ISSUES
OF
INTEREST
VO'...UME xe.. 3

Written by John M. Post

Justice. Institute
Of British Columbia
4180 West 4th Avenue
Vancouver, B.C.
V6B 4J5

81-11

ISSUES OP JJITEUST
(Written by John H. Post)

TABLE OF COMTDTS
PAGE

TIAFl'IC YIOLATIOR DPOB.T - ·issmm· and ·snVBD(The Queen and Blackshaw, The County Court of
New Westminster (not reported)) ••••••••••••••••••••••••••••••••

1

CONTIRUITY OF BVIDERCB
(DeGraaf v. .The Queen
B. C. Court of Appeal C.A. 800562 (not reported)) ••••••••••••••

2

ARE MIJNICIPALITIES OBLIGATED t'O PAY FOR. SPECIAL
TREATMENTS IMPOSED BY SENTENCE OF THE JUVENILE
COUKr FOR QULDREH •BELONGING TO 'DIEM•t
(Section 20(2) J.D.A.)
(Re Regional Municipality of Peel and

'A'.

Ontario High Court of Justice 56 c.c.c. (2d) Nov. 1980) ••••••••

4

CR.IMIHAL BREACH OF 'IR.UST

(R. v. Hammerling 4 W.W.R. (1981) 742
Manitoba Court of Appeal) ••••••••••••••••••••••••••••••••••••••

5

VBEH DOES A JUVENILE BECOME AR ADULT!
(R v. Allen.[1981) 1 W.W.R. 344.
Manitoba Queen's Bench) ••••••••••••••••••••••••••••••••••••••••

6

DISOBEYING ORDER OF 'DIE CX>Ulr
(R. v. Clement (1980) 6 W.W.R. 695
Manitoba Court of Appeal) ••••••••••••••••••••••••••••••••••••••

7

- 11 -

PAGE
PEACE OFFICU DDCISI.lfG BIS .AU'l'BOR.ITY mTSIDE BIS JUl.ISDICrIOR
(R. v. Arsenault 55 c.c.c. (ld) 38
New Brunswick Court of Appeal) •••••••••••••••••••••••••••••••••

11

COMPETENCY OF PERSON m DtSTin AGAIKST PREVIOUS SPOUSE

(R. v. Marchand 55 c.c.c. (2d) 77
Nova Scotia Supreme Court, Appeal Division) ••••••••••••••••••••

15

ADMISSIBILITY OF PIOVDICUL CZR.TIFIED EXTRACTS
TO PROVE 'DIE FACTS 'DIEY CX>RTADI

(R v. Richardson (1981) 2 W.W.R. 755
Alberta Court of Appeal) ••••••••••••••••••••••••••••••••••••••

17

C.lllRilliG CX>HCEAIJID WEAP0H - MUNI.NG OF •coHCRAIJm•

Lemire 57 c.c.c. (2d) 561
B. C. Court of Appeal) ••••••••••••••••••••••••••••••••••••••••

19

POLICE OFFICERS QIAR.GED WITH USING A SHAM AFFIDAVIT 10
EX'l1lACT S'lATF.MENTS
(R v. Stevenson and McLean 57 c.c.c. (2d) 526
Ontario Court of Appeal) ••••••••••••••••••••••••••••••••••••••

20

(R v.

CIVIL ACTIOR AGAI.RST POLICE

(Mr. B. v. Police Officers P. and C. and their Corporate
Municipal Employer, Sask. Queen's Bench (Q.B. No. 137)) •••••••

(

21

POSSESSION OF A 10UND atEDIT CAKD
(R. v. Martin 5 W.W.R. (1981) 381
Saskatchewan District Court) ••••••••••••••••••••••••••••••••••

22

- 111 -

PAGE

CIVIL .ACTIOli .AGAIMST POLICZ
(Greggersen and Greggersen v. Cornish, Dunor, LaBere,
the City of Moose Jaw and that City's Police Commission,
Saskatchewan Reports, Volume 5, 370.
Saskatchewan Court of Queen's Bench) •••••••••••••••••••••••••

24

ACCEPTIRG IUBES

(The Queen vs. Binstead (not reported)
B. c. Court of Appeal CA800477)) ••••••••••••••••••••••••••••

25

EVIDENCE 'l'O 'DIE <X>NTlil.Y
(Regina v. Davidson
B. C. Court of Appeal

C.A. 800861 (not reported)) •••••••••••

27

(R. v. Karanagh
Supreme Court of B. C. No. s.c.c. 626 Xamloops
(not reported)) •••••••••••••••••••••••••••••••••••••••••••••••

28

REASONABLE EXCUSE

DISCIPLIHARY IEPIU.HAND AND QUMIHAL OWlGES -

DOUBLE JBOPAJU>Y

(R. v. R. 2 w.w.R. [1981] 657) ••••••••••••••••••••••••••••••••

30

LEGAL TIDBITS •••••••••••••••••••••••••••••••••••••••••••••••••

31

- 1 -

TRAFFIC YIOIATIOR UPOl.T

Tbe Queen and Blacbbav

Tbe County Court of llev Vestainster (not nported)

Section 126 of the Motor Vehicle Act states that an alleged violator 1111st
be "served" a copy of the Traffic Violation Report.
In this case the officer testified that he
"issued" a T.V.R. to him.

stopped Mr.

Blackshaw and

The Court concluded that there is a distinction between the meaning of
these verbs. A Justice, for instance, can issue a summons but that does
not mean that the document is served.
In view of the unfortunate words by the constable there was no evidence
that the T.v.R. was served. Therefore, the determination that the v!ola(ion was committed as alleged, was set aside.

Note:

This is a precedent binding on all B. C. Provincial Courts.

- 2 -

CONTDmITY OF BYIDEllCE

DeGraaf •• 'lbe Queen

British Coluabia Court of Appeal C.A. 800562 (aot reported)
The accused was found in possession of marlhuana and charged accordingly.
The investigating officer placed the narcotic in ·exhibit envelopes",
sealed and marked them with the accused's name, the case number and his
signature. He then placed the envelopes in a ..security box" provided for
the purpose of delivering such exhibits to the laboratory. Evidence was
adduced how it is impossible that exhibits are removed from that box other
than by laboratory personnel.
The officer received the envelopes back a few days later. They obviously
had been opened and resealed. Attached were certificates stating that the
exhibit envelopes were received sealed and unopened, bearing the markings
as described above. In addition, the document states that the substance
the envelopes contain is marihuana.
The trial judge held that the continuity of evidence was broken in that the
Crown failed to show how the exhibits got to the crime lab, when they were
received there or who had access to the dispository box. As a result the
accused was acquitted and the Crown appealed this verdict.
The B. C. Court of Appeal held that the trial judge •erred" and placed
"much stricter requirements of proof upon the Crown than the law
requires".
The Court agreed with its Ontario counterpart* that •the
ordinary practice which prevails in commercial dealings in our country••
does suffice to show continuity. If this was not so, continuity could only
be shown by personal attendance and the investigator looking over the
shoulder of the analyst. Dispatch by ordinary mail has been found adequate
to show continuity.
The court also agreed with the Alberta Court of Appeal** that the Crown
•does not have to call every person through whose hands the exhibit
passed•.
Although it must be proved beyond a reasonable doubt that the
substance is marihuana, continuity of the exhibit can be found by a
rational conclusion.
Considering all the safeguards taken, to say that
someone might have tampered with the exhibit during the transport is sheer
speculation or conjecture, which does not justify to hold that there is a
reasonable doubt that the substance dispatched by the investigator may not
be the substance received by the analyst.

