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POLICE ACADEMY 715 McBride Blvd. New Westminster B.C. V3L 5T4 IN SERVICE:10-8 A PEER READ PUBLICATION

A newsletter devoted to operational police officers across British Columbia.

IN MEMORIAL On November 26, 2004, 49 year-old Ontario On November 13, 2004, Provincial Police Constable Michael John Siydock 39 year-old RCMP suffered a fatal heart attack while investigating Auxiliary Constable Glen a motor vehicle accident on Highway 401, near Evely was killed when his Milton, Ontario. Other officers and medical patrol car was struck by a personnel at the scene immediately began CPR. stolen pickup truck He was then transported to a local hospital following a police pursuit where he was pronounced dead.

in Vernon, British Constable Siydock had served Columbia. Other officers had initiated the with the Ontario Provincial pursuit at approximately 0215 hours after Police for 7 years and had receiving reports of a drunk driver. When they previously served as a located the vehicle they determined that it had conservation officer been stolen the night before. When the officers attempted to stop the truck the driver sped The preceding information was provided with the away. The pursuing officers broke off the chase permission of the Officer Down Memorial Page: shortly after it began as a result of the available at www.odmp.org/Canada suspect's reckless driving.

Even though the chase had been terminated the SEASON’S GREETINGS

driver continued to flee. At the intersection of The staff at the Police 29th Street and 30th Avenue, in Vernon, the Academy would like to wish driver ran a red light and struck the patrol car our “In-Service:10-8” Auxiliary Constable Evely was riding in. Auxiliary readers and their families all Constable Evely was pronounced dead at the the best for this holiday scene. His partner was transported to a local season. Once again, it has been a pleasure hospital in serious condition. Both suspects in serving British Columbia’s police officers, and the stolen vehicle were also taken into custody. our other readers across Canada, by bringing Auxiliary Constable Evely and his partner were them up-to-date on many of the issues facing aware of the earlier pursuit but had not been them daily as they go about protecting and involved with it and were not attempting to serving the citizens of their communities. May locate the vehicle at the time the incident you have a safe and blessed Christmas and all occurred. the best in 2005. Remember, In God we trust…all others we run on CPIC! Auxiliary Constable Evely had served with the RCMP for 2 Note-able Quote years. He is survived by his wife and two children. Only a fool would risk their life without a reason—the Lone Ranger Volume 4 Issue 6 November/December 2004

HIGHLIGHTS IN THIS ISSUE FINDING FUN IN FITNESS Pg. Sgt. Kelly Keith, JIBC Search Warrant Provision Adequate 3 Safeguard for Physio Records There is always controversy on stretching and its benefits—when it is most appropriate and Family-Visit Unit a ‘Cell’ for Prisoner Search 5 how long to hold stretches for.

Intent to Drive Relevant, but not Sole Factor 7 Here's a re-cap of the most recent studies: in Care & Control 1. Stretching should be No-Knock Entry Violates Charter 9 individualized according to Request for ID not a Detention 9 the individual athlete and their needs; Robbery Test Partly Subjective & Objective 12

Whole Picture Must be Considered for 13 2. For most benefit hold the stretch for a minimum 15 seconds; Search Warrant

BC Police Honoured 14 3. Stretching is most beneficial at the end of your work-out; Bar ID Check for Warrants Unconstitutional 18 4. There are no studies to indicate that 9-1-1 Entry Logical & Lawful 18 stretching will reduce injuries; Hunch Insufficient for Investigative Detention 21 5. Active warm-ups reduce injuries; and Fraser Valley Law Enforcement Conference 24 Unless otherwise noted, all articles are authored by 6. Stretching and range of motion for an Sgt. Mike Novakowski, MA (Abbotsford Police). The athlete can and usually will increase performance. articles contained herein are provided for information purposes only and are not to be construed as legal or Stretching routines should be designed to other professional advice. The opinions expressed are achieve one of four things: not necessarily the opinions of the Justice Institute of British Columbia. “In Service: 10-8” welcomes your 1. maintain or improve range of motion; comments on or contributions to this newsletter. If you 2. be free of pain; would like to be added to our electronic distribution list 3. recover from injuries that restrict e-mail Mike Novakowski at [email protected] flexibility; and National Library of Canada Cataloguing in 4. achieve sport-specific goals. Publication Data A good stretch is defined as "when you can Main entry under title: perform a stretch but it doesn't hurt." In service:10-8. -- Vol. 1, no. 1 (June 2001)- Monthly. Don't forget—if you are lifting Title from caption. weights—the negative portion of "A newsletter devoted to operational police officers across British Columbia." the exercise is often more vital ISSN 1705-5717 = In service, 10-8 than the positive part. Try to spend twice as much time 1. Police - British Columbia - Periodicals. 2. Police – lowering the weight as you did Legal status, laws, etc. – Canada – Cases – Periodicals. lifting it! I. Justice Institute of British Columbia. Police Academy. II. Title: In service, 10-8. III. Title: In service, ten - eight. ABS: If you are bracing your feet IN or UNDER anything at the same time you are working your 2 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

abdominal muscles, you are losing a large portion control is whether the accused engaged in “acts of the benefit and working which involve some use of the car or its fittings other muscles. If you like the and equipment, or some course of conduct AB rollers, think about how associated with the vehicle which would involve a you are moving your upper risk of putting the vehicle in motion so that it body to the curl. Most people could become dangerous.” The unanimous Ontario use their LATS to do this Court of Appeal allowed the appeal, set aside the movement on AB rollers and conviction, and ordered a new trial. thus are not working their In the justices’ view, there was no risk of danger ABS by opening the passenger door and placing a

package inside the car just before his arrest. ORIGINAL CARE & CONTROL The judge failed to analyze or address what may BROKEN, BUT NEVER have happened, based on the accused’s earlier REASSERTED course of conduct, if he was not arrested. Since the trial judge had earlier found a break in care R. v. Pike, and control, there was no indication that the (2004) Docket: C40852 (OntCA) accused intended to resume driving by simply

opening the door and placing the package inside. The police located the accused’s car parked at a liquor store Complete case available at www.ontariocourts.on.ca after a carwash attendant reported its driver appeared SEARCH WARRANT PROVISION impaired. The officer saw the accused approach the car—with keys in hand—open the passenger ADEQUATE SAFEGUARD FOR side door and place a bag of liquor inside the car. PHYSIO RECORDS The officer then approached the accused and R. v. Serendip Physiotherapy Clinic et al, asked him whether he had been drinking. He (2004) Docket:C40275 (OntCA) denied drinking that day, but said he had been drinking the evening before. A roadside The police, investigating screening test was administered and the accused fraudulent and exaggerated failed. He was then arrested and provided claims and payments on motor samples over the legal limit. vehicle accident victims, executed a search warrant for patient At trial in the Ontario Court of Justice, the information at a physiotherapy clinic. The judge found that when the accused parked his warrant, issued by a justice of the peace, was vehicle and left it to go into the liquor store, quashed by the Ontario Superior Court of care and control had been broken. However, in Justice because no special post-seizure the judge’s view, care and control had been conditions were imposed to protect the medical reasserted when he returned, keys in hand, records. In Justice Ferguson’s view, since there opened the door, and placed the bag inside. The was a concern about the privacy of health accused was convicted with care and control over records, the patient records must be 80mg%. immediately sealed, notice must be given to all

