RUNNING HEAD: Exam Question 1

Assignment Three: Exam Question SEPICOM

Griffin Potter 200312168

Criminal Procedures/ Evidences POLC3008

Terrance Cuff

21/04/2019
EXAM QUESTION 2

STATUTE- Search and seizure must be authorized under some sort of statute like HTA, LLA,
CC, CDSA, SSA/EA.

EXIGENT CIRCUMSTANCES- Officer must believe that some sort of serious bodily harm or
death will occur, or that there may be a loss of some major evidence.

PLAIN VIEW- Officer lawfully came across some evidence that he/she were not looking for on
purpose through either smell or eyesight.

INCIDENT TO ARREST- Any weapons or other incriminating objects found on a accused

during a lawful arrest.

CONSENT- Police receive lawful consent from person.

OFFICER SAFETY- A common law practice to ensure the safety of officers from dangerous
items.

MISC- Here officers can use case law to determine appropriateness of a search or seizure
without a warrant, they can do things like use garbage disposal as evidence.

Statute

Case #1: R. v. Colarusso, 1994.

Appellant was an impaired driver involved in two serious accidents within the course of a few

minutes. Appellant first struck a pick-up truck from behind sending it out of control and continued

to drive on. Both occupants of the truck in the first accident received significant injuries. Minutes

later appellant's vehicle crossed the centre line of an adjacent highway colliding with another

vehicle killing the vehicles driver. The police arrived shortly after the second accident and found

the appellant unconscious in the driver’s seat of his vehicle. Arresting officers said appellant was

disoriented upon regaining consciousness with breath smelling of alcohol. The appellant was

formally notified that he must take a breath sample but no officer administered a breath sample at

the scene. The police arrested the appellant and took him to hospital for medical treatment. At the

hospital police officers that brought the appellant in assisted medical staff under trauma protocol
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procure with the taking of blood and urine samples. These protocols were used due to the appellants

uncooperative behaviour with the officer’s assistance the appellant consented to medical sample

being taken. The appellants samples were given to lab technicians in the hospital, these samples

were then transferred to the coroner at the coroner's request under s. 16(2) of the Coroners Act but

only after the coroner wrote a signed note explaining why he wanted the samples. The coroner then

turned the samples over to the police officers at the hospital with instructions that they be properly

stored and be taken for analysis. The appellant is arguing whether the actions of police while

obtaining blood and urine samples constitutes as a warrantless seizure of bodily fluids for use in a

criminal prosecution which would violate the guarantee against unreasonable search and seizure in

s. 8 of the charter appellant is also appealing whether provision of the corners act specifically

s.16(2) are in violation of s. 8 of Canadian Charter of Rights and Freedoms. The coroner's seizure

was reasonable because it was authorized by the coroner’s act which was both valid and reasonable

and it was effected in a reasonable manner. The coroner was entitled and required by law to

continue his investigation notwithstanding the simultaneous police investigation. Section 27 of the

Coroners Act does not bar investigation by a coroner when a person has been (or is likely to be)

charged with an offence under the Criminal Code in respect of the death in question (Coroners Act,

R.S.O. 1990, c. C.37). In conclusion arresting officers had a magnitude of critical evidence even

before helping obtain blood and urine samples with medical staff, officers would have continued

with procedure in administering the appellant a breathalyzer sample or another blood sample

obtained under s. 238(3) of the Criminal Code, R.S.C. 1970. When the coroner seized the samples

and placed them in the possession of the police there was no need to obtain a warrant or acquire

independent evidence such as a breath sample. Police on scene acted in good faith there actions

along with coroners inadvertently violated section 8 unreasonable search or seizure. Although the
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samples were procured with help of police they were not taken or catalogued by police until the

coroner intervened. The seizure of this evidence was not made to assist the police officers in a

criminal trial as it was seized by the coroner to investigate the death of the victim involved in the

second accident. Therefore, any violation of section 8 of the Canadian charter of rights and

freedoms in relation to the police handling or using said evidence at appellant’s trial is overruled

due to the fact that the coroner was lawfully pursuing the seizure of the appellant’s samples under s.

16(2)(c) the Coroners Act, and did not offend s. 8 of the Charter. This case supports the SEPICOM

method under the section of statue.