*

**

Regina v. Labreche (1972) 9 c.c.c. (2d) 245.
Regina v. Orocheski (1980) 48 c.c.c. (2d) 217

-3-

The Court of Appeal held that the evidence of continuity waa "clear and
uncontradicted". The Court said that the statements made in ~e analyst's
certificate in respect to the identification of the envelopes he received
are admissible in proof of continuity.
Without a shred of evidence to
support possible tampering, the trial judge had simply speculated.

Acquittal set aside.
New trial ordered.

Note
The reason for ordering a new trial after finding that the accused "should
have been found guilty of possessing marihuana" is that he was by virtue of
the quantity charged with possession for the purpose of trafficking. It
seems that the Court ordered that he must be found guilty of possession and
that the trial to determine if the quantity was sufficient to prove his
intent to traffic must continue. (section 8 N.C.A.).

-4-

AU MDHICIPALITUS OBLIGATED 'm PAY IOI. SPECIAL
TUA.TKKNTS IMPOSED BY SENTEMCE OF '!BE JUVlllII.B
COURT IOI. QllLDB.EH •1KLORGDIG 'm 'DIEM•!
(Section 20(2) J.D.A.)

Ile ltegional Municipality of Peel and 'A'.

Ontario High Court of Justice

56 C.C.C.(2d) Boveaber 1980.

On page 4 of our first issue of this publication, we reported the opinion
of the B. C. Supreme Court on the City of Vancouver having to pay for the
cost of a delinquent receiving some treatment from a person in Alberta
respecting his anti-social behaviour.

In Ontario the Municipality of Peel appealed a similar order of the Provincial Court to the High Court of Justice and won.
'A' was found to have committed a delinquency and a medical assessment
showed that the youth suffered of severe learning disabilities. An order
was made that the juvenile was to attend a special "learning centre~ and
the Municipality was to contribute in excess of $7,000 for the cost of this
special education. This program proved to be remedial and tremendous improvements became evident.
The Municipality opposed to pay this cost and claimed that in spite Df the
provisions of sections 20 and 38 J.D.A. the Provincial Court had no jurisdiction to make the order.
The High Court of Justice found in favour of the Municipality and held that
the funding the Municipality may be ordered to undertake is restricted to
supplying the "necessaries of life" only and not to supply remedial treatment for such things as behavioural, emotional, or educational problems.

-sCUJllKAL BREACH OP ftDST

a. •· Bamaerling 4 v.v.R. (1981) 742
llanitoba Court of Appeal
The accused, a lawyer, used his trust fund as a source of funds for his own
personal benefits, and would use 'the funds placed in trust for one apecific
transaction or purpose for the paying of other trust obligations. In other
words, he robbed Peter to pay Paul. However, no one was ever at an economic disadvantage and everyone was paid as per the trust obligation. But,
the accused conceded when testifying that he did not have sufficient funds
to cover all those obligations.
The accused was acquitted of criminal breach of trust (s. 296 C.C.) and the
Crown appealed. The Court of Appeal convicted the accused quoting the
Supreme Court of Canada:
•The element of deprivation is satisfied on
proof of detriment, prejudice or risk of prejudice to the economic interests of the victim.
It is not essential that there be actual
economic loss as the outcome of the fraud·.
The Court also held that the elements of theft and criminal breach of trust
were essentially the same and observed that theft would have been an appropriate alternative charge in the circumstances.

- 6 -

WBEM DOES A .JUVEHILE BECOME AR ADULT!

R •· Allen (1981) 1 v.v.a. 344.

llanitoba Queen'• Bench

On his 18th birthday the accused was arrested for impaired driving.

When
the accused was arraigned in open Court for the alleged offence his counsel
reminded the Provincial Court Judge that in Manitoba a person under the age
of 18 years is a juvenile. He argued that in view of section 3(1) of the
Criminal Code, which stipulates that a person will not be deemed to have
reached a certain age until the anniversary of his birthday is fully completed, the accused was still a juvenile on the day he committed the
alleged offence.
Crown Counsel drew the Court's attention to section 25(9) of the Interpretation Act which states that a person shall not be deemed to have reached a
specific age until the commencement of his birthday. By this provision the
accused was an adult on the day of the alleged offence.
The Provincial Court Judge held that he had no jurisdiction to try the
accused as he was a juvenile. The Crown consequently applied for an order
of mandamus compelling the Provincial Court Judge to try the accused as an
adult.
The Justice of the Queen's Bench had to decide which of the two statutory
provisions applied in this case, or in essence, if a Juvenile Court had
jurisdiction to try the accused. Needless to say that the law does not
provide that a person is immune from the law on the day he becomes an
adult.
The Court held that the Criminal Code provision determine jurisdiction
under its section 12 and 13 (child under age of 7 years cannot be convicted
of an offence and a child between 7 and 14 years cannot be so convicted
unless he appreciates that what he did was wrong). It was the Court's view
that the provisions of the Interpretation Act apply to the Juvenile Delinquents Act. This meant that the accused was at the time of the alleged
offence 18 years of age and had been that age since the previous midnight
hour.
Application granted
Accused to be tried in open court

- 7 -

DISOBEYIRG ORDD OP THE COUU

a. •· Cl.ellellt (1980] 6 v.v.a. 695
llanltoba Court of Appeal
The accused was ordered by a Court of superior jurisdiction to ref rain from
molesting, harrassing, interfering or annoying his wife. Be violated this
order and was charged with "disobeying a lawful order by a court of
justice" (section 116(1) Criminal Code).

In habeus corpus proceedings the warrant for the accused' a comm! ttal was
quashed. The Crown appealed this decision.
Section 116(1) c.c. states that violating an order of a Court is an offence
"unless some penalty or punishment or other node of proceeding is expressly
provided by law•.
The Court dealing with the application to quash the
warrant held the power of a court of superior jurisdiction to deal with
contempt is ""expressly provided by law•. Therefore, section 116(1) C.C.
did not apply.
The Crown disagreed with this decision and appealed i t to the Manitoba
Court of Appeal claiming that:
1.

the inherent power of a superior court of civil jurisdiction to cite
for contempt is not expressly provided by law; and

2.

civil contempt and the offence under section 116(1)
together.

c.c. can stand

In dealing with (1) above, the Manitoba Court of Appeal observed that the
unlegislated jurisdiction of a superior court to punish summarily for contempt of court bas been used for over 200 years and is so entrenched that
the jurisdiction is not merely implied but "inherent... This jurisdiction
"is so well established in our law• said the Court "that it cannot be
considered as other than falling within the import of the common meaning of
expressly provided·.
Before the Court could go on to point (2) above, it had to deal with the
distinction between a civil and a criminal contempt of court and determine
whether sec~ion 116(l)C.C. only applies to criminal contempt.