The accused appealed to the Ontario Court of affected parties, and a hearing should be held to Appeal, arguing the trial judge erred in holding determine if the seized records should be that the accused had care and control. Short of disclosed to the police. Since these rigid actual driving, the relevant test for care and Volume 4 Issue 6 www.jibc.bc.ca 3 November/December 2004

conditions were not followed, the issuing judge that a properly issued search warrant, meaning did not have jurisdiction to issue the warrant. a search warrant that was obtained in accordance with the requirements set out in On appeal by Crown, the Ontario Court Appeal s.487, authorizes an unreasonable search and ruled that the Ontario Superior Court of Justice seizure. erred. Unlike search warrants of law offices, It follows that the requirements of media outlets, or psychiatric treatment records, s.487(1)(b), in particular the requirement that no special requirements are necessary for the officer provide information under oath of physiotherapy records. Section 487 of the reasonable grounds to believe that the records Criminal Code appropriately balances the state’s sought “will” afford evidence with respect to interest in law enforcement with the privacy the commission of an offence, strikes the interest and confidentiality of patient health proper balance even where the target of the records. As Justice Rosenberg of the Ontario search is the seizure of health records. By its Court of Appeal noted: terms, s.487 precludes granting of a search warrant for the purposes of a fishing The question…is whether the statutory expedition or on the basis of mere suspicion. conditions in s.487 of the Criminal Code strike Thus, where, as here, it is conceded that the the proper balance between the state interest medical records are not protected by privilege, in law enforcement and the public and the only mandatory pre-requisites to the individual interest in protecting the granting of the search warrant are those set confidentiality of health records. In my view, out in that section. In the absence of a with the possible exception of psychiatric Constitutional challenge to the validity of records, the section does strike the proper s.487, I can see no principled basis for drawing balance. In the absence of a direct attack on a line around the types of records seized in the constitutionality of s.487, that section this case and exempting them from the s.487 must be taken as meeting the requirements of regime and I can find no legal basis for the Constitution, including the privacy engrafting common law requirements on to a protections contained in ss. 7 and 8 of the comprehensive statutory scheme.[paras. 34- Charter. The section is designed to mediate 35] between the state interest in the investigation and the public and individual interest in However, an issuing justice retains the documents and other materials in which there discretion to refuse issuing a warrant even is a reasonable expectation of privacy. As a where the minimum requirements of s.487 are result of s.487, Parliament has permitted a met. Moreover, they may impose conditions on judicial officer to authorize all manner of the search and seizure of records containing serious intrusions into the privacy of private medical information, such as mental individuals. If the requirements of s.487 are health information, but the failure to include met, the police can enter a private home and post seizure conditions in every medical record seize the most intimate of records such as warrant does not affect the jurisdiction of the diaries and personal papers. The Criminal Code does not mandate a further post-seizure issuing justice of the peace. The appeal was process other than the procedures in s.489.1 dismissed.

dealing with the return of seized property. Complete case available at www.ontariocourts.on.ca Using s.487, the police can obtain financial and other records from third parties, material about the individual’s lifestyle, intimate Note-able Quote

relationships and even personal opinions. They When we judge or criticize another person, it can gain access to a core of biographical and says nothing about that person; it merely says other information that is protected by s.8 of the Charter. But, it has never been suggested something about our own need to be critical— Anonymous 4 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

FAMILY-VISIT UNIT A ‘CELL’ In rejecting the accused’s submission that the family visiting unit requires a warrant to search FOR PRISONER SEARCH it, Justice Rosenberg, for the unanimous appeal R. v. Major & McBride, court stated: (2004) Docket:C39019 & C39286 (OntCA) In my view, when these provisions are looked The wife of a federal inmate at as a whole, Parliament's intention is attended an institution with her relatively clear. In view of the reduced expectation of privacy in the prison setting, 6 year-old daughter for a Parliament intended to give the Correctional weekend visit in a family-visit Service power to conduct warrantless trailer. The institution’s preventative security searches throughout the penitentiary. That officer had earlier received information that the power extends to all persons within the inmate’s wife would be bringing some marihuana penitentiary including inmates, visitors and and heroin into the penitentiary during this visit. staff, and even reaches out into the Both the inmate and his wife were arrested and community to a room in a community-based the trailer was searched, without a warrant, by residential facility that is occupied by an correctional staff and police officers. The offender on parole or other temporary release. If the accused are correct, the one inmate’s wife led the officers to a rear bedroom search that must be conducted in a where marihuana and heroin were found and she penitentiary with a warrant is the search of admitted to bringing the drugs into the the family-visiting unit. It seems unlikely that institution. Both the inmate and his wife were Parliament intended such a result, given the convicted in the Ontario Superior Court of broad warrantless-search provisions in respect Justice for possession of heroin and marihuana of both other parts of the penitentiary and all for the purpose of trafficking, but appealed to persons within the penitentiary, which the Ontario Court of Appeal arguing, in part, provisions authorize quite intrusive types of that the warrantless search was unreasonable searches. [para. 35] under s.8 of the Charter and that the evidence Furthermore, although the word “cell” is not should be excluded under s.24(2). defined in the legislation, a living unit on

Section 8 of the Charter is only engaged if a penitentiary grounds still falls within the person can demonstrate they have a reasonable meaning of that term. Justice Rosenberg noted: expectation of privacy. In this case, both I am, of course, somewhat uncomfortable with accused had standing to argue s.8 violations the idea that in this case [the inmate’s] wife because they had a reasonable expectation of and six-year old daughter were sharing his privacy in the trailer—a place the Correctional "cell". However, the family-visiting unit retains Service promised a reasonable amount of some of the attributes of a traditional cell. privacy—although the expectation is much The unit is surrounded by wire fences and steps are taken to limit communication diminished. Section 58 of the Corrections and between people in the various trailers. The Conditional Release Act allows a staff member to family is escorted to the trailer and locked “conduct searches of cells and their behind a 10-15 foot gate. The units are contents…for security purposes,” while s.52 of monitored on a regular basis and the occupants the Corrections and Conditional Release must present themselves to correctional Regulations authorizes the search of individual authorities on request. The unit becomes the cells with prior authorization of a supervisor if inmate's living quarters where he is confined there are reasonable grounds it contains for the length of the visit. There are contraband or evidence. extensive rules about items that may not be taken into the trailer, including such routine

Volume 4 Issue 6 www.jibc.bc.ca 5 November/December 2004

items as alarm clocks and radios. Even At trial in provincial court, the judge concluded children's toys may not be brought in except that the indicia reported by the officer—taken with the authorization of the institutional together—provided reasonable and probable staff. [para. 37 grounds and the breathalyzer tests were Admissibility of Evidence admitted. The accused was convicted of over 80mg%. On appeal, the accused’s conviction was Even if there was a s.8 Charter breach, the set aside and an acquittal was entered. The evidence would not be excluded, ruled the summary conviction appeal court found the Ontario Court of Appeal. Although there was an indicia—neither individually nor collectively—was intrusion into the living space of the accused and equivocal and did not provide reasonable and their daughter without exigent circumstances, probable grounds. The Crown appealed to the the admission of the evidence would not affect Nova Scotia Court of Appeal contending the the fairness of the trial and the officers acted appeal court judge erred in law in reversing the in good faith. They sought out legal advice prior trial judge’ finding. to the search, complied with the provisions of the Act and Regulations, and had reasonable Justice Chipman, authoring the unanimous grounds for the search. Furthermore there was judgment, held the trial judge’s finding on the a greatly reduced expectation of privacy making existence of reasonable and probable grounds the violation not serious. As for the effect of appropriate and supported by the evidence. He admission on the administration of justice, the stated: offence was serious and the drugs were essential As to the subjective component of reasonable to the prosecution. The exclusion of evidence, and probable grounds, [the constable] rather than its admission, would have a more testified as to his honest belief, saying that serious impact on the repute of the he arrested the [accused] for "impaired administration of justice. The appeal was driving and over 80" and that the [accused] dismissed. was, in his opinion, impaired by alcohol. This was not challenged. Complete case available at www.ontariocourts.on.ca As to the objective components, I am satisfied

that the appeal court judge erred in assessing IMPAIRED REASONABLE the various indicia on which the constable GROUNDS MUST BE VIEWED formed his belief in isolation, rejecting each on the grounds of consistency with other IN TOTAL explanations. The indicia must be evaluated in R. v. Andrea, 2004 NSCA 130 total… Specifically the appeal court judge reviewed the [accused’s] submissions that each After following a speeding vehicle of these indicia were equivocal or consistent which ran two flashing red lights, with the behaviour of a driver who was not a police officer activated his impaired. Although acknowledging that the emergency lights, but it took five circumstances must be taken together, in effect he weighed them separately, and blocks for the accused to react and stop. The concluded that the totality of the evidence did accused had a light smell of alcohol on his not overcome the equivocal nature of the breath, glassy eyes with enlarged pupils, thick parts. In doing so he also omitted reference to tongued speech, and fumbled with his papers. the [accused’s] failure to respond to the The officer formed the opinion the accused was flashing lights of the following police car while impaired by alcohol and arrested him. A breath driving five city blocks. demand was made and two breath samples over the legal limit were obtained. 6 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

The trial judge's conclusion that the officer dismissed and his conviction was affirmed. He had reasonable and probable grounds was further appealed to the Newfoundland and reached on the basis of the [accused] speeding Labrador Court of Appeal arguing he did not have on a major artery in Halifax at about 2:00 a.m. care and control of his vehicle because he had no in the morning; (when traffic was light), failing intent to drive, but rather intended to take a to stop as required at two flashing red lights, being oblivious to the flashing lights of the taxi home and retrieve his truck the next following police car for five blocks; upon being morning. Justice Welsh, for the unanimous court, approached by the police officer, finishing his dismissed the appeal. While intention to drive is french fries before speaking to the officer, a relevant factor in assessing care and control, it exhibiting a light odour of alcohol on his is not the sole determining factor. Instead, the breath, fumbling for his papers, having circumstances as a whole must be considered. In "glossy" eyes, large pupils and thick tongued this case, it was not sufficient merely for the speech. The trial judge's conclusion was not accused to say that he did not intend to drive his unreasonable. [references omitted, paras. 18- vehicle. The court stated: 20]

[T]he vehicle was running and all that was The conviction was restored. necessary to set it in motion was to depress Complete case available at www.canlii.org the brake and put it in gear. Further, [the accused] was not attempting to sleep in the INTENT TO DRIVE RELEVANT, vehicle. Rather, accompanied by a friend in the vehicle, he was sitting in the driver’s seat BUT NOT SOLE FACTOR IN smoking marihuana, an activity that would only increase his impairment. [para. 9] CARE & CONTROL R. v. Mercer, 2004 NLCA 65 The conviction was affirmed.