Exigent Circumstances

Case # 1: R. v. Godoy, 1999

Two police officers received a call from radio dispatch concerning a 911 emergency call

originating from the accused’s apartment in which the line had been disconnected before the

caller spoke. Along with two back-up officers they arrived at the accused’s apartment and

knocked on the door. The accused partially opened the door and when asked if things were all

right inside responded that there was no problem. One of the officers asked if they could enter

the apartment to investigate but the accused tried to close the door. The officer prevented him

from shutting the door and the four officers entered the dwelling. The officer testified that as

soon as they got inside, he heard a woman crying. An officer found the accused’s common law

wife in their bedroom, curled in a fetal position and sobbing. The officer observed considerable

swelling above her left eye. He testified that she stated the accused had hit her. Based on these

observations, the accused was placed under arrest for assaulting his wife. He resisted the arrest
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and in the ensuing struggle, an officer’s finger was broken. The accused was charged with

assaulting a police officer with the intent of resisting arrest. The trial judge dismissed the charge,

holding that the officers’ entry into the accused’s apartment was unauthorized and that therefore

all subsequent actions of the police, including the arrest of the accused, were illegal. The

Ontario Court (General Division) allowed the Crown’s appeal and ordered a new trial. The

Court of Appeal upheld that decision. The forced entry into the accused’s home was justifiable

considering all the circumstances of this case. The police had a duty to ascertain the reason for

the 911 call and had the power, derived as a matter of common law from this duty, to enter the

apartment to verify that there was in fact no emergency. The fact that the accused tried to shut

the door on the police further contributes to the appropriateness of their response in forcing

entry. Having found that the police were authorized to enter the accused’s dwelling, the Court of

Appeal did not error in finding there were reasonable and probable grounds to arrest the accused.

police have a power at common law to enter a private dwelling in response to a disconnected 911

call in the circumstances of this case. The police were acting in the course of their duty to

“protect life” which includes preventing death or serious injury. They entered the apartment

with the knowledge that a 911 call was made from that residence. Entry was necessary to

determine the cause of the distress and to give aid if necessary. Giving aid to persons in distress

is the very essence of the police duty to protect life therefore warranting the police officers to

enter the dwelling without a warrant. In regards to search and seizure authorities this case falls

under the category of exigent circumstances in relation to the mnemonic device SEPICOM as it

is an officer’s duty to preserve life and protect possible evidence relating to the situation at hand.

In the criminal code of Canada under section 529.3 (2) Authority to enter dwelling without a

warrant exigent circumstances include (a) has reasonable grounds to suspect that entry into the
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dwelling-house is necessary to prevent imminent bodily harm or death to any person or (b) has

reasonable grounds to believe that evidence relating to the commission of an indictable offence is

present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the

imminent loss or imminent destruction of the evidence. (S. 529.3 (2) Criminal Code of Canada).

Case # 2: R. v. Feeney, 1997

A hot pursuit requires a fresh pursuit that is a continuous pursuit conducted with reasonable

diligence, so that pursuit and capture along with the commission of the offence may be

considered as forming part of a single transaction. Before the doctrine applies, the police must

already have the power and grounds to arrest without a warrant before entering the residence.

However, the police officer does not have to have personal knowledge to form the grounds. An

officer continuing the pursuit from another officer can be sufficient. This exception is considered

narrow and presumes the police are literally at the heels of a suspect at the moment the suspect

enters a dwelling-house. This is a basis for my second case in relation to exigent circumstances.

In the case of R. v. Feeney 1997 the police, during a murder investigation in, entered the

accused’s dwelling house without permission or a warrant. When they received no answer at the

door, they entered roused the accused touched his leg and took him to the front of the trailer for

better lighting. Following a caution with respect to the right to counsel but not the right to

immediate counsel, the police asked the accused a couple of questions which he answered and

then arrested him sight on scene due to blood on his shirt. Generally, a warrant is required to

make an arrest in a dwelling house. A warrantless search will respect s. 8 if authorized by law,

and both the law and the manner in which the search is conducted are reasonable. In cases of hot

pursuit, the privacy interest must give way to the interest of society in ensuring adequate police
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protection. With regards to hot pursuit and its relation to exigent circumstances, exigent

circumstances have always been held to constitute an exception to the notion that a man’s home

is his castle. A genuine fear that evidence of the crime will be lost can constitute the necessary

exigent circumstances for a warrantless entry. Whether these exigent circumstances exist is a

finding of fact for the trial judge. In this case the trial judge and the court of appeal were of the

view that a serious danger existed that evidence would have been destroyed had the police not

immediately entered the trailer to arrest the accused under premises of “hot pursuit”.