- 8 -

For instance, recently a man was charged under •• 116(l)C.C. and the evidence revealed beyond a reasonable doubt that the accused did a r:n:-ong to the
person who was entitled to the benefit of the court order. which is a civil
contempt as opposed to criminal contempt which must involve public injury.
Since the act committed by the accused would have been lawful if it was not
for the court order, the Provincial Court trial judge held that the act
amounted to a civil contempt rather than the criminal contempt created by
section 116(1)C.C. In other words, the act by the accused should by itself
amount to an offence as well as he a violation of a court order before a
conviction under section 116(1)C.C. is possible. Although the Manitoba
Court of Appeal did not cite that case, it is quite obvio~ that it totally
disagrees with that view.
It held that the Parliament of Canada simply "created a criminal of fence in
respect of conduct generally catagorized as a civil contempt, i.e., disobedience of a court order". Said the Court:
• ••• It is drawn (s. 116(l)C.C.) in terms which
encompass a contempt of court, whatever the
origin of the proceedings, c1 vil, criminal or
quasi-criminal".
Does this then mean that the Parliament of Canada has dealt with civil
matters which are the exclusive jurisdiction of the provinces? Apparently
this is not the case in the view of this Court, as the reason for judgement
continues:
"Parliament has dealt with civil matters only
in the sense that it has excluded civil as
well as criminal contempt from the ambit of
the offence (s. 116(l)C.C.) if another proceeding is expressly provided by law".
Since this Court of Appeal had found that the inherent jurisdiction of a
court of superior jurisdiction to punish summarily for contempt of court,
is a procedure expressly provided by law, albeit common law, civil contempt
and the offence under s. 116(1)C.C. cannot stand together. Therefore point
(2) above is incorrect.

Crown's application dismissed.

-..:----· -~

· .;...~ ......... !;

....

. ..... .......

4:- • ••

_,_
Comment
Thia leaves one to wonder what application •· 116(1) c.c.c. has, in
Manitoba at least. This Court of Appeal in essence eaid that the section
applies to civil as well as criminal contempt; is within the jurisdiction
of the Parliament of Canada to legislate, but is at all times superseded by
the CODIDOD law, that is the inherent jurisdiction of the courts of superior
jurisdiction· .(provincial supreme court and up), to punish · summarily for
ciyil contempt of court.
The court also agreed that the distinction
between civil and criminal contempt is •becoming progressively less.important• and •unhelpful and almost meaningless in the present day~. Even the
punishments are undistinguishable from one another.
In the event one concludes that the rarely used s • . 116(1) C.C. perhaps
applies to violations of a court order issued by a court of inferior jurisdiction (Provincial Courts and County Courts), he may also be wrong. In
Ontario it was held that for a superior court to punish for contempt for
the vioiation of a court order, does not mean that the order which was violated had to be one issued by a superior court.
In R. and Monette 28
c.c.c. (2d) 409 it was held that the inherent jurisdiction of the superior
courts includes punishing for violations of orders issued by inferior
courts.
What may also be of interest to note is that there are two additional
reported cases.* where the arguments are similar but the procedures the
opposite from that in this Clement case.
The procedures taken were by
motion in a court of superior jurisdiction to punish for non compliance
with an order of the court. In those cases the accused argued that the
common law enabling the proceedings had been superseded by s. 116(1) C.C.
This defence failed in all three cases but the co-existence of the common
law and the statutory provision creating an offence for disobeying a court
order, was left unresolved.
In Ontario a'trial was conducted for an alleged violation of section 116(1)
C.C. in February of 1981**. The accused had been ordered to enter into a
recognizance among other.things. Be·was by means of this document directed
not to attend at the business office of the well known entertainer Anne
Murray. In the event he breached the direction, the sum of $1,000 had to
be forfeited by the accused to Her Majesty the Queen. This amounted to an
expressly provided penalty and section 116(1) c.c. did therefore not apply.

* R. Gerson Re Nightingale 87 c.c.c. 143
** R. v. Kieling 58 c.c.c. (ld) 418

- 10 -

It seems that where a violation of a court order was purauel in the courta 1
the procedure for civil contempt (a motion in a court of superior
jurisdiction to punish for contempt) has been more successful than the ones
persued under the provisions of the Criminal Code. As a matter of fact.
one is hard pressed to find a successful ~rosecution under a. 116(l)C.C.
Please also note that the cases dealt with here are contempts out of Court
and not in the face of the court. In the latter 1 all courts have jurisdiction to punish; in the former, that jurisdiction is exclusively by a court
of superior jurisdiction.
Until a use can be found for a. 116(1) c.c., it seems that in spite of the
punishment provided for criminal contempt in a. 8 of the Criminal Code
contempt of court is the only remaining CODIDOn law offence in Canada.

- 11 -

PEACE OFFICER. D:EllCISIRG BIS AUTBOIUTY OUTSIDE BIS .JUllSDICTIOB
I.. •• Arsenault 55 c.c.c. (ld) 38
llev Brunswick Court of .Appeal

A municipal police officer attended to a complaint of an impaired driver in
a neighboring jurisdiction.
He found an intoxicated person behind the
wheel of a car and made a demand for a breath sample. The accused refused
•nd was acquitted as only a peace officer can make such a demand.
The
police officer was not a peace officer in the jurisdiction where he encountered the accused. The Crown appealed the acquittal to the New Brunswick
Court of Appeal.
This Court reviewed the New Brunswick Police Act and the Criminal Code
definition of 'peace officer' to determine the police officer's status at
the time he made his demand.
The Police Act simply compels this officer to discharge his responsibility
within the limits of the municipality for which he is appointed.
In regards to section 2 of the Criminal Code, the Court held that "mayors,
wardens, reeves, etc.", are peace officers only "'when acting within their
territorial jurisdiction as such officials".
"Wardens and other officers" of a prison have jurisdiction as peace
officers "within the limits of the prison premises or relating to his
duties of office in connection with matters pertaining to prison problems,
but not to act in extrinsic matters anywhere in Canada".
Regarding police officers the Court said:
"The Code makes no provision for the enlargement of their territorial jurisdiction beyond
that vested in them by their municipal
appointment or as enlarged by provincial
legislation".
·
Crown's appeal dismissed
Acquittal upheld.

Comment: This decision is not binding on the B. C. Court a. Furthermore,
the reasons for judgement is based on the interpretation of the New
Brunswick statute that regulates the jurisdiction of that Province's
Municipal constables.

- 12 -

One cannot help to wonder, however, how the Crown in B. C. would fare if
the defence would submit that a municipal constable is not a peace officer
where the circumstances are similar to those in this Assenault case.
Section 24 and 30 of the B. C. Police Act deal with the geographical
boundaries of a municipal constable's jurisdiction.
Various suggested
interpretations of these sections, which propose that the constable would
have been a peace officer (had the scene been in B.C.) may well be too
optimistic. The sections read as follows:
24.(1)

The provincial force and every municipal force,
upon
receiving
a
request
for
temporary
assistance made by the provincial force or a
municipal force, shall assign to the force
making the request such constables as it is
practicable to assign for the purpose.

(2)

Where a constable is assigned to a force under
subsection ( 1), his jurisdiction extends to the
jurisdiction of the force to which he is
assigned. 1974, c. 64, s. 24.