Complete case available at www.canlii.org After driving to a lounge, the

accused parked his pickup truck and entered to play pool and IMPAIRED INDICIA MUST BE consume alcohol over several ASSESSED COLECTIVELY hours. After midnight, he and a R. v. Kuss, 2004 BCSC 1529 friend went outside to the pickup to smoke a Responding to a report of a marihuana cigarette. The accused occupied the possible impairer in a pick-up driver’s seat and started the vehicle, apparently truck dragging a dog, a police to generate some heat while they smoked the officer located the vehicle and marihuana. A police officer arrived, found the spoke to the accused seated accused in the driver’s seat with his back behind the wheel with the engine running. Beside partially against the driver’s side window, motor him was a dog with bloodied paws. The officer running, and window partly lowered. The officer noted a very strong smell of liquor, bloodshot observed indicia of impairment and read a eyes, slurred speech, and fumbling with his demand for breath samples. Two samples of wallet. As well, the accused admitted to having a 150mg% were subsequently provided and the “couple” or “a few” drinks. The officer made a accused was convicted in the Provincial Court of breath demand and the accused was convicted in Newfoundland and Labrador of care and control British Columbia Provincial Court of over 80mg%. with a blood alcohol level over 80mg%, despite However, the accused appealed to the Supreme testifying he had no intention to drive. Court of British Columbia arguing the trial judge The accused’s appeal to the Newfoundland and erred in holding that the officer had the Labrador Supreme Court Trial Division was requisite objective grounds for the demand. Volume 4 Issue 6 www.jibc.bc.ca 7 November/December 2004

In dismissing the appeal, Justice Bernard ruled While in detention the accused asked for the that the trial judge had a sufficient evidentiary psychologist and told her he had difficulty foundation for concluding that the officer had controlling his intense paedophilia feelings. The reasonable and probable grounds to demand the psychologist, in turn, advised police. Later, the breath samples. He stated: psychologist told the accused she had spoken to

It is well established that the indicia of the police however, he again repeated what he impairment need only give rise to a credibly- had told her earlier. He also made some based likelihood of impairment, and that the incriminating remarks to the psychologist. These indicia must be assessed collectively. Whether statements and other evidence were sufficient there is a credibly-based likelihood of to convict the accused of first degree murder in impairment is a finding of fact, and deference the Alberta Court of Queen’s Bench. for such a finding ought to be given to the trial judge. [para. 5] The accused appealed to the Alberta Court of

Appeal arguing, in part, that the trial judge In this case, the finding of the trial judge was erred in admitting the statements made to the well supported. psychologist. He contended that the statements Complete case available at www.courts.gov.bc.ca were obtained contrary to s.7 of the Charter. In his view, the psychologist was acting as an agent PSYCHOLOGIST NOT AGENT of the state and therefore his right to silence had been breached. WHILE SPEAKING TO PAEDOPHILE Justice Fruman, authoring the court’s R. v. Gallup, 2004 ABCA 322 judgement, concluded the psychologist would have visited the accused in the hospital had the The naked body of a missing 5 police not intervened. She, upon hearing the year old girl was found in a accused was in hospital, expressed an interest in brush pile. She had died from seeing him to inform him that his primary asphyxia, but there was no counsellor had been in an accident and was evidence to identify a killer. unavailable. She alone made the decision to visit About a week later the accused, who knew the the accused and no police officer attempted to victim and had been seen talking to her the day contact her after she left the police station. she went missing, was arrested for car prowling. She then contacted the police because she felt He had a suicide note in his pocket—expressing she had a professional ethical obligation to do so. self loathing for paedophilic urges—and an She was then asked by police to tell the accused, extension cord around his neck. He was detained and did convey the information at her next visit, in a psychiatric unit under Alberta’s Health Act. that she may be compellable as a witness and

that he did not have to talk to her. One of the police investigators asked a psychologist for general advice about The psychologist visited the accused on her own interviewing paedophiles and told her the and was neither instructed to nor manipulated accused was on suicide watch in the hospital. The into doing so by the police. The psychologist was psychologist knew the accused and worked with a acting independently and the police did not trick, colleague who had previously counselled him. The coerce, or force the psychologist to cooperate. psychologist went to the hospital and advised The appeal was dismissed. the accused that his therapist had been in an Complete case available at www.albertacourts.ab.ca accident and that he could contact her instead.

8 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

NO-KNOCK ENTRY VIOLATES REQUEST FOR ID NOT A CHARTER DETENTION R. v. Ngo & Ngo, 2004 BCSC 1414 R. v. Nguyen, 2004 BCCA 546

The police obtained a search While arriving at a home to warrant to search the accused’s execute a search warrant for residence for marihuana. When electricity theft, the police saw they executed the warrant, a van parked directly in front of they did not knock and the house. This vehicle was registered to a announce their presence. Rather, they checked person wanted on an outstanding warrant for the door to see if it was locked and used a possession of marihuana for the purpose of battering ram to break it down, entering with trafficking. The residence was entered and their guns drawn and yelling “police”. During a police found a marihuana grow operation in the voire dire to determine the admissibility of basement that could be accessed through a evidence, the accused argued that the search locked door. A key for the door was found inside, was unreasonably carried out because of the but no one was home. absence of an announcement, thus violating s. 8 One of the officers exited the house to get of the Charter. As a result, they submitted the something from his vehicle when he saw a evidence should be excluded under s.24(2). Vietnamese male coming from the back yard The police stated they used the no knock between the residence and a neighbouring house. procedure because it offered surprise and The officer said “police” and the man responded addressed safety concerns. However, British he was there to visit a friend. After being asked Columbia Supreme Court Justice Stromberg- to produce identification, the man provided a Stein found this method unnecessary based on driver’s licence in the name of the van’s the circumstances. In her view, entering registered owner. simultaneously with announcement or waiting a The accused was arrested on the outstanding split second before forcing entry is not knock warrant and Chartered. He was then searched and announce, but rather knock and crash in. and police found a keys that opened the van and In this case she held that there were no safety the unlocked door to the residence. At trial in issues, since the main investigator indicated that British Columbia Provincial Court, the keys were prior to the search a briefing was held to discuss admitted as evidence and the accused was officer safety concerns, but there were none. convicted of unlawfully producing marihuana and There was no evidence the police made any theft of electricity. He appealed to the British inquiries about the premises that would have led Columbia Court of Appeal arguing, in part, that them to believe there was a danger if they did the evidence was obtained through an arbitrary not announce there presence. Neither police detention contrary to s.9 and an unreasonable policy nor police practice is sufficient, by itself, search and seizure contrary to s.8 of the to waive the knock and announce rule. The Charter and that it should be ruled inadmissible evidence was excluded and the charges of under s.24(2). marihuana production and possession for the Citing the recent Supreme Court of Canada purpose of trafficking were dismissed. decision R. v. Mann, 2004 SCC 52, Justice Complete case available at www.courts.gov.bc.ca Saunders for the unanimous court noted that “the police cannot be said to ‘detain’, within the meaning of ss.9 and 10 of the Charter, every Volume 4 Issue 6 www.jibc.bc.ca 9 November/December 2004

suspect they stop for the purposes of GLOBAL SIX YEAR SENTENCE identification, or even interview” and the rights recognized by those sections are not engaged if FIT FOR TWO OVER 80mg% there is “no significant physical or psychological CHARGES restraint”. Justice Saunders stated: R. v. Newhouse, 2004 BCCA 569

The exchange which led to the identification The accused, a 61 year old man, being provided was brief. It occurred at a pled guilty to two charges of crime scene. [The accused] was on the property, having come from the rear. driving with a blood alcohol Whether the [accused] was a suspect or a content over 80mg% that witness, or neither, a reasonable person in occurred approximately three possession of the information [the officer] months apart. In neither of these incidents was had would expect a police officer to ask him anyone injured nor was there property damage. whom he was and what he was doing on the As well, he pled guilty to one count of prohibited premises. [para. 16] driving under British Columbia’s Motor Vehicle

Thus, there was no detention at the time of the Act and one count of driving while disqualified identification request and therefore an enquiry under the Criminal Code. He was sentenced to into whether s.9 or s.10 had been violated at three years on each over 80mg% charge, to be that moment did not arise. served consecutively, and given a $300 fine and 7 days in jail on the Motor Vehicle Act With respect to whether the identification prohibition and a lifetime driving prohibition and request was a breach of s.8, Justice Saunders one year concurrent sentence on the Criminal held: Code disqualification charge.