Plain View

Case # 1: R. v. Tessling, 2004

A person has no reasonable expectation of privacy in what he knowingly exposes to the public or

abandons in a public place. An officer may seize any evidence in which they observe by use of

one or more of their senses from a lawful vantage point. If an officer is on a premise lawfully and

observes items believed to be illegal, it is lawful for them to seize the items. Under S.489 (2) of

the CCC an officer in the execution of their duties, may without a warrant, seize anything that

the officer has reasonable grounds to believe is obtained by, used for, or will afford evidence

towards an offence. This power is separate and apart from the common law doctrine of plain

view seizure. In the first case regarding plain view I choose to use R. v. Tessling, The RCMP

used an airplane equipped with a Forward Looking Infra-Red camera to overfly properties

owned by the accused. FLIR technology records images of thermal energy or heat radiating

from a building. It cannot, at this stage of its development, determine the nature of the source of

the heat within the building or see through the external surfaces of a building. The RCMP were
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able to obtain a search warrant for the accused’s home based on the results of the FLIR image

coupled with information supplied by two informants. In the house, the RCMP found a large

quantity of marijuana and several guns. The accused was charged with a variety of drug and

weapons offences. At trial, he unsuccessfully argued that the FLIR overflight was a violation of

his right to be free from unreasonable search and seizure guaranteed by s. 8 of the Canadian

Charter of Rights and Freedoms, and was convicted. The Court of Appeal set aside the

convictions. The court found that the use of FLIR technology constituted a search of the

accused’s home and, since it was done without a warrant, violated his s. 8 right. The court

concluded that the evidence ought to have been excluded and the accused was acquitted on all

charges. The case was brought to the Ontario Court of Appeals due to the fact that the FLIR

overflight did actually not violate the accused’s constitutional right to be free from unreasonable

search and seizure. External patterns of heat distribution on the external surfaces of a house is

not information in which the respondent had a reasonable expectation of privacy. The heat

distribution, as stated, offers no insight into his private life and although the information about

the distribution of the heat was not visible to the naked eye, the FLIR heat profile did not expose

any intimate details of the accused’s lifestyle or part of his core biographical data. It only

showed that some of the activities in the house generated heat. In this case the RCMP officers

met all three requirements in regards to the plain view doctrine, one they were lawfully in

position to take the photos with the FLIR technology, two the RCMP officers preforming the

overflight had no concrete knowledge as to what was inside the buildings photo graphed using

the FLIR technology and finally three the images taken revealed a distinct pattern that showed a

strong relation to previous images taken by the FLIR illustrating illegal activity. In conclusion
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the accused was convicted with the use of the FLIR images due to the fact that there was no

violation of section 8 of the charter due to the use of the plain view doctrine.

Case # 2: R. v. Kang-Brown, 2008

An RCMP officer involved in a special operation designed to detect drug couriers at bus stations

observed a bus arriving at the station and the accused getting off. The accused gave the officer

an elongated stare and went into the station lobby. He then turned and looked back at the officer,

who found this behaviour suspicious. The officer eventually approached the accused, identified

himself and told him that he was not in any trouble and was free to go at any time. The officer

asked the accused if he was carrying narcotics. The accused said no. The officer then asked to

look in the accused’s bag. The accused put his bag down and was unzipping it when the officer

went to touch the bag. The accused pulled it away, looking nervous. At that point, the officer

signaled another officer with a sniffer dog to approach. The dog sat down, indicating the

presence of drugs in the bag. The accused was arrested for possession of and/or trafficking in

drugs. The accused was searched and drugs were found on his person and in his bag. The trial

judge found that the accused was neither arbitrarily detained nor unlawfully searched and entered

a conviction. She held that the odours from the bag, which emanated freely in a public

transportation facility, did not constitute information in which the accused had a reasonable

expectation of privacy and that s. 8 of the Canadian Charter of Rights and Freedoms was

accordingly not engaged. The Court of Appeal upheld the conviction making this a perfect

example of the use of the plain view doctrine with a direct relation to sniffer dogs. The search in

this case was justified on the basis of the reasonable suspicion standard. This standard can be

applicable only where there are circumstances that serve as safeguards against unreasonable
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intrusions on privacy and ensure a balance that affords proper protection. Consequently, a

reasonable suspicion standard may be sufficient where the investigative technique is relatively

non-intrusive and the expectation of privacy is not high.