30.(1)

Subject to subsection (2) and section 24(2), a
1111nicipal constable and c special munici~£1
constable has, subject to the direction of the
board, juriadiction within the municipality of
the 'l:oard that appointed him to exercise and
carry out the powers, duties, privileges. and
responsibilities ~hat a police constable or
peace officer is entitled or required to
exercise or carry out at law or under any Act.

(2)

Where the minister is of the opinion that an
emergency exists outside i:he 1DUnicipality la
which
a
nunicipal
constable
or
special
municipal constable has jurisdiction,
the
minister may direct one or mc>re municipal
constables or special municipal constables to
exercise their jurisdiction it:. the part of the
Province in which th~ emergency exists.

(3)

Where the minister makes a direction under
subsection (2), the Minister of Finance shall
pay. from the Consolidated Revenue Fund, the
salary and other expenses of the municipal
constable or special municipal constable during
·the period that he is performing duties in the
part of the Province in which the emergency
exista.

- 13 -

(4)

Notwithstanding subsection (1), a 11Unicipal
constable has, while be is on duty in the
course of his emploJ.11ent, the jurisdiction
throughout the Province of a provincial
constable.

(S)

Where a aunicipal constable exercises hia
jurisdiction under subsection (4) outside the
municipality of the board that appointed him,
he shall, if possible, notify the provincial
force or municipal force of the area in which
he exercises his jurisdiction in advance, but,
in any case, ehall forthwith after exercising
his jurisdiction, notify the provincial force
or municipal force. 1974, c. 64, s. 30.·

The Courts 111st give statute law a liberal and broad interpretation so its
objective can be met and reflects the intent of the law maker. Needless to
say that the wording of that law is a major means to discover that intent
The key words in section 24 may well be:
a force • • • •.

•where a constable is assigned to

Is a dispatcher's or .a supervisor's request and consequential direction
from a similar level to look after a drunk in the municipality next door
sufficient to be considered a constable's assignment to another force?
It does not seem unlikely for the Courts to hold that the section only

covers arrangements for combined enforcement efforts like those of the
Joint Forces Operations, or short notice requests for assistance in insurrections, major gatherings of people for whatever reason and like situations. Such arrangements are usually made between the management levels of
the forces.
Section 30 is self explanatory except subsection (4) and (5). Subsection
(4) seems to be drafted to give a jurisdiction as was reflected by the
wording of the oath a peace officer used to take. It said he was such an
officer "'in and for" the municipality employing him.
This meant that
matters which arose within his jurisdiction while on duty in the course of
bis employment" could be carried outside that jurisdiction without it
affecting his status. Examples of this are numerous; execution of search
warrants, effecting an arrest or issuing an Appearance Notice etc., in
reladon to offences committed within his jurisdiction. One case in which
this became an issue was tried in Alberta. On appeal it vaa held that the
officers who investigated a theft that took place in their jurisdiction and
who went to a neighboring jurisdiction (within the same province of course)
and executed a search warrant in an effort to locate the stolen goods, were
11

.- ..·.. ·'··

- 14 -

peace officers.
This ruling was essential as the of fence alleged was
obstruction of a peace officer in the performance of his duty (executing
the search warrant). The Court held that their jurisdiction was not confined to the boundaries of the municipality they served when they investigated a crime that took place within their jurisdiction; after all, they
were not only peace officers •in• but also •tor• their jurisdiction. Their
omission to notify the force that had jurisdiction where the warrant was
executed and lack of arrangements to be accompanied by members of that
force, was somewhat undiplomatic to say the least.
What somewhat supports this theory is the stipulation in subsection (5) of
section 30, that, if possible, the notification to the force in whose
jurisdiction the authority is exercised, should be in advance. This does
not indicate to include impromptu encounters.
However, when it comes tO the interpretation of ~he law, the judiciary have
the final say and the above is a mere crystal gazing prediction.

- 15 -

COMPBTKNCY OF PERSON 'l'O TESTin AGAIHST PREVIOUS SPOUSE

I. v. Marchand SS c.c.c. (2cl) 17

llova Scotia Supreme Court. Appeal Dl'Vision
During his 11.arriage • the accused forged his wife's name to mortgages and
used them as though they were genuine. After the divorce from his wife he
was charged accordingly (section 326(1)(a)C.C.) Although the wife was not
the victim of the crime she agreed to testify against her husband.
At trial, defense counsel objected to the wife's. testimony claiming that
she was not competent as at the time the crimes were committed she was his
wife. The trial judge said that at common law a wife is competent where
the offence is against her person, liberty or health. As it is possible
for a husband to steal from or defraud his wife the judge held that the
wife was competent. This particularly as there had been "an attack on her
person and liberty in the sense of her property and person". The accused
was convicted and appealed the conviction to the Nova Scotia Court of
Appeal.
The three Justices of the Court of Appeal rejected the trial judge's
opinion as being correct in law, but agreed the wife was competent to
testify against her ex husband. The first Justice found the matter uncomplicated and said that there simply was no law that renders a person fully
competent to testify, incompetent because she has earlier been married to
the accused.
The second Justice said that the common law rule that the spouse is competent if his or her person, health or liberty has been attacked, was irrelevant. He held:
• • • • she was competent to give evidence upon
the ground that at the time she testified at
the trial, she was not the wife of the appellant•.
The third Justice did an extensive review of the history of compellability

and competence to testify against a spouse and the privilege of communications between spouses. Historically the spouse was considered to be incompetent •to preserve the peace of families" because of •the legal policy of
marriage", or "because their interests are absolutely the same•.
Now, the statute law (section 4 Canada Evidence Act) has "partly abrogated"
this rule of incompetency by creating exceptions to it and the Courts have
also modified their position on the rule.

- 16 -

This Justice agreed with the Ontario La~ Reform Commission on this point
•Although the case law on the subject is not
absolutely clear, the weight of autho=ity
indicates that marital privilege may not be
claimed after the dissolution of the marriage
by annulment, divorce or death of a spouse·.
Accused's Appeal Dismissed
Conviction upheld

- 17 -

ADKISSIBILin f1' PIOVIRCIAL CZUIFDD
EXTRACTS TO P20VE THE PAC'l'S TBKY COHTAill

a•· Richardson (1981] 2 v.v.a. 755
Alberta Court of Appeal
The accused was the sole occupant of a car he owned. Hashish was found in
a compartment under the floorboards and he was charged with "'possession•.
To prove that the accused owned the car, the Crown tendered in evidence a
certified extract of the provincial records, which by provincial statute
(like in all provinces) is prima facie proof of the facts it contains. The
question, if such an extract is admissible in evidence in proceedings under
Federal legislation, reached the Alberta Court of Appeal.
This Court did an extensive review of the law of evidence. There is no
doubt that the documentary evidence is hearsay and if at all admissible,
it is only so by these well known provincial provisions.

s. 37 of the Canada Evidence Act states that •the law of evidence in force
in the province in which such proceedings (those created by the Parliament
of Canada) are taken, • • • , apply to such proceedings•.
The Court observed that the common law can only be superseded by statute
law. Section 37 of the Canada Evidence Act does not alter the common law
rule that hearsay evidence is inadmissible. The ref ore, if the Parliament
of Canada wishes there to be an exemption to the hearsay rule for proceedings over which it has jurisdiction, it 'IDllBt create the exemption. The
provincial parliaments cannot do this other than for proceedings over which
they have jurisdiction. Therefore the certified extract was not admissible
in evidence to prove that the accused owned the car he was driving to link
him to the contraband 't he car contained.
Accused's appeal was allowed.

