POLICE ACADEMY

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

CANADA’s TOP COURT
SANCTIONS POLICE SAFETY
SEARCH
R. v. Mann, 2004 SCC 52
The police, responding to
information of a break and
enter in progress, found the
accused, who matched the
suspect description, walking on a sidewalk close
to the scene. The attending officers stopped the
accused to question him and conducted a
“security search” by patting him down, looking
for items that may be used as weapons. In the
front pouch of his pullover sweater, the officer
detected, by touch, something soft. The officer
then went inside the pouch and found a baggie of
marihuana. The officer testified that the soft
item might be concealing something hard like a
weapon behind it, and he was not about to stop
his protective search for this reason1.
At trial the accused was acquitted because the
judge concluded that the officer had no reason
other than perhaps curiosity to go beyond the
external pat down search when he felt something
soft. Thus, the search was unreasonable and the
evidence was excluded under s.24(2) of the
Charter. On appeal by the Crown, the Manitoba
Court of Appeal set aside the acquittal and
ordered a new trial.
Using the two-prong
analysis of the Waterfield test (a legal analysis
for determining the common law powers of the
police), the Court concluded the police were
justified in both detaining as well as searching
the accused.

1

See R. v. Mann, 2002 MBCA 121

Volume 4 Issue 4
July/August 2004

The accused appealed to the Supreme Court of
Canada, which allowed the appeal and reinstated
the acquittal by holding the evidence
inadmissible. Despite agreeing with the trial
court on the issue of admissibility, Canada’s
highest Court outlined some important general
principles regarding investigative detention and
the accompanying authority to search detainees.
In this case, the court examined under what
circumstances and to what extent the police can
interfere with an individual’s freedom to be left
alone by the state.

Investigative Detention
Justice Iacobucci, writing the majority
judgment, examined a number of cases that
recognized the limited power of police officers
to detain persons for investigative purposes. At
minimum, the police must have reasonable
grounds to detain (also known as articulable
cause). This standard (reasonable grounds to
detain) is “somewhat lower than the reasonable
and probable grounds for lawful arrest” and
imports both an objective and subjective
standard. Justice Iacobucci wrote:
The case law raises several guiding principles
governing the use of a police power to detain
for investigative purposes. The evolution of
the Waterfield test, along with the Simpson
articulable cause requirement, calls for
investigative detentions to be premised upon
reasonable grounds. The detention must be
viewed as reasonably necessary on an objective
view of the totality of the circumstances,
informing the officer's suspicion that there is
a clear nexus between the individual to be
detained and a recent or on-going criminal
offence. Reasonable grounds figures at the

HIGHLIGHTS IN THIS ISSUE
Pg.
4

It’s What the Officer Knows that Counts
Abbotsford Police 14th Annual 10K Challenge
5 K Fun Run

5

House Search Warrant Does Not Include
Vehicle Parked on Property

6

Flight from Police Adds to Reasonable
Suspicion

7

Menacing Police Conduct does not Warrant
Stay

9

Voluntariness: How Far Can a Police
Interrogation Go?

11

Police not Required to ‘Cocoon’ Themselves
on Approach to House

17

Answer to Question Following Detention
17
Inadmissible
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
Sgt.
Mike
Novakowski
at
mnovakowski@jibc.bc.ca
National Library
Publication Data

of

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Cataloguing

in

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

front-end of such an assessment, underlying
the officer's reasonable suspicion that the
particular individual is implicated in the
criminal activity under investigation. The
overall reasonableness of the decision to
detain, however, must further be assessed
against all of the circumstances, most notably
the extent to which the interference with
individual liberty is necessary to perform the
officer's duty, the liberty interfered with,
and the nature and extent of that
interference, in order to meet the second
prong of the Waterfield test.
Police powers and police duties are not
necessarily correlative. While the police have a
common law duty to investigate crime, they are
not empowered to undertake any and all action
in the exercise of that duty. Individual liberty
interests are fundamental to the Canadian
constitutional
order.
Consequently,
any
intrusion upon them must not be taken lightly
and, as a result, police officers do not have
carte blanche to detain. The power to detain
cannot be exercised on the basis of a hunch,
nor can it become a de facto arrest. [paras.
34-35]

Thus, the police must possess a reasonable
suspicion (more than a hunch) the detainee is
involved in ongoing criminal activity and that such
a detention is necessary in the circumstances.

Protective Searching
The court recognized the need to balance the
competing interests of police safety and
individual privacy interests in assessing whether
the search of a detainee is justified. Justice
Iacobucci concluded that the common law does
provide the power to search incidental to an
investigative detention as long as the search is
reasonably necessary in the circumstances for
safety reasons—not to find evidence of a crime.
And once again, the police must have more than a
hunch that their safety is at risk. However, the
level of risk (low to high) required to engage a
safety search is unclear. The majority held:
The general duty of officers to protect life
may, in some circumstances, give rise to the

www.jibc.bc.ca

Volume 4 Issue 4
July/August 2004

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...The officer's
decision to search must also be reasonably
necessary in light of the totality of the
circumstances. It cannot be justified on the
basis of a vague or non-existent concern for
safety, nor can the search be premised upon
hunches or mere intuition. [para. 40]

Conclusion
In conclusion, the majority ruled:
To summarize…police officers may detain an
individual for investigative purposes if there
are reasonable grounds to suspect in all the
circumstances that the individual is connected
to a particular crime and that such a detention
is necessary. In addition, where a police
officer has reasonable grounds to believe that
his or her safety or that of others is at risk,
the officer may engage in a protective patdown search of the detained individual. Both
the detention and the pat-down search must
be conducted in a reasonable manner. In this
connection, I note that the investigative
detention should be brief in duration and does
not impose an obligation on the detained
individual to answer questions posed by the
police. The investigative detention and
protective
search
power
are
to
be
distinguished from an arrest and the incidental
power to search on arrest, which do not arise
in this case. [emphasis added, para. 45]

In this case, the police did have reasonable
grounds to suspect the accused was involved in
criminal activity. He closely matched the break
and enter suspect description and was only two
to three blocks from the crime scene.
A
protective search of the accused was also
reasonable. As the majority noted:
There was a logical possibility that the
[accused], suspected on reasonable grounds of

Volume 4 Issue 4
July/August 2004

having recently committed a break-and-enter,
was in possession of break-and enter-tools,
which could be used as weapons. The encounter
also occurred just after midnight and there
was no other people in the area. On balance,
the officer was justified in conducting a patdown search for protective purposes. [para.
48]

However, the officer’s decision to reach into the
accused’s pocket after feeling a soft object
went beyond a protective pat-down. The accused
had a reasonable expectation of privacy in his
pocket and the police unreasonably violated this
privacy expectation—a s.8 Charter violation.
Once the officer reached into the accused’s
pocket the search shifted from safety concerns
to the detection and collection of evidence. The
Manitoba Court of Appeal should have given due
deference to this finding by the trial judge.

Admissibility of the Evidence
Although all seven of the Supreme Court justices
agreed that the search was a s.8 Charter
(unreasonable search or seizure) violation, they
were divided on the admissibility of the
evidence. The majority (five justices) concluded
the evidence was inadmissible under s.24(2).
Although the evidence was non conscriptive, the
breach was “unacceptably serious”. Moreover,
“the nature of the fundamental rights at issue,
and the lack of a reasonable foundation for the
search suggest that the inclusion of the
evidence
would
adversely
affect
the
administration of justice”. The majority allowed
the appeal and restored the accused’s acquittal.
The minority, on the other hand, would have
ruled the evidence admissible. In their view, the
admission of the evidence would not bring the
administration of justice into disrepute.
Complete case available at www.scc-csc.gc.ca

Note-able Quote
There can be no justice until those who are
unaffected by crime become as indignant as
those who are…—Solon 635-588 B.C.

www.jibc.bc.ca

3

ESSENTIAL COP COURSE
JUSTIFIES COURT
ADJOURNMENT
R. v. Tkachuk, 2004 ABQB 266
The Crown made an application,
opposed by defence counsel, to
adjourn the accused’s two day
cocaine
trafficking
trial
because the undercover constable was attending
a specialized drug course during the trial dates.
It was submitted by Crown that it was important
for the officer to take the course because he
was only one of two experts in the Edmonton
region who could testify locally. Defence counsel,
on the other hand, argued the Crown should be
forced to choose between the officer taking the
course (if it was more important) and the
prosecution of the accused.
Justice Lee of the Alberta Court of Queen’s
bench sided with the Crown. In his view, there
was no inordinate delay in this case—it was about
one year old, this was the first adjournment
application, and the officer was available for the
new proposed trial dates. He stated:
It is unfortunate that the undercover police
officer has to attend a course, but I am
satisfied that this course is essential for his
work. Normally police officers would not be
excused from testifying because they have to
attend courses, but given that the constable in
this case is only one of two expert drug
trafficking witnesses available to the Crown,
his attendance on the course is reasonable and
justified. [para.9]