Counsel for [the accused] also complained that At sentencing, the judge inferred the accused the request for identification, and [the was an alcoholic because he admitted it to police accused’s] provision of it by way of a driver's and had 17 prior convictions for either impaired licence, was a breach of s. 8 of the Charter. driving or driving with a blood alcohol content That is, he contends that there was some improper constraint upon [the accused] which over 80mg%. However, the judge said he was not resulted in him identifying himself by name and punishing him for being an alcoholic, but rather birthdate, by producing a driver's licence. I for his arrogance and “the selfishness of do not agree. For the reasons expressed constantly getting drunk and driving and above, in the circumstances [the detective’s] exposing the public to risk.” Furthermore, the request of [the accused] that he identify accused’s refusal to follow court orders and the himself, and his review of the driver's license fact he was on bail during the second impaired produced, was not a Charter violation. That charge, provided aggravating circumstances information, in my view, was not obtained warranting public protection. through a Charter breach. [para. 18]

The accused appealed his sentence arguing that As for the search following arrest, it was proper a six year sentence was too long and that a three as an incident thereto. The accused had been year sentence could adequately address the lawfully arrested once he was identified as the sentencing objectives. As the accused pointed person wanted on the warrant. The keys were out, he had been conviction free from 1986 to discovered during that lawful search and it was 1995, with his last conviction in 1998. However, not unreasonable. The appeal was dismissed. the British Columbia Court of Appeal disagreed, Complete case available at www.courts.gov.bc.ca stating:

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No error in principle was suggested that could The accused appealed, arguing that his sentence give rise to a reconsideration of the should be reduced because the sentencing judge appropriate sentence for the [accused]. The placed to much emphasis on the length of his individual sentence for each of the offences criminal record that contained only three dated was within the appropriate range for like impaired driving convictions, the most recent of offences for offenders, even offenders with less serious records. Moreover, the totality of which was 10 years old. Moreover, he submitted the sentence was fit, including as it did a that his voluntary payment of $2,700 to repair lifetime prohibition on driving. The trial judge the property damage was enough of a penalty to was right in this case to consider the primary satisfy sentencing principles, including general need to protect the public. The protection of and specific deterrence as well as denunciation. the public from this [accused’s] driving demanded the sentence the trial judge gave. In rejecting the accused appeal for leniency, the [para. 10] British Columbia Court of Appeal held that the sentencing judge did not err in imposing the nine The appeal against the length of sentence was month sentence. The judge neither erred in dismissed. principle nor overlooked nor overemphasized any Complete case available at www.courts.gov.bc.ca relevant sentencing factor. In dismissing the appeal on behalf of the unanimous court, Justice Rowles stated: 24 HOUR PROHIBITION CONSIDERED IN IMPAIRED In March 2002, he received a 24-hour driving prohibition under s. 215 of the Motor Vehicle SENTENCING Act. That section does not create an offence; R. v. Longul, 2004 BCCA 562 rather, it provides that a peace officer may, if the peace officer has reasonable and probable The accused pled guilty to grounds to believe that a driver's ability to impaired driving after driving his drive a motor vehicle is affected by alcohol or vehicle into a chain link fence at a drug, serve the driver with a notice of a 24- a ball park where a game was in hour driving prohibition. While the s. 215 progress. Two breathalyzer tests subsequently prohibition cannot be treated as having the same force as a conviction for impaired obtained showed readings of 200mg%. The driving, it seems to me that such a prohibition, accused had 38 separate convictions on his particularly when taken together with [the criminal record between 1986 and 2000, three accused’s] record for related offences and the of which were for impaired driving, one for circumstances of the offence for which he was driving over 80mg%, eight for driving while being sentenced, undermines any suggestion prohibited or disqualified and five for failure to that the offence for which he was being attend court. As well, his driving record showed sentenced ought to be treated as an six Motor Vehicle Act offences for driving while unfortunate lapse or an isolated event. Given his prior record for drinking-driving offences, prohibited or suspended and one for no it would be reasonable for the trial judge to insurance. His most recent driving record entry have inferred that [the accused] had failed to was a 24-hour driving prohibition under s.215 of recognize the serious dangers and the Motor Vehicle Act. The sentencing judge consequences that can result from drinking rejected the accused’s call for a suspended or and driving and that both specific and general conditional sentence, instead sentencing him to deterrence, as well as denunciation, had to be nine months in jail and a two year driving given considerable weight in sentencing in this prohibition. case. [para. 14]

Complete case available at www.courts.gov.bc.ca

Volume 4 Issue 6 www.jibc.bc.ca 11 November/December 2004

ROBBERY TEST PARTLY The “uses violence or threats of violence” characterization of robbery under s.343(a) is SUBJECTIVE & OBJECTIVE usually applied to robberies not involving weapons R. v. Bourassa, 2004 NSCA 127 or imitations, or personal violence. In deciding whether a robber’s conduct amounted to using The accused was charged with threats of violence, a partly subjective and robbery under s.344 of the partly objective test may be used. In holding Criminal Code after he that the trial judge correctly concluded that a approached a bank teller’s robbery occurred in this case, Justice Saunders wicket wearing a hooded jacket, wrote: put on sunglasses, and pulled out a note. He told her that he wanted large bills while keeping one [The teller] said she was frightened and angry hand in his pocket at all times. The teller, who to find herself again the victim of a bank had been robbed before, froze and did not hand robbery. Such evidence was clearly subjective, over the money. The accused then crossed the but was certainly relevant to the determination of whether she felt threatened wicket, reached into the till, and grabbed the by the conduct and whether such fear was bills before leaving the bank. Although she did reasonable under the circumstances. To not actually see a weapon, the teller assumed the simply isolate one or two actions of the thief accused was holding one in his pocket. The as the appellant suggests, presents a distorted accused was convicted in Nova Scotia Supreme view. The better approach is to examine the Court, but appealed to the Nova Scotia Court of entire sequence of events through the eyes of Appeal arguing, in part, that the trial judge a reasonable observer who happened upon the erred in determining whether a robbery or scene. When assessing, objectively, whether simply a theft had occurred. such fear was reasonable, many features of the incident would be especially persuasive, for Section 343 of the Criminal Code defines example: the individual had the hood of his robbery in several ways, including when a person jacket up over his head as he approached the “uses violence or threats of violence to a person wicket; then after putting his sunglasses on, and keeping his right hand in his pocket, or property” while they steal (s.343(a)). Steal is passed the teller a note, and by some gesture defined in s.2 of the Criminal Code as committing and grunting sounds made it clear that he “theft”. In examining the difference between wanted the large bills. When the teller froze theft and robbery, Justice Saunders, for the and was unable to react, he reached across the unanimous appeal court, stated: till, grabbed the money and fled. [para 15]

"Theft" is defined generally in s. 322. Also The appeal was dismissed.

relevant in this case is s. 588 which concerns Complete case available at www.canlii.org the ownership of property, here the financial

institution's money. From these definitions and the jurisprudence which has considered them, 11 HOUR DETENTION OF one sees that in simplistic terms the difference between "robbery" and "theft" is IMPAIRED DRIVER ARBITRARY that robbery is committed by confronting and R. v. Iseler, intimidating the person whose property is 2004 Docket: C41473 (OntCA) taken, whereas theft is committed without violence or threats of violence, and often A police officer came upon the occurs secretly, such that the victim is left accused sleeping in his vehicle unaware of being relieved of their property. parked on the roadside. The [para. 7] vehicle was running and its high

