident
Vehicular assault

2

Total

11

2
1

2004

2003

2002

2001

2000

1999

1

2

1

5

2
1

1

1

1
1

2

2
1
1

3

1998

1997

1996

4
2
1

2
1

2
1

3
1

2

1

1
5
1

1
2

1
2

1
1
1
3

2

2
1
1

9

6

1
1

7

6

11

7

1
1

6

11

Total
12
1
21
5
1
14
7
3

1

1
2
9
2
2

6

80

Source: Officer Down Memorial Page www.odmp.org/canada [January 02, 2006]

US Peace Officer On Duty Deaths
Cause
2005
Aircraft accident
Auto accident
Bomb
Drowned
Duty Related Illness
Fall
Gunfire
Gunfire (Accidental)
Heart attack
Motorcycle accident
Stabbed
Struck by vehicle
Training accident
Vehicular assault
Vehicle Pursuit

Total

2
32
1
2
2
2
52
7
15
4
1
10
1
14
5

150

Source: Officer Down Memorial Page www.odmp.org [January 02, 2006]

NO REALISTIC OPPORTUNITY
TO CONSULT LAWYER: RSD
DELAY OK
R. v. Singh,
(2005) Docket:C43677 (OntCA)
A police officer made a demand
for the accused to provide a
breath sample into a roadside
screening device (RSD). The
officer did not have an RSD with him and had to
detain the accused for 10 minutes while he
waited for one to arrive. At trial in the Ontario

Volume 6 Issue 1
January/February 2006

Court of Justice the judge found there was not a
realistic opportunity for the accused to consult
counsel before the RSD arrived. The judge made
this finding because it was late at night, the
officer had a reasonable belief the RSD would
arrive in 5-10 minutes, the fact an RSD did
arrive in 10 minutes, and the offering of the test
without further delay once it was operable. The
judge, however, did not determine whether the
accused had a cell phone in his possession
The accused appealed to the Ontario Superior
Court of Justice where the findings of the trial
judge were overturned. In the Superior Court
Justice’s view, the accused had a cell phone with
him and the officer did not know when the RSD
would arrive when she made the demand. The
Crown then appealed to the Ontario Court of
Appeal arguing that the appeal court judge
erred.
The Ontario Court of Appeal agreed with the
Crown and the accused’s conviction was restored.
The trial judge’s ruling that there was no
realistic opportunity to speak with a lawyer was
justified. The delay was not unknown and “the
officer reasonably anticipated a five to ten
minute delay.” Furthermore, the trial judge made
no finding whether the accused had a cell phone.
The Superior Court Justice was not entitled to
substitute his opinion for that of the trial judge.
Complete case available at www.ontariocourts.on.ca

www.jibc.bc.ca

7

OFFICERS MAY APPROACH
VEHICLE ON PRIVATE
PROPERTY TO INVESTIGATE
R. v. Soal,
(2005) Docket:C43184 (OntCA)
A
bartender
called
police
reporting that she believed the
accused was impaired and had
recently left the bar. Police
checked the name provided and
attended to the accused’s address. In the
driveway of the private residence police located
a parked vehicle that was running with loud music
coming from it. The officer walked up to the
vehicle and found the accused passed out in the
driver’s seat. She tapped on the window and
opened the door. She identified the accused and
detected a strong odour of alcohol on his breath,
noted his face was flushed and that his pupils
were not level with his eye openings. He was
asked to get out of the truck and was unsteady
on his feet. He was then arrested for impaired
operation of a motor vehicle and later failed a
breathalyzer test. At no time did the accused
ask police to leave the property or were there
any signs prohibiting the public from entering.
At trial in the Ontario Court of Justice the
judge convicted the accused of impaired driving,
finding the police did not violate his s.8 Charter
rights when they entered onto his property
without a warrant and looked into his vehicle,
opened his door, and asked him his name. The
accused appealed to the Ontario Superior Court
of Justice arguing the entry onto the private
property and search of the vehicle were unlawful
and unreasonable under s.8. The evidence, he
submitted, should therefore be inadmissible
under s.24(2).
Superior Court Justice Durno accepted that
when the officer looked into the truck and
opened the door she was conducting a
warrantless search, which was prima facie
unreasonable.
The Crown, not the accused,

8

therefore bore the burden of establishing the
reasonableness of the search.

Police Right to Enter Private Property
After reviewing a number of authorities, Justice
Durno concluded that in some cases the police
are entitled at common law to enter private
property to conduct an investigation. It was
important to note, that in this case, it was not a
dwelling house that was entered. Furthermore,
the owner of a motor vehicle has a reduced
privacy interest compared to a home. In ruling
that the officer had the right to enter onto the
property, Justice Durno wrote:
While all of these cases can be distinguished
on the facts, they support the conclusion that
police can enter private property to conduct an
investigation in some circumstances without a
warrant. Here, the officers had information
that a person was driving while impaired. They
had a name and an address where a person by
that name lived. The vehicle they saw in the
driveway was similar in description to the
complaint received. They knew the vehicle had
recently left a local bar. When they arrived,
they saw the vehicle with the engine running
and the radio playing loudly in a residential
area. The officers could not see the driver
from the road.
[Although] the officers did not see the
[accused] drive his vehicle to that location...I
am persuaded that the officers were acting
within their common law authority noted above,
having regard to the situation the officers
faced. They could not see the driver. They
had grounds to believe that the driver was
impaired. The engine was running. To require
them to obtain a warrant was unrealistic in
that situation. All of the foregoing was a
sufficient basis upon which the officers could
have a reasonable belief that the vehicle in the
driveway was one which had been driven there
by the person who had been cut off at the bar
because he was impaired. It is not essential
that the officers had grounds to arrest the
[accused] at the time they went on to the
private property. The information known to
the officers was sufficient to give the

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

officers common-law authority
investigative steps...[paras. 28-29]

to

take

As for whether or not the officer violated the
accused s.8 Charter rights by looking into the
vehicle, opening its door, and asking the accused
his name, Justice Druro stated:
…When the officer approached the truck, she
saw a man apparently passed out behind the
steering wheel. While the officer said that
she intended to check on the man’s well being
but did not ask him if he was all right, I am not
persuaded that that omission defeats the
legitimate police authority to investigate. In
any event, the officer wanted to determine if
the [accused] was okay. When she opened the
door and made her observations, it was a
reasonable conclusion, in the absence of any
indication to the contrary by the [accused],
that there was no concern for his well-being,
although he was impaired. It was not
unreasonable for the officer to open the door
to check on the [accused] and continue her
investigation. Once the officer made her
observations of the [accused], it was apparent
he was intoxicated and that she had
reasonable and probable grounds to arrest.
[para. 30]

Furthermore, “there is a compelling public
interest in detecting impaired drivers, and in
preventing persons from driving while impaired.”
With respect to asking the accused his name,
the Superior Court concluded he was not under
arrest or detention at the time and his rights
were not violated. Even if his rights were
violated, the officer’s observations and the
breathalyser
results
were
nonetheless
3
admissible under s.24(2) .
The accused again appealed, this time to the
Ontario Court of Appeal. The appeal court,
however, found no error in Justice Druno’s
reasoning and dismissed the appeal.
Complete case available at www.canlii.org

ONTARIO COURT HOLDS NO
s.10(b) REQUIRED FOR
INVESTIGATIVE DETENTION
R. v. Ngo, 2005 ONCJ 217
Three plainclothes street crime
unit members were patrolling a
local billiards parlour that had
been the location of drug,
liquor, and weapons offences, including a
shooting, when they saw the accused and another
man exit and walk through a cat walk at the rear
of the shopping plaza. The other male went to a
parked vehicle, removed something from the
glove box, then went to the accused where the
two huddled together looking at the thing. The
three officers approached on foot and
announced “Police”, while walking up in such a way
to separate the men from each other.
The other man was arrested for having
marihuana. When asked if he had anything on him
that he shouldn’t, the accused replied he had a
knife and a baton. The accused was patted down
and a knife and baton were found. He was also
wearing a bullet proof vest. The accused was
searched and car keys were found on him. The
car was also searched and police found a sword
and machete in the trunk. The accused was then
charged with two counts of carrying a concealed
weapon (extendable baton and flick knife) and
two counts of possession of a weapon for a
dangerous purpose (sword and machete).
At trial in the Ontario Court of Justice the
judge noted a number of Charter rights—such as
s.8, s.9 and s.10—were engaged in this police
contact and the legal issues involved when he
stated:
This seemingly simple case touches a lot of
Charter nerves. Was it good police work - or a
serious violation of constitutional rights? The
resolution of this question is important
because the type of interaction between the
defendant and the police that occurred here

3
See R. v. Soal, (2005) Court file No.M2392/04 (OntSCJ) for facts and details
of lower court judgments.

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January/February 2006

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9

seems to be a common occurrence in this
jurisdiction. [para. 12]

Detention
In first finding the accused was detained for
the purposes of the Charter, Justice Duncan
held:
While the police officers testified that the
[accused] was detained from the point of their
first contact, their belief or opinion is not
determinative of the issue, anymore than it
would be if they held the opposite view.
Police officers are entitled to approach and
speak to anyone about anything, though there
is no corresponding duty to answer and the
police have no authority to detain anyone in
the process…
Detention” in a constitutional sense is not the
same as in common parlance. Not every
interaction between police and an individual
that keeps the individual in the officer’s
presence amounts to a detention. At a minimum
there must be physical or psychological
compulsion...
In this case, it is my view that the defendant
was detained. The investigative purpose of the
interaction, the rapid advance, the exclaiming
of their authority – “Police!” - the taking
control of the defendant and separating him
physically from [his companion], amounted to a
detention within the meaning of sections 9 and
(possibly) 10 of the Charter.
Further, in the particular facts of this case,
for reasons that will become apparent below,
it is necessary to be precise as to when the
detention occurred. I find that the process of
detention began when the police approached
and announced their authority, though it was
not completed until an instant later when
physical control of the two targets was
affected. [paras. 13-17]

However, the first stage is assessing whether
the police are permitted to detain persons for
investigation is whether they have reasonable
grounds to detain (articulable cause). This
requires a reasonable suspicion the detainee is

10

criminally implicated in the activity being
investigated. Here, Justice Duncan concluded
there were no such grounds. He stated:
In this case, it is my view that the objective
facts up to the point of the police advance on
the [accused] provided no reasonable basis for
the police to suspect any criminal activity. The
circumstances described – two young men
going to a car, one retrieving something and
both looking at it – are not reasonably
suggestive of criminal activity at all. Yet it was
these facts alone that triggered the police
action.
I was initially inclined to think that the
concealment of the item by [the accused’s
companion] provided an additional fact that
may have elevated the circumstances to the
required level of reasonably based suspicion.
On reflection, I do not think that is so. Most
basically, the circumstances still fall short.
Beyond that, the decision to investigate and to
detain for investigative purposes appears to
have already been made at the time of the
police approach and announcement of their
presence. The concealment appears to me to
have been a fortuitous occurrence that should
not be granted pivotal significance in
assessment of the legalities of what occurred
thereafter. Put another way, as found above,
the groundless detention began to take place
an instant before the concealment. The police
cannot rely on the target’s response to their
actions to justify what they had already begun
to set in motion. [paras. 19-20]

Thus the detention was arbitrary and a violation
of s.9 of the Charter.

Search
Since the detention itself was unlawful, the
search of the accused was unreasonable under
these circumstances. Furthermore, the Crown
could not demonstrate that the warrantless
search of the car was reasonable.