And further:
While it is unfortunate that the constable is
on a course at the same time as the trial is
scheduled, the course is important relative to
the constable’s duties as he is one of only two
experts available presently with respect to the
local drug trade. Therefore his attendance at
the course is reasonable, even if it does not
relate to his role in the present trial, and even
is it causes a slight delay in the trial. [para. 15]

4

The adjournment application was granted.
Complete case available at www.albertacourts.ab.ca

CRIMINAL HARASSMENT:
‘REPEATEDLY’ MEANS MORE
THAN SINGLE INCIDENT
R. v. Zeilstra, 2004 BCSC 648
The accused was convicted in
British Columbia Provincial
Court of criminal harassment
under s.264 of the Criminal
Code after his ex-common law
wife reported that he followed her in his vehicle
for 30-35 minutes, during which both vehicles
exceeded the speed limit. The two had earlier
lived together for six to eight months and had
joint custody of their 13 month old child. The
accused appealed to the British Columbia
Supreme Court arguing, in part, that Crown
failed to prove that he harassed the
complainant.
Section 264(2) outlines four types of prohibited
conduct that must be proven in order to sustain
a conviction, including “repeatedly following from
place to place the other person or anyone known
to them.” The only evidence was the single
occasion when the accused followed the
complainant. Repeatedly, on the other hand,
means conduct which goes beyond one occasion.
Thus, the accused’s conviction could not be
supported in law. The appeal was allowed and an
acquittal was entered.
Complete case available at www.courts.gov.bc.ca.

IT’S WHAT THE OFFICER
KNOWS THAT COUNTS

www.jibc.bc.ca

R. v. Decker, 2004 NLCA 36
A
police
officer
received
information by telephone from
another officer that he had seen
a person drinking liquor in a dark
coloured pickup located at a

Volume 4 Issue 4
July/August 2004

ferry terminal. The officer receiving the
information went to the ferry terminal and
stopped a pickup with two occupants. There was
only one road into and out of the terminal area
and traffic was light. A roadside test was
administered and the accused failed. He
subsequently provided two breath samples in
excess of the legal limit and was charged.
At his trial in Newfoundland Provincial Court, the
accused was convicted of care and control with a
blood alcohol level over 80mg%. The trial judge
concluded the accused’s rights under s.9 of the
Charter protecting him from arbitrary detention
had not been breached and there was no reason
to exclude the certificate of analysis. The
accused appealed to the Newfoundland Supreme
Court.
In overturning the conviction, Justice Dymond
found the accused had been arbitrarily detained
because the police lacked an articulable cause
for the stop. In his view, the detaining officer
had no objective observation of an offence or
erratic driving. Rather, he only had minimal
information provided by another officer—the
vehicle’s licence number, make, model, colour,
occupant description, or whether it was parked
or moving were not known. As a result of the
unlawful detention—described as random and
arbitrary by Justice Dymond—the evidence of
the breathalyzer readings was excluded under
s.24(2) of the Charter.
The Crown appealed to the Newfoundland Court
of Appeal arguing the description of the vehicle
was sufficiently detained to provide articulable
cause—the yardstick used to measure an
arbitrary detention under s.9. Articulable cause
has been previously described by the
Newfoundland
Court
of
Appeal
as
“a
demonstrable rationale…which is sufficiently
reasonable to have justified the detention”2.

considerations in assessing articulable cause.
First, the particular context of the situation
must be considered. And second, “the focus must
be on the evidence that is before the court, not
the factors that, had they been present, may
have facilitated proving articulable cause”. In
this case, the lower appeal court judge erred
when he focused on what factors the officer did
not have. In holding there was sufficient cause
to justify the stop, Justice Burke of
Newfoundland’s top court stated:
In this case, the vehicle matched the
description of the vehicle [the officer] was
looking for, a dark pickup with two occupants.
There was just one road on which the vehicle
could be traveling, and only one possible
direction since the driver was leaving the
ferry terminal, Further, [the officer] stopped
the [the accused’s] vehicle at a time there was
very little traffic….
The testimony as to the volume of traffic is
important in light of the limited description of
the vehicle provided…. In the particular
circumstances of this case, it cannot be said
that [the officer] stopped the [accused’s]
vehicle randomly or arbitrarily. He used
objective criteria to identify the vehicle. He
had reasonable grounds, which he could
articulate, for stopping the particular vehicle.
While the amount of information was minimal,
it was sufficient to satisfy the requirements
of section 9 of the Charter. [paras. 12 and 13]

In other words, in assessing articulable cause,
the appropriate focus is on the known—rather
that the unknown. The appeal was allowed and
the conviction was restored.
Complete case available at www.canlii.org.

ABBOTSFORD POLICE
14th ANNUAL
10K CHALLENGE/5K FUN RUN

Justice Welsh, authoring the unanimous
judgment, noted there were two important
2

R. v. Burke, 1997, 153 Nfld. & P.E.I.R. 91 (NCA).

Volume 4 Issue 4
July/August 2004

www.jibc.bc.ca

SEPTEMBER 25, 2004
Log onto
www.abbotsfordpolice.org
for more details.

5

HOUSE SEARCH WARRANT
DOES NOT INCLUDE VEHICLE
PARKED ON PROPERTY
R. v. Vu, 2004 BCCA 230
Police received a tip of a possible
marihuana grow operation at a
residence.
Follow-up
investigation was conducted and
a search warrant was obtained
and executed. In the home, police found 127
plants, an elaborate ventilation system, lights, a
tampered hydro meter and other evidence. Also
found in the search were keys, one set fitting
the locks securing the door to the grow
operation as well as a vehicle parked in the
backyard. Police opened the car and found
documents in the accused’s name, including
vehicle registration papers, and two passport
photographs bearing his likeness.
At trial, the accused was convicted of marihuana
production and possession for the purpose of
trafficking. An officer testified he usually
examines search warrants, but in this case did
not and went ahead and searched the vehicle
anyways. Police also admitted they had searched
vehicles found at grow operations for offence
related material in similar circumstances before,
even though the vehicles were not mentioned in
the warrants. The trial judge found there had
been no breach of the accused’s s.8 Charter
right. Furthermore, even if there was a breach,
the trial judge would have admitted the evidence
under s.24(2). In her view, the officers acted in
good faith, having had reasonable grounds to
search the vehicle. The accused appealed to the
British Columbia Court of Appeal arguing, among
other grounds, that the search of the vehicle
was unreasonable under s.8 of the Charter and
that the evidence should have been excluded.

The Search
All three appeal court justices agreed that the
search of the vehicle under the warrant

6

authorizing the search of the dwelling house did
not include the authority to search vehicles on
the property. Thus, the accused’s right to be
secure against unreasonable search and seizure
was violated. Justice Donald held:
On the face of the warrant I do not, with
respect, see how it is possible to find that it
authorized the search of a motor vehicle. The
warrant recites that there are reasonable
grounds to believe that evidence of an offence
under the Controlled Drugs and Substances
Act are "in a place, namely the dwelling
house...". The authority is "to enter the said
place...". The antecedent of place is clearly the
dwelling house. That language cannot be
stretched to include a vehicle.
Neither can it be said that the Information to
Obtain provides a context for giving an
expansive reading to the warrants such that it
can include the Honda….
Thus the search was not authorized by law:
either by the warrant or by reason of exigent
circumstances or a search incidental to an
arrest. The [accused] was not arrested at the
time of the searches. It must follow in my
judgment that the search of the vehicle
violated s. 8. [paras. 20-22]