12 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

beams were on. The accused fumbled for his the tenth hour. The accused had presented a driver’s licence and the officer detected a smell prima facie case of arbitrary detention and the of alcohol on his breath. A roadside screening Crown left it unanswered. device was administered and the accused failed. Despite the arbitrary detention however, He was arrested, allowed to speak with a lawyer, Ontario’s highest court found a stay of and provided two breath samples with readings proceedings would be inappropriate in this case: registering 177mg% and 175mg%. He was placed in a cell at 5 am and about three or four hours While the police conduct in failing to monitor later attempted to get the attention of police the accused was inexcusable, it is important to because—feeling ill—he needed toilet paper to note that the breach of the [accused’s] s. 9 use the toilet. He gestured to the security Charter rights occurred post-offence. The camera, rattled the bars, and shouted—but breach had nothing to do with the investigation and the gathering of evidence received no response. An hour later he again against him. It did not impact on trial fairness. tried to get the guard’s attention, but was As Morden A.C.J.O. said in Sapusak [[1998] unsuccessful. At about 3 pm he was thrown a O.J. No. 4148], "[t]here was no temporal or submarine sandwich and was released an hour causal connection between the breach and the later. obtaining of the evidence". I am accordingly satisfied that this is not "the clearest of During his eleven hour detention, he had no cases" warranting the grant of a stay of contact with anyone other than the five second proceedings. [para 31] encounter with the officer throwing him the sandwich. The accused had money to take a taxi The appeal was dismissed. home or his wife could have picked him up. At his Complete case available at www.ontariocourts.on.ca trial in the Ontario Court of Justice, the accused sought a stay of proceedings arguing he was arbitrarily detained and imprisoned under WHOLE PICTURE MUST BE s.9 of the Charter. The judge concluded he was CONSIDERED FOR SEARCH not arbitrarily detained and his application was WARRANT rejected. Instead, he was convicted as charged. R. v. Saunders, 2004 SCC 70 He again launched an appeal to the Ontario Superior Court of Justice, but it was dismissed. Three confidential police He appealed once more, this time to the Ontario informants provided information Court of Appeal. that the accused was receiving

hash oil and keeping it at his Justice Armstrong, authoring the unanimous house. One source told police he had bought appeal judgment, found that there had been an some at the accused’s house while the two other arbitrary detention. There was no evidence of an sources said drugs were there. On the basis of assessment of the accused’s level of sobriety this information the police obtained a Controlled that may have warranted continued detention. Drugs and Substances Act search warrant, Furthermore, “the police either paid no attention executed it, and found drugs and money. The to the gesturing, or they were unaware of it accused was charged with possession of a because they simply failed to monitor the controlled substance for the purpose of security camera. In either case, those trafficking. responsible for his incarceration and well-being would appear to have failed in their duty”. This At his trial in the Provincial Court of was an 11 hour detention in which the accused Newfoundland and Labrador, the trial judge was ignored but for a five second encounter at ruled the police had violated the accused’s s.8 Volume 4 Issue 6 www.jibc.bc.ca 13 November/December 2004

Charter right to be secure against unreasonable April 1, 2001. As such the whole could enable search or seizure. In his view, the warrant was the justice of the peace to conclude that improperly issued by the justice of the peace. As credibly-based probability had replaced suspicion. [para. 15] a result, the evidence was excluded under s.24(2) and the accused was acquitted. As a result, the majority viewed the whole

picture as capable of supporting the search The Crown successfully appealed to the warrant. Justice Welsh, on the other hand, Newfoundland and Labrador Court of Appeal disagreed with the majority. In his opinion, a (2003 NLCA 63) arguing that the trial judge careful paragraph by paragraph review was failed to examine the “totality of the necessary to assess the reliability of various circumstances” when assessing the sufficiency pieces of information to identify any of the information used to support the warrant. deficiencies in order to determine whether the In the 2:1 judgment, the appeal was allowed and totality of the circumstances lacked a valid or a new trial was ordered. In the majority’s substantial foundation. He found that there was opinion, “the trial judge ‘deconstructed’ every insufficient information to establish the paragraph (and many phrases within paragraphs) reliability of any of the informants, even if their in the information to obtain, concluding they information was consistent with each other. suffered from some inadequacy.” As Chief Further independent police corroboration could Justice Wells noted: have buttressed the warrant, but was not …the trial judge engaged in a critique of the undertaken. Welsh found the search warrant information to obtain ... almost as if he were invalid, the resultant search a s.8 Charter correcting a student's term paper ... and not violation, and would have dismissed the Crown’s an assessment of the sufficiency of the appeal. information in the "totality of the circumstances". The approach taken by the The accused appealed to the Supreme Court of trial judge was like that of a person who Canada. In a short oral judgment dismissing the views a painting square centimetre by square appeal, Chief Justice McLachlin, for a five centimetre to identify defects ... which has member Supreme Court, affirmed the order of its place ... but then fails to step back and view the painting as a whole. [para. 11] the Newfoundland and Labrador Court of Appeal. In her view, there was sufficient information And further: before the issuing justice to support the granting of the search warrant. If one "deconstructs" each item of information from source "A" and then that Complete cases available online at www.canlii.org from source "B" and then that from source "C" and applies the test as against each item individually, as did the Trial Judge, then the BC POLICE HONOURED answer may well be "no", as the trial judge concluded. But, if one considers the "totality Many of British of the circumstances" one sees that the Columbia’s finest police information from the three sources is officers were honoured corroborative inter se; because of this, the on November 18, 2004 whole of their information becomes greater at Government House in Victoria. They were than the sum of its parts. To put it another selected by a committee comprised of way, the sequence of pictures drawn by the representatives from the British Columbia three sources tells a consistent story: [The Association of Chiefs of Police and Police accused] sold hash oil, he kept it at his Services Division, Ministry of Public Safety and residence, he had hash oil at his residence on Solicitor General. Awards were presented for 14 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

either valour or meritorious service. The criteria the life of a suicidal male attempting to jump for the awards are as follows: from a viaduct.

Valour (gold coloured) is the highest award for a Constable Pamela Falconer (currently serving police officer in British Columbia and involves an with West Shore RCMP) and Constable Kelly act of exceptional valour in the face of extreme Falconer (currently serving with West Shore hazard. It is awarded to police officers who RCMP) for apprehending a violent male who, while purposely took action for the benefit of others armed with a knife, threatened fellow officers. while knowing that, in doing so, they placed Constable Dave Piket, Prince Rupert RCMP, for themselves at substantial risk of death or rescuing two occupants from a submerged serious injury. vehicle. Meritorious Service (silver coloured) is Constable Sandi Swanson and Constable Paul exemplary performance that enhances the image Bouwman, Salmon Arm RCMP, for apprehending a of police officers in British Columbia. It is distraught male armed with a shotgun. awarded to police officers who clearly demonstrated that they acted in a manner Constable Rico Wong (currently serving with significantly beyond the standard normally RCMP "E" Division, Integrated National Safety expected. Enforcement Team), for his drug investigation in

Fiji leading to successful convictions. Awards of Valour Corporal Willie Hornseth, Kelowna RCMP Sergeant Rhen Hallett, Delta Police Department, Detachment, for apprehending a violent suspect for apprehending a violent male who, armed with who, armed with a handgun, threatened a fellow a rifle, threatened the lives of several citizens. officer.

Constable Dan McLean, Constable Derek Constable Wahnese Antonioni-Stevens (currently Gallamore, and Constable Phillip DiBattista, Delta serving with Alexis Creek RCMP) and Constable Police Department for apprehending armed and Steven Croft, Mission RCMP Detachment, for violent suspects, one of who was armed with a saving a suicidal male who attempted to jump handgun, who were threatening the lives of from an overpass railing. several citizens. Constable Cameron Joseph (currently serving Constable Chad Gargus, Delta Police Department, with Penticton RCMP), for apprehending a violent for rescuing a suicidal male from the outside male who had caused him personal injury. railing of the Alex Fraser Bridge.

Awards for Valour During Forest Fire Constable Dave Walker and Constable Richard Vanstone, Vancouver Police Department, for Season 2003 apprehending a violent male who, armed with Staff Sergeant Allen Olsen, (currently serving knives, threatened to cause harm to family with Boundary Regional RCMP) and Constable members. Todd Vande Pol, Barriere RCMP (currently

Constable Dina Tzetzos, Vancouver Police serving with Lytton RCMP), for evacuating Department, for saving the life of a suicidal male several communities threatened by the 2003 who was stabbing himself with a knife. Lewis Creek forest fires.