Incident to Arrest

Case #1: R. v. Nicolosi, 1998

The police stopped a car due to the reckless manner of its driving during the stop the police

noticed the drivers license and registration was expired along with his validation sticker on the

car’s plates. After running the driver’s identification through CPIC they found that there was an

outstanding warrant for driving without valid insurance. The accused became aggressive shortly

after that, the officers arrested the accused for the warrant and then impounded the vehicle. The

vehicle was taken to the nearby police station where it was searched which is a guideline that is

given by the chief of police to check for loose property of apparent value. During this search and

handgun was found in between the two front seats, the officer noticed that the guns serial

numbers were scratched out and it was loaded. At the trial the accused claimed the gun was

found during an unreasonable search of his vehicle which violates s. 8 of the Charter. The judge

ignored his claim and stated that the gun may be used as evidence. In this case the police had a

right to search the vehicle upon impounding it due to search incident to arrest. Under I in

SEPICOM the police practiced searching a warranted persons vehicle after he had gotten

aggressive with them incidental to his arrest.

Case # 2: R. v. Ward, 2010

EXAM QUESTION 11

In this case a senior officer who had policed the area for an extensive amount of time was in an

area he knew, the area was reputable for drug deals and other drug related crimes. He noticed the

applicant standing with lots of other people in the alley and he saw the applicant holding a

weight scale. He noticed their body language insinuating that there were trying to conceal what

they were doing. He believed that both were doing what are called and “heat checks” which is

were they visually scan the area for police. After witnessing this he thought he had sufficient

grounds to arrest the applicant, conducted his search incident to arrest and found a small rock of

cocaine in her left jacket pocket. She was charged with possession and in court tried to state she

was illegally searched contrary to s. 8 of the Charter. The trial judge dismissed the evidence but

the supreme judge said the evidence shall be used. The Officer in this case was obligated

considering his situation and the area he was in the conduct a safety search incident to arrest. To

not only ensure his safety but also because he made an arrest and could not put her in custody

without knowing if she had anything on her that could hurt herself. Under I in SEPICOM the

officer practiced incident to arrest when he searched the girl after arresting her on reasonable

grounds.

Consent

Case #1: R. v. Edwards, 1996

Accused had claimed his rights to privacy formally known as section 8 of the charter of rights

and freedoms, right to be secure against unreasonable search or seizure, was infringed upon.

Police had reasonable grounds to believe he was committing drug deals from his car, they found

his girlfriend's apartment and after they got her to cooperate with them, she granted them access
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to her apartment and she showed the police where the accused's stash of drugs was. The police

seized the evidence and arrested the girlfriend and the accused. The girlfriend’s charges were

dropped and the accused went to trail, of course now claiming his privacy was infringed upon.

The girlfriend who is rightful owner of the apartment and pays the bills states he's just an

acquaintance therefore she would have had full right to claim her privacy was infringed upon.

But the accused cannot use that same excuse because it is not his residence. Here the police

could say they had consent to be in that apartment and therefore they were allowed to seize the

drugs which were now in plain sight for them. In the case the accused was not able to use the

charter as a form of defence against the search and seizure conducted against him. This case

supports the SEPICOM method, under c for consent. Police, disregarding whether or not it was

properly given, had consent from the residence owner to come into the apartment where she

brought them right to where the stash of drugs was. From there the officers had plain sight of the

incriminating evidence and could seize it.

Case # 2: R. v. Paterson, 2017

Police officers are on scene at an apartment talking to Patterson, Patterson surrenders marihuana

roaches to the police and they tell him they will treat them as “no-case” seizures. Once gaining

entry to Patterson’s apartment then see a bullet proof vest, a firearm and drugs in the apartment.

They arrest Patterson and receive a tele warrant for a search of the apartment where they found

other firearms and drugs. P tried to argue saying that the common law confessions rule applies

and should revoke his statement about the roaches. The court denied this saying that the

statement about the roaches was totally voluntary on his behalf. In this case Patterson gave

consent for police to seize the roaches he had on him and has let them into his apartment. Given

the police had consent and had found incriminating evidence he was convicted on his crimes.
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Under SEPICOM this case shows C for Consent. Police had consent to enter premises and were

given roaches (evidence) voluntarily by P.

Officer Safety

Case #1: R. v. F. (C.J.), 2008

Two officers one rookie and a seasoned officer received a call stating that there was some

mischief at a local store called Sound City Electronics, it was said that five young persons were

throwing something at the windows, one was described as wearing a red cap. When the police

arrived, they found the five standing one block away no red caps though. The officers stopped

the ask if they knew anything about the mischief that had been reported at the electronics store.