Good Faith
Section 24(2) of the Charter allows a court to
consider evidence obtained as a result of a
Charter violation provided its admission in the
trial would not bring the administration of
justice into disrepute. One factor the courts
examine during the s.24(2) analysis is whether
the police were acting in good faith when they
obtained the evidence in question. In this case,
the trial judge felt the police had reasonable
grounds to believe vehicles should be searched
at a grow operations because evidence might be
found in them. Justice Donald (with Justice
Rowles concurring) however, disagreed. In the
majority’s opinion, reasonable grounds to believe
a vehicle may provide evidence would only offer a
basis to obtain another warrant, not allow for a
warrantless search of the vehicle without

www.jibc.bc.ca

Volume 4 Issue 4
July/August 2004

exigent circumstances or some other power.
Justice Donald, critical of the police conduct in
this case, stated:
I have said that reasonable grounds to search
do not provide a basis for a finding of good
faith. A warrant is required and every police
officer should know that. The thinking that
reasonable grounds constitutes good faith
must be discouraged, otherwise police will
shortcut the warrant process in the
expectation that the evidence obtained in a
warrantless
search
will
be
admitted
notwithstanding a s. 8 breach.
Not only is the trial judge's finding of good
faith based on an erroneous ground, but the
behaviour of the police manifested the
opposite of good faith. The officer who
searched the vehicle did not read the warrant
to see whether it authorized the search. This
shows a casual indifference to the privacy
interests protected by s. 8. Both that officer
and the detective in charge indicated a
practice of searching vehicles on property
covered by a warrant despite the absence of
any specific authority relating to vehicles. An
occasional lapse is one thing, a practice is quite
another and engages the good faith criterion
in the [s.24(2)] analysis.
In my view, the reputation of justice will
suffer much more from tolerating a practice
of unauthorized searches than setting aside
the convictions. The exclusion of the evidence
taken in the vehicle search would not end the
matter. On a new trial the Crown may have
other means of proving the [accused’s] identity
as a person with knowledge and control of the
grow operation. [paras. 40-42]

Justice Braidwood took a different position than
the majority on the good faith issue. He
concluded that the admission of the evidence
would not bring the administration of justice into
disrepute. In his view the evidence was nonconscriptive, the violation not serious, and the
accused’s privacy expectation in the vehicle was
lower than a residence. The fact the officer who
searched the vehicle usually examines the search
warrant, but failed in this case, was evidence of

Volume 4 Issue 4
July/August 2004

carelessness rather than bad faith. Justice
Braidwood wrote:
This is not a case of the police running
roughshod over an accused’s rights. The police
found a large scale marihuana grow operation
in the house. While the cultivation of a
narcotic is a very serious offence, the breach
of the [accused’s] rights was not serious.
Admitting the evidence would not lessen the
esteem in which the public holds the
administration of justice. There is no need in
this case to acquit the guilty in order to
ensure that in the future the public’s right to
privacy is protected; to do so in this case
would bring the administration of justice into
disrepute. [para. 74]

The accused’s convictions were set aside and a
new trial was ordered.
Complete case available at www.courts.gov.bc.ca

FLIGHT FROM POLICE ADDS
TO REASONABLE SUSPICION
R. v. Jackson,
(2004) Docket: C40604 (Ont.C.A.)
Two plainclothes police officers
were patrolling an area known for
drug trafficking and gun related
incidents shortly after midnight
when they saw two black males walking along the
street. They were the only pedestrians in the
area and were doing nothing suspicious. About 25
minutes later another officer broadcast over
the police radio he heard a gunshot in the area.
The plainclothes officers drove back into the
area, verbally identified themselves as police,
and told the two men seen earlier that they
wanted to talk. The two men fled on foot and the
police took up chase. One man got away, but the
accused was apprehended as he attempted to
scale a fence. As police pulled the accused from
the fence, an object fell from his jacket and a
silver handgun was found near his feet on the
ground. After a struggle, he was pepper sprayed
and handcuffed. A search of the accused netted

www.jibc.bc.ca

7

police $330 in cash, a baggie of crack cocaine,
and a baggie of marihuana. He was subsequently
charged with several offences.
The accused made a motion in the Ontario
Superior Court of Justice ([2002] O.J. No.
4005) to exclude the evidence submitting it was
obtained as a result of an arbitrary detention
(s.9 of the Charter) and an unreasonable search
(s.8 of the Charter). Superior Court Justice
Nordheimer concluded the police were justified
in approaching the two men to question them in
light of the circumstances that evening. This,
along with the men fleeing, provided sufficient
cause for the police to pursue and detain them.
Thus, everything that flowed from the efforts
to detain the accused—finding the gun, the
arrest and the search—was admissible. Justice
Nordheimer stated:
…the officers were patrolling in an area of
their division which was known for problems,
including gun related incidents; it was early in
the morning; they had received a report of a
gun shot; and the defendant and the other
male were the only two individuals who the
officers had seen in the area. In those
circumstances, it was entirely reasonable for
the officers to wish to question the two men in
relation to the gun report. In this regard, it is
important to remember that police officers do
have the right to question people in
furtherance of an investigation…
The officers were therefore acting within
their rights to question the defendant and the
other male. Had the defendant simply refused
to answer the officers' questions, then any
attempt by the officers to detain or arrest
the defendant would have been problematic…
However, that is not what happened. Rather
than refusing to answer the officers'
questions, the defendant and the other male
fled. In doing so, in my view, the defendant
provided the reasonable suspicion to the
officers necessary for the officers to pursue
and detain the defendant. The defence
strongly asserted that the questions raised by
these evidentiary issues had to primarily be
determined through the use of common
sense. The defence then asserted that if the

8

defendant had the right to simply refuse to
answer questions and walk away, then he had
the right to run. I would say that common
sense does not allow for the conclusion that
individuals in this situation who attempt to flee
from police officers are to be treated as
equivalent to individuals who simply refuse to
answer questions…. [references omitted, paras.
12, 13]

And further:
The result of the defence position in these
circumstances is that the officers would have
had no alternative in the face of these two
men fleeing but to simply return to their police
car and continue on patrol. That is a result
that does not accord either with common
sense or with the requirements of the
Charter. Instead,
I
believe
that
the
"constellation of objectively discernible facts"
gave the officers articulable cause to detain
the defendant. That, in turn, gave the
officers the right to pursue the defendant to
effect the detention. In the course of
detaining the defendant, the firearm was
revealed, and that, in turn, gave the officers
the right to arrest the defendant. The arrest
being valid, then the warrantless search which
gave rise to the finding of the drugs is also
justified. [para. 16]

The accused was convicted by a jury of
possession of a firearm, assault with intent to
resist arrest, and failing to comply with a
recognizance, but appealed to the Ontario Court
of Appeal contending, among other grounds, that
the trial judge erred in concluding the detention
was justified. In dismissing his appeal, the
unanimous Ontario Court of Appeal agreed “with
the trial judge that the "constellation of
objectively discernible facts" including the
[accused’s] attempt to flee from the police
provided reasonable grounds for the officers to
pursue and detain him.”
Complete case available at ww.ontariocourts.on.ca

Editor’s note: It must be remembered that it
was not the flight from police, by itself, which
provided the reasonable suspicion (sometimes

www.jibc.bc.ca

Volume 4 Issue 4
July/August 2004

referred to as an articulable cause) for the
accused’s pursuit and detention. Rather, there
were other circumstances including the
reputation of the area, a gunshot, and the fact
the accused was in the area at the time. As well,
the officers had identified themselves and told
the accused and his companion they wished to
speak to them, at which time they ran away. It
was the totality of the circumstances—not
taking any one in isolation—that provided
sufficient cause for the police in this case to
pursue.

DID YOU KNOW…
…that the Police Services, Ministry of Public
Safety and Solicitor General, Province of British
Columbia recently published 2003 statistics
reporting the Criminal Code case burdens per
officer for all 11 of BC’s independent municipal
police departments?

Department

Criminal Code Case Burden
per Officer

Abbotsford
Nelson
Victoria
New Westminster
Vancouver
Oak Bay
Port Moody
Delta
Saanich
West Vancouver
Central Saanich

97
92
89
87
65
61
53
51
44
44
35

In the Data Qualifiers to the report, Police
Services notes, “Case Burden is defined as the
number of Criminal Code offences (excluding
Traffic) per authorized police strength. Because
it represents the workload per officer in each
policing jurisdiction, case burden is a better
indicator of the demand for police services than
either population or crime rates.” A copy of the
report is available at www.pssg.gov.bc.ca/police_
services.