Right to Counsel
In assessing whether the accused should have
been advised of his Charter right to counsel,

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Justice Duncan opined that a s.10(b) warning is
not required for investigative detention. Citing
the Supreme Court of Canada’s decision in R. v.
Mann, 2004 SCC 52, which left the question of
whether a person detained for investigation is
entitled to be advised of their right to a lawyer
unresolved, he wrote:
It is obvious to me that the provision of the
10(b) right to counsel – both its informational
and operational components – is incompatible
with investigative detention. It cannot be that
the first thing out of the mouth of a police
officer who lawfully stops a car or engages in a
lawful investigatory detention on the street, is
the multi-part informational component of the
right to counsel. Less so, can it be that the
detainee can exercise the right. The context
and the need for such detentions to be brief
militate against a right to counsel in this
situation.
Still, there is authority suggesting that at
least the informational component of the 10(b)
right applies even in these situations… The
Court’s judgment in Mann puts the continued
vitality of the holding in Debot in some doubt.
In any event I think Debot is distinguishable
as a case where the police officer actually had
grounds to arrest but deferred arrest (and
the informing of rights to counsel) until after
a brief search and detention.
Reconciliation of the reality of investigative
detention with the words of section 10(b) is
not easy. But it seems to me that two
approaches are available. First, it could be
that “detention” under 10(b) should carry a
different interpretation than it does under
section 9 or even 10(a). Odd as this may seem,
there is authority, in the leading case of R v
Therens (1985) 18 CCC3d 481, for this
approach. There it was held by Ledain J,
speaking for the full Court on the point, that
section 10(b) contemplated a different type of
detention – less prolonged and secure - than
did 10(c) dealing with habeas corpus. Adopting
this to the present case, “detention” as it
applies to 10(b) as opposed to section 9 or
10(a) carries the additional feature of arising
only where the detention is such that the

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detainee might reasonably require legal advice.
Therefore, the right to counsel of the stopped
motorist and the individual subjected to
investigative detention, at least without more,
does not arise.
The other approach is to view investigative
detention as a legal rule that implicitly
amounts to a reasonable limit on the right to
counsel. Authority abounds for this in the
context of roadside screening which is, in my
view, simply a particular type of investigative
detention… On this approach, the individual is
“detained” within the meaning of section 10(b)
but given the nature of the lawful police
investigative power, he does not have a right
to counsel. Adopting the further refinements
of the roadside cases, he can be questioned
and his answers may provide lawful grounds for
further search and/or arrest, but his answers
cannot be admitted for substantive use
against him at trial…
On either approach, there will be no violation
of section 10(b) by failing to inform the
detainee of his right to counsel at the stage of
lawful investigative detention. [references
omitted, paras. 29-33]

Exclusion of Evidence
Although Justice Duncan found no violation of
the right to counsel, the evidence was excluded
on the basis of the arbitrary detention and
unreasonable searches. In excluding the
evidence, he noted:
The very existence of a judge-made power of
investigative detention has caused some
controversy and concern – even more so an
accompanying power of search… Having
recognized those powers, the higher Courts
have demonstrated a trend to underline and
enforce the limits through exclusion of
evidence where those limits have been ignored
or surpassed…[references omitted, para. 39]
Complete case available at www.canlii.org

Note-able Quote
Do or not do. There is no try—Yoda

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11

LAST DRINK INQUIRY NOT
REQUIRED
R. v. Szybunka, 2005 ABCA 422
Police stopped the accused
during the course of a CheckStop program after seeing him
drive from a nightclub parking
lot. The officer formed a suspicion the accused
was impaired because his eyes were red and
there was an odour of alcohol. The officer made
an approved screening device demand and the
accused failed. The officer then formed
reasonable and probable grounds to believe he
was impaired. The accused was arrested and
read the breath demand. He subsequently
provided samples of 160 mg% and 150mg%, both
over the legal limit. During the tests, the
accused told the technician he had his last drink
5 minutes before he was stopped.

minutes is not mandatory unless the investigating
constable has reasonable and articulabe reason
to believe the accused has consumed alcohol
within that time and knew the results of the
approved screening device could not be relied
on.”5
The accused then sought leave to appeal before
the Alberta Court of Appeal again arguing that
the officer failed to take steps to ensure the
screening tests was accurate and that the police
are required to make enquiries as to the recent
consumption of alcohol. In dismissing the
application, Justice Berger, in chambers, stated:
In my opinion, the decision of the Supreme
Court of Canada in R. v. Bernshaw…is
dispositive of the present application. In
Bernshaw, the court held that the evidential
testing of motorists represents a search and
seizure within the meaning of s. 8 of the
Charter and must be based on objectively
verifiable reasonable and probable grounds.
The thrust of the [accused’s] submission is
that the failure of the investigating officer to
comply with his training, which requires that
he wait 15 minutes following a suspect’s last
alcoholic drink before administering a
screening test, takes this case outside the
ambit of R. v. Bernshaw. I do not agree. Nor do
I agree with the [accused’s] contention that it
is arguable, in the circumstances of this case,
that it is incumbent upon an investigating
officer to inquire as to when the suspect
consumed his last alcoholic beverage.

At trial in Alberta Provincial Court the accused
argued that the officer did not have reasonable
and probable grounds for the demand because he
did not satisfy himself that any alcohol had been
consumed within 15 minutes of the roadside test.
By not asking the accused if he had consumed
alcohol within the preceding 15 minutes, it was
contended that the officer could not rely on the
“fail” reading to support his grounds. The trial
judge, however, found there was no obligation on
the police to ask about the time of a last drink
or to wait 15 minutes unless the officer knew he
had recently consumed. Judge LeReverend found
the officer had reasonable and probable grounds
and the breathalyser tests were admitted. He
was convicted of driving over the legal limit4.

The central inquiry is whether there is any
evidence which might have caused the
investigating constable to question when the
[accused] had his last drink. Absent such
evidence, there is no requirement that the
investigating constable either determine when
the last drink was consumed or defer
administration of a screening test for 15
minutes. Sopinka, J. in Bernshaw, speaks of
“credible evidence to the contrary”, that leads
an officer to believe that the suspect may
have had a drink in the preceding 15 minutes.

The accused appealed to the Alberta Court of
Queen’s Bench submitting that the officer’s
failure to not make inquiry into the time of the
accused’s last drink was fatal to the officer’s
reasonable and probable grounds to make the
breathalyzer demand. Justice Agrois, in
dismissing the appeal, held that “waiting 15
5
4

See R. v. Szybunka, 2005 ABQB 686

See R. v. Szybunka, 2004 ABPC 52

12

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In the case at bar, the trial judge found that
there was no such evidence, and stated that
the constable’s observation of the [accused]
driving out of the parking lot did not equate
with knowledge that he had consumed an
alcoholic drink just prior to leaving. Reasonable
grounds to require that a suspect submit to a
screening device are capable of being negated
if the officer knew or was wilfully blind to the
proposition that the test to be administered
might be unreliable. Leaving the parking lot of
a bar does not satisfy the test. The actions of
a suspect prior to departure from the bar may
well be the subject of conjecture and
speculation, but if not borne out by credible,
cogent evidence, constitutes an uncertain
foundation to contend that the constable
knew, or ought to have known, that the
screening test results would be unreliable.
Indeed, it might well be argued that, given the
constable’s training, the fact that he did not
question the [accused] as to when he had his
last drink, evidences a lack of concern
regarding the reliability of the ensuing
screening test results. On the other hand, if
the question had been put, it might well be
argued that the reliability of the screening
test results was a live issue in the constable’s
mind.
As to the [accused’s] advice to the technician
(that he stopped drinking at 11.00 p.m.), the
trial court must consider the information
available to the officer at the time of the
breath demand, and decide whether the
officer subjectively believed that the
accused’s ability to drive was impaired by
alcohol, and whether that subjective belief
meets
the
objective
standard
of
reasonableness. I agree with the Crown that in
applying the objective test, the trial court
must consider only the information available to
the officer at the time that he formed his
opinion; the grounds are not invalid simply
because the officer relied on information
which is ultimately proven to be wrong… Of
course, it is always open to an accused to
challenge the reliability of the tests and to
question their probative value.
… In my opinion, the evidence establishing the
contention that the [accused] had consumed a

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substance which would skew the results of the
screening test, is not, in this case, manifest.
Accordingly, on the authority of R. v.
Bernshaw…there was no requirement that the
investigating officer wait a period of time to
ensure that the screening test results were
accurate. Nor was the constable required to
inquire when the [accused] last consumed
alcohol in order to ensure an accurate test.
[paras. 7-11]
Complete case available at www.albertacourts.ab.ca

ENTRY ONTO PRIVATE
DRIVEWAY LAWFUL:
OBSERVATIONS ADMISSIBLE
R. v. Arnett, 2005 ABPC 246
Police responded to a call about
a suspicious vehicle driving
slowly around a neighbourhood
with its windows down and music
blaring. The police attended to
the area and found a car matching the
description driving 25 km in a 50 km zone. The
police followed it and saw it roll through a stop
sign without stopping. The police emergency
lights were activated and the accused drove
about 40 yards before pulling into his driveway.
The officer noted the accused had a strong
smell of alcohol on his breath, red, glassy eyes,
uncoordinated slow and deliberate motor skills
and speech, and he was unfocussed. The officer
asked him to get out of the vehicle. He was
unsteady on his feet, his movements were slow
and deliberate, and he held onto the car door so
he wouldn’t fall. The officer formed the opinion
the accused was impaired and he was arrested
and given his Charter rights. While back at the
police station, 42 minutes after the arrest, the
officer read the breath demand to the accused.
He subsequently provided two samples of his
breath.
At trial in Alberta Provincial Court on charges of
impaired driving and over 80mg% the accused

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13

submitted that his rights under the Charter
were breached because the police entered his
private property to detain him and conduct a
search, without a warrant and without reasonable
grounds, in circumstances that did not justify an
arrest without a warrant. Furthermore, the
police did not make the breath demand forthwith
or as soon as practicable. Nor did they re-inform
him of his right to counsel when making the
breath demand, some 42 minutes after his
arrest.
As for whether the accused’s ss.8 and 10(b)
rights were violated because of the 42 minute
delay, Judge Daniel found the delay was too long
and without good reason. Because of this delay,
“the accused should have been reminded of his
s.10(b) Charter right and offered the
opportunity to contact counsel after the Breath
Demand had been read to him at the station.” As
well, the breath demand was not read “forthwith
or as soon as practicable” as required by
s.254(3) of the Criminal Code resulting in an
unreasonable search and seizure of the accused’s
breath. As a result of these violations, the
breathalyzer certificate was excluded under
s.24(2).
However, Judge Daniel found all of the officer’s
observational evidence obtained from the traffic
stop admissible because there were no Charter
breaches respecting the police entry onto the
accused’s driveway. The judge rejected the
argument “that as soon as the accused drove
over his property line, that he thereby safely
ensconced himself in legal sanctuary,” stating:
…Firstly, the police had personally witnessed a
violation of the Traffic Safety Act. They were
under a legal duty to stop and detain the
violator so they could deal appropriately with
him. They had reasonable and probable
grounds, both subjectively and objectively, to
do so. The accused was under a legal obligation
to immediately stop and identify himself.
There was a clear nexus between the individual
to be detained and the offence; the events
were continuous. It was necessary to detain

14

the accused so the police could perform their
legally recognized statutory duties. This
entailed stopping him and requiring him to
identify himself and produce his license,
registration and insurance as a prelude to
issuing the ticket for failure to stop at a stop
sign.
The police signalled their intent that he should
stop and identify himself by approaching
within ten yards of the back of his motor
vehicle and activating the overhead lights on
their marked police van. They pursued him in
this manner for about forty yards before he
stopped in his driveway. If he had stopped on
the roadway or in someone else’s driveway no
issue of private property or immunity would
have arisen. Just because he happened to stop
in his own driveway it makes no logical or
common sense for him to suddenly acquire a
sanctuarial immunity from legal prosecution
and his obligations under the Traffic Safety
Act.
Secondly, I find the police were in ‘hot’ or
‘fresh’ pursuit. There does not have to be a
high speed or lengthy chase for the police to
be in ‘hot’ pursuit. The accused could not have
been in any doubt whatsoever that the police
wanted him to pull over. He chose not to stop
immediately and kept driving. Granted, he did
not travel a long distance…, he did not speed
up, go through any more traffic stop signs or
exit his vehicle and flee inside his home, but
the fact remains that he did not stop
immediately when required to do so. The police
conducted the pursuit with reasonable
diligence such that the pursuit and capture
along with the commission of the offence can
be considered as forming part of a single
transaction. By exiting their police vehicle and
going to the accused’s vehicle, they were
simply continuing the ongoing pursuit on foot.
Since he had not stopped when required, they
had an option to arrest him without a warrant
for failing to stop for a police officer.
Thirdly, at common law, the police have a right
to enter private premises to make an arrest
when they have a warrant for arrest, to
prevent a crime from being committed, when
they are in hot pursuit having either witnessed

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an offence or have arrived after an offence
has been committed and having seen the
offender flee the crime scene. Police can also
enter private property to conduct an
investigation in other circumstances without a
warrant… The power is not limited to
indictable offences. As was held in the Macooh
case it can apply to Provincial offences where
there is a right of arrest. …By entering onto
[the accused’s] driveway, the police were
simply continuing a pursuit already begun. They
did not know it was his driveway, nor was there
any way could they have been reasonably
expected to know.
Fourthly, the accused had no reasonable
expectation of privacy. He remained in his car,
in which there is a lesser expectation of
privacy than in a home. The accused certainly
must have expected the police to attend at his
driver’s side window to follow up with their
traffic stop. To that end he waited in the car
for them. The window was rolled down and the
police could easily converse with him. When
the constable did ask for his driving
particulars as he was legally entitled to do, he
could not then ignore the signs of impairment
immediately apparent to him. The accused did
not hide in his car with the windows rolled up
and the doors locked. He did not emerge from
his car and order the police off his property.
He did not point to any ‘no trespass’ signs
because there weren’t any. There was no
reason for the police to assume this was his
driveway or that he had any reasonable
expectation of privacy upon it. His actions
belied any expectation of privacy under all the
circumstances. In this case, when balancing
the invasion of individual rights with the need
for police to fulfill their legal duties, the
minimal intrusion onto this accused’s driveway
is reasonable in the context of the public
purpose of the police fulfilling their lawful
duties…
Fifthly, this was a driveway and not a home.
The vehicle was in plain view, as was the
accused. Any interference with the accused’s
property rights was minimal. There is an
implied license for the police or anyone else on
legitimate business to enter onto the driveway
of a private residence…. The police were