One of them started to walk away from the officers and Cst. Hill called him, C. J.F to come back.

C.J.F continued walking for about 20 meters before taking off in a run. Cst. Hill ran after him

and about one block later C.F.J stopped and that is when Cst. Hill arrested him and did a

protective search. Upon this search he found a weapon, a police modelled collapsible defensive

baton that weighed about 2 pounds and extended to 36 inches in length. Cst. Hill then charged

C.J.F with two counts s. 90 and s. 88 of the Criminal Code. Cst. Hill told the judge during trial

that he conducted the arrest and the search based on the safety for himself and the public peace.

He stated that people in the town he serves in only run away if they are linked or committing a

crime. In SEPICOM the officers defense against search this young person was with the O aspect,

officer safety. The officer was responding to a call were it was vague as to what was being

thrown at the window of the electronics store, could have been a weapon of some sort. And then
EXAM QUESTION 14

came across a young boy who ran away and was caught with a very dangerous weapon on him.

For the officer’s peace of mind and safety he was justified to conduct the search.

Case #2: R. v. Peters, 2007

Three police officers from the Calgary Police Services were contacted while on bike patrol from

a local hotel named Cecil Hotel with concerns pertaining to a man on the premises who they

believed to be carrying a gun. The hotel gave a very detailed description of the man, red jacket

with a knapsack that had pins and trinkets on it, they thought had the gun and the police were

dispatched to the hotel. Once the police arrived at the hotel, on scene, they found a man matching

the description that dispatch had given them and although they saw no gun, they decided to be

safe and detained him for a protective search and possible seizure. Two police officers did a pat

down of the suspect and then one officer searched the knapsack. Within the knapsack they did

not find the gun however they did find marihuana, the now accused was charged with possession

of marihuana for the purpose of trafficking contrary to s. 5 (2) of the Controlled Drugs And

Substances Act. The accused had tried to claim that the search was unlawful through s. 8 of the

charter of rights and freedoms and that his privacy was violated. But the judge did not see it as a

violation due to the previous case R. v. Mann findings, which states that the police may carry out

a warrantless search if it means there is a threat to their safety or the safety of those around them.

Due to the fact that police were informed of a firearm by the hotel the police were responsible to

carry out a search in case there were the said firearm to not only protect themselves from it but

those around them also. Under the mnemonic device called SEPICOM the regards the O for

officer safety. The police had to ensure their own safety within this case and situation given the
EXAM QUESTION 15

information they had, the police had reasonable grounds to believe their lives could be

compromised.
EXAM QUESTION 16

References

R. v. Colarusso, [1994] 1 SCR 20, 1994 CanLII 134 (SCC), retrieved on 2019-04-21 from

http://canlii.ca/t/1frw6

R. v. Godoy, [1999] 1 SCR 311, 1999 CanLII 709 (SCC), retrieved on 2019-04-21 from

http://canlii.ca/t/1fqpk

R. v. Feeney, [1997] 2 SCR 13, 1997 CanLII 342 (SCC), retrieved on 2019-04-21 from

http://canlii.ca/t/1fr1w

R. v. Tessling, [2004] 3 SCR 432, 2004 SCC 67 (CanLII) retrieved on 2019-04-21 from

http://canlii.ca/t/1j0wb

R. v. Kang-Brown, [2008] 1 SCR 456, 2008 SCC 18 (CanLII), retrieved on 2019-04-21 from

http://canlii.ca/t/1wnbc

R. v. Nicolosi, 1998 CanLII 2006 (ON CA), retrieved on 2019-04-21 from http://canlii.ca/t/6h03
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R. v. Ward, 2010 BCCA 1 (CanLII), retrieved on 2019-04-21 from http://canlii.ca/t/275mm

R. v. Edwards, [1996] 1 SCR 128, 1996 CanLII 255 (SCC), retrieved on 2019-04-21 from

http://canlii.ca/t/1frcd,

R. v. F. (C.J.), 2008 SKPC 51 (CanLII), retrieved on 2019-04-21 from http://canlii.ca/t/1wkt1

R. v. Peters, 2007 ABCA 181 (CanLII), retrieved on 2019-04-21 from http://canlii.ca/t/1rlst

R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 retrieved from https://scc-csc.lexum.com/scc-

csc/scc-csc/en/item/16484/index.do?site_preference=normal