Volume 4 Issue 4
July/August 2004

‘MENACING’ POLICE CONDUCT
DOES NOT WARRANT STAY
R. v. McCrea, 2004 BCCA 229
The accused was arrested for
robbery, taken to the police
station, and searched. He was
provided access to a telephone
to call a lawyer, but the lawyer
was not in. However, a member of the lawyer’s
staff connected the accused to his own
residence
where
he
had
a
45-minute
conversation with someone at his home. Following
the telephone call, the two officers interviewed
the accused for three and a half hours. The
interview was captured on video tape.
Despite the accused maintaining he wished to
remain silent throughout the interview, the
officers continued to tell him what they knew
and urged him to tell his side of the story. At
one point during the interview the accused was
seated on a chair. A police officer responded
aggressively, moved his chair closer to the
accused so their faces were less than two feet
apart. The officer then suddenly stood up,
thrust his hand in the direction of the accused,
struck the wall behind his head, and leveled an
insulting, profane, and vulgar verbal barrage at
him. The officer then left the interview room
and slammed the door behind him. The accused
was not touched during the event and appeared
quite collected afterwards. The second officer
did not intervene during the incident.
At his trial for break and enter x 17, armed
robbery x 4, and committing an indictable
offence while masked x 4, the accused applied
for a judicial stay of proceedings arguing, in
part, that he was verbally abused during the
interview. Even though no evidence derived from
the interview was tendered at trial, the trial
judge concluded the police transgression
affected the judicial process and ordered a
judicial stay of proceedings. The trial judge
stated:

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9

These actions of the police officers are
completely unacceptable. Persons in Canada
are entitled to be treated with respect and
dignity by law enforcement individuals, even
those persons who are charged with serious
criminal offences. The actions of the police
went way beyond what the community expects
from professional law enforcement persons. To
be treated by these officers as the accused
was is an affront to the community’s sense of
fair play and responsibility by those who are
charged with a duty to serve and protect.
………
In the case at bar there was no physical injury,
there nevertheless were serious and flagrant
violations perpetrated against the accused.
Taken all together, and most significantly the
actions of the police officers, lead me to the
conclusion that this is one of those cases that
is the clearest of cases where the only way to
ensure the integrity of the judicial system and
to remind the police that their behaviour at all
times when dealing with members of the
public, including those persons charged or
suspected with serious crime, must be civilized
and professional, is to grant a stay of
proceedings.

The Crown appealed to the British Columbia
Court of Appeal. Justice Saunders, authoring
the unanimous appeal court judgment, found a
stay of proceedings was not appropriate in the
circumstances. As she noted, “A judicial stay of
proceedings is the ultimate remedy available to
an accused, preventing as it does prosecution of
the charges laid in the public interest. It is for
that reason that a stay will be ordered in only
the “clearest of cases”.” In considering whether
a stay is appropriate, a court must examine
(1)

The impact upon the trial process—
whether the prejudice caused by the
police behaviour manifested, perpetuated,
or aggravated the conduct or outcome of a
trial,

(2)

Whether a stay the only remedy or if
there was any other remedy reasonably
capable of removing the prejudice, and

10

(3)

Balance the interests served by a stay
weighed against society’s interest in a final
decision of the charges.

Although Justice Saunders found the officer’s
behaviour “below standard” and “menacing”, she
concluded the trial judge “gave inordinate
consideration to the disciplinary influence of a
stay upon the comportment of police officers
and insufficient consideration” to the above
three criteria. In reviewing the impact of the
police behaviour on the trial process, Justice
Saunders stated:
In the case at bar the incident was separate
both in time and substance from the
prosecution of the charges, the misconduct
occurred prior to involvement of Crown counsel
or the trial process and the interview provided
no evidence for use at trial. This compels the
conclusion, in my view, that any prejudice to
the accused caused by the incident is unlikely
to be manifested, perpetuated or aggravated
through the continuation of the trial or by a
verdict.
To put the matter another way, the issue here
is one of the behaviour of a police officer that
had no material effect upon the conduct of
the trial or its outcome. In that sense the
stay was directed at least in part, as the trial
judge appeared to recognize, to the discipline
of the police service. However, discipline of
police, while perhaps a secondary outcome to a
stay of proceedings, should not be the purpose
of such an order. [paras. 19-20]

As for other remedies, the accused’s sentence
(if convicted) could reflect the inappropriate
police conduct, the accused could seek a civil
remedy, or the RCMP public police complaint
process could be pursued. Finally, “the
administration of justice would be brought into
disrepute by a stay of proceedings.” The
prejudice was “fleeting”, there was no
substantive effect on the trial, and the charges
were serious and many. The stay was set aside
and the matter remitted for trial.
Complete case available at www.courts.gov.bc.ca

www.jibc.bc.ca

Volume 4 Issue 4
July/August 2004

VOLUNTARINESS: HOW FAR
CAN A POLICE
INTERROGATION GO?
Henry Waldock, Crown Counsel
Current police interrogation techniques use
psychological devices to persuade suspects to
confess. To win sympathy for the accused at
trial, defence counsel will emphasize the
imbalance of power between the detained
suspect and the sophisticated cop.3 But the
Supreme Court of Canada in R. v. Oickle4 clearly
established that not every improper inducement
renders a statement involuntary.
When a
suspect has been well treated, it takes
considerable pressure to overwhelm a person’s
freedom to choose whether to confess.
It is trite law that if the suspect spoke to a
“person in authority”5 about the crime, courts
will accept evidence of those remarks only if the
accused made them voluntarily.
A suspect makes a statement voluntarily when:
the suspect had an operating mind;
the person in authority did not use threats
or promises nor oppression to persuade;
the suspect to speak;
the suspect is not compelled to speak; and
the police did not use improper trickery
“If an investigator’s conduct passes the scrutiny
of the common law rule as to voluntariness, it
necessarily satisfies the Charter right to
silence.”6

What Caused the Confession?
When describing the principles of voluntariness,
Iaccobucci J. did not discuss causation. But
when applying the principles to facts, he
dismissed
many
inducements
as
being
insufficient to cause Oickle to confess
3

For example: Baidwan #2 March 11, 2002 BCSC Vancouver Registry
#CC001678A at para 51.
4
R. v. Oickle 2000 SCC 38, [2000] 2 S.C.R. 3, (2000) 147 C.C.C. (3d) 321
5
A person in authority is someone who investigates, detains, arrests or
prosecutes the accused.. See: R. v. Hodgson [1998] 2 S.C.R. 449, 127 C.C.C. (3d)
449 and R. v. Wells [1998] 2 S.C.R. 517, 127 C.C.C. (3d) 500.
6
HMTQ v. Baidwan No. 1, 2001 BCSC 1412 at para 56; aff’d 2003 BCCA 351

Volume 4 Issue 4
July/August 2004

involuntarily.7 Other cases put this in more
express terms.8 Therefore, even where the
police have offered inducements, or oppressed
or tricked the suspect, Crown counsel should ask
the court to determine whether these things
overwhelmed the suspect’s will.9

Operating Mind
The operating mind standard is a low one –
schizophrenia,10 drunkenness11 and other mental
problems12 do not necessarily render a statement
involuntary. But a low mental capacity renders a
suspect more vulnerable to oppression, and so
the court may give greater scrutiny to the
treatment of the suspect.13

Threats or Promises
Proper

Minimize
Moral
Gravity of Offence14
Appeal to spirituality
– how do you face your
God?16
Social appeal – others
will respect you

Improper

Minimize Legal Gravity of
Offence15
Discuss how confession will
impress the judge17
Discuss sentencing options18