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respectful and polite, acting in the course of
their statutory duty to investigate, apprehend
and lay charges. They did not draw their
weapons. The accused was also respectful and
cooperative. No violence was used or
threatened….
Sixthly, there are a number of public policy
reasons why the accused should not expect
sanctuary from prosecution in all the
circumstances of this case:
a) A criminal should not be immune from
arrest in his own home or driveway.
b) There are occasions when a person’s privacy
interests must yield to the public interest
in executing due process against an
offender.
c) If police officers had to obtain a warrant
in the instant circumstances, it would likely
be impossible to identify their target –
perhaps neighbours would have to be
awoken and inconvenienced to see if they
could identify the accused. While the police
are engaged in that kind of inquiry, the
offender could slip away and the
opportunity for identification could be lost.
Even with his identity confirmed a justice
of the peace would have to be found to
execute an arrest warrant. Valuable police
time would be wasted and by the time the
police officer got back with the warrant,
the offender would likely have vacated the
scene.
d) If fugitives think they can escape
prosecution merely by fleeing to their own
driveway, chases that endanger the public
and property are likely to ensue. Flight may
result in loss of evidence. An offender’s
flight should not be rewarded with
immunity from prosecution. [references
omitted, paras. 25-31]

Even though the certificates of analysis were
inadmissible for the over 80mg% charge, the
accused was convicted of impaired driving based
on the officer’s admissible observations during
the lawful traffic stop.
Complete case available at www.albertacourts.ab.ca

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15

person in distress. If the officer’s
observations give him reasonable grounds to
believe that the individual is committing an
offence under section 253 of the Code or
that he committed such an offence within the
past three hours, he has cause to ask the
individual to provide a breath sample for
analysis. In my opinion, even if the constable
in the case at bar had not seen the accused
damage others’ property, he had cause to
approach the accused for the sole reason that
his vehicle was stuck and he needed help.
However, [the constable] specifically stated
that he stopped the [accused] because he was
causing damage to the property of others.
Thus, he would probably not otherwise have
felt the need to approach or stop the
[accused]6. [para. 8]

CHARTER ARGUMENT TOO
LATE
R. v. Thibodeau, 2005 NBCA 81
A police officer patrolling a
municipal building parking lot in
the evening saw two individuals
between two cars escape
behind a building. The officer
went behind the building and saw a person speed
off on an all-terrain vehicle (ATV). The driver of
the ATV tried to pass through a fence opening
but got stuck. Its wheels continued to spin and
make holes in the ground. The officer
approached, asked the driver to turn the ATV
off,
remove
his
helmet,
and
produce
identification. The constable detected a strong
odour of alcohol on the accused’s breath, noted
his eyes were glassy and bloodshot, and that his
speech was somewhat slurred. The accused was
advised of his Charter rights and given the
breath demand, which subsequently resulted in
samples over the legal limit.
At trial in New Brunswick Provincial Court the
accused was convicted of operating a motor
vehicle while over 80mg% when the trial judge
ruled that the officer had an articulable cause
to stop and question the accused under the
circumstances because he was causing damage
while trying to free the ATV. The accused,
however, appealed to the New Brunswick Court
of Queen’s Bench.
Justice McIntyre of the New Brunswick Court
of Queen’s Bench agreed that the officer had an
articulable cause to stop and question the
accused. Furthermore, Justice McIntyre found
the police had another reason to approach the
accused:

Despite this finding, Justice McIntyre excluded
the officer’s testimony respecting his articulable
cause because the Crown never disclosed before
the trial what the articulable cause was that
prompted the officer to stop and question the
accused. It was not in the officer’s notes and, as
the accused contended, hearing it for the first
time at trial prevented him from preparing to
make full answer and defence. Since there was
no articulable cause to stop the accused (which
had been excluded) the breath demand was
unlawful and an acquittal was entered.
The Crown then appealed to the New Brunswick
Court of Appeal arguing, among other grounds,
that the trial judge erred by allowing the
accused to rely on a ground of appeal not raised
in the notice of appeal and by allowing the
accused to plead a Charter violation not raised at
trial. In a 2:1 judgment, the majority agreed
with Crown, set aside the acquittal, and affirmed
the conviction. Justice Deschenes, with Justice
Richard concurring stated:
After learning, during cross-examination of
the police officer, that the latter had not
indicated in his notebook that he had stopped
and questioned [the accused] because he was
causing damage to municipal property, [the

Lastly, there are instances when a peace
officer is entitled, and is in fact even under a
duty, to approach an individual without
articulable cause to believe he is involved in
criminal activity. One such instance is when a
peace officer decides to lend assistance to a
6

16

See R. v. Thibodeau, 2004 NBQB 253

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Volume 6 Issue 1
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accused] chose not to raise an issue that he
now claims is a breach of the prosecution’s
duty of disclosure. Assuming, for argument’s
sake, that the information identified by the
appeal judge should have been disclosed
before the trial, [the accused] was
nonetheless aware, during his trial, and even
before the prosecution closed its case, of all
the circumstances based on which the police
officer
stopped
and
questioned
him.
Assuming, for the purposes of this discussion,
that a case has been made against the
prosecution for not disclosing the information
in question before the trial, at the most this
would amount to a late disclosure, not a
failure to disclose. If this late disclosure
violated his right to make full answer and
defence, it was up to [the accused] to break
his silence before the trial judge and bring a
motion for the remedy that he considered
appropriate under s. 24(1) of the Charter. It
was up to [the accused] to convince the trial
judge that his right to make full answer and
defence had been violated and that this
violation of his constitutional right could only
result in the exclusion of the evidence and his
acquittal. In addition to failing to fulfil his
duty to assert his right to make full answer
and defence, [the accused] continued
cross-examining the police officer, and
testified in his own defence.
If [the accused] had made a timely motion
with respect to this issue instead of
remaining silent about the whole matter, the
trial judge would have had to rule on questions
which were raised for the first time on
appeal, and for which there is no factual
basis.
The trial judge would first have had to
consider the information disclosed to [the
accused]. As the Crown prosecutor has
argued, even though the police officer did not
enter in his notebook all the circumstances
that caused him to stop and question [the
accused], this information may have been
found elsewhere in the file that was disclosed
to him. Since the question was never raised at
trial, the prosecution never had the
opportunity to reply and the trial judge did
not rule on it. Ultimately, [the accused] has

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never shown that the prosecution failed in its
duty to disclose anything.
Moreover, even if the trial judge had found
that the right to disclosure had been violated
in this case, [the accused] would still have had
to show that this violation infringed his right
to make full answer and defence. And
assuming that [the accused] had been
successful at this stage, the trial judge would
still have had to choose the remedy that he
considered appropriate in the circumstances.
Among other forms of relief, he might have
granted an adjournment. Since the trial judge
was never called upon to decide these
questions (because they were never raised),
some of the remedies that would have been
appropriate are obviously no longer available
following a conviction.
In light of this, the summary conviction appeal
court was not able to apply the preliminary
test in Stinchcombe, namely whether there
was an actual violation of [the accused’s] right
to disclosure, notwithstanding the fact that
certain information was not in the police
officer’s notebook. In my opinion, the general
rule that appellate courts do not allow a
question to be raised for the first time on an
appeal applies to the instant case and the
appeal judge erred in law in allowing [the
accused] to argue the defence at issue before
him. …
In my opinion, when an accused standing trial
believes that the prosecution has failed to
comply with its duty to disclose, he must
break his silence and bring the issue to the
court’s attention so that the court can deal
with it. The accused cannot remain silent on
the question, and then attempt for the first
time, on an appeal, to raise an alleged breach
of the duty to disclose….
As the appeal judge stated in his decision, it
is true that the Crown prosecutor did not
object when this new ground of appeal was
raised extemporaneously for the first time
before him. However, even if one assumes
that the prosecution had a duty to object in
the instant case, the appeal judge had no
factual basis on which to rule on the question,

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17

which had to be decided at trial. [references
omitted, paras. 15-21]

Justice Rice, however,
colleagues. He stated:

disagreed

with

his

The appeal judge had the jurisdiction and the
duty to intervene if he believed that the
accused’s Charter right had been violated. In
my opinion, it is reasonable to conclude that
the police officer, who formed suspicions
regarding the accused as the latter was
moving around the area being patrolled,
decided to stop and question the accused
without having reasonable grounds to do so.
He abandoned this plan in the belief that the
accused would use a path that was
inaccessible to him. The grounds involving
damage to others’ property, which he
advances as a basis for stopping and
questioning the accused (and which were not
disclosed to the accused before the trial),
should have been disclosed before the trial so
they could be investigated and questioned.
In view of the importance of this Charter
issue, I cannot find that the failure to raise it
at a given stage of the proceedings would
result in the setting aside of this ground of
appeal… [para 2]

to break and enter a place is, in the absence of
evidence to the contrary, proof that he broke
and entered the place or attempted to do so, as
the case may be, with intent to commit an
indictable offence therein.”
The accused appealed his conviction to the
British Columbia Court of Appeal arguing that his
s.7 Charter right had been violated because the
Criminal Code presumption breached the tenets
of fundamental justice by creating the
possibility that an innocent person might be
convicted. Justice Hall, authoring the unanimous
appeal court judgment, disagreed. Relying on and
applying the reasoning of other court decisions,
he found that the presumption did not violate s.7
because break and enters are epidemic, the
clearance rate is low, and the prosecution should
have the benefit of this “evidentiary assist”
presumption. The appeal was dismissed.
Complete case available at www.courts.gov.bc.ca

DIRECT OBSERVATION OF
DRIVING NOT NECESSARY FOR
ASD DEMAND
R. v. Campbell, 2005 BCCA 619

Complete case available at www.canlii.org

B&E PRESUMPTION
CONSTITUTIONAL
R. v. Singh, 2005 BCCA 591
After awaking, the complainant
found the accused inside an
apartment in the early morning
hours walking towards the door.
The complainant grabbed him and called 911. The
accused was subsequently apprehended by police
outside the building after briefly eluding them.
He was convicted in the Supreme Court of
British Columbia on a charge of break and enter
with intent to commit an indictable offence. The
trial judge concluded the accused did not rebut
the presumption found in s.348(2)(a) of the
Criminal Code, which provides that evidence an
accused “broke and entered a place or attempted

18

A witness called police after
seeing a Lexus operated by the
accused driven in an erratic
manner including weaving in its
lane and striking the curb at slow speeds, as well
as running a red light and stop sign. The witness
saw the Lexus park and the accused exit and
then get into a Jeep as a passenger. The Jeep
was subsequently stopped in the parking lot by
police and the officer noted the accused had a
flushed face, watery eyes, and a smell of liquor.
When asked for her driver’s licence, the accused
retrieved it from the locked trunk of her Lexus.
The officer formed a suspicion the accused had
alcohol in her body and a roadside screening test
was given. She failed, a breath demand was
made, and the accused provided samples of her
breath over the legal limit. She was convicted of

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Volume 6 Issue 1
January/February 2006

over 80mg% in British Columbia Provincial Court
and her conviction was affirmed on appeal to the
Supreme Court of British Columbia.
The accused appealed to the British Columbia
Court of Appeal arguing that a police officer
making a demand under s.254(2) of the Criminal
Code must actually see the subject of the
demand in care and control of the vehicle when
the demand is made. Section 254(2) of the
Criminal Code states:
s.254(2) Criminal Code
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.

Justice Huddart, for the unanimous court,
dismissed the appeal. In her view the demand
was valid and there was no need for the officer
making the demand to make it only when a person
is actually seen driving or in care and control. In
holding that the trial judge did not err, Justice
Huddart stated:
To establish an offence for refusing to give a
sample of breath under this section, the
Crown must establish the peace officer who
made the demand had a reasonable suspicion
the person in question had alcohol in his body
at the time of the demand, and that he had
been operating a motor vehicle or had the
care or control of a motor vehicle.
………

Virtually all the [accused’s] authorities
implicitly
or
explicitly
adopt
this
understanding of the application of s. 254(2)
as do those submitted by the [Crown]. The
words "is driving" or "has the care or control"

Volume 6 Issue 1
January/February 2006

are to be given some past signification. The
cases differ in outcome as a result of factual
findings as to whether the Crown has
established on the evidence either that the
accused's driving occurred within a time
frame reasonably contemplated in giving "is" a
past tense interpretation, or that the accused
had care or control at the time of the
demand.
I can see no error in the conclusion of the
summary conviction court appeal judge that in
this case the evidence supported a finding
that the demand was made as soon as
reasonably practicable by the…police officer,
just as it would have supported a conclusion
that the accused was in care or control of her
motor vehicle at the time of the demand.
It is with this understanding of s. 254(2), the
question of law posed to this court must be
answered. The [accused] suggests that a
demand pursuant to s. 254(2) cannot be made
unless the demanding officer has direct
knowledge of the driving or care or control of
a motor vehicle. In R. v. MacPherson (2000),
150 C.C.C. (3d) 540 (Ont. C.A.), Charron J.A.
(as she then was) explained for the court that
a valid demand requires only that a police
officer reasonably suspect the accused has
alcohol in his or her body. The Crown must
prove the accused is "driving" or "has the
care or control" at the time of the demand,
but may do so through means other than the
officer's knowledge or observation.
I accept those propositions. In this case
the…police officer had information from [a
witness], which led him to believe that [the
accused] had been driving her vehicle in the
previous few minutes. He observed signs of
"liquor" consumption, and he watched as she
opened the trunk of her car with a key and
retrieved from it her purse and driver's
licence.
That evidence justified the
reasonable suspicion he formed that [the
accused] had alcohol in her body while
recently driving and not having surrendered
the care and control of her motor vehicle.
His direct observation of her driving was not
required. [paras. 11-16]
Complete case available at www.courts.gov.bc.ca