Constable Tony Blouin and Constable Silvana Staff Sergeant John Folk, (currently serving Burtini, Vancouver Police Department, for saving with Central Interior RCMP Highway Patrol), Sergeant Rick Bigland, (currently serving with Volume 4 Issue 6 www.jibc.bc.ca 15 November/December 2004

Summerland RCMP) and Constable Larry Boak, Magark, RCMP “E” Division Major Crimes Section, (currently serving with Central Interior RCMP Corporal Stephen Thatcher, RCMP "E" Division, Highway Patrol), for evacuating the village of Vancouver Commercial Crime, and Sergeant Pritchard during the 2003 forest fire season. Gerry Peters (currently serving with RCMP "E" Division, Criminal Operations Policy), for their Corporal Don Longpre, (currently serving with eight-year investigation of child abuse at Native RCMP "E" Division, Security Engineering Indian residential schools in B.C. resulting in Section), Constable Denise Bendfeld, Chase several Criminal Code charges. RCMP and Constable Mark Skotnicki, Chase RCMP, for evacuating the McGillvery Lake shore Awards for Meritorious Service During and the Kamloops Shuswap Road area during the Forest Fire Season 2003 2003 Forest Fires. • Superintendent William McKinnon (currently Sergeant Garry Kerr, (currently serving with serving with SE District RCMP HQ, Kelowna) Southeast District RCMP HQ, Kamloops) for • Staff Sergeant Kerry Solinsky, Kelowna RCMP performing several roles related to the 2003 • Staff Sergeant Shawn Wylie (currently Forest Fires. serving with Westbank RCMP)

• Sergeant John Jordan, Kelowna RCMP Meritorious Service • Staff Sergeant Peter McLaren (currently Sergeant Ross Poulton, Saanich Police serving with SE District RCMP HQ, Kelowna) Department, for pursuing an investigation • Staff Sergeant Henk Wamsteeker (currently involving a series of fires that resulted in the serving with SE District RCMP HQ, Kelowna) conviction of a serial arsonist. • Sergeant Darryl R. Little (currently serving with Nelson RCMP) Detective Constable Les Yeo, Vancouver Police • Corporal Kevin Keane (currently serving with Department, for his investigation of a jewellery Boundary Regional RCMP) store robbery led to several charges being laid. • Corporal Rick McIsaac, Nakusp RCMP

• Staff Sergeant Terry Miles (currently Constable Kevin Lastiwka, Constable Paul serving with Island District RCMP HQ, Spencelayh and Constable Rae Robirtis , Victoria Victoria) Police Department, for rescuing residents from a • Staff Sergeant Norm McPhail (currently burning apartment building. serving with Whistler RCMP) Constable Paul Brookes, Victoria Police • Corporal Brian Hunter, Salmon Arm RCMP Department, for his contributions and dedication • Constable Kevin Christensen (currently leading to the development and delivery of the serving with Creston RCMP) "Youth Combating Intolerance Conference" held • Staff Sergeant Dave Williams (currently on Thetis Island. serving with Salmon Arm RCMP) • Constable Darren Bonang (currently serving Constable Jana Hardy and Constable Dale with Central Interior RCMP Highway Patrol) Sleightholme, Victoria Police Department, for • Staff Sergeant Len Carlson (currently serving saving the life of a drowning male. with North Okanagan RCMP) Constable Marc Searle, Surrey RCMP, for • Sergeant Kirk Nevison, Kamloops RCMP volunteering numerous hours of community • Corporal Steve Nordstrum (currently serving service. with RCMP HQ, Emergency Response Team, Ottawa) Corporal Michael Pacholuk, RCMP “E” Division • Constable Glenn Beattie, Kamloops RCMP Major Crimes Section, Staff Sergeant Glenn 16 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

• Sergeant Dennis Bauhuis (currently serving accused appealed to the Alberta Court of Appeal with Kamloops Rural RCMP) arguing the sentence overemphasized • Corporal Mark Jorgenson, Cranbrook RCMP denunciation and deterrence, was not • Constable Derren Perpelitz, Cranbrook RCMP proportionate to the offence since the officer • Sergeant Brian Richard Roy Edmondson, was not seriously injured and gave too little Cranbrook RCMP weight to the early guilty pleas. • Constable John Ferguson (currently serving In dismissing the appeal, Alberta’s top court with West Kootenay RCMP Highway Patrol) noted: Source: http://www.pssg.gov.bc.ca/police_servi Section 249.1 of the Criminal Code, involving ces/honours/recipients/2004.htm flight or evasion from a peace officer, is

intended to protect the public and the police FIVE YEAR SENTENCE FOR when a person operating a motor vehicle being PURSUIT CAUSE INJURY FIT pursued by the police fails to stop as soon as is reasonable. The maximum penalty where bodily R. v. Breton, 2004 ABCA 391 harm occurs is 14 years. This is significant

Just days after completing a because the maximum penalty for impaired driving causing bodily harm or negligence seven year and two month causing bodily harm is 10 years. [para. 8] sentence for dangerous driving, theft, and obstructing a police In finding no error in the sentencing judge’s officer, the accused was stopped at a random decision, the court stated: check-stop driving a vehicle with the wrong In the case before us, the sentencing judge licence plate. He could not produce the vehicle specifically identified the mitigating factors registration , insurance, or his driver’s licence of the guilty plea, the apology showing and was asked to turn off the vehicle. He did not remorse, and the one month spent in custody. and appeared to be about to drive off. The He took them into account in sentencing the officer reached in to turn off the vehicle, [accused] to 5 years. There is no basis for became entangled in the seatbelt and a struggle finding that he gave too little weight to the ensued, with both exchanging blows. The accused guilty plea. drove off at a high rate of speed and dragged He also considered the very aggravating factor the officer for four blocks before the officer that the [accused] tried to shake the police fell onto the roadway, suffering only minor officer off in order to escape. He said that it physical injuries but heavily damaging his boots, was evident that the [accused] did not care clothing, holster and firearm. A police pursuit whether the police officer would be injured or followed and the accused was stopped by a spike killed by his actions. While the injuries turned belt and collision with a parked vehicle. In the out to be minor, there was an actual risk and it vehicle police found a stolen licence plate, was very great. The [accused’s] actions showed a disregard for the lives and safety of others. jewelry, a screwdriver, pliers and binoculars. An accused who evades police is morally The accused entered an early guilty plea to blameworthy for the risk created. The flight causing bodily harm, leaving the scene of accused’s reckless behaviour was a serious aggravating factor in this case. [para. 18-19] the accident, and possession of break-in instruments. While Crown sought a four to six The global five year sentence was a fit and year sentence and the accused only four years, proper sentence, even though there were only the Alberta Provincial Court judge sentenced him minor physical injuries to the officer. to five years on the flight charge and one year concurrent on the other two charges. The Complete case available at www.albertacourts.ab.ca Volume 4 Issue 6 www.jibc.bc.ca 17 November/December 2004

BAR ID CHECK FOR WARRANTS was no observable illegal activity, no disturbance, or no assault upon which to take police action. UNCONSTITUTIONAL Thus, the accused’s Charter rights were violated R. v. Skeet, 2004 MBPC 10141 by this deliberate police action to check for warrants. Eight police officers attended a bar to do a spot check project Since the identification provided by the accused whereby they would spread out was conscriptive—he was detained and compelled through the bar, randomly walk to produce it—the trial would be rendered up to individuals and request identification to unfair. Furthermore, the Charter violation was determine if they were wanted on warrants. No serious. The accused was not suspected of doing one had called the police nor was there any anything illegal and the degree of intrusiveness criminal conduct requiring police intervention. was more than minimal in the circumstances. The Officers approached the accused’s table where admission of the evidence would therefore bring he was drinking from a bottle of beer and asked the administration of justice into disrepute. him for identification. He produced a picture Complete case available at www.canlii.org driver’s licence. He was checked on CPIC and was found to be bound by a probation order requiring him to abstain from the consumption or 9-1-1 ENTRY LOGICAL & possession of alcohol. As a result, the accused LAWFUL was charged with breaching his probation. R. v. Havelock, 2004 MBQB 189

At his trial in Manitoba Provincial Court, the The police received a 9-1-1 hang accused admitted he had been drinking but up call from an apartment suite. testified officers were blocking the exits to the On call back a female answered, bar, did not tell him he could refuse to identify said it was a joke, and lied himself, and felt he did not have any option but about her name. A male voice then came on the to do what he was told. He argued his s.8, s.9, phone and told the call taker off. About 15 and s.10 Charter rights were violated, while the minutes later, two officers arrived at the suite Crown submitted there were no Charter and could hear yelling from inside. They heard breaches because there had been no detention the accused yell, “Shut the fuck up. You fucking until the CPIC checked revealed the probation bitch” and a female take blame for calling 9-1-1. order. The accused said he didn’t “care if the fucking