7

R. v. Oickle para 84, 87, 99
R. v. Spencer 2003 BCSC 508 at para 30; R. v. Bakker 2003 BCSC 599 at para
95; R. v. Crockett 2002 BCCA 658 (2002) 170 C.C.C. (3d) 569, (2002) 7 C.R. (6th)
300 at para 29; R. v. Paternak (1995), 101 C.C.C. (3d) 452 (Alta. C.A.); Kerans J.A.
of the Alberta Court of Appeal in at p. 461 (reversed on other grounds, 110 C.C.C.
(3d) 382 (S.C.C.)) wrote:
“For an otherwise healthy and mature human to be deprived of an effective
choice, I am inclined of the view that the influence must be so overbearing that it
can be said that the detainee has lost any meaningful independent ability to
choose to remain silent, and has become a mere tool in the hands of the police.”
9
R. v. Carpenter 2001 BCCA 31, (2001) 151 C.C.C. (3d) 205 at para 69; R. v. Malik,
Bagri & Reyat 2003 BCSC 20 at para 69; R. v. Labbe 2002 BCSC 996 (appeal
allowed on other grounds: (2001) 159 C.C.C. (3d) 529 (BCCA)) at para 37
10
Whittle [1994] 2 SCR 914, 92 CCC (3d) 11
11
R. v. Oldham (1970) 1 C.C.C. (2d) 141 (B.C.C.A.); R. v. McKenna [1961] 1 S.C.R.
660; R. v. Richard (1980) 56 C.C.C. (2d) 129 (BCCA), R. v. Labbe 2002 BCSC 996
(appeal allowed on other grounds: (2001) 159 C.C.C. (3d) 529 (BCCA))
12
R. v. Santinon 11 C.C.C. (2d) 121 (B.C.C.A.); R. v. Nagotcha [1980] 1 S.C.R. 714 51
CCC (2d) 353.
13
Oickle paragraph 42.
14
R. v. Speidel 2003 BCSC 1532; R. v. Bakker 2003 BCSC 599;
15
In some interrogations, the investigating officer referred to less serious legal
consequences in circumstances in which the suspect may have made the link. Eg
Oickle; Baidwan unreported March 11, 2002 BCSC Vancouver Registry
#CC001678A;
16
R. v. MacNeil (1995), 138 N.S.R. (2d) 117 (N.S.C.A.), leave to appeal to the
Supreme Court of Canada refused September 14, 1995
17
Oblique references to legal process while minimizing moral gravity do not
necessarily constitute improper inducements. HMTQ v. Baidwan No. 1, 2001 BCSC
1412 at para 53; aff’d 2003 BCCA 351
18
R. v. Warren (1997) 117 C.C.C. (3d) 418 (N.W.T.C.A.) Leave to appeal refused
[1997] S.C.C.A. No. 483.
When trying to persuade Warren to confess, the
officer said: If he confessed, apologized and explained that the blast was not
8

www.jibc.bc.ca

11

Emotional appeal – you
will feel better
Develop
suspect’s
trust20
Comfort the suspect
when crying or upset

Polygraph21

Phrases like “It would be
better if you told” or
“better tell us everything”19
Intimidate
Offer quid pro quo – “if you
confess
for
me
then
I/prosecutor/judge will do X
for you”
Link confession to liberty

The worst inducement in this category is the
offer of lenient legal treatment in exchange for
a confession or the threat of worse treatment
for failure to confess. But other improper
inducements include promises of benefits for
people close to the suspect22, or psychological
treatment for the suspect in exchange for a
confession23. However, when a suspect infers an
advantage from a remark made by a police
officer some trial courts24 diverge from the
Supreme Court of Canada’s distinction between
inducements by the state and self-inducement.25

Oppression
Because a suspect might falsely confess made in
order to put an end to harsh circumstances,26
Oickle considers oppression. Again, none of
these are necessarily fatal, depending upon what
persuades the offender to confess.

intended to kill the miners, he would be looking at a manslaughter charge and
might only serve a few years; but if he did not confess and apologize, he would be
viewed as a cold, uncaring person and would be treated more harshly by the police
and the prosecutors' office. The trial judge was satisfied by the evidence that
these inducements did not move Warren to give the confession.
19
R. v. Hogben [1993] B.C.J. No. 458 (BCCA)
20
R. v. Malik, Bagri & Reyat 2003 BCSC 20
21
R v. McIntosh (1999) 141 C.C.C. (3d) 97 (Ont CA) leave to appeal dismissed
[2000] S.C.C.A. No. 81.
22
R. v. Jackson (1977), 34 C.C.C. (2d) 35 (B.C.C.A.) ; But not all such promises will
render a confession involuntary: R. v. Billings 2004 BCSC 456.
23
A promise to get the guy help may cause him to confess. If so, the statement
is inadmissible. But R. v. Ewert (1991), 68 C.C.C. (3d) 207 (B.C.C.A.) decided to
confess for other reasons, and so the offer didn’t render the statement
involuntary.
24
eg R. v. N.T.A. 2002 BCCA 103.
25
Oickle at para 57; see also R. v. Henri, [2001] A.J. No. 462 (Q.B.); R. v.
Carpenter 2001 BCCA 31, (2001) 151 C.C.C. (3d) 205;
26
Hoilett (1999 Ont CA) Sex offender was drunk and high. Arrested at 11:25pm.
Clothing taken for forensic purposes. Naked for 1.5 hours. Given a bunny suit.
Woken at 3:00am for an interview. Fell asleep 5 times during the interview.
Confession not voluntary

12

Proper

Dangerous

Attend the offender’s
wellbeing
Persist in the face of
assertions of the right to
silence28
Let the suspect take
bathroom breaks
Cigarette breaks

Deprive
sleep27
Withhold
attention

Feed the hungry, clothe
the naked
Limit repeated access to
counsel32
Confront with evidence or
exaggerate evidence34

suspect

of

medical

Threaten or inflict injury
to suspect29
Confront suspect with
false evidence30
Starve or freeze the
suspect31
Deny access to counsel33
False evidence35
Failure to give the right
to silence warning36

27
Baidwan #1 & #2: Unreported ?? March 11, 2002 BCSC Vancouver Registry
#CC001678A.
28
Wood (1994) 94 CCC (3d )193 (NSCA) leave to appeal to SCC dismissed; R. v.
Bohnet 2003 ABCA 207. R. v. Timm (1998) 131 CCC (3d) 306 (Que CA); R. v. Van
Haarlem (1991), 64 C.C.C. (3d) 543 (BCCA) (affirmed 71 C.C.C. (3d) 448 (S.C.C.))
reviewed the Supreme Court of Canada’s decision in Hebert, and summarized the
conclusions of that court on the parameters of the right to silence, at page 11:
…I extract the following principles which are applicable to an accused person's
fundamental right to silence.
(1) The right is intended to protect an accused from unfair pre-trial
interrogation.
(2) The right is to be determined objectively, based on the conduct of the police.
(3) Unlike the right to counsel, the right to silence is not an absolute right
subject only to be discharged by waiver, as was decided in R. v. Clarkson (1986),
25 C.C.C. (3d) 207, 26 D.L.R. (4th) 493, [1986] 1 S.C.R. 383.
(4) If an accused chooses to volunteer information to policemen, there is no
violation of his s. 7 right to silence.
(5) An accused's right to silence will be violated where police conduct subverts
his constitutional right to choose not to make a statement.
(6) An accused's right to silence will be violated when undercover police, or their
agents, actively elicit information after an accused has exercised his right to
silence. However, in this latter situation, in the absence of eliciting behaviour, if
an accused chooses to speak by his own choice there is no violation.
29
R. v. Sabri [2002] O.J. No 2202, 166 C.C.C. (3d) 179 (Ont CA)
30
R. v. McMillan [2003] O.J. No. 3489 (Ont CA)– officer produces a forged
“confession” of McMillan’s partner in crime. McMillan spills the beans. Crown
prohibited from cross-examining McMillan on the statement to police.
31
R. v. Hoilett (1999) 136 C.C.C. (3d) 449 (Ont C.A.) Consider also that Oickle was
interrogated late into the night, and again early in the morning.
32
Uppal Mann & Soomel 2002 BCSC 1379; R. v. Taylor, [1994] B.C.J. No 2112
(S.C.) (Vol. 2, Tab 12), R. v. Robinson, [1997] B.C.J. No. 1845 (S.C.) (Vol. 3, Tab
23), and R. v. Ertmoed, [2002] B.C.S.C. 806, R. v. Ekman 2000 BCCA 414 146 CCC
(3d) 346 para 25; R. v. Roper (1997), 32 O.R. (3d) 204 (Ont. C.A.); R. v. Gormley
(1999), 140 C.C.C. (3d) 110 (P.E.I.S.C. App. Div.); R. v. Mayo (1999) 133 CCC 3d 168
(Ont CA)
33
R. v. Freisen 2003 BCSC 1760; R. v. P.L.R (1988) 44 C.C.C. (3d) 174 (N.S.C.A.)
34
R. v. Watts 2003 BCSC 1403; R. v. Riley & Henry 2001 BCSC 1169 (Romilly J.)
aff’d (2003) 179 C.C.C. (3d) 307 (BCCA); Baidwan #1 2001 BCSC 1412 aff’d 2003
BCCA 351
35
R. v. Riley & Henry 2001 BCSC 1169 (Romilly J.) aff’d (2003) 179 C.C.C. (3d) 307
(BCCA)
36
R. v. Boudreau [1949] S.C.R. 262; See also R. v. Dupuis [1952] 2 S.C.R. 516.

www.jibc.bc.ca

Volume 4 Issue 4
July/August 2004

Trickery

Conclusion

“[T]he investigation of crime and the detection
of criminals is not a game to be governed by the
Marquess of Queensbury rules. The authorities,
in dealing with shrewd and often sophisticated
criminals, must sometimes of necessity resort
to tricks or other forms of deceit and should
not through the rule be hampered in their work.
What should be repressed vigorously is conduct
on their part that shocks the community.
[Emphasis added.]”37

A confession following interrogation may be found
admissible, no matter how many errors the police
make if the police errors individually and
collectively did not overwhelm the suspect’s
ability to choose whether to confess. It is a
question of fact, where advocacy matters.