Comment:
In 1978, a similar argument was raised in the B. C. Court of Appeal* and
that Court's opinion is contrary to that of its Alberta counterpart.

* Regina v. Wilkinson B.c.c.A. No. 51/1978 Victoria.

Not reported.

- 18 -

Wilkinson was convicted of impaired driving and the Crown sought the mandatory jail sentence based on the accused having been similarly convicted
previously.
The Crown attempted to prove the previous conviction by a
certified extract of the accused's driving record at the B• . C. Motor
Vehicles Branch. The B. c. provisions re the admissibility of the document
to prove the facts it contains is the same as in Alberta.
The B. c. Court of Appeal held wianimously:
•. • • Section 37 of the Canada Evidence Act
incorporates by reference the laws of evidence
in force in a province, subject to the
Criminal Code or other Acts of the Parliament
of canada. The fact that there are alternate
means that may be used under the Criminal Code
of proving a record does not preclude the use
of methods provided by provincial legislation·.
It seems that witil this question reaches the Supreme Court of Canada, the
law in Alberta and British Columbia differ.
With the same set of circumstances, the B. C. Courts appear, on account of
the Wilkinson case, compelled to admit the document in evidence.

- 19 -

lllWWtG OF ·coBCEAJ.Jm•

I.•• Leaire 57 C.C.C.(2d) 561 (see also P• 42 of first issue of this publication. Case vaa then unreported) B. C. Court of Appeal.
The accused ··was checked by police in the early morning hours as he appeared
to be carrying something under his jacket. A taped piece of led pipe with
a chain attached were found on the accused. Be was charged with carrying a
concealed weapon but was acquitted as it was found that the accused neither
intended to hide nor use the weapon. The trial Court was of the opinion
that there must be an element of criminal intent in the act of concealing.
If one carries a weapon in his pocket for the single and sole purpose to
transport it, the inevitable included concealment is not what was intended
by Parliament to amount to an offence.
The· B. c. Court of Appeal did "respectfully" disagree with the trial
judge's opinion and with that of its Alberta counterpart.*
The Court of Appeal held that the intention of Parliament, when using the
verb "conceal" in this section, is it to mean "to keep it out of sight or
notice", "to hide". nierefore what the Crown must prove to sustain a conviction, is the intent to place the weapon in place of concealment and not
necessarily any intent to use it. The section is simply "to protect the
community from persons carrying hidden weapons".
Crown's appeal allowed
Verdict of guilty substituted.

* R v. Coughlan (1974) 17 c.c.c. (2d) 430.

- 20 -

POLICE OFFICD.S CHARGED VITR USIBG A SHAM AFFIDAVIT 'IO nnACT STAnMERTS

a •• SteYenson md llcLean 57 c.c.c. (2d) 526
Ontario Court of Appeal
A lawyer had been found •hot to death in his car. The accused, two homicide detectives, were of the opinion that the lawyer's wife and one Hr.
Allen, described as "very cunning and unscrupulous people", bad committed
cold blooded 1111rder.
"Well motivated and sincere in their desire to bring about the apprehension
of a person they believed to be a murderer" and without intention to breach
the law, the accused created a sham affidavit which expressed the lawyer's
wife~s willingness to testify that Allen was observed with her husband and
The accused then arrested
had threatened her and the deceased 's life.
Allen for the murder and showed him the phoney affidavit in the hope to
receive an incriminating statement from him.
Consequently the detectives were charged with using a writing purporting to
be the affidavit of the deceased's wife, knowing that the writing was not
sworn by her (section 126 (b) c.c.). The accused were found guilty but
received an absolute discharge.
The Ontario Court of Appeal heard their appeal.
The accused argued that what they did was not an offence as the use of the
affidavit was not in judicial or administrative proceedings or in--regard to
a business transaction "whereby some decision of a judicial or a governmental body or some decision in a business sense is going o be made utilizing the affidavit". They also claimed that the Interpretation Act dictates
that the Criminal Code section under which they were charged, must be
interpreted in their favor. The heading of the Part to which the section
belongs states, ·offences Against the Administration of Law and Justice"
with a sub heading, "Misleading Justice". Their intent was not to do any
of these things.
The Court of Appeal rejected the defence arguments and held that the
wording of the section does not just deal with affidavits for use in
business, administrative or judicial matters. The gravamen of the offence
is creating a sham sworn statement and then use it for whatever purpose.
The objective of the section was obviously to recognize the great faith
that is placed and ought to be placed in sworn statements and to deter the
abuse of them.
"To use" simply means, "to employ for a purpose". In this case the false
portrayal of an oath was used to adversely affect another person's legal
position.
The Court of Appeal, recognizing the accused's unselfish intention, said to
be obliged to dismiss their appeal.

- 21

CIVIL ACTION AGAIRST POLICE

Kr. B. y. Police Officers P. met C mid Their Corporate lbiicipal Eaployer
Saskatchewan Queen's Bench (Q.B. llo. 137)

Officers P. and c. accompanied Mr. B. 's common law wife to the suite they
shared and to which Mr. B. conceded, his wife had right of access in spite
of the fact that the lease was in his name.
The couple had a

spat and the wife required assistance to collect some
clothing and the keys to her car.

Within the suite was a stairway to the top of which Mr. B. brought the
required clothing. However, due a lien he claimed to have on his common
law wife's car be refused to give up the keys. When entry to that part of
the suite beyond the stairway was attempted . by officer c., Hr. B. pushed
him.
Apparently all four persons ittvolved occupied the stairway at the
time and •tumbled to the foot of the stairs· •. Officer C. then •grappled"
with Mr. B. and nearly had him in a full nelson when Officer P. came to his
assistance.
It was this assistance which was disputed and alleged to be
excessive and unnecessary by Mr. B., who sought compensation for the loss
of his employment, for suffering and endured pain and punitive and exemplary damages.
Officer P. • when he saw the struggle continue between his colleague and
Mr. B., he punched Mr. B., in the face a number of times. According to his
own testimony when asked how many punches be delivered on Mr. B. 's face,
Officer P. replied: "It could have been a dozen, I don't know but twice as
far as 1 know•. According to the evidence adduced, Mr. B. 's face was an
unpleasant sight for more than a month and one could not tell where his
nose ended and his cheek began. His employer disliked the sight of Mr. B.,
his salesman, so much that he fired him.
~
Kr. B. lost $2,400 in wages and was damaged and suffered $1,000 worth. As
the Court found that Officer P. had been excessive and had applied unnecessary force the officer and his employer were ordered to compensate Mr. B.
for these losses and damages. Nothing was awarded in punitive or exemplary
damag~s.

The reasons for judgement also relate that Mr. B. was charged and acquitted
of assaulting a peace officer. No reason was given for the acquittal.