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19

INCIDENTAL SEARCH DOES
NOT REQUIRE WARRANT
R. v. Munro, 2005 BCCA 610
An undercover police officer who
suspected the accused might be
transporting drugs requested
another officer stop her. The
second officer stopped the
accused for speeding as she drove along a
highway and arrested her for driving while
prohibited. The officer could also smell a
moderate odour of vegetative marihuana in the
car. The officer read the accused her rights and
placed her in the police car.
The vehicle was impounded under s.104 of the
Motor Vehicle Act and searched by a police dog
at the roadside. In the car police found a gym
bag containing four vacuum-sealed bags with
marihuana. The accused was then arrested for
possession of marihuana and taken to the police
station. Other bags found in the vehicle were
also taken to the police station, one of which was
found to contain cocaine.
At trial in British Columbia Supreme Court the
accused was acquitted on a charge of possession
of cocaine for the purpose of trafficking. The
trial judge ruled that the search of the vehicle
was warrantless and therefore unreasonable,
even if the officer had reasonable grounds to
arrest the accused. There were no exigent
circumstances that made it not feasible to
obtain a search warrant. In the judge’s view the
Charter violation was serious and the evidence
was excluded under s.24(2).
The Crown appealed to the British Columbia
Court of Appeal arguing that the trial judge
failed to properly analyze the legal issues
pertaining to the admissibility of the evidence.
Justice Low, writing for the unanimous appeal
court, agreed with the Crown’s submission. The
trial judge erred in restricting his approach to a
requirement that the Crown prove it was not

20

practicable to obtain a search warrant through
the existence of exigent circumstances.
Although “the police officers could have
obtained a search warrant and had time to do
so…there is no requirement in law that a search
warrant be obtained if the search is conducted
incidentally to the lawful arrest of the suspect
for any of three reasons; to ensure the safety
of the police and the public; to protect evidence
from destruction; or…for ‘the discovery of
evidence which can be used at the arrestee’s
trial’,” said Justice Low. In this case, the trial
judge did not consider the need to discover
evidence in his analysis. Since the trial judge did
not consider the appropriate factors, the appeal
was allowed and a new trial was ordered.
Complete case available at www.courts.gov.bc.ca

EXPERT EVIDENCE BASED ON
DISBELIEVED TESTIMONY
REJECTED
R. v. Boucher, 2005 SCC 72
The accused was charged with
driving while over 80mg%. He
had provided two samples of his
breath to police resulting in
readings of 93mg% and 92mg%. At trial in
Quebec Municipal Court the accused testified he
drank two large beers during the two to three
hours preceding his arrest. He also called an
expert who testified that the breathalyzer
readings did not correspond with the level of
alcohol expected of a person with the accused’s
physical characteristics and the amount he
claimed he drank.
In the expert’s view, the accused’s blood alcohol
level should have been 60mg%. A reading in the
90mg% to 95mg% would require the accused
drinking twice as much as he said. Furthermore,
the expert stated that if the accused had drank
just before his arrest, the level recorded on the
breathalyzer might have been different that at

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Volume 6 Issue 1
January/February 2006

the time of driving because the alcohol would not
yet have been absorbed at the time of arrest,
but would have been absorbed at the time of
testing. The expert, however, relied on
statistical averages and did not provide evidence
about the accused’s alcohol tolerance.
The trial judge found the accused’s testimony
not credible. Since his testimony was not
credible it could not serve as a basis for the
expert’s evidence. Thus, there was no evidence
to the contrary that could rebut the statutory
presumption found in the Criminal Code. He was
convicted.
The accused appealed to the Quebec Superior
Court arguing the trial judge erred. In the
Superior Court judge’s view, the evidence as a
whole may still raise a reasonable doubt
concerning whether the accused’s blood alcohol
level exceeded the legal limit even if his
evidence about how much he drank was
disbelieved. In this case, based in part on the
absence of physical symptoms, the Superior
Court judge found the accused raised a
reasonable doubt. He was acquitted.
The Crown appealed to the Quebec Court of
Appeal. Although the three judges wrote
separate opinions, the acquittal was upheld. The
Crown then appealed to the Supreme Court of
Canada arguing that the trial judge did not err in
rejecting the expert’s testimony because it was
based on the accused’s disbelieved testimony.
Justice Deschamps, with four other justices
concurring, first reviewed the presumptions
found in s.258 of the Criminal Code. She stated:
Where samples of an accused's breath have
been taken pursuant to a demand made under
s. 254(3) Cr. C., Parliament has established
separate presumptions in s. 258(1) Cr. C. to
facilitate proof of the accused's blood alcohol
level: two presumptions of identity and one
presumption of accuracy. According to the
presumption of identity in s. 258(1)(c) Cr. C.,
the accused's blood alcohol level at the time
when the offence was alleged to have been

Volume 6 Issue 1
January/February 2006

committed is the same as the level at the time
of the breathalyzer test. According to s.
258(1)(d.1) Cr. C., where the alcohol level
exceeds 80 mg at the time of the test, there
is a presumption that it also exceeded 80 mg
at the time when the offence was alleged to
have been committed. The presumption of
accuracy in s. 258(1)(g) Cr. C. establishes
prima facie that the technician's reading
provides an accurate determination of the
blood alcohol level at the time of the test.
These presumptions have certain similarities,
but they remain distinct presumptions. [para.
14]

And further:
The presumption of identity in s. 258(1)(c) Cr.
C. can be rebutted by evidence that tends to
show that the blood alcohol level at the time
when the offence was alleged to have been
committed was different from the level
measured at the time of the breathalyzer
test….
Thus, in St. Pierre, the accused
consumed two miniature bottles of vodka after
being arrested but before taking a
breathalyzer test, and this fact was capable
of rebutting the presumption that the blood
alcohol level measured at the time of the test
was the same as the blood alcohol level at the
time she was driving her vehicle.
Such evidence to the contrary adduced to
rebut the presumption of identity does not
deprive the prosecution of the benefit of the
presumption that the certificate accurately
states the blood alcohol level at the time of
the breathalyzer test (the presumption of
accuracy). The Crown can still prove that the
accused's blood alcohol level at the time when
the offence was alleged to have been
committed exceeded 80 mg; one piece of
evidence would then be the reading taken by
the breathalyzer, the accuracy of which is not
in dispute.
Additional evidence would be
needed, however, to prove the blood alcohol
level at the time when the offence was alleged
to have been committed.
Evidence to the contrary that is adduced to
rebut the presumption of accuracy in s.
258(1)(g) Cr. C. must tend to show that the

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21

certificate does not in fact correctly reflect
the blood alcohol level at the time of the
breathalyzer test. This evidence must raise a
reasonable doubt about the accuracy of the
breathalyzer result.
Shortly after St. Pierre, Parliament amended
the Criminal Code to add s. 258(1)(d.1) Cr. C.,
which expands the presumption of identity.
According to this new provision, where the
accused's blood alcohol level exceeded 80 mg
at the time of the breathalyzer test, it will be
presumed, in the absence of evidence to the
contrary, to have exceeded 80 mg at the time
when the offence was alleged to have been
committed. The effect of the enactment of s.
258(1)(d.1) Cr. C. was not to change the type
of evidence needed to rebut the presumption
of identity in s. 258(1)(c) Cr. C. or the
presumption of accuracy in s. 258(1)(g) Cr. C.,
but to reinforce the presumption of identity.
[paras. 19-22]

In establishing evidence to the contrary, an
accused has no burden of proof to meet in
rebutting any of these presumptions. Rather, if a
judge has a reasonable doubt that the blood
alcohol level recorded was not the same at the
time of driving, the level did not exceed 80mg%,
or the certificate did not accurately reflect the
blood alcohol level, then the presumptions do not
apply.
In this case the judge did not believe the
accused and therefore the expert’s calculations
were of no assistance in “neutralizing” the
presumption. As for the lack of physical indicia
of impairment raising a reasonable doubt as to
the application of the presumption, Justice
Deschamps wrote:
Evidence that there are no symptoms is indeed
very relevant to the charge of impaired
driving. In fact, this explains why, when the
prosecution closed its case, it asked the judge
to acquit [the accused] on that charge. The
situation is quite different for the charge of
driving with a blood alcohol level over 80 mg.
The offence of driving with a level exceeding
80 mg does not require proof of impairment.
The absence of symptoms of impairment is

22

generally not sufficient to constitute evidence
to the contrary that can be used to rebut the
presumption of accuracy. This is because a
lack of evidence of the usual symptoms of
impairment, such as staggering and slurred
speech, does not provide information about
the actual blood alcohol level. Symptoms such
as these usually accompany extremely high
blood alcohol levels.
Conversely, very low
levels are generally consistent with an absence
of symptoms. An absence of symptoms is
therefore not significant in itself if the court
does not know the accused's level of alcohol
tolerance. [para. 33]

Nor did the low breathalyzer readings provide
evidence to the contrary. She held:
…I find it difficult to see how the fact that
the alcohol levels were 93 mg and 92 mg…could
constitute evidence that the breathalyzer
result was inaccurate. How can the results of
93 mg and 92 mg show that the result itself
was inaccurate? The result is precisely the
figure that the accused claimed was
inaccurate. To achieve his goal, he should
logically have tried to discredit that figure,
not to use it. The result cannot be both
evidence and evidence contrary to that
evidence. [para. 35]

The majority set aside the acquittal and
restored the conviction of over 80mg%. The
other four justices would have allowed the
appeal but ordered a new trial because they felt
the trial judge erred in assessing and rejecting
the accused’s testimony.
Complete case available at www.scc-csc.gc.ca

Note-able Quote
Do all the good you can, by all the means you can,
in all the ways you can, in all the places you can,
at all the times you can, to all the people you can,
as long as ever you can —Phaedrus

www.jibc.bc.ca

Coming Soon
(see p.40)
Volume 6 Issue 1
January/February 2006

WARRANT BASED ON PLAIN
VIEW OBSERVATIONS
REASONABLE
R. v. Jackson, 2005 ABCA 430
After a stabbing victim had
been found dead in his
bunkhouse, police requested
camp security help identify
occupied rooms so police could
obtain the names of possible witnesses. As well,
the police wanted the bunkhouse evacuated to
protect the crime scene and prevent
contamination. One of the security officers told
police that the accused was in his room. A police
officer went to the room and knocked on the
door, which was left ajar. The officer asked if
he could come in and the accused said, “Sure”.
The officer entered the small room, told the
accused why he was there, and asked his name,
date of birth, and which shift he last worked.
The accused answered each question and also
told the officer he sold things around the camp,
pointing to a cooler on the floor he said he sold
water from. Beside the cooler the officer saw a
pair of boots—one on its side—with a similar
tread pattern as one seen in blood in the
victim’s room. The officer saw a second pair of
boots under a desk and asked the accused if he
could look at both pairs. The accused said “Yes”.
One of the boots by the water cooler with the
similar tread pattern also had a moist dark stain
on its toe which the officer believed was blood.
The accused was then arrested for first degree
murder and advised of his right to a lawyer.
During the one hour transport to the police
detachment, the accused was not questioned but
made spontaneous remarks, including knowing
the identity of the victim even though it had not
been disclosed to him.
Although the police did not seize the boots,
they subsequently obtained a search warrant
and it was later determined that the boots with

Volume 6 Issue 1
January/February 2006

the similar tread pattern had blood on them
that matched the DNA of the victim. As well,
blue jeans and a shirt belonging to the accused
had blood on it matching the victim’s blood. At
trial in the Alberta Court of Queen’s Bench the
accused argued, among other things, that the
warrantless search when police entered his
room, saw the boots, and examined them was
unreasonable.
The trial judge, however, found the search was
reasonable under s.489(2) of the Criminal Code
and the common law plain view doctrine. The
officer was lawfully present in the accused’s
room by express consent, he was in the lawful
execution of his duty in evacuating the
bunkhouse to secure the scene, the boots were
inadvertently discovered, and it was immediately
apparent by the tread pattern the boots might
be evidence. The accused was convicted of
second degree murder.
The accused appealed to the Alberta Court of
Appeal, in part, contending that the trial judge
erred in her analysis of the plain view doctrine
and that his rights under s.8 of the Charter
were violated. The court, however, disagreed.
The legal basis for the inspection of the
accused’s boots in his room was well established
and the trial judge did not err. The accused’s
appeal was dismissed.
Complete case available at www.albertacourts.ab.ca

FAIL RESULT CANNOT BE
USED FOR GROUNDS
UNLESS DEVICE ‘APPROVED’
R. v. Arsenault, 2005 NBCA 110
A police officer saw the
accused leave a tavern, stagger
across the street, drop his
keys, and leave in his truck. The
officer followed the accused for about one
kilometre and stopped him to check documents
and investigate his suspicion regarding sobriety.