The sorts of “trickery” that the Supreme Court
of Canada disapproved of included injecting a
diabetic with truth serum instead of insulin, or
pretending to be a priest in order to get a
confession. Trickery which brought the justice
system into disrepute is to be avoided.

Voluntariness is a question of fact; appellate
courts must defer to the trial judge’s findings.38
Voluntariness must be proved beyond a
reasonable doubt; a court may still point at a
minor inducement and declare a statement to be
involuntary.39

Severance – removing offending portions
If the court does find that police conduct at
some point did render the suspect’s remarks
involuntary, ask the court to admit as voluntary
all conversation which preceded that point.
However, the whole of the admissible statement
must go before the trier of fact, not just the
inculpatory portions.40

Oickle at paragraph 66
Oickle para 22; R. v. Tessier 2002 SCC 6 reversing R. v.. Tessier (2001), 153
C.C.C. (3d) 361 (NBCA)
39
R. v. Bunn 2001 MBCA 12: “Obviously, having regard to the first sentence of
the passage I have just quoted, the final sentence must be qualified by the need
for the Crown to prove, beyond reasonable doubt, that the accused's belief in the
advantage to be gained by a confession was not induced or confirmed by persons
in authority. There is thus no onus on the accused to prove that his or her
confession was induced by a promise or that he or she was misled. It is sufficient
to exclude the statement that the accused believed it would be to his or her
advantage to make the statement and there is a reasonable doubt as to whether
this belief was the result of an inducement held out by the police.”
40
R. v. Allison (1991) 68 C.C.C. (3d) 375 (B.C.C.A.)
38

Volume 4 Issue 4
July/August 2004

Like Oickle, lengthy and intense interrogations
were conducted in the following cases, yet the
confessions obtained were admitted:
•

•
•
•

The Crown’s Burden

37

Further Reading

HMTQ v. Baidwan #1 - 2001 BCSC 1412 aff’d 2003
BCCA 351; #2 11 March 2002, Vancouver
CC001678A.
R. v. Ekman (2000), 146 C.C.C. (3d) 346 (B.C.C.A.),
2000 BCCA 414, 2003 BCCA 485
R. v. Ertmoed , 2002 BCSC 806.
Wood (1994) 94 CCC (3d )193 (NSCA) leave to
appeal to SCC dismissed

POLICE ENTRY JUSTIFIED
FOLLOWING 911 CALL FROM
PAYPHONE
R. v. Huang & Zeng, 2004 BCPC 172
Police received a 911 call at 1:57
am from a payphone located
outside a convenience store.
The caller stated he had been
robbed at gunpoint in his home
where he had a marihuana grow operation. The
caller provided his address and hung up, but the
police were unable to renew telephone contact
with the caller. Several police officers attended
the home and grouped at the front door. The
area was quiet and there was no external
evidence of criminal activity or a marihuana grow
operation.
Police knocked loudly at the door, but received
no answer despite hearing a male voice inside.
Further knocking and ringing of the doorbell
resulted in a male voice stating, “Who is it?” An
officer said it was the police and asked the

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13

occupant to open the door. The male said, “What
do you want?” The officer again knocked, told
the occupant it was the police, and asked him to
open the door. The officer could see a male
standing in the hall as he looked through the mail
slot. Again the officer told the occupant to open
the door. After about 30 seconds, the door
opened and the odour of growing marihuana was
immediately
evident.
The
occupant
was
handcuffed and police entered the house. Two
other adults and one child were found in the
home, but there were no guns or evidence of a
robbery. However, the police did note that the
house had been converted into a marihuana grow
operations with some space reserved for living
quarters. Police applied for and were granted a
search warrant to search the house.
During a trial voire dire in British Columbia
Provincial Court, the accused challenged the
validity of the warrant, among other things,
arguing the information contained in it was
obtained through a warrantless search that
violated their Charter rights to be secure
against unreasonable search and seizure. The
accused submitted that the police should have
considered that the 911 call was a hoax,
perpetrated on the occupants of the home. If
the police would have considered the 911 a hoax,
the accused contended the police would have
taken other action.
In ruling that the police action in entering the
house to search for injured persons was
reasonable and did not violate the accused’s
rights under s.8 of the Charter, Justice Schmidt
stated:
The court is not satisfied that the police
acted inappropriately in this circumstance. The
police responded to a high priority call of a
robbery at gunpoint in a private residence by a
person who said he was the occupant of the
residence. The person revealed that he was
growing marihuana in his home and gave the
address for the police to attend. When the
occupants refused to answer the door after
the police announced their presence, the

14

person in the residence created a sense of
urgency and appeared to verify the
information received by the police in the 911
call. The best information the police had was
that the owner / occupier of the house was
not in the house, but that a robbery was in
progress. The failure of the person inside to
open the door or to hesitate to open the door
added credibility to the 911 call.
At that point, the options for the police were
severely limited. There may be a number of
scenarios which would account for the facts as
they presented themselves, but it was a
sensible conclusion that the report was
accurate. Perhaps the caller occupant had
escaped, run to the nearby payphone, made the
call and in his panic had forgotten to leave his
name and ran off after other assistance,
leaving his family alone with the armed
intruders. The refusal of the male person
inside the house to open the door tended to
confirm some such scenario and required the
police to perform their duty as peace officers
and determine the facts without further delay
and in a manner that reflected the report they
received.
There was no fact or circumstance observable
by the officers that would move them to
believe that they were dealing with any
situation other than the one that had been
reported to them. In fact, they have a growing
familiarity with armed robberies of private
residences used for growing marihuana that
unfold much as this one appeared to be
unfolding.
The fact that the house did not appear to be a
grow operation is not persuasive and is not
something that should cause the police to
treat a 911 call less urgently. Criminals with
sophisticated methods appear to have
increasingly occupied the field, and grow
operations are no longer clumsy attempts to
produce for personal use or minor profit. They
are often businesses that have adapted to the
adverse business climate of illegality and their
operations are difficult or impossible to
detect. No one is more aware of this than the
police and the lack of condensation on windows
and other historical indicia of marihuana grow

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Volume 4 Issue 4
July/August 2004

operations inside a residence are not factors
that should have caused the police to doubt
the veracity of the call.
The police were not required in these
circumstances to attempt to locate the caller
at the payphone beyond the efforts made by
their dispatchers to call back to the payphone
and re-establish the connection…. [paras. 2327]

And further:
Where, as in the case at bar, the police are
unable to verify whether the person behind
the door is the occupant and are unable to
verify the circumstances of the persons inside
the house after receiving a call involving the
possible use of firearms, they have a duty to
act in a manner most consistent with a
response to an emergency. [para. 31]
Complete case available at www.provincialcourt.bc.ca

TASER TOUCH DID NOT
BREACH CHARTER RIGHTS
R. v. Eriksson, 2004 BCPC 34

In the early morning hours a
citizen saw a car off the road in
a snow bank. He noted the
accused smelled of liquor,
seemed under the influence of
alcohol, and became angry and yelled at him and
the tow truck operator before police arrived. A
police officer attended and began an impaired
driving investigation after noting the smell of
alcohol on the accused’s breath and other indicia
of impairment. She was arrested, given the
breath demand, and advised of her Charter
rights. The accused declined to give a breath
sample at the time, asked for a 24 hour driving
suspension, and declined to speak with a lawyer.
The accused was transported back to the police
station and the booking-in process began. She
was very loud, “almost confrontational”, and again
refused to speak with a lawyer. The police
learned the accused was on an undertaking to