Justice Garfinkel concluded the accused had cops came.” been both physically and psychologically detained The police knocked on the door and the accused when they asked for identification—he felt he opened it, yelling and asking what they wanted. could not or should not refuse. The police action The officer asked if the police could come in and was “compulsive”—the officers wore police talk, but the accused became angry, said “no”, attire, their weapons and equipment were visible, and blocked the doorway by standing in the they prevented people from leaving, and they did middle of it. The officer explained the police not tell people they did not have to produce would have to come in and ensure everything was identification nor answer questions. In Justice okay because of the yelling and the 9-1-1 hang up Garfinkel’s view, “people have the right to drink call. The officer took a step to pass by, but the or eat in a public bar or restaurant without accused lunged and pushed the officer police approaching and asking, without any cause backwards, both losing their balance and falling articulated, to produce identification”. There to the floor. A struggle ensued—one officer

18 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

trying to handcuff while a second tried to officers could not see [the female] inside the restrain his legs while being kicked at. The suite. They did not know whether she had been accused was subsequently restrained and injured and might be in need of assistance. The fact that [the accused] tried to block the convicted in Manitoba Provincial Court of doorway contributes to the appropriateness of assaulting a peace officer in the execution of his [the officer’s] response. duty. Given [the accused’s] belligerent and The accused appealed his conviction to the uncooperative mood, it would have been Manitoba Court of Queen’s Bench arguing the pointless for the officers to have asked him to trial judge erred in finding the officer acting in have [the female] come to the door. It is the lawful execution of his duty. In his opinion, obvious he would not have complied. It was also the officer was exercising an unjustifiable use reasonable for them not to call out to [the of police powers when he attempted to enter the female] to come to the door. This might have resulted in unnecessary delay in rendering suite. He submitted that the police could have assistance to her. In fact, given [the determined the health and safety of the female accused’s] hostile frame of mind it is possible without going inside the suite—such as asking she would have been exposed to some danger the accused to have her come to the door or if she had come to the door to speak with the calling out to her to come to the door herself. officers. Moreover, it would have been more The Crown, on the other hand, contended the appropriate for them to deal with her in the officer was engaged in the execution of his duty privacy of the suite instead of a public hallway. when he attempted to enter the suite, which was Under the circumstances, it was logical and justified in the circumstances. lawful for [the accused] to attempt to enter

Justice Hanssen of the Manitoba Court of the suite without [his] permission. … [The officer] hoped to gain entry without having to Queen’s Bench agreed with the Crown and use any force. This is why he tried to step dismissed the accused’s appeal. In his view, around [the accused]. Had he been successful there was no doubt “the police officers had a in gaining entry in this manner the duty at common law to ascertain the reason for interference with [the accused’s] privacy the 911 call and to ensure that [the female] was would have been minimal and brief. [The safe.” Furthermore, the officer’s attempt to officer’s] intention was merely to ascertain enter the suite did not involve an unjustifiable the health and safety of [the female] and to use of police powers associated with that duty. provide whatever assistance she might require. He did not intend to intrude any further on Justice Hanssen stated: [the accused’s] privacy than was necessary in [The officer’s] attempt to enter the suite in order to achieve these goals. [paras. 16-18] the manner he did was justifiable considering the totality of the circumstances. The police The officer’s attempted entry into the suite was officers were responding to a disconnected reasonable.

911 call. They had a duty to act to protect life Complete case available at www.canlii.org and safety. They had a duty to respond to the call. Once they arrived at [the accused’s] DID YOU KNOW… suite, they had a duty to ascertain the reason for the call. They had no indication as to the …that a new federal law makes it an offence to nature of the problem. They did not know make a terrorist hoax. Real acts of terrorism whether the call related to a criminal offence. are already criminal offences, but s.82.231 of When they arrived they heard a heated the Criminal Code fills a gap in the existing law argument taking place in the suite. They heard by creating an offence, punishable by a maximum [the accused] yelling loudly. When he answered life in prison—if death results—for terrorist the door he was hostile and uncooperative. The hoaxes. Volume 4 Issue 6 www.jibc.bc.ca 19 November/December 2004

NEW (PROPOSED) LAWS offences. Penalties for growing marihuana would be increased. UPDATE Production Offences

There are several new Bills In its bid to toughen before Parliament that may penalties against marihuana impact police officers and how growers, Parliament is they do their job. These Bills proposing to double the include C-16 and C-17. current maximum sentence

(proposed s.7(3) CDSA). Bill C-16 (first reading only: Under the present law of November 1, 2004) producing marihuana (which New amendments to the Criminal Code provisions includes cultivating, respecting impairment by alcohol or drug have propagating, or harvesting been proposed, including authorizing specially the substance), a convicted trained peace officers—known as evaluating grower can only receive a officers—to conduct physical coordination tests maximum of 7 years in (prescribed by regulation) to determine whether prison. Under the new proposal, maximum a person is impaired by a drug or a combination sentences are based on the number of marihuana of drugs and alcohol. Furthermore, the new plants grown. The following sentencing grid section will allow police to take bodily fluid shows the corresponding penalty attached to the samples to test for the presence of drugs or a number of plants: combination of drugs and alcohol in a person’s # of plants Offence type Punishment body. 1-3 Summary only <$500 adult <$250 young person A person who fails or refuses, 4-25 Dual by indictment without reasonable excuse to • <5 yrs. prison comply with a demand to by summary perform the physical • <$25,000 and/or coordination tests or provide • <18 mos. prison urine tests commits an 26-50 Indictable <10 yrs. prison offence. 51+ Indictable <14 yrs. prison

Bill C-17 (first reading only: November 1, 2004) Possession Offences

Several amendments to the This new legislation will “de-criminalize”, but not Controlled Drugs and “de-legalize”, possession of small amounts of Substances Act (CDSA) have marihuana. Therefore, enforcement action can been re-introduced following still be taken. Marihuana possession of amounts the recent federal election. less than 30 grms. or hashish possession less than These proposed changes 1 gram remain summary conviction only offences. include reducing the maximum punishment, by However, maximum penalties for these offences fine only, and the possibility of “ticketing” have been reduced in some cases. processes for minor marihuana possession

20 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

Offence Drug Amount Max. Penalty • the accused used real property belonging to s.4(5) hashish Adult = $300 a 3rd party to commit the offence; CDSA < 1 grm. YO = $200 • the production was a potential security, summary s.4(5.1) marihuana Adult = $150 health, or safety hazard to children at the CDSA < 15 grms. YO = $100 location or in the immediate area; summary • the production was a potential public safety s.4(5.2) If person in possession Adult = $400 hazard in a residential area; or CDSA of <1 grm. of hashish YO = $250 • summary or <15 grms. of the location was set with a trap or other marihuana: device likely to cause death or bodily harm. • is operating or in care & control of a Complete copies of these and other proposed Bills are motor vehicle, available at www.parl.gc.ca railway equip. aircraft, or vessel • while committing HUNCH INSUFFICIENT FOR an indictable INVESTIGATIVE DETENTION offence R. v. Calderon & Stalas, • in or near a school or school grounds (2004) Dockets: C38499 & C38500 s.4(5.4) marihuana Option (OntCA) CDSA more than 15 grms., < $1000 fine summary but not more than and/ or 6 Ontario police officers 30 grms. months in stopped a rented Lincoln Town prison car with BC licence plates Contraventions travelling 10 km/h over the Act process: speed limit at night on a highway. Inside the Adult = $300 vehicle an officer saw several indicators YO = $200 suggesting the two occupants—who identified themselves and cooperated with police—were Marihuana amounts in excess of 30 grams or drug couriers. These items included cell phones, hashish amounts in excess of 1 gram will continue a pager, a road map, fast food wrappers, and two to be a dual offence. If possession of these duffel bags. As well, the officer thought the amounts proceeds by indictment, the maximum vehicle appeared too expensive for the punishment available is imprisonment for a term occupants to be driving. The driver exited the not exceeding 5 years less a day. If the offence car on request and would not allow the police to is proceeded summarily, a first offence can draw search it. The officer then asked the up to 6 months in prison and/or a $1000 fine passenger—who rented the car—if he could while a second or subsequent offences can bring search the car and he said yes. As the passenger up to one year in prison and/or a $2000 fine. exited the car, the officer detected a fresh

odour of marihuana, but his partner did not. The Sentencing Reasons passenger withdrew his consent, but the officers A new section will place an affirmative duty on searched the car anyways without informing the judges in some cases to justify why a person is occupants of their right to counsel or not sent to jail (proposed s.10(2.1) CDSA). If an considering a warrant. In the trunk of the car accused is convicted of a production offence police found two duffel bags containing 22 lbs. where 4 or more plants are involved, but is not of marihuana. The occupants were both arrested sentenced to imprisonment, the Court must give and advised of their right to counsel. reasons why if: Volume 4 Issue 6 www.jibc.bc.ca 21 November/December 2004