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23

The officer detected an odour of alcohol on the
accused’s breath and noted his eyes were glassy.
The officer demanded the accused provide a
breath sample into an approved screening device
and he failed. A breathalyzer demand was then
made and the accused provided samples over the
legal limit.
At trial in New Brunswick Provincial Court the
officer testified that he was qualified to
operate an approved screening device and that it
was operating properly, but he described it as a
“Draeger”—which is a manufacturer of an
approved screening device7. The trial judge ruled
that the Crown failed to establish that the
device used was an approved screening device
under the Criminal Code and that the fail reading
could not be used to form reasonable grounds
for the breathalyzer demand. Without the fail
reading, the officer did not have the requisite
grounds for the breath demand thereby making
the seizure of the accused’s breath unreasonable
under s.8 of the Charter. The certificate was
excluded and the accused was acquitted. An
appeal to the New Brunswick Court of Queen’s
Bench was dismissed.
The Crown appealed to the New Brunswick Court
of Appeal arguing, in part, that the lower court
erred in finding that the Crown must prove the
screening device was approved under the
Criminal Code. In holding that the Crown did
bear the burden of showing the device used by
the police officer was approved under the
Criminal Code, Justice Deschenes, for the
unanimous court, stated:
… In my view, unless there is some evidence to
establish it, a court is not entitled to assume
that a screening device used by a peace
officer in collecting a breath sample is an
approved screening device. That evidence is
necessary to establish the statutory authority
under which the breath sample is obtained.
Peace officers are only entitled to require
drivers to provide samples for testing on an
approved screening device and the approved
7

See R. v. Arsenault, 2004 NBQB 181

24

screening device is the only one that in fact
can be used to collect the sample. The finding
by the trial judge that the Crown had failed to
establish that [the accused’s] breath sample
had been collected by using an approved
screening device simply means that the fail
result was not obtained within the legislative
scheme envisaged by the Code. The "Draeger"
machine used was not an "approved screening
device" as defined by the Criminal Code and
regulations. Unlike the results from an
"approved screening device" the results
obtained in this case cannot be presumed to be
reliable. Only a "fail" reading on an "approved
screening device", as defined by the Code, can
provide the necessary reasonable and probable
grounds. Where the particular screening
device used has been approved under the
statutory scheme, an officer is usually entitled
to rely on its accuracy. The test results on the
"Draeger" provided a result that has no
meaning within the framework of the section.
[para. 21]

And further:
In the case before us, the demand under s.
254(2) was unauthorized and unlawful…because
the device to be used by [the officer] and
which was in fact used to collect the fail
result, was not proved to be an approved
screening device. In my view…I do not see how
the fail results in the case before us can be
admissible to establish honest belief,
considering it was obtained from a device not
proved
to
be
an
approved
device.
Accordingly…I conclude, as did the trial judge
and the appeal court, that [the officer] was
not entitled to rely upon the fail result to
form the honest belief required for the
breathalyzer
demand
which
followed.
Accordingly, the trial judge and the appeal
judge who agreed with him did not err in law in
refusing to consider such results in deciding
the issue of honest belief.
I reach this conclusion despite a long list of
cases which hold that the question of whether
a peace officer holds an honest belief that a
person is committing an offence under s. 253
must be measured by the facts as understood
by the peace officer at the time when the

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Volume 6 Issue 1
January/February 2006

demand is made. In addition, an honest belief
cannot be dependant upon a ruling made during
the course of a trial that the Crown has failed
to prove that the screening device used to
collect the breath sample was an approved
screening device. …[A] finding that a peace
officer personally held an honest belief that
an offence had been committed under s. 253 is
not determinative. In fact, regardless of the
peace officer's honestly held personal views,
the objective component on the question of
honest belief must be considered and the
honest belief must be justifiable from an
objective point of view. The objective test is
that a reasonable person, standing in the shoes
of the peace officer who made the demand,
would have believed that [the accused]
committed an offence under s. 253. Again, in
dealing with the objective component, the
cases hold that the court should not be
concerned with the fact that the Crown has
failed to prove that the screening device used
was an approved screening device and that the
function of the court is to look "at the facts
known by or available to the peace officer at
the time he or she formed the belief" and
decide if, viewed from the objective vantage
point of the reasonable person, the grounds
are justifiable…
…[T]here is an argument to be made that the
application of the subjective and objective
components to determine the question of
honest belief could lead one to conclude that
[the officer] held an honest belief in this case.
However…[the officer] was not entitled to rely
on the fail result as it was obtained by the use
of a device not proven to be an approved one.
Thus, by applying the objective component to
the question of honest belief, there is nothing
unusual in finding that, in fact, [the officer]
did not have the honest belief required
despite [his] genuine personal belief that he
had reasonable grounds to make the demand.
[paras. 23-25]

Without the fail result, the trial judge concluded
the officer did not have sufficient reasonable
grounds upon which to base the breathalyzer
demand despite the other indicia of impairment.
Although another judge may have come to a

Volume 6 Issue 1
January/February 2006

different conclusion, his finding was not a
palpable or overriding error requiring appellant
interference. Nor did the fact that the accused
complied with the breathalyzer demand render
the seizure reasonable. Justice Deschenes held:
…In this case, the samples were admittedly
collected following a demand and without a
warrant. Thus, the onus was on the Crown to
prove the reasonableness of the seizure. As
the Crown failed to establish an honest belief
to make the demand, it was therefore unlawful
and unauthorized. In such circumstances,
because the search and seizure was not
authorized by law, it cannot be regarded as
reasonable. In my view, the Crown has failed to
discharge
the
onus
of
establishing
reasonableness and the appeal judge was
correct in agreeing with the trial judge that
[the accused’s] right under s. 8 to be secure
against unreasonable seizure was violated in
the course of obtaining the breathalyzer
results. [para. 33]

The breath certificate was inadmissible under
s.24(2) of the Charter and the Crown’s appeal
was dismissed.
Complete case available at www.canlii.org

OFFICER LACKS SUBJECTIVE
BELIEF FOR SAFETY SEARCH
R. v. Spitale, 2005 BCPC 0586
A police officer saw the
accused, who was known to him,
sitting on the steps of a
building two blocks from a very
high drug and prostitution
crime area. He had a glass crack pipe in his hand
and closed his hand over it as the police
approached. The officer advised the accused he
was under investigation for possession of a
controlled substance and the pipe was removed
from the accused’s hand. The officer did not see
cocaine residue on the pipe. As the officer began
a pat down search, the accused removed a plastic
bag containing 34 rocks of cocaine from inside
the front of his pants. He was arrested for

www.jibc.bc.ca

25

possession of a controlled substance and $137
was found on him. He was charged with
possession of cocaine for the purpose of
trafficking.

location and behaviour of the individual
and others).
2.
Investigative detentions must be
brief; police officers must tell detainees
the reason for their detention; and
detainees are not obliged to answer
questions.

At trial in British Columbia Provincial Court, the
accused applied to have the evidence excluded
under s.24(2) of the Charter, arguing his rights
under s.8 were violated by the search. In
addressing whether the search was justified,
Judge A. Rounthwaite first examined the validity
of the detention. In her view, the detention was
justified because the accused was found in a
neighbourhood known for drug trafficking and he
was in possession of a crack pipe. This was
sufficient to detain, but not arrest him.
The removal of the crack pipe from the
accused’s hand was problematic. The officer
testified he had no fear for his or his partner’s
safety. Although the judge found it would be
objectively reasonable to take the crack pipe—it
could be broken and constitute a danger—the
officer did not have the necessary subjective
belief. He said he had no fear for his safety.
Rather, he took the pipe to investigate a drug
offence. The cocaine rocks were recovered
during a search incident to investigative
detention—not incident to arrest—thereby
breaching the accused’s s.8 rights because the
search was undertaken to locate evidence, not
for safety.
Judge Routhwaite also outlined four guiding
principles after reviewing the case law in similar
circumstances. She stated:
…the law is actually quite straight forward on
this topic:
1.
Possession of a crack pipe has
repeatedly been held to provide
reasonable grounds for investigative
detention
where
it
occurs
in
circumstances giving rise to a reasonable
suspicion that the individual possesses
drugs (e.g. a neighbourhood known for
drug use, the officer’s experience, the

26

3.
During investigative detention
officers may conduct a protective pat
down search of the detainee where they
believe on reasonable grounds that their
safety or the safety of others is at risk;
however, they may not search the
detainee for evidence.
4.
Only where there are reasonable
grounds for arrest, viewed subjectively
and objectively, may officers arrest and
conduct a search incidental to arrest in
order to obtain evidence, to prevent
escape, or for safety. [para. 15]

Since the accused’s rights were violated, the
evidence was excluded under s.24(2) because its
admission would bring the administration of
justice into disrepute. In her concluding
comments, Judge Routhwaite stated:
Evidence should not be excluded to punish the
police, but to admit evidence obtained by an
officer who, from his testimony, appears to
have been ignorant of the legal boundaries of
his power to search people, would encourage
unlawful activity by police [para. 19]
Complete case available at www.provincialcourt.bc.ca

SAFETY SEARCH INTO ITEM
BEYOND ACCESS OF DETAINEE
UNREASONABLE
R. v. Mohammed, 2005 BCPC 0593
While responding to a fight in
progress arising from a road
rage or motor vehicle collision, a
constable was flagged down by
the accused driving a vehicle
matching one of the vehicle descriptions
provided. He had a bloody face, chipped tooth

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

and ripped shirt. He said he was jumped by four
to six males and motioned to an intersection
about three blocks away. A corporal radioed the
constable from the scene of the altercation and
reported a handgun was found on the roadway.
The constable detained the accused for a
weapons investigation, patted him down, and
asked if there were any weapons in the car. The
accused opened the door and the constable
visually inspected the car. The officer reached
for a CD case seen inside the passenger
compartment, but the accused protested. The
CD case was similar in weight and size to that
which could contain a weapon. A struggle
resulted; the accused was handcuffed and put in
the rear of the police car. The corporal attended
to the vehicle and opened the CD case, finding
cocaine.
At trial in British Columbia Provincial Court the
corporal testified, in part, to the following:
• Upon finding the handgun, the seriousness
and risk of the call had risen and in her
experience where there is one weapon there
may be more;
• She believe she could “clear a suspect and
vehicle
for
weapons”
under
these
circumstances;
• Although the accused was patted down and
handcuffed, he may be released and again
have access to his car;
• She did not have reasonable and probable
grounds to apply for a search warrant
The accused argued that his rights under ss.8
and 9 of the Charter were breached. First, he
submitted that the investigative detention was
arbitrary because there was no reasonable cause
to detain him. He approached the police to make
a complaint and there was nothing to suggest he
was a suspect in any offence.
After reviewing case law in the area of
investigative detention, Judge Baird Ellan ruled
the detention lawful. She stated:
Here…there was a complaint of a fight,
perhaps a road rage situation. It involved

Volume 6 Issue 1
January/February 2006

two vehicles. [The Corporal] noted that
the accused’s vehicle was clearly linked by
description to the scene, and the accused
by his own admission was involved in the
incident. Coupled with his agitated state,
and the discovery of an apparent weapon
at the scene, the circumstances, in the
Corporal’s
view,
necessitated
an
investigation as to the accused’s role in
the incident. While it does not appear
that anything came of that investigation
other than the offence before me, the
fact that the accused may have been a
victim and no more does not detract from
the assessment, which relates to what
was reasonably necessary, in the mind of
the officers at the time. [para. 14]
And further:
…While that cause must, as with arrest
grounds, be objectively supported, the
standard is not that which might be applied on
quiet reflection, but that appropriate in the
exigencies of the moment. Here, viewed
objectively and in the totality of the
circumstances as outlined above, I am of the
opinion that the officer had sufficient cause
to detain the accused to investigate further
his role in the events about which the caller
complained, particularly in light of the
discovery at the scene of what appeared to be
a handgun. It must also be considered
whether the resultant interference with the
accused’s liberty was reasonable and minimal.
In my view it was, particularly in light of the
fact that it was the accused who initially
approached the officer. This was not an
arbitrary or random stop as considered in
many of the cases. There was a particular
crime alleged or at least a report of an
incident that may have been criminal. At the
point when the accused was detained, there
was little more interference with his liberty
than there would have been if the officer had
simply taken his complaint, other than to
change the complexion and focus of the
officer’s inquiry. Whether the subsequent
search and ensuing events were reasonable is a
separate question related to the scope of the

www.jibc.bc.ca

27

search power following a justified detention.
[para 16]

However, opening the CD case exceeded the
scope permissible as incident to investigative
detention. Although the pat down search, visual
inspection of the car’s interior, handcuffing, and
placing the accused in the police vehicle, as well
as the removal of the CD case from the
accused’s possession, were all reasonable in the
circumstances, opening the CD case was not. At
the time the CD case was opened, it was no
longer in the accused’s physical possession nor
accessible to him. In ruling the examination of
the CD case unreasonable, Judge Baird Ellan
stated:
…[T]he question becomes whether there was a
realistic concern that officer safety required
the immediate inspection of the case, where it
was no longer accessible to the accused, and
would not become accessible, unless he was
released from custody without an arrest or
escaped from police custody and from his
handcuffs. If arrested as a result of the
investigation, the case could clearly be
searched incidentally. If released following
elimination of the cause for his detention, the
ancillary police safety authorization to search
must also be taken to be eliminated.
It is doubtful, in my respectful view, that an
authorization to search after investigation
before returning an item seized to its
owner…could survive Mann. In any event,
bearing in mind that this is a warrantless
search and the burden of proof rests with the
Crown, I do not believe the Crown has met the
onus of establishing on a balance of
probabilities in this case that the incidental
officer safety search authorization extends to
an item outside the area readily or reasonably
accessible to the accused while he is detained.
I therefore find that the search of the CD
case was a breach of the accused’s section 8
rights. [paras 31-32]