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July/August 2004

abstain from alcohol; she was arrested for
breach and again refused to talk with counsel.
The accused became vocal, yelling and screaming,
using profanity, and calling police derogatory
names when she was about to placed in a cell.
A female member was called to assist in
removing her personal possessions and searching
her, but the accused refused to cooperate.
What occurred next was described by the trial
judge as follows:
Cst. Millar asked the Accused to remove her
jewellery. At first the Accused refused and
swore at Cst. Millar at which point Cst. Millar
advised the Accused that if she did not
remove the jewellery force would be used to
remove those items. The Accused took off one
earring and punched it into Cst. Millar's hand
striking the constable's hand with her hand
and causing the earring to fall to the floor.
The Accused then refused to remove any more
jewellery and continued verbally assailing Cst.
Millar.
Cst. Clark stepped forward at that point and
without any warning touched the Accused with
a TASER on her left side. The Accused "jolted
back" and said "that fucking hurt" but then
became compliant and removed the rest of her
jewellery and provided it to Cst. Millar. [para.
12-13]

The accused was searched and placed in cells. No
medical treatment was provided by the police
nor did the accused seek any medical treatment
after being released. She said she hurt for a
month and she suffered bruising and breaking of
the skin.
In the midst of her trial in British Columbia
Provincial Court on charges of impaired driving
and breach of undertaking, the accused sought a
judicial stay of proceedings, submitting the
actions of the police while she was in custody
violated her Charter rights, including s.7—the
right to life, liberty, and security of the person.
The trial judge summarized the accused’s
arguments as follows:

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15

(a) there was no concern by any of the police
officers that the Accused might assault one of
them;
(b) there is no evidence of Cst. Clark's
motivation for using the TASER as he was not
called as a witness;
(c) although the Accused was unquestionably
loud and unpleasant the booking-in process was
proceeding by the officers who had duties in
that regard; and
(d) Cst. Clark had no role in the arrest of or
the booking-in procedure concerning the
Accused and his use of the TASER was a case
of extra-judicial punishment and a completely
unneeded and unacceptable use of force in the
circumstances.

The Crown contended that the Criminal Code—
s.25—permits “a peace officer to use whatever
force is necessary to do what they are required
or authorized to do provided they act on
reasonable grounds and the force used is not
likely to cause death or grievous bodily harm.”
Even if the force was excessive and its use
breached the accused’s s.7 rights, the Crown
also suggested there was no link between the
breach and trial fairness that would justify a
judicial stay of proceedings.
The trial judge also added s.12 of the Charter—
the right not to be subjected to any cruel and
unusual treatment or punishment—to the
discussion even though the defence did not
refer to it in their stay application. However,
Justice Brechnell concluded the police did not
breach the accused’s Charter rights in this case.
The judge ruled:
The Accused claims that the application of the
TASER by Cst. Clark without warning and in
circumstances where she was not threatening
the other police officers in the booking room
area amounted to excessive force and extra
judicial punishment and thus infringed upon
her Charter rights.
It is clear that Cst. Clark gave no warning prior
to administering the TASER to the Accused.
However, one must examine all of the
circumstances surrounding the use of the
TASER in coming to any conclusions as to

16

whether or not its use amounted to an
infringement of the Accused's Charter rights.
The Accused was being vocally abusive and
belligerent to Constables McSeveney and
Millar. The Accused was being uncooperative in
response to Cst. Millar's requests to remove
her jewellery. The Accused struck Cst. Millar's
hand with her hand in an obvious show of
defiance and with sufficient force to cause
the Accused's earring to fall to the floor. This
action followed Cst. Millar's verbal warning to
the Accused indicating that if she did not
cooperate in the removal of her jewellery
additional measures would be taken by the
police to ensure the jewellery was removed.
She did receive a warning that there would be
consequences to follow from further noncompliance with Cst. Millar's requests.
The use of the TASER in the booking room
area is third on the continuum of methods of
control enunciated by Cst. McSeveney as RCMP
policy. The Accused had failed to comply with
verbal requests and had acted in a physically
aggressive manner towards Cst. Millar. It is
not necessary for the police in such
circumstances to become involved in a full
blown physical altercation with a person in
their charge when another acceptable method
of ensuring compliance is immediately at hand
and can be deployed in a manner that minimizes
any physical danger to the attending members
and the Accused while at the same time
encouraging immediate compliance.
By applying the TASER to the Accused Cst.
Clark's actions can be justified as the use of
as much force as is necessary for the purpose
of controlling the Accused and ensuring her
compliance.
Although Cst. Clark's actions in applying the
TASER to the Accused were taken without any
request from Constables McSeveney and Millar
and done without an additional warning to the
Accused that the TASER would be used they
do not amount any violation of the Accused's
Section 7 or indeed Section 12 Charter rights
in the circumstances of this case and no relief
is available to her. [paras. 66-71]

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July/August 2004

The judge also noted that even if there was a
violation of the accused’s Charter rights, a
judicial stay was not an appropriate remedy—her
ability to make full answer and defence, the
investigation of the charges, nor the conduct of
the trial were affected by the police action.

property—and the officer was not expected “to
collapse his antennas and cocoon himself in the
reality of that which he observes as he passes
through each day.” The accused were convicted
of production of a controlled substance and
possession for the purpose of trafficking.

Complete case available at www.provincialcourt.bc.ca

The accused appealed their convictions to the
British Columbia Court of Appeal arguing, in part,
that the trial judge erred in concluding that the
search of the residence was lawful. Although
they conceded the police had an implied licence
to knock on the door, they argued it was revoked
once the police received no answer. In other
words, the officers’ right to remain on the
property had ended and any further evidence
obtained was unlawful, which tainted the
warrant. Justice Oppal, authoring the unanimous
British Columbia Court of Appeal judgment
upheld the trial court’s ruling. He stated:

POLICE NOT REQUIRED TO
‘COCOON’ THEMSELVES ON
APPROACH TO HOUSE
R. v. Vu & Vu, 2004 BCCA 381

Two major crime unit police
officers went to the accused’s
home to return some property
seized during a previous drug
investigation 3 years earlier.
They parked at the rear of the house and went
to the back door, knocked, but received no
response. An officer walked along the house to
the front to look for another door, but did not
find one. Walking back to the police car, he saw a
doorway made of wooden slats, with one slat
missing. He detected a very strong odour of
marihuana, looked inside, and saw a garden hose
and water bottles. He also examined a lower
floor level window and saw it had a covering on it.
The police obtained a search warrant under the
Controlled Drugs and Substances Act and found
two rooms containing 159 marihuana plants.
At trial the accused argued that the search
warrant was based on information unlawfully
obtained. They submitted that the police really
went to the property to investigate a marihuana
operation, rather than to return property.
Further, even if the officer did not have a
secondary purpose, his walk down the driveway
after knocking was unlawful and therefore he
smelled the marihuana illegally.
Justice Taylor, describing the detection of the
marihuana odour as happenstance, rejected the
accused’s arguments. In his view, the police had
one intention when they attended—to return

Volume 4 Issue 4
July/August 2004

…There is no doubt that the police conduct in
this case was somewhat unusual, to say the
least: the police took the extraordinary
measure of having officers in a Major Crime
Unit personally return an exhibit that had
been seized from Mrs. Vu some three years
prior to this incident. Notwithstanding this,
the trial judge found that the police were
acting in a bona fide manner when they went to
the Vu residence. He found as a fact that
they had but one intention: to return an
exhibit that had been seized earlier. It is of
course not for this Court to interfere with
those findings of fact. [para. 24]
Complete copy available at www.courts.gov.bc.ca

ANSWER TO QUESTION
FOLLOWING DETENTION
INADMISSIBLE
R. v. Dolynchuk, 2004 MBCA 45
Two police officers responded
to a report of a vehicle being
driven erratically by a single
male occupant who was slouched
to the side with his eyes closed. A licence