- 22 -

POSSESSIOB OP A POUBD CREDIT CA.n
ll••• Martin 5 v.v.R.. (1981) 381
Saskatchewan District Court
The accused found a Chargex card belonging to a person he did not know. Be
treated a friend to dinner and paid with the credit card claiming that it
belonged to his mother and signed the charge slip with a ficticious name.
After this t~ accused destroyed the card.
As a consequence he was charged with •possession of a Chargex credit card
knowing that it was obtained by the commission of an indictable offence in
Canada·.
The accused was acquitted in Provincial Court and the Crown
appealed.
The Crown argued that although the finding was innocent and was the means
by which the accused obtained the card, there was a second unlawful
•obtaining• and that is when the accused converted the card to his own use.
The Court disagreed with this submission and held that the use of the
credit card was what was criminal. 'l'here was only one •obtaining" and it
was continuous, it did not change, and did not amount to an indictable
offence.
Appeal dismissed
Acquittal upheld.

Comments:
It seems that this case got lost in semantics and fails to recognize what
Parliament really tried to prohibit by creating section 301. l(l)(c) C.C.
The interpretation the Courts gave,
"the obtaining by means of an
offence•, appears too narrow. Needless to say that the offence by means of
which the credit card in the accused's possession was obtained, has to be
theft in this case.
At one time, particularly when the offence of larceny existed at common
law, it could only be committed by taking or carrying away someone else's

property without the owner's consent.
These no longer are the necessary
ingredients to theft.
It now includes any fraudulent conversion or

- 23 -

misappropriation of property whether or not it was in the owner'• lawful
possession at the time.
Thia includes theft by means of appropriating
property which was lost or mislaid, also referred to as •theft by
finding•. Whether or not the taking of misplaced property is theft totally
depends on the circumstances. It will, for instance, be important ho~ much
time elapses between the finding and the conversion to the use of the
finder. It is important what the article is, if it is recognized as anything of value to anyone. However, what is most important is whether the
finder had the sincere belief that the owner of the found article could not
be located. To determine this the Court mst consider the probability of
discovering the owner of the property.
In this case the name of the credit card holder was on the card, the credit
company would have returned the Card to the owner. There was no reason for
anyone to believe that the owner could not be found.
In regards to the prerequisite criminal intent, it seems the Court could
have followed R v. Brochu (1950) 10 C.R. 183. There it was held that even
if at the time of the taking (finding), the finder had no criminal intent,
but shows such intent later by converting the property to his own use or
preventing discovery that be found the article, he may be convicted of
theft.
This would mean that in this case, the card was obtained by means of
theft. The Crown proved the accused had such knowledge and had possession. Therefore it appears that there was nothing to bar a conviction.

- 24 -

CIVIL ACTIOR AGADIST POLICI
Gregersen 8lld Greggersen •· Cornish it Dunor • LaBere • tbe City of lloose Jaw
Saekatcbevan lleport• Volume S, 370.
Saakatcbevaa Court of Queen'• ~

and that City'• Police Co-1.s•ior

.Mr. and Mrs.. Greggersen had been drinking and were involved in a 111.nor
acci4ent on . a parking lot._. Mrs. Greggersen was driving as her husband's
licence was suspended for a _.Considerable ·period of time. They promised
police that they would leave their car where it was. However, when police
left, so did they with the car. They were spotted a short time later and a
chase started. Mr. Greggersen was driving this time.
To avoid a more
serious charge, the couple managed to switch places during the chase, after
which Mrs. Greggersen stopped the car. She was placed under arrest. A
fight ensued when the constable demanded her to give a sample of her breath
and the lady called out to her husband, "David, he is raping ae". While
both constables rolied on the street attempting to handcuff Mr. Greggerson,
Mrs. Greggersen kicked the officers while the couple's dog (upon command)
snappe~ away at them .to it's heart's content.
All this had been accompanied by the 11ost colourful language on the part of . the Greggersons and
although the husband finally gave up, the wife continued resisting and
kicking at the o~ficers.
In the fracass, Mr. Greggersen suffered severe abdominal injuries, which
were sustained, the Court found, during "the course of the police efforts
to subdue Greggersen". This, said the Court, "arose directly from his own
belligerence and that of his wife".
Greggersen was placed in cells and brought to Court the following day. It
was apparent to counsel and court staff that he was in severe pain and he
was rushed to hospital instead of making an appearance. Emergency surgery
was iumediately performed and prevented his otherwise imminent death.
The Greggersens sued for personal injuries, exemplary and punitive damages.
The Court held that the injuries sustained were wholly contributory to the
Greggersens and not the defendants.
However, Mr. Greggersen should not
have been made to suffer severe pains all these hours he was kept in
cells. The violence should hive alerted police to the prospect of injuries
and they should have observed Mr. Greggersen after his arrest. It was only
for these hours of suffering that the Court awarded damages ($500). Mrs.
Greggersen'a suit was dismissed and for the exemplary and punitive damages
the Court said that the couple' a conduct had been outrageous and awarding
them punitive damages would, in effect, reward them for that conduct.

·~

- 25 -

ACCBPTIBC BUDS
Tbe Queen a . Bi.Dstead - • t reported
a. C. Court of Appeal CU00477

The accused was •The Log Trading Manager• for MacMillan Bloedel Ltd. This,
no doubt 1 is a powerful position with auch a large company. Many log
producers depend on the aarket created by the company to aell their logs,
while producers of wood products of ten depend on the company to supply them
with logs.

The accused proposed to an established log marketing business that he would
come to work for them as an equal partner. The offer was rejected but a
counter offer aade that he join the company as a one-third shareholder.
The accused agreed and promised to join the company shortly. The documents
entitling him to his share of the profits were delivered to him but the
accused failed to resign from MacMillan, Bloedel.
Two and three years later, still wondering when the accused would finally
come to work to earn his share of the profits, the accused responded that
he was too busy and that he could do the partnership more good by staying
where he was.
In the aeantime, this company, depending on MacMil.lan
Bloedel, continued to share their profits with the accused. Payments made
to the accused were in the hundreds of thousands of dollars while the two
partners who owned the company could not afford to be on the bad side of
the accused.
When charged with accepting bribes contrary to Section
383(l){a)(ii) c.c., the accused contended that he had entered into a normal
business transaction and had not accepted the payments to affect his duties
at MacMillan, Bloedel.
To prove that it was the accused's intent to use his position at MacMillan
Bloedel to keep the share of the profits coming although he had not fulfilled his part of the bargain, the Crown adduced similar fact evidence.
It was the admissibility of this evidence the accused challenged when he
appealed his conviction .on six counts of accepting bribes from this one
company.
Manufacturers of wood products, producers, buyers and sellers of logs
testified al;out their experiences with the accused.

- 26 -

One cedar shakes manufacturer, who was wholly dependent on MacMillan
Bloedel to supply him with logs, testified that he, over a period of ten
years, supplied the accused (among other things) with all expense paid
trips to Hawaii and Dis~eyland (for the whole family), supplied a stereo
for the accused's family, a brand new car for his son and $1,000 worth of
plumbing work for his house.

A log supplier had 74 truck loads of logs which the accused could instruct
to be delivered some 100 lliles from where they were. The accused accepted
a truck and camper for purchasing the logs where they were.
supplier a considerable sum of money.