After finding the admission of the evidence
would bring the administration of justice into
disrepute, it was excluded under s.24(2) of the
Charter.
Complete case available at www.provincialcourt.bc.ca

28

DID YOU KNOW
…that as of April, 2005 the
RCMP was 22,561 strong, an
increase of 322 over 2004.
Personnel breakdown, including
all ranks and civilians, was as
follows8:

Position
2005
Commissioner
1
Deputy Commissioner
7
Assistant Commissione 24
Chief Superintendent
52
Superintendents
143
Inspectors
346
Corps Sergeant Major
1
Sergeant Major
6
Staff Sergeant Major
5
Staff Sergeants
742
Sergeants
1,616
Corporals
2,928
Constables
10,136
Other regular members
n/a
Special Constables
82
Civilian Members
2,605
Public Servants
3,867
Total
22,561

20049
1
5
24
56
135
331
1
7
1
704
1,568
2,777
10,039
4
n/a
2,585
4,001
22,239

Change
0
+2
0
-4
+8
+15
0
-1
+4
+38
+48
+151
+97
-4
+82
+20
-134
+322

Coming Soon
(see p.40)

Note-able Quote
Circumstances and situations do colour life, but
you have been given the mind to chose what the
colour shall be—John Horner Smith

8
9

Source: http://www.rcmp-grc.gc.ca/html/organi_e.htm [December 23, 2005]
Source: http://www.rcmp-grc.gc.ca/html/organi_e.htm [May 17, 2004]

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

trades pound for pound with cocaine. The
concern about the presence of weapons is a
significant one for officers involved in drug
raids.
They approach every such raid
expecting firearms. 10

GUNS & GROW OPERATORS
DON’T GO TOGETHER
R. v. Wiles, 2005 SCC 84
The accused plead guilty to two
charges of unlawfully producing
cannabis. During the first
offence police responded to a
911 call accidentally placed by the accused’s
daughter and discovered a 178 plant grow
operation in the basement of the home. While
out on bail for that offence, police seized about
three pounds of marihuana, production apparatus
including two scales and a large amount of cash,
resulting in a second charge. In Nova Scotia
Provincial Court the Crown sought the mandatory
minimum 10 year firearms prohibition under
s.109(1)(c) of the Criminal Code. Under this
section a firearms ban is required for those who
have been convicted of trafficking, possession
for the purpose of trafficking, importing, or
producing a scheduled substance.
At trial a police officer testified there was a
nexus between the firearms ban and growing
marihuana. His evidence was summarized by the
Nova Scotia Court of Appeal as follows:
[The officer] testified that in many police
raids of drug production operations, it is usual
to find weaponry, in particular, firearms, even
in the case of simple marihuana grow
operations. Such weapons are kept by the
operators, not necessarily to deal with police
but, to protect the operation from others who
would steal the product or proceeds. These
vary from a single .22 calibre rifle readily
available by the front door of the operation to
a virtual arsenal of firearms. In some cases,
the guns are rigged as mantraps. It was his
evidence that the presence of guns is driven
by basic economics. A mature marihuana plant
is currently worth about five hundred dollars
in product. A grow operation with multiple
plants can easily be valued in the thousands of
dollars. It is an investment worth protecting
from the perspective of the operators. The
THC (tetrahydrocannabinol) level in marihuana
is now sufficiently high that in certain areas it

Volume 6 Issue 1
January/February 2006

The trial judge, however, refused to prohibit the
accused, finding s.109(1)(c) of the Criminal Code
constituted cruel and unusual punishment under
s.12 of the Charter. In his view, there was not
necessarily a connection between the purpose of
the mandatory prohibition and the offence of
growing marihuana. Since there was no violence
involved with the accused growing his marihuana,
a firearms prohibition would be ‘grossly
disproportionate’ to the offence11. He also
concluded that the Charter violation could not be
saved by s.1. The judge then read down the
mandatory prohibition to a discretionary one and
refused to make the prohibition order.
The Crown appealed to the Nova Scotia Court of
Appeal, which overturned the judge’s decision.
Justice Bateman, authoring the unanimous appeal
court judgment, found it was clear from the
police officer’s evidence that the prohibition had
a legitimate connection to a s. 7 Controlled Drugs
and
Substances
Act
(CDSA)
offence.
Furthermore, Justice Bateman was satisfied
that the weapons ban related to a recognized
sentencing goal—protection of the public, and, in
particular, protection of police officers engaged
in drug enforcement operations. Moreover, the
protection of public safety through a reduction
in the misuse of firearms is a valid state
interest. Additionally, Justice Bateman found
the ameliorative effect of s. 113 of the Criminal
Code, which allows a judge to consider
unacceptable hardship and exercise some
discretion in making a prohibition order,
eliminates any unacceptable consequences of a
firearms prohibition if it deprives a person of a
livelihood or sustenance.
The accused then brought a further appeal, this
time to Canada’s highest court. The Supreme
10
11

see R. v. Wiles, 2004 NSCA 3, at para. 49
see R. v. Wiles, 2004 NSCA 3

www.jibc.bc.ca

29

Court first examined the test of what
constitutes cruel and unusual punishment under
s.12 of the Charter. In determining whether a
punishment is cruel or unusual it must be so
excessive as to outrage standards of decency
and the court must be satisfied if it is so grossly
disproportionate that Canadians would find it
abhorrent or intolerable. If the punishment is
grossly disproportionate for the offender, then
a s.1 Charter justifiability analysis will be
undertaken. If the punishment is not grossly
disproportionate for the offender, then the
court will consider whether or not the
punishment is disproportionate for reasonable
hypotheticals, but not far-fetched, marginally
imaginable, remote, or extreme examples.
The accused first argued that the mandatory
prohibition does not distinguish between small
and large grow operations. The hypothetical the
accused presented was that of a 75 year old
grandmother experimentally growing a single
marihuana plant. If convicted under s.7 of the
CDSA she would face the same weapons
prohibition as a large commercial grower.
Secondly, he submitted that there was no
consideration on whether or not the underlying
offence involved violence or the offender posed
a risk to public safety.
Justice Charron, writing the unanimous judgment
for the nine member Supreme Court, agreed with
the Nova Scotia Court of Appeal. In her view the
accused did not establish that the imposition of
a
mandatory
weapons
prohibition
order
constituted cruel and unusual punishment. The
prohibition had a legitimate connection to
production offences and related to a recognized
sentencing goal—the protection of the public,
including the protection of police officers
engaged in the enforcement of drug offences.
As well, the state interest in reducing the
misuse of weapons was valid and important.
Furthermore, “the sentencing judge gave
insufficient weight to the fact that possession
and use of firearms is not a right or freedom

guaranteed under the Charter, but a privilege”
said Justice Charron. She continued:
[Firearms possession] is also a heavily
regulated activity, requiring potential gunowners to obtain a licence before they can
legally purchase one…[R]equiring the licensing
and registration of firearms was a valid
exercise of the federal criminal law power. If
Parliament can legitimately impose restrictions
on the possession of firearms by general
legislation that applies to all, it follows that it
can prohibit their possession upon conviction
of certain criminal offences where it deems it
in the public interest to do so. It is sufficient
that [the accused] falls within a category of
offenders targeted for the risk that they may
pose. The sentencing judge’s insistence upon
specific violence, actual or apprehended, in
relation to the particular offence and the
individual offender takes too narrow a view of
the rationale underlying the mandatory
weapons prohibition orders.
Insofar as the individual offender is
concerned, there is no evidence as to any
effect that the prohibition orders will have on
[the accused], apart from the loss of the
firearms already in his possession. Since he
was legally in possession of the firearms, the
sentencing judge inferred that he was a
recreational hunter and shooter.
Even
assuming that to be the case, the loss of this
privilege would not support the sentencing
judge’s finding of gross disproportionality. As
a twice convicted producer of a controlled
substance, [the accused’s] loss of the privilege
to possess firearms for recreational purposes
falls far short of punishment “so excessive as
to outrage our standards of decency”. In
addition, the mandatory provision does not
have a grossly disproportionate effect having
regard to any reasonable hypothetical. Again
here, I agree with the Court of Appeal that
the sentencing judge did not properly weigh
the ameliorative effect of s. 113 of the
Criminal Code which permits the court to lift
the order for sustenance or employment
reasons….[para. 9-10]

The accused’s appeal was dismissed.
Complete case available at www.scc-csc.gc.ca

30

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

NO CHARTER ISSUES ARISE
FROM ROUTINE BORDER
POCKET SEARCH
R. v. Hudson,
(2005) Docket:C42765 (OntCA)

the reasonableness of border
conducted by customs officers;

searches

• Travellers crossing an international boundary
fully expect to be screened, typically involving
the production of identification, travel
documentation, and a search process; and

The accused, in company two
friends and his two-year-old
child, was refused entry into
the U.S. because he did not
have his son’s birth certificate. Upon returning
to Canada he was referred to a secondary
inspection where he was taken to a private room
and told to empty his pockets. Five counterfeit
$50 bills were discovered and he was arrested
and charged with possession of counterfeit
currency.

• There are three distinct categories of border
searches:

At trial in the Ontario Superior Court of Justice
the judge excluded the evidence of the
counterfeit bills under s.24(2) of the Charter,
ruling the pocket search was an unreasonable
search and seizure under s.8. In her view, the
Customs officer conducted a warrantless search,
which was prima facie unreasonable, without any
cause to suspect illegal activity or possession of
contraband.

Moreover, the greater the intrusiveness of the
search the greater the requisite justification
and constitutional protection.

The Crown appealed to the Ontario Court of
Appeal arguing the trial judge erred in her
analysis. Justice LaForme, authoring the
unanimous judgment, first examined border
crossing jurisprudence. Some of the legal
considerations include:
• Searches that are reasonable at the border
may
be
unreasonable
under
other
circumstances. For example, the police may
not arbitrarily stop and search a citizen
walking down the street, but travellers can be
stopped by officials crossing an international
boundary to ensure they or the goods they
carry are permitted entry. As well, the law
relating to the reasonableness of searches in
general may not necessarily be relevant to

Volume 6 Issue 1
January/February 2006

1. routine questioning and procedures, which
may involve a search of baggage or a pat or
frisk of outer clothing;
2. strip or skin
private; and

searches

conducted

in

3. body cavity search involving medical
doctors, X-rays, emetics, or other highly
invasive means

Justice LaForme noted that the trial judge was
in error when she found the pocket search
rested between a category 1 and category 2
search. Rather than finding the pocket search
fell into one of the three discrete categories,
she incorrectly placed it on a continuum. Justice
LaForme stated:
In this case…the search did not fall between
categories one and two; rather, the search was
clearly a category one search. In the context
of a border search, asking the [accused] to
turn his pockets inside out was no more
invasive than a search of baggage, or a purse,
or a pat down or frisk of outer clothing. At no
time was the [accused] strip-searched or
patted down. Moreover, the border search in
this case had only proceeded to a secondary
inspection, which remains a routine part of the
general screening process…
I conclude, therefore, that the trial judge
erred by failing to recognize that a pocket
search is a non-invasive routine screening
procedure within the legitimate purpose of

www.jibc.bc.ca

31

border crossings, which does not raise Charter
issues…[para. 38-39]

The Crown’s appeal was allowed and a new trial
was ordered.
Complete case available at www.ontariocourts.on.ca

2005 POLICE STATS UNVEILED
Statistics
Canada
has
recently released its 2005
policing statistics12. In 2005,
there were a total of 61,050
police officers across Canada, up 1,250 from last
year. Ontario had the most police officers with
23,420 while the Yukon had the least at 120.

Province/Territory

2005

2004

Change

Ontario
Quebec
British Columbia
Alberta
Manitoba
Saskatchewan
Nova Scotia
New Brunswick
Newfoundland
Prince Edward Island
Northwest Territories
Nunavut
Yukon
RCMP HQ & Training
Academy

23,420
14,753
7,469
5,335
2,256
2,011
1,624
1,297
776
213
173
121
120
1,482

23,214
14,426
7,072
5,123
2,266
2,010
1,615
1,302
766
207
171
123
121
1,384

+206
+327
+397
+212
-10
+1
+9
-5
+10
+6
+2
-2
-1
+98

Total

61,050

59,800

+1,250

Gender representation shifted 7% over the last
decade with women accounting for nearly 10,600
police officers (or 17%) in 2005. British
Columbia had the highest percentage of female
officers at 21.0%, followed by Quebec (18.9%),
Nunavut (17.4%), and Saskatchewan (17.3%).
Provinces and territories having a lower
percentage of women than the national average
were
Ontario
(16.6%),
Alberta
(15.8%),
Newfoundland (14.3%), Yukon (14.2%), Manitoba
(14.1%), Northwest Territories (13.9%), New
Brunswick (13.6%), Nova Scotia (13.4%), and
Prince Edward Island (12.7%).