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17

number of the vehicle was provided, but the
vehicle was not located in the area. The police
attended the registered owner’s address at an
apartment building. As they were backing up in
the parking lot, the officers noted a SUV
matching the suspect vehicle description and
bearing the same licence plate number pulling in
the parking lot. They did not see the driver, but
saw a male coming from between two parked
cars. They asked the accused his name, which he
provided. It was the same as the registered
owner of the SUV. The accused was staggering,
unable to balance himself, smelled of alcohol, had
bloodshot eyes, slow responses, and still held the
vehicle keys in his hand. An officer then asked
the accused if he had just got home after
driving his vehicle—to which the accused
responded in the affirmative. The accused was
then arrested, Chartered, cautioned, and read
the breathalyzer demand.
At his trial the accused successfully argued he
had been arbitrarily detained under s.9 of the
Charter and that his s.10(b) Charter rights had
been violated because the police did not advise
him of the right to counsel before questioning
him. His admission of driving was excluded and
the impaired driving charge was dismissed. The
Crown unsuccessfully appealed to the Manitoba
Court of Queen’s Bench, which upheld the trial
judge’s ruling. The Crown again appealed to the
Manitoba Court of Appeal.
In dismissing the Crown appeal, all three justices
agreed there had been a psychological detention
when the officer asked the accused if he had
been driving and therefore his right to counsel
under s.10(b) had been triggered. A psychological
detention occurs when an officer makes a
demand of a person and the person reasonably
believes there is no choice but to comply with
the demand. Even if an accused does not testify,
as was the case here, the court can nonetheless
conclude a reasonable belief to comply with a
demand since the test is objective. “All of the
words and conduct of the participants, as well as
the environment in which questioning took place”

18

must be examined to distinguish a demand from
a request or what is compulsory from what is
voluntary. In concluding that there was a
detention, Justice Steele wrote:
In the case at bar, the police had knowledge
that an offence may have been committed.
They knew that a witness had seen the
particular motor vehicle in question being
driven erratically quite recently. They knew
that this man who had emerged from around
the motor vehicle in question was the
registered owner, that he was staggering,
smelled of alcohol and had blood-shot eyes.
They had already formed the opinion that the
accused was noticeably impaired and that
should he refuse to answer their questions,
they would not allow him to leave. They were
asking questions of him as part of a specific
investigation. The positive answer to the police
question "Were you driving?" basically gave the
police proof of the final element in the
offence of impaired driving. The uniformed
police officers were not questioning him at
random on the street, but in the parking lot of
his apartment complex. These factors may
support an inference by the trial court that
the accused could reasonably have concluded
that his freedom had been restrained. In
these cases, the courts are not developing a
concept of what has been referred to as
"constructive detention," but rather are
looking to surrounding circumstances to
determine whether a reasonable person would
consider themselves detained.
I hasten to add that the question itself,
"Were you driving?," would not necessarily lead
to a conclusion that the accused was detained
in every circumstance in which it was asked by
a police officer of a driver….
In this case, the police officers had much
more than a suspicion that [the accused] had
just been driving the motor vehicle in question
and that he was impaired. The Crown
acknowledges that [the constable’s] testimony
is clear that he "would have detained for
investigative purposes" once he determined
that he was speaking to [the accused], the
registered owner. While this was never
communicated to the accused and therefore

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Volume 4 Issue 4
July/August 2004

cannot be determinative of the issue of
psychological detention, it is reflective of the
environment in which the question was put and
one factor among several to be considered
when deciding whether the inference can be
drawn from the totality of the circumstances.
Police purpose and motive can be taken into
account as a factor when determining whether
there is sufficient evidence from which a
court can infer compulsion. The overall
situation must be evaluated having regard to
what is said and done, in what manner, in what
location and for what purpose. [paras. 24-27]

And further:
…This was not a random encounter or a general
investigation. It was a specific investigation
with respect to impaired driving and this
particular motor vehicle. Given the description
the civilian witness gave of the driver and the
opinion the police officers formed of the
degree of impairment of the accused when
they saw him, they had reasonable grounds to
suspect that the accused had committed the
crime being investigated, perhaps even to
arrest him. By the testimony of the police
officers themselves, the investigation had
reached the stage where they had already
decided that a crime had been committed and
that the accused was the perpetrator or
involved in its commission. In that context, the
question as to whether he had just been
driving his vehicle was not of a general nature
to obtain information, but rather was for the
purpose of obtaining incriminating statements
from the accused.
One last point. This case was argued on the
basis that if a detention existed, the accused
should have been provided his s. 10(b) Charter
rights. In this case, I agree with the trial
judge and the summary conviction appeal judge
that he should have been given his right to
counsel information after the first question
and answer and before the second question.
There is no reason in this case that could not
have been done even though we are speaking of
a detention of only a minute or two.
I leave open the question of whether a s. 10(b)
right arises in all cases of detention. I can

Volume 4 Issue 4
July/August 2004

envision a situation where because of safety
concerns, a search incidental to detention is
required before an individual is given their
right to counsel information. There may be
other examples. There may be situations
where delay of the accused's s. 10(b) rights is
justified under s. 1 of the Charter. These
points were not fully argued in front of us and
should be left for a subsequent case. [paras.
32-34]

As for the s.24(2) Charter analysis—the
admissibility of evidence—the court was divided.
Justice
Steele,
with
Justice
Hamilton
concurring, ruled the evidence inadmissible.
Justice Steele wrote:
In the case at bar, the accused was detained.
The Charter breach resulted in the accused's
participation in the creation of selfincriminating evidence in a situation where the
evidence indicates he might very well have
taken advantage of his s. 10(b) rights. Even
though a statement may not literally have been
compelled from the accused by force or
trickery, it would still render a trial unfair to
admit a statement that incriminates the
accused when he has not had the opportunity
to be advised of his legal right to remain silent
in circumstances where he is entitled to that
right. [para. 72]

Justice Huband, on the other hand, would have
admitted the evidence even though it might be
categorized as conscriptive. Justice Huband
stated:
In the circumstances of this case, it is my view
that the admission of the evidence would not
result in unfairness of the proceeding.
Turning to other matters that will influence
the decision on admissibility, I think it is
obvious that the alleged violation of law was
serious in nature. The accused's motor vehicle
was identified as being driven in a manner
which constituted a significant danger to other
users of the highway. This was no trifling
momentary incident. It is the public interest
that offenders be apprehended and suitably
punished, and it is equally important that

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19

potential offenders be mindful of
consequences of driving while impaired.

the

What would a reasonable and informed
observer conclude upon learning that the
accused's admission was admitted as evidence
in his trial, leading ineluctably to his
conviction? He or she would consider the
circumstances leading to the momentary
detention, the good faith of the police
officers and the less than serious nature of
the Charter breach. Given the circumstances,
I do not think that the observer would be
shocked or appalled. I do not think he or she
would conclude that the criminal justice
system was in any way corrupted. Without
passing too long over the ambiguities inherent
in the phrase "bring the administration of
justice into disrepute," I do not think that our
reasonable and informed observer would
conclude that disrepute of the administration
of justice would result from the admission of
this evidence in these proceedings. [para. 9496]
Complete case available at www.canlii.org

DID YOU KNOW…
…that Statistics Canada recently released its
crime statistics for Canada’s 27 Census
Metropolitan Areas (CMAs). The top 10 in each
category are:

2003 CMA Top Ten Crime Rates
(per 100,000 residents)
Saskatoon
Regina
Abbotsford
Winnipeg
Vancouver
Edmonton
Victoria
Halifax
Thunder Bay
Montreal

15,164
15,143
13,356
11,864
11,576
10,969
10,588
9,324
8,533
7,938

2003 CMA Top Ten Homicide Rates
(per 100,000 residents)
Abbotsford
Regina
Kingston
Saskatoon
Windsor
Winnipeg
Edmonton
Vancouver
Toronto
London

5.1
5.1
3.3.
3.3
2.7
2.6
2.2
2.1
1.9
1.7

2003 CMA Top Ten Motor Vehicle Theft Rates (per
100,000 residents)
Abbotsford
Winnipeg
Regina
Vancouver
Edmonton
Saskatoon
Hamilton
Montreal
Sherbrooke
London

1,580
1,493
1,355
1,261
951
744
740
659
648
586

2003 CMA Top Ten Break-in Rates
(per 100,000 residents)
Saskatoon
Regina
Vancouver
Abbotsford
Winnipeg
Sherbrooke
Gatineau
Edmonton
Thunder Bay
Sudbury

2,083
2,071
1,350
1,335
1,162
1,107
1,061
1,020
1,000
992

2003 CMA Top Ten Robbery Rates
(per 100,000 residents)
Saskatoon
Winnipeg
Regina
Edmonton
Montreal
Vancouver
Halifax
Calgary
Abbotsford
Toronto

306
235
230
162
158
153
141
116
114
112

For a complete copy of Statistic’s Canada report,
see The Daily, Wednesday July 28, 2004,
available online at www.statcan.ca

20

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July/August 2004