Thia saved the

A panel producer got the hint that

the accused wanted his rumpus room
panelled with some unusual wood product. The man took the hint as well as
those which produced a dishwasher, and two weeks' worth of plumbing, wiring
and cabinet work at the accused's home. The producer said he did thf,s, to
get logs supplied when they are scarce.

Similar fact evidence cannot be adduced to merely show that the accused
likely committed the crime charged as he in the past had shown a tendency
to commit an offence of the kind. The evidence 11U&t go beyond that; '"it
aust be positively probative in regard to the crime now charged'".
To gain a conviction the Crown had to prove that the accused accepted the
payments resulting from the so-called partnership, while he did not perform
his original part of the bargain, as bribes so the accused would use his
powerful position to show favor to the company his employer did business
with.
The trial Judge and the B. C. Court of Appeal found that the evidence given
by the other business people, had '"positively probative value'" and could
serve to show that the accused accepted the benefits as a bribe.
This
effectively rebutted the defence of an innocent and legitimate purpose.
Conviction upheld.

.!....

,:. . .

.... ..:.... ·-·-··- · lo· .... ...::.;

- 27 -

BVIDEBCE TO THE OOH'l'lilY

llegina w. Dari.deon

B. c. ~urt of Appeal C.A. 800861

(not reported)

The accused was stopped at 12:25 and breath samples were taken at 12:59 and
1:16, resulting in readings of .18% and .20% respectively. Be was charged
with "over .08%" and the Crown adduced the certif ica~es to prove the
blood-alcohol content.
The accused called a designated analyst and a breathalyzer expert to show
that the discrepancy in the readings obtained amounted to "evidence to the
contrary• which would effectively rebut the presumption that the lowest
reading obtained was equal to the blood alcohol level at the time of
driving. The analyst said. the discrepancy could have been caused by a
rising of the blood-alcohol level of the accused, an inherent error in the
breathalyzer or a "shallow blow". This expert evidence, the defence
claimed, caused reasonable doubt.
Not so, said the Court of Appeal. Without a factual basis for the
an:alyst's speculative opinion, his testimony, together with the certificate
of analysis, does not .constitute evidence to the contrary. The evidence
before the·Court was proof that the accused's blood alcohol level was .18%.
Accused's appeal dismissed.

- 28 -

UASOMABLE :UQJSB

ll. •· hranagh

Supreme Court of B. c.

llo.

s.c.c. 626 IUloops (not nported)

The accused was found in an apparent intoxicated condition in his car.
Upon demand he arrived at the breatbalyzer and when asked to blow he
requested the opportunity to phone his lawyer.
Be placed the call and
spoke to his counsel for four minutes and then ref used to give a sample
until bis lawyer arrived. This caused him to be lodged in cells one minute
later, charged with refusing. Sixteen llinutes later the lawyer arrived and
at that time the police had one hour and seven .tnutes left to take the
sample to be within the two hour time limit.

The Provincial Court Judge ruled that the accused bad a reasonable excuse
to refuse and that the accused's action did not amount to a refusal under
the Criminal Code. The Crown appealed by stated case.
The defence, of course, referred to the famous Brownridge case* where the
Supreme Court of Canada held that being deprived from retaining and
instructing counsel, creates a reasonable excuse for a suspected impaired
driver to refuse to give a sample of his breath. Even if this case was not
distinguishable from the Brownridge case the accused would not have a
reasonable excuse to refuse, said this B. C. Supreme Court Judge.
The
Supreme Court of Canada had said in Brownridge:
"I am content to say for the purposes of this
case that the accused's right under section
2(c)(U)** would have been sufficiently recognized if, having been permitted to telephone, he
had reached his counsel and had spoken with him
over the telephone.
I would not construe the
right given by section.2(c)(ii), when invoked by
an accused upon whom a demand is made under
s. 223(1) as entitling him to insist on the
personal attendance of his counsel if he can
reach him by telephone • • • "

*

Brownridge vs. The Queen (1972) 18 C.R.N.S. 308

** Bill of Rights

- 29 -

Said the B. C. Supreme Court:
"'The police do not have to wait until the lawyer
arrives at the police station at the conclusion of a
consultation between the accused and his advisor
before they can demand he give a breath sample. So
long as the accused is given access to a telephone,
the call can be made in private and he has a reasonable amount of time to give instructions and receive
advice on the telephone, that is sufficient"'.

Crown's appeal allowed
Case ref erred to Provincial Court
for continued trial.

- 30 -

DISCIPLDWlY UPllllARD Mm CIDIIIW. CllAR.GES - DOUBLE JEOPARDY

a. •· a.

2 v.v.•. f 1981) 657

An ll.C.M. Police member, in compliance with the 1..c.M.P. Act, was
investigated for mistreating a juvenile prisoner.
As a consequence he
received an '"Official Reprimand'" and was, in addition, charged with two
counts of common assault under the Criminal Code.
The reprimand was
•trictly on the facts revealed in the investigation report - there was no
plea taken or trial conducted.
The officer claimed double jeopardy when tried for the common assault
allegations. This issue ended up before the Saskatchewan Court of Appeal
which held that due to the fact that no previous trial by a Court of
competent jurisdiction was conducted and no judicial verdict rendered,
there was no previous jeopardy.

- 31 -

LEGAL TIDBITS

(Written by John M. Poetl

I.. 9. Db•el 55 C.C.C. (2d) 239 Ontario Diatrlct Court

A 15 year old male pupil refused to complete a detention assignment for
speaking in class. The teacher doubled the assignment and sent the boy to
the principal'• office. This required completing a emall form giving the
circumstances of the incident.
The pupil, reading the comments said:
'It's stupid 1 ·am not going to do tt•. The teacher grabbed the boy by the
ahirt and shook him for the purpose • • • • to shake some sense into him •
• • •.
The teacher was convicted of assault but appealed.
The district
Court Judge held that insufficient attention had been paid to s. 43 C.C.
which states that every achoo! teacher is justi11ed to use reasonable force
•by way of correction•.
The Judge acquitted the teacher commenting that
the accused had as a responsibility • ••• not only to teach that class, but
the keeping of order in that class, because without the second there can be
none of the first ••• ••

As Soon as is Practicable•
I.. 9. Carter SS

c.c.c. (2cl) 405.

B. C. f4urt of .Appeal

The accused, after striking a building with his car at 8:45 p.m., arrived
upon demand at the police station at 9:10 p.m. Two samples of breath were
taken, one at 9:37 p.m. and the other at 9:54 p.m. A County Court Judge
hearing the accused's appeal from a conviction of ·over 80" held that there
was no evidence of a blood-alcohol level as the samples were not taken •as
soon as practicable• in compliance with s. 237 (c)(ii) C.C. The Crown then
appealed the resulting acquittal to the B. C. Court of Appeal which held
that •practicable• as used in the section means, feasible, fair and
convenient and is not synonymous with •possible". The taking of the sample
•aust · be done as soon as reasonably can be expected". The few minutes it
took to prepare the breathalyzer and the 20 to 25 minutes spent observing
the accused, were reasonable. Hence the samples were taken "as soon as
practicable·.