ARREST NOT REQUIRED TO
DIRECT & CONTROL
R. v. Johnson, 2005 ABCA 347
The accused was an intoxicated
passenger in a vehicle driven by
his
wife
that
struck
a
pedestrian. He tried to comfort
her even though the officer told him to stay
away and had to be forcibly removed from the
truck after he climbed in it to get a cell phone.
The accused was convicted for obstruction in
Alberta Provincial Court because (1) he entered
the truck and tried to move its contents after
being told not to touch the vehicle or anything
inside and (2) he resisted the officer when being
removed from the truck and refusing to leave
afterwards. The accused appealed to the
Alberta Court of Queen’s Bench and the judge
found the conviction based on entering the
vehicle proper, but the resisting particulars did
not have a sufficient basis.
The accused sought leave to appeal before the
Alberta Court of Appeal arguing the trial judge
erred, in part, by finding that a person can be
directed or controlled by a peace officer
without an arrest being effected. In denying the
application for leave to appeal, Justice Ritter
stated, “[The accused] seeks leave to argue the
following question: can a police officer stop an
accused and direct and control him without
effecting a lawful arrest? The Supreme Court
decision in R. v. Mann…addresses the scope of
detention and the authority of police officers to
detain without arrest.” Leave to appeal was
refused.
Complete case available at www.albertacourts.ab.ca

All past editions of this
newsletter are available online
by clicking on the Police
Academy link at:

www.jibc.bc.ca

12

Source http://www40.statcan.ca/101/cst01/legal105a.htm [accessed December
26, 2005]

32

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

PREVENTATIVE POLICING
ROADBLOCK
UNCONSTITUTIONAL
R. v. Birmingham, 2005 BCPC 0489
The police set up a roadblock at
the only entrance to a beach
park in response to a number of
violent incidents occurring in
the park. The stated aim was to
“monitor Criminal Code, Motor Vehicle Act and
Liquor Control Act violations or anything that
might jeopardize public safety.” All vehicles
were stopped, drivers were asked for licenses
and insurance, and a cursory visual inspection was
made of the vehicle interior for weapons or
alcohol. In addition, vehicle occupants were
asked about weapons and alcohol as well as the
contents of bags or containers. The accused was
stopped, identified, and found to be a prohibited
driver.
At the accused’s trial in British Columbia
Provincial Court on a charge of driving while
prohibited the roadblock supervisor testified
the roadblock was used as a proactive approach
to address acts of violence in the park. He also
agreed there was no authority to detain vehicles
in the roadblock except under the Motor Vehicle
Act.
Judge Baird Ellan ruled the roadblock
unconstitutional. Since there was no reasonable
cause to detain the accused the detention was
arbitrary. However, unlike arbitrary stops
related to highway safety, this detention could
not be saved by s.1. The road block was set up
primarily to monitor weapons and alcohol
entering the park—monitoring driving offences
was peripheral. After reviewing a number of
cases the judge stated:
The law appears to be clear that a roadblock
set up for the sole or primary purpose of
detecting crime is an arbitrary detention and
not one authorized by law under Section 1 of
the Charter of Rights. While [the Crown]

Volume 6 Issue 1
January/February 2006

pointed to Section 33 of the Motor Vehicle
Act requiring a driver to produce their
driver's licence when requested to do so, that
section does not itself provide authority for a
stop of this nature, nor if it did, would that be
an answer to the Section 1 issue. The question
would still be whether a police officer acting
under the Motor Vehicle Act should be
permitted or is permitted to conduct random
stops of vehicles in order to prevent crime in a
problem area in the absence of articulable
cause or grounds to stop or, I should say, any
indication of an ancillary power being satisfied
in the particular case.
The cases have extended the Section 1
protection to police conducting vehicle stops in
a limited set of circumstances and have
consistently
declined
to
extend
that
protection to broader uses than highway
safety. Again, in this case, I do not know
whether those uses might extend beyond
simple highway safety or that as a major aim.
The aim here was not highway but park
safety. The officer agreed that foot patrols
could have been used but that it was more
expedient to conduct a roadblock.
This was not a traffic road stop, it was a
preventative policing initiative based upon
complaints in the specific area but not specific
articulable complaints on the night in question.
That, however, did not raise it above a road
stop. There was clearly no articulable cause or
anything by way of an immediate complaint
that might engage the ancillary police power to
stop. [paras. 22-24]

And further:
Given the location, at the mouth of a parking
lot, and the catalyst, recent complaints about
violence and alcohol, it is difficult to
understand how a traffic purpose might really
be advanced.
Whether motor vehicle
infractions in the parking lot might be a
peripheral purpose of the stop, it was not a
purpose sufficient to legitimize the primary
one, in my view.
This was not a situation where persons
committing crimes were caught incidentally in
a road stop for traffic safety purposes. It

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33

was aimed at catching persons who might
disturb the peace in the park. That might be a
justifiable purpose for a stop but the Crown
did not establish that in this case through any
evidence
Aside from the officer's assertion that there
had been recent complaints, there was no
evidence to show that the area was a specific
problem and that this kind of initiative was
necessary to enforce the law. So I do find
that there was a breach with respect to the
arbitrary detention, that there was no
established justification pursuant to Section
1. [paras. 26-28]

In excluding the evidence of the accused’s
identity under s.24(2), Judge Baird Ellan held:
…The admission of the evidence would endorse
the technique employed here, ignore the
breach of the rights of this accused and all
others who passed through the stop on that
occasion and could provide incentive to employ
such techniques in the future on the chance
that the results might be admissible in court.
[para. 40]

It should be noted that Judge Baird Ellan found
the Crown did not present a s.1 justification, but
rather let the case fall or stand on the Motor
Vehicle Act authority. She did not rule out the
Crown presenting a s.1 Charter justification in a
future case, either through legislation or an
ancillary police power. The charge was dismissed.
Complete case available at www.provincialcourt.bc.ca

SUPREME COURT DEFINES
YOUTH ‘VIOLENT OFFENCE’
R. v. C.D. & R. v. C.D.K., 2005 SCC 78
In two consolidated cases
arising from Alberta the
Supreme Court of Canada has
ruled on the interpretation of
the definition “violent offence” as it was found in
s.39(1)(a) of the Youth Criminal Justice Act
(YCJA). Section 39(1)(a) of the YCJA prohibits a
young person being sentenced to custody unless,

34

among other things, they committed a “violent
offence.”
In R. v. C.D., the young person plead guilty to the
Criminal Code offences of possessing a weapon
dangerous to the public peace, arson, and breach
of recognizance. The sentencing judge ruled that
violence to property (vehicle arson) was a violent
offence and sentenced C.D. to six months of
deferred custody followed by probation.
C.D. appealed to the Alberta Court of Appeal
arguing, among other grounds, that the
sentencing judge erred in concluding the
property offence of arson where there was no
actual or attempted bodily harm was a “violent
offence.” The Alberta Court of Appeal dismissed
C.D.’s appeal finding an offence was violent for
the purposes of the YCJA if it “causes bodily
harm, is intended to cause bodily harm, or if it is
reasonably foreseeable that the action may
cause bodily harm.” Although the vehicle was set
on fire late at night on a deserted street, the
court noted that accelerants were used and
there was a “risk to anyone who happened to use
the street that night and anyone charged with
controlling the fire” (ie. firefighters).
In R. v. C.D.K., the young person plead guilty to
the Criminal Code offences of dangerous driving,
possession of stolen property, and theft. The
sentencing judge found the dangerous driving
offence involving a high speed police chase was a
“violent offence” because there was potential
for serious damage and injury. C.D.K. was
sentenced to six months of deferred custody
followed by probation.
C.D.K. also appealed to the Alberta Court of
Appeal similarly arguing, in part, that the
offence was not violent. C.D.K.’s appeal was also
dismissed, the court holding that “if it is
reasonably foreseeable that criminal conduct
may result in bodily harm that is more than
merely trifling or transitory, the offence is
violent.” Since high speed chases are dangerous
and can easily result in serious injury or death,
the sentencing judge did not err.

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

Both youths then appealed to the Supreme Court
of Canada where the court was tasked with
defining the term “violent offence” found in
s.39(1)(a) of the YCJA. Since the term was not
defined in the legislation, the court used the
rules of statutory interpretation having regard
to grammatical and ordinary sense of the words,
the object and scheme of the Act, and
Parliament’s intent.
After reviewing two approaches, a force based
definition (where force is exerted) and a harm
based definition (where harm is suffered), the
eight member majority chose the harm based
meaning. The definition of “violent offence”
enunciated by Justice Bastarache, authoring the
majority opinion, was:
An offence in the commission of which a young
person causes, attempts to cause or threatens
to cause bodily harm.

A meaning capturing offences where bodily harm
is intended or reasonably foreseeable was
rejected. First, the court noted that something
more than a guilty mind (intent) is required
before
punishment
is
imposed.
Second,
encapsulating a definition that includes offences
where bodily harm is reasonably foreseeable is
too broad and would incorporate most Criminal
Code offences, thereby increasing the number of
offences open to custodial sentences. A
narrower interpretation is preferred and
something more than merely committing the
offence is required.
As well, there is distinction between an offence
being violent and one that is dangerous (likely to
result in bodily harm). Since the Criminal Code
treats these types of offences differently,
Justice Bastarache opined that the YCJA should
also treat them differently. As a result, neither
the vehicle arson nor the police pursuit was a
violent offence. The appeals were allowed, the
custodial sentences quashed, and the matters
were remitted back to the sentencing judges for
an appropriate sentence.

Volume 6 Issue 1
January/February 2006

Justice Lebel agreed with the majority’s
disposition of the appeal. However, rather than
adopting a harm based approach that focuses on
the outcome of the crime, he suggested a fault
based definition that focuses on the offences
nature and/or underlying intent of the youth.
Using the fault-based approach a violent offence
would be defined as “an offence whereby the
offender intends, threatens or attempts to
cause harm.”
Complete case available at www.scc-csc.gc.ca

SEAT BELT DEFENCE
REJECTED: OFFICER WINS
LAWSUIT
Iachetta v. Ioannone, 2005 BCSC 566
The plaintiff, a police officer,
was a passenger in a police car
that tried to pin a stolen vehicle
in from the rear after a police
chase. The defendant (driver of
the stolen vehicle) reversed rapidly and crashed
into the police car. The police driver was wearing
his seatbelt, but the passenger officer was not,
and the airbags deployed. The passenger officer
was injured and sued the driver of the stolen car
for damages.
At trial in British Columbia Supreme Court the
defendant argued that the driver of the police
car should have been partially liable for the
damages because he did not exercise appropriate
caution—he should have anticipated the potential
accident and not stopped so close to the stolen
vehicle. In rejecting this submission and holding
the defendant fully liable for the accident,
Justice Williamson stated:
I do not find that submission persuasive. We
have to see this in the context of a police
pursuit. We have to see this in the context
of the statutory obligation upon a police
officer in these circumstances, not only to
effect an arrest of a person who is driving
what is believed to be a stolen vehicle, but

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35

given the behaviour of that driver, to do
everything they could to make sure that that
car did not go anywhere in a circumstance
that was replete with danger.
It is the members of the public that I am
concerned about here. This was a case where
a person fleeing the police had driven his car
up on a sidewalk at a busy intersection at
8:30 in the morning. I can find absolutely no
fault whatsoever with the action of [the
officer] in manoeuvring his car as he did on
that morning. [paras. 20-21]

The defendant also argued for a reduction in
non-pecuniary damages because the officer was
not wearing his seatbelt. In addition to proving
the officer had no seatbelt on, the defendant
would also need to prove that not wearing it was
negligent and if he had worn it, the injuries
would have been less serious. In assessing
whether the officer was negligent in not wearing
his seatbelt, Justice Williamson first examined
the Motor Vehicle Act regulations exempting an
officer from wearing a seatbelt during the
course of their duties. Section 32.04(4) of the
regulations states:
When a peace officer has reasonable and
probable grounds to believe the use of a seat
belt
assembly
would
obstruct
the
performance of his duties, the peace officer
and any passenger is exempt...