At trial in the Ontario Superior Court of trunk. Nor could the search be based on consent. Justice, the accused were convicted after Before the search of the trunk, one occupant Justice Kurisko concluded there were no Charter refused to consent and the second occupant violations. In his view, the stop was legitimately quickly withdrew his. Furthermore, both accused connected to highway traffic concerns and the were detained prior to the search and had not officers also had articulable cause for been advised of their s.10(b) rights. Where a suspecting there may be drugs in the car. Even if person is detained and the search depends upon their were breaches of the Charter, the trial their consent, the failure to advise them of their judge would have admitted the evidence under right to counsel renders the resultant search s.24(2). The accused were convicted of unreasonable. possession for the purpose of trafficking. Arbitrary Detention

The accused appealed to the Ontario Court of When the officers stopped the accused’s vehicle Appeal arguing their rights were violated under for speeding-10 km/h over the limit—it was a s.8 (unreasonable search or seizure), s.9 legitimate highway safety concern and the (arbitrary detention) and s.10(b) (right to officer’s “suspicion about drugs did not taint the counsel) of the Charter. Crown conceded the lawfulness of the initial stop.” However, the accused’s rights under s.8 and 10(b) were investigative detention related to drugs that infringed, but argued the trial judge was correct followed would not be arbitrary only if the in finding no arbitrary detention and with his officer had an articulable cause, or reasonable s.24(2) analysis. grounds to detain the accused. As Justice Laskin Search and Seizure noted:

Justices Laskin (with Feldman concurring) On an objective assessment of all of the circumstances, the officers had to have concluded that the Crown was correct in reasonable grounds to suspect that the conceding the s.8 violation. The search was [accused] were implicated in the warrantless and presumed to be unreasonable. A transportation of drugs. The objectivity of the warrantless search can be justified under the assessment is critical. An officer cannot common law as either a search incidental to an exercise the power to detain on a hunch, even investigative detention or incidental to arrest. a hunch born of intuition gained by experience. Searches “incidental to an investigative [para. 69] detention can only be justified for protective In this case the officer testified to taking a one purposes: officers must believe on reasonable week drug interdiction course where he was and probable grounds, that their safety or the trained on the indicators of drug couriers. He safety of others is at risk.” However, neither said the items he saw, along with his view that officer testified they searched for safety. the occupants did not fit the expensive car they Their search was to discover evidence of a were driving led him to reasonably suspect they crime—drugs—which could not be justified as an were drug couriers. But on cross examination he incident to investigative detention. testified the indicators were neutral and might

A search incident to arrest may precede an be found in any car. Furthermore, he said he had arrest provided the officer had reasonable previously stopped between 10 and 20 cars with grounds to make an arrest prior to the search these indicators and made no arrests while his and the arrest follows on the heels of the partner stopped between 50 and 100 cars search. However, the majority held that the without an arrest. police did not have the subjective or objective Justice Laskin concluded the neutrality and grounds to make the arrest before searching the apparent unreliability of these indicators did not 22 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004

amount to reasonable grounds for detention and reduced expectation of privacy in the vehicle, therefore the investigative detention was not there was no oppressive police behaviour, no justified and was arbitrary under s.9. ongoing pattern of disregard for their rights, no deliberate breach of the Charter and the search Right to Counsel was unobtrusive. Furthermore, the detention was

Justice Laskin ruled that when the police were brief before the police smelled the marihuana looking for drugs the accused were at least and thereby acquired reasonable grounds to physically restrained and therefore detained effect the arrest and search incidental thereto. under the Charter which triggered their rights As well, the evidence was non-conscriptive real under s.10(b)—which had not been provided. evidence discoverable in any event.

Complete case available at www.ontariocourts.on.ca Admissibility

The majority held that the evidence should be ACTUAL ARREST NOT A excluded under s.24(2). Although the non- conscriptive evidence would not affect trial PREREQUISITE TO SEARCH fairness, the police committed three violations. PROVIDED GROUNDS EXIST There was no urgency or necessity and the R. v. Dubois, 2004 BCCA 589 violations were not inadvertent or technical. The police searched the trunk—an area with a Two police bicycle members on reasonably high expectation of privacy—without patrol detected a smell of a warrant or consent and did not have reasonable burning marihuana as a car grounds to do so. Moreover, the police could have passed by them. The car turned obtained a telewarrant and lawfully searched the into a parking lot and the car officers rode up to it. An officer saw the driver raise a beer and take a drink. A strong odour of Another View burning marihuana was detected coming from the Justice Weiler, on the other hand, found the car and an open beer was seen on the console initial stop lawful. The stop was legal under s.216 area. The driver and his female passenger were of Ontario’s Highway Traffic Act and the asked to exit the car. At this time the female officer’s motive of investigating possible drug brushed what the police suspected was smuggling, in addition to the highway safety marihuana leaves or remnants from her pants concerns, did not taint the lawfulness of the and police saw residual marihuana leaf stop. Furthermore, the police did have throughout the interior of the car. articulable cause to conduct an investigative Both occupants were advised they were being detention. Although the individual factors by detained for investigation of possession of a themselves were susceptible to innocent controlled substance and that the vehicle would explanation, their totality was suspicious. be searched. A police dog was called to the However, the police unjustifiably used their scene, searched the car, and located a baggie of power to detain since they did not advise the marihuana between the passenger seat and the accused of their right to counsel before asking passenger door, roaches in the ashtray, and a for their consent to search. Thus, although sum of money. The accused driver was told he articulable cause existed, the detention was still was being detained and read the Charter and arbitrary under s.9. But, unlike the majority, police warning. He was taken to the police Justice Weiler would have found the evidence detachment where a jail guard found a deck of admissible under s.24(2). The accused had a cocaine in his pants.

Volume 4 Issue 6 www.jibc.bc.ca 23 November/December 2004

At his trial in British Columbia Provincial Court the accused was acquitted of the marihuana found in the vehicle—since the judge was not satisfied he had control over it—but was convicted of possessing the cocaine. Although he argued that his rights under s.9 (arbitrary March 12-15, 2005 detention) and s.8 (unreasonable search and seizure) of the Charter had been violated, the “Mass Murder in the Home, trial judge ruled the police had reasonable the School and the Workplace: grounds upon which to arrest the accused prior Spree Killers and Annihilators” to the dog search. In his view, “a reasonable Location: person would readily conclude that given the aroma emanating from the vehicle it was Ramada Inn & Conference Centre reasonable to conclude that one or both of the Abbotsford, BC occupants had recently used marihuana within it and might do so again.” Registration:

The accused appealed to the British Columbia $329

Court of Appeal arguing that the police did not Registration fee includes tickets to the arrest him prior to the dog search, and opening ceremonies and receptions, therefore the search incidental thereto was on-site continental breakfasts, and unreasonable. He contended that the odour of tickets for the conference banquet. marihuana and the leafy substance on the female’s pants were insufficient grounds in any Topics: event upon which to base an arrest. Dunblane School Massacre, Justice Huddart, authoring the unanimous Scotland, 1996 British Columbia Court of Appeal, upheld the Gakhal Family Murders, Vernon, trial judge’s decision. In her view, an actual British Columbia, 1996 arrest is not a prerequisite to a search Ottawa Transpo Massacre, incidental to arrest provided there are Ottawa, Ontario, 2001 reasonable grounds—both objective and Kamloops Murders, British subjective—upon which to arrest prior to the Columbia, 2002 search. In this case, the police had reasonable Port Arthur Massacre, Tasmania, 1996 and probable cause to arrest the accused before Columbine High School Massacre, 1999 the dog search began. Evidence of marihuana odour alone in every circumstance is not Expert presenters include Lt. Col. Dave Grossman, necessarily insufficient to found an objective U.S. Army (Retired), Director, Killology Research belief that a crime has been or is about to be Group, who is one of the world's foremost experts in committed. The trial judge’s finding that the the field of human aggression, the roots of violence officer had a subjective belief to arrest was and violent crime. supported by the evidence and her inference Visit www.fvlec.org for more info! there was probably marihuana in the car was reasonable. The trial judge did not err and the appeal was dismissed.

Complete case available at www.courts.gov.bc.ca 24 www.jibc.bc.ca Volume 4 Issue 6 November/December 2004