----------

- 32 -

Interference with Person in Lawful Use of Private Property
SS c.c.c. (2d) 408.

The accused, engaged in a labour dispute with an employer who used a
certain portion of an off ice building, led demonstrators in preventing all
persons from entering the elevators to reach all offices contained in the
building. He was charged with interfering with persons in the lawful use,
enjoyment or operation of private property. The accused claimed that only
interference with owners or leaseholders would constitute the offence.
The Ontario Court of Appeal held that employees or invitees are included in
the words •any persons• in a. 387(l)(d) c.c.

Bestiality

a. v. Triller SS c.c.c. (2d) 411
The accused, while in an advanced state of intoxication tried to have
sexual intercourse with a large male dog. As a result be was tried for
"attempted bestiality" contrary to s. 155 C.C. In his defence he submitted
that the offence can only arise where the animal is of the opposite sex to
him. He also raised drunkeness as a defence. The Vancouver County Court
Judge .held that bestiality includes having an "unnatural connection with a
beast" regardless of the sex of the animal.
Furthermore, bestiality is an offence requiring general rather than specific intent. Therefore, drunkenness was not a defence.

Sawcbya •· R. [1981) 5V.V.R. 207
The accused testified that when be was questioned by police regarding a
rape, be believed that if he gave a statement it would expedite bis
release. No one had done anything to make him believe that and the accused
admitted that this conclusion was arrived at by his own reasoning process.
However, he argued that since he did believe so, his statement to police
was misleading and full of untrue details and ahould therefore not be
relied upon to prove any facts.

As •nothing said .or done by the police officers came near to offending the
test for admissibility• the statement was admissible in evidence said the
Alberta Court of Appeal.

R. •· McAvoy 60 c.c.c. (2d) 95
The accused, a taxi driver, drove an unidentified passenger to a department
store and waited while he entered the store. Moments later the passenger
returned carrying merchandise and being pursued by two store personnel.
The accused drove off with the wanted man who was never identified. The
accused was charged as an accessory after the fact and was acquitted in
Provincial Court because the principal had to be convicted first according
to the trial Judge.

Not so, said the Ontario Court of Appeal. They held that the words of
Section 521C.C. are plain and clear. It stipulates that an accessory after
the fact to any offence may be indicted whether or not the principal or
other party to the offence was indicted or convicted.

- 34 -

Transcript of a Sentencing Procedure

JUDGE:

Bow did you ever allow yourself to become ao intensely intoxicated?

ACCUSED:

I got into the wrong company Your Honor. There were four of us.
I bad a bottle of whisky and the other three don't touch the
stuff.

58 c.c.c. (Zd) 385.

ll •• Downey.

Alberta

Queen'• Bench

In 1974* a man offered police to give them a sample of blood when he was
demanded, but refused to give a sample of breath.
He was convicted of
refusing to give a sample of breath, as his alternative offer did not
amount to a reasonable excuse.
Five years later a suspected impaired
driver made an identical offer in response to the demand for a breath
sample.
Quite distinct from the first case, the constable accepted the
offer and made arrangements for a doctor to take the sample.
The accused was charged with "refusal·. A Justice of the Queen's Bench in
Alberta held that the acceptance of the ~f fer by the accused indicated that
police considered the blood sample a substitution for the sample of
breath. The accused had therefore a reasonable excuse to refuse to comply

* R v. Wall 19 C.C.C. (2d) 146

- 35 -

la a Ee7 a Bouse Breaking Tool!

a. C. Court of Appeal PebruarJ 1981 58 c.c.c. (Id) 251
A university •tudent 9 as a member of the ••tunt committee• was in posses-

•ion of aaster keys giving access to various buildings and offices.
To accomnodate some pranks. the accused used one of the keys and was caught
inside the offices of a rival faculty. Be was acquitted of breaking and
entering and of possessing of a house breaking instruments• to wit the
11aster keys. The Crown appealed the verdict on the possession charge. The
B. C. Court of Appeal ordered a new trial holding that there was no doubt
that the keys were instruments capable of being used for house breaking in
the •ense of being used to gain entry into a house by an unauthorized
per•on.

•&oiay Part7•
Alberta Court of Queeu'a Bench S8 c.c.c. (2d) 215
Miss A.'a house party was ~a thumping success and enjoyed by all except the
neighbours'". Police arrived and requested the noise be kept down; their
departure caused an increased output of decibels.
Police returned and
issued Hiss A. a summons to appear in Court for an alleged violation of a
noise by-law. Hiss A. raised objection by coyfully saying: '"There's no
fucking way I'm going to Court". In regards to the "'Sound of Music" she
shyfully added:
"'There is no fucking way I'm going to keep the noise
down'". She then daintily crumpled up the sumnons. This resulted in the
lady being arrested for obstructing a police officer in the lawful perf ormance of his duty. She was convicted and appealed to the Alberta Queen's
Bench.
The Crown relied on the officer's duty to preserve the. peace to show that

was in the performance of his duty when the summons he issued was destroyed and Miss A. refused to turn down the noise (or music as it is
referred to by some). The Justice held that the officer's preservation of
peace is maintaining an absence of· •individual or public alarm and excitement•. Mere annoyance or insult to an individual (stopping short of actual
pera~nal violence) is not a breach of the peace.
·
he

The of fence under the by-law were not likely capable of elevating the incident in •a statutory offence·~ Although at a loss what the constable could
have done in the circumstances to stop the nuisance, the question was
whether or not a crime was committed by creating the nuisance. Appeal was
allowed and Miss A. vas acquitted.

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;

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- 36 -

Supreme Court of I. C. Bo. 81/932 Victoria bgi•trJ (not a=ported)
An information alleged that the accused committed theft of •a steel equip-

ment box from Crown Zellerbach's Nitinat site, of a value not exceeding
$200". A Provincial Court Judge quashed the information, ruling it invalid
as it failed to identify the owner of the property stolen.
The Crown
appealed by way of stated case. The Supreme Court held:
•1n this case I am satisfied that the information provided sufficient information to permit
identification of the substance of the charge
and the circumstances of the transaction out of
which it arose".

The Court was persuaded of the above by a. S12(b) c.c. (made applicable to
summary conviction offences by s. 729 C.C.) which says that no indictment
is insufficient by reason only that it does not name the owner of property
mentioned in a count.
Court validated the information
and
ref erred
it
to
the
Provincial Court for further
proceedings.

Regina and Tatebaa Bo. Cr. 2419 Raoaim> Registry (not i:eported)
County Court of Vancouver Island
In May 1981, the accused was charged with the theft and the possession of a
stolen car. He pleaded not guilty and the trial commenced. When the trial
Judge would not allow the Crown to read into evidence the testimony of an
absent witness, it (the Crown) stayed proceedings. In September 1981 the
Crown proceeded with identical charges and the accused claimed to have been
doubly jeopardized by pleading autrefois acquit.
When a trial ends due to the Crown staying proceedings, it does not mean
that the accused is doubly jeopardized when the charges are proceeded with
again. Before one becomes eligible to the protection of double jeopardy by
means of this plea, the Court aust have rendered a verdict in the previous
proceedings. When the Crown exercises its right to stay proceedings, the
Court has no right to interfere and is not required to do anything.
Plea was not allowed.