In holding that the damages should not be
reduced for contributory negligence because the
plaintiff was not wearing his seatbelt, Justice
Williamson stated:
With respect to this case, I agree with the
defence that the plaintiff had time to put the
seat belt on. That wasn't the concern.
Indeed, [the officer], who was driving this
car, had put his seat belt on. But important in
this case is the testimony from the police
officers about general police procedures, the
different role of the driver and the
passenger, that is to say the other police
officer in the car doing a pursuit. The driver
concentrates on driving. The passenger is the
one who does the radio broadcasting and uses

36

the computer, and, when he is able to, assists
the driver in observations of potential
dangers. But more important than that, when
the chase ends, it is the passenger who has
the duty to make first contact with the
suspect, and it is the driver who is to be the
cover officer, which is in accord with common
sense. The driver is driving a car in difficult
circumstances, and the first thing he should
do is secure that car in a stopped position
before he starts jumping out of the car.
So I have no doubt in accepting the evidence
of the officers that that is the practice. It
seems to me to be a most salutary one.
The evidence of the plaintiff was the
difficulty is that if one puts on one's seat
belt there is an interference with the
equipment belt that the police officers wear,
which includes, of course, a radio; in some
circumstances a baton; -- we have seen them
in court many times and we have seen them on
the street many times, I can say -- a sidearm
and so forth. It was the evidence of the
plaintiff that in that circumstance one does
not know what is going to happen -- indeed,
that was evident in this case. No one
expected, no one in the police car expected
to happen what did happen. Whenever a
pursuit comes to a halt, and it may be a
sudden halt, the passenger police officer has
to leap from the car with dispatch, with
alacrity, and he says there will be delay in
exiting the car if that belt gets caught up in
his equipment, which it does. [paras. 58-60]

And further:
I go back to the Motor Vehicle Act
regulation. I conclude that the plaintiff's not
using a seat belt in this particular
circumstance manifests a reasonable belief on
his part that the use of the seat belt would
obstruct the performance of his duties. I
ask myself, what if the person in that car had
drawn a gun on a crowded street with citizens
coming out of Starbucks coffee shop or
walking down the sidewalk? A split second
while the officer disentangled himself from a
tangled seat belt could have been fatal. I
think it was reasonable and is reasonable in
those sorts of circumstances, for a police

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006

officer to rely upon the exemption that is
permitted him in the seat belt regulations,
and not do up his seat belt. [para. 62]

Furthermore, the judge added, there was no
evidence the injuries would have been worse if
the officer had been wearing his seatbelt, given
the deployment of the air bag. The “seatbelt
defence” was rejected and the officer was
awarded $17,500 for injuries suffered from the
defendant’s reckless, malicious, and outrageous
conduct.
Complete case available at www.courts.gov.bc.ca

‘IN SERVICE’ LEGAL ROAD
TEST ANSWERS
1. (b) a privilege—see R. v. Wiles (at p.29 of
this publication). Justice Charron stated,
“possession and use of firearms is not a right
or freedom guaranteed under the Charter,
but a privilege.”
2. (a) true—see R. v. Munro (at p. 20 of this
publication). Justice Low stated, “there is no
requirement in law that a search warrant be
obtained if the search is conducted
incidentally to the lawful arrest of the
suspect for any of three reasons: to ensure
the safety of the police and the public; to
protect evidence from destruction or…for
‘the discovery of evidence which can be used
at the arrestee’s trial’.”
3. (a) true—see R. v. Arsenault (at p. 23 of this
publication). Justice Deschenes stated, “the
demand under s. 254(2) was unauthorized
and unlawful…because the device…used to
collect the fail result, was not proved to be
an approved screening device.”
4. (b) false—see R. v. Spitale, (at p. 25 of this
publication). Justice Routhwaite stated,
“During investigative detention officers may
conduct a protective pat-down search of the
detainee where they believe on reasonable
grounds that their safety or the safety of
others is at risk”. See also R. v. Mann, where

Volume 6 Issue 1
January/February 2006

Supreme Court of Canada Justice Iacobucci
wrote, “The general duty of officers to
protect life may, in some circumstances, give
rise to the power to conduct a pat-down
search incident to an investigative detention.
Such a search power does not exist as a
matter of course; the officer must believe
on reasonable grounds that his or her own
safety, or the safety of others, is at risk. I
disagree with the suggestion that the power
to detain for investigative searches endorses
an incidental search in all circumstances.”
5. (a) true—see R. v. Hudson (at p. 31 of this
publication). Justice LaForme stated, “a
pocket search is a non-invasive routine
screening procedure within the legitimate
purpose of border crossings, which does not
raise Charter issues.”

UPCOMING APPEALS
Here is a sneak peek at some of
the appeals to be heard before
the Supreme Court of Canada in
2006 that will be important to
law enforcement.
R. v. Shoker (see Volume 5 Issue 1 for a case
summary of the British Columbia Court of Appeal
decision) Scheduled to be heard on February 14,
2006. Issue: constitutionality of a probation
condition requiring a person submit to a breath
test on demand of a peace officer.
R. v. Chaisson (see Volume 5 Issue 5 for a case
summary of the Newfoundland Court of Appeal
decision) Scheduled to be heard on March 15,
2006. Issue: investigative detention and
evidence admissibility.
R. v. Clayton (see Volume 5 Issue 2 for a case
summary of the Ontario Court of Appeal
decision) Scheduled to be heard on May 18,
2006. Issue: constitutionality of a police
roadblock used is response to a gun call.

www.jibc.bc.ca

37

GOVERNMENT TOUGHENS
CHILD SEX LAWS
Canada’s federal lawmakers
have created a new voyeurism
provision in the Criminal Code
through Bill C-2 and have
increased maximum sentences
and added minimum penalties
for child sex and other
crimes.

Voyeurism
Under Canada’s new voyeurism law, a hybrid
offence carrying a maximum sentence of five
years in prison by indictment was added to the
formerly repealed s.162 of the Criminal Code.
The new section reads:
s.162 (1) Criminal Code
Every one commits an offence who, surreptitiously,
observes—including by mechanical or electronic
means—or makes a visual recording of a person who
is in circumstances that give rise to a reasonable
expectation of privacy, if
(a) the person is in a place in which a person can
reasonably be expected to be nude, to expose
his or her genital organs or anal region or her
breasts, or to be engaged in explicit sexual
activity;
(b) the person is nude, is exposing his or her
genital organs or anal region or her breasts, or
is engaged in explicit sexual activity, and the
observation or recording is done for the
purpose of observing or recording a person in
such a state or engaged in such an activity; or
(c) the observation or recording is done for a
sexual purpose.

A "visual recording" is
Voyeur—one
obtaining
sexual gratification from
defined as including “a
seeing sex organs and
photographic, film or
sexual acts; broadly : one
who habitually seeks sexual
video recording made by
stimulation by visual means.
any means.” However,
(source: Merriam Webster Online
Dictionary www.m-w.com)
paragraphs (a) or (b) are
not offences if the
person carrying out the activity is a peace

38

officer acting under the authority of a general
warrant issued pursuant to s.487.01 of the
Criminal Code.
Anyone who prints or has in their possession
voyeuristic recordings for the purpose of
printing also commits an offence:
s.162 (4) Criminal Code
Every one commits an offence who, knowing that a
recording was obtained by the commission of an
offence under subsection (1), prints, copies,
publishes, distributes, circulates, sells, advertises
or makes available the recording, or has the
recording in his or her possession for the purpose
of printing, copying, publishing, distributing,
circulating, selling or advertising it or making it
available.

Section 162(6) creates a defence for a
voyeurism charge “if the acts that are alleged to
constitute the offence serve the public good and
do not extend beyond what serves the public
good.” Section 162(7), however, states that “the
motives of an accused are irrelevant” and “it is a
question of law whether an act serves the public
good and whether there is evidence that the act
alleged goes beyond what serves the public good,
but it is a question of fact whether the act does
or does not extend beyond what serves the
public good.”

Child Sex Crimes
Several of the child sex crime sections in the
Criminal Code have had the maximum penalties
increased and minimum penalties added (see
Child Sex and Other Offence Sentencing Grid on
p.39). One ancillary consequence of adding a
minimum punishment to an offence is that a
conditional sentence under s.742.1 of the
Criminal Code cannot be imposed.
A “conditional sentence is a meaningful alternative to
incarceration for less serious and non-dangerous
offenders…who…will serve a sentence under strict
surveillance in the community instead of going to prison [and
whose] liberty will be constrained by conditions to be
attached to the sentence… .” R. v. Proulx, [2000] 1 S.C.R. 61
(S.C.C.)

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Volume 6 Issue 1
January/February 2006

Child Sex and Other Offence Sentencing Grid
Offence
Sexual interference
s. 151 Cr. C.
Invitation to sexual touching
s.152 Cr. C.
Sexual exploitation
s.153 Cr. C.
Making child pornography
s.163.1(2) Cr. C.
Distributing child pornography
s.163.1(3) Cr. C.
Possessing child pornography
s.163.1(4) Cr. C.
Accessing child pornography
s.163.1(4.1) Cr. C.
Parent procuring sexual activity
s.170 Cr. C.
Householder permit sexual activity
s.171 Cr. C.
Living off avails prostitute < 18 yrs
s.212(2) Cr. C.
Prostitution with person < 18 yrs
s.212(4) Cr. C.
Duty to provide necessities
s.215(3) Cr. C.
Abandoning child
s.218 Cr. C.

Mode

Old
Punishment

New
Punishment

Indictable

Max. 10 yrs

Summary

Max. 6 mos

Indictable

Max. 10 yrs

Summary

Max. 6 mos

Indictable

Max. 5 yrs

Summary

Max. 6 mos

Indictable

Max. 10 yrs

Summary

Max. 6 mos

Indictable

Max. 10 yrs

Summary

Max. 6 mos

Indictable

Max. 5 yrs

Summary

Max. 6 mos

Indictable

Max. 5 yrs

Max. 10 yrs
Min. 45 days
Max. 18 mos
Min. 14 days
Max. 10 yrs
Min. 45 days
Max. 18 mos
Min. 14 days
Max. 10 yrs
Min. 45 days
Max. 18 mos
Min. 14 days
Max. 10 yrs
Min. 1 yr
Max. 18 mos
Min. 90 days
Max. 10 yrs
Min. 1 yr
Max. 18 mos
Min. 90 days
Max. 5 yrs
Min. 45 days
Max. 18 mos
Min. 14 days
Max. 5 yrs
Min. 45 days
Max. 18 mos
Min. 14 days
Max. 5 yrs
Min. 6 mos
Max. 2 yrs
Min. 45 days
Max. 5 yrs
Min. 6 mos
Max. 2 yrs
Min. 45 days
Max. 14 yrs
Min. 2 yrs
Max. 5 yrs
Min. 6 mos
Max. 5 yrs
Max. 18 mos
Max. 5 yrs
Max. 18 mos

Summary

Max. 6 mos

Indictable
(if<14 yrs)
Indictable
(if 14-17 yrs)
Indictable
(if<14 yrs)
Indictable
(if 14-17 yrs)
Indictable

Max. 5 yrs

Indictable

Max. 5 yrs

Indictable
Summary
Indictable
Summary

Max. 2 yrs
Max. 6 mos
Max 2 yrs
n/a

Max. 2 yrs
Max. 5 yrs
Max. 2 yrs
Max. 14 yrs

13
14

Volume 6 Issue 1
January/February 2006

Note-able Quotes
On child pornography …

[N]o one denies that child
pornography
involves
the
exploitation of children. The
links between possession of
child pornography and harm to
children are arguably more
attenuated than are the links
between the manufacture and
distribution
of
child
pornography and harm to
children. However, possession
of
child
pornography
contributes to the market for
child pornography, a market
which
in
turn
drives
production
involving
the
exploitation
of
children.
Possession
of
child
pornography may facilitate
the seduction and grooming of
victims and may break down
inhibitions or incite potential
offences.—Chief
Justice
McLachlin13

************

Because of their physical,
mental,
and
emotional
immaturity, children are one
of the most vulnerable groups
in society, particularly with
regard to sexual violence.
Child pornography plays a role
in the abuse of children,
exploiting
the
extreme
vulnerability
of
children.
Pornography that depicts real
children
is
particularly
noxious because it creates a
permanent record of abuse
and
exploitation.—Justices
L'Heureux-Dubé,
and Bastarache14

Gonthier

R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 28 (for the majority)
R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 169

www.jibc.bc.ca

39

2006 POLICE LEADERSHIP
CONFERENCE
APRIL 10-12, 2006

Or you may choose to jog, bike, or roller blade
along Vancouver’s famous Seawall.
To date, Police Leadership 2006 has confirmed
the following presenters:

Lieutenant-General Roméo Dallaire
Coming soon!!! The British
Columbia Association of Chief's
of Police, the Ministry of Public
Safety and Solicitor General
and the Justice Institute of
British Columbia will be hosting
the "Police Leadership 2006 Conference" April
10 to 12, 2006 at the Westin Bayshore in
Vancouver, British Columbia. This is Canada’s
largest Police Leadership Conference and was
sold out in 2004 with more than 600 delegates
attending.
Leadership in policing is not bound by position or
rank and this conference will provide delegates
from the police community with an opportunity to
explore a variety of leadership areas. Police
Leadership 2006 will bring together experts who
will provide current, lively, and interesting topics
on leadership. This carefully chosen list of
speakers will provide a first class opportunity at
a first class venue to hear some of the world’s
outstanding
authorities
on
leadership.
Therefore, early registration is encouraged so
you do not miss out on this great opportunity.
Beautiful downtown Vancouver will provide the
backdrop for the Police Leadership 2006
Conference. The host hotel, the Westin
Bayshore Resort and Marina, offers state of the
art facilities, excellent accommodation rates,
and promises to be an enjoyable venue for the
conference. The Westin is located on the shores
of Coal Harbour, overlooking Stanley Park, and is
a short walk to the
downtown business
district,
shopping,
and entertainment.

40

O.C., C.M.M., M.S.C., C.D. (Retired)

Stephen Covey

Author, The 7 Habits of Highly Effective People

Richard Boyatzis

Author, Primal Leadership

Rick Dinse

Chief of Police, Salt Lake City Police Department

John King
Assistant Chief of Police, Montgomery County
Department of Police

Eddie Compass
Former Chief of Police, New Orleans Police
Department

Conference Registration
The registration fee for the Police Leadership
2006 Conference is $385 CDN (plus GST) if you
register before March 5, 2006. The conference
fee for registrations received AFTER March 5,
2006 will be $425 CDN (plus GST). The
registration cut off date is April 5, 2006.
The conference fee includes a reception on
Monday evening, lunches on Tuesday and
Wednesday, and a banquet dinner on Tuesday.
Each participant will receive a "welcome package"
upon registration. Register early, as the number
of delegates is limited and past conferences
have sold out prior to the registration cut-off
date.
Conference attire is business casual.
For more information visit

www.policeleadership.org

www.jibc.bc.ca

Volume 6 Issue 1
January/February 2006