R. v. Greaves (E.A.),

• Jurisdiction: British Columbia
• Judge: Finch, C.J.B.C., Mackenzie and Lowry, JJ.A.
• Neutral Citation: 2004 BCCA 484
• Citation: (2004), 203 B.C.A.C. 31 (CA),2004 BCCA 484,189 CCC (3d) 305,24 CR (6th) 15,203 BCAC 31,[2004] BCJ No 1953 (QL),124 CRR (2d) 214,203 B.C.A.C. 31,(2004), 203 BCAC 31 (CA),[2004] B.C.J. No 1953 (QL)
• Date: 10 June 2004
• Court: Court of Appeal (British Columbia)

R. v. Greaves (E.A.) (2004), 203 B.C.A.C. 31 (CA);

    332 W.A.C. 31

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. OC.006

Regina (respondent) v. Eton Anthony Greaves (appellant)

(CA030832; 2004 BCCA 484)

Indexed As: R. v. Greaves (E.A.)

British Columbia Court of Appeal

Finch, C.J.B.C., Mackenzie and  Lowry, JJ.A.

September 23, 2004.

Summary:

A police officer investigating a report of an assault stopped the accused and two other males walking in the area and asked them for identification. The accused produced a false identification and lied to the officer about who he was. In the course of attempt­ing to determine the accused's identity, the officer took a cigarette case from the ac­cused which contained other pieces of identi­fication. He also took a cell phone. The officer accessed the address book in the cell phone and called the number for "Dad", expecting that the person would be able to identify the accused. W.D. answered the call and it was learned that the accused had stolen the cell phone from him. The accused was arrested for possession of stolen proper­ty and he was subsequently convicted of offences relating to the robbery of W.D. and the robbery of another person (G.V.). The trial judge ruled that the detention and the search of the property on the accused's person that led to the phone call to W.D. did not breach the accused's s. 8 or s. 9 Charter rights. She also held that, if there had been a Charter violation, the evidence of W.D. and G.V. identifying the accused as the person who robbed them should not be excluded under s. 24(2) of the Charter. The accused appealed, arguing that the trial judge erred in not finding a breach of his ss. 8 and 9 Charter rights and in holding that the evidence should not be excluded under s. 24(2) in any event. The accused also sought leave to argue a breach of his s. 10(b) Char­ter rights.

The British Columbia Court of Appeal dismissed the appeal. The court found no breach of s. 9 of the Charter. While the court found breaches of the accused's s. 8 and s. 10(b) Charter rights, it held that the evidence was properly admitted under s. 24(2).

Editor's Note: Certain names in the fol­lowing case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1214

Security of the person - Lawful or rea­sonable search - Searches incidental to arrest or detention - A police officer inves­tigating a report of an assault stopped the accused and two other males walking in the area and asked them for identification - The accused produced a false identifi­cation and lied to the officer about who he was - In the course of attempting to deter­mine the accused's identity, the officer took a cigarette case from the accused which contained other pieces of identifi­cation - He also took a cell phone - The officer accessed the address book in the cell phone and called the number for "Dad", expecting that the person would be able to identify the accused - W.D. answered and it was learned that the accused had stolen the cell phone from him - The accused was arrest­ed for possession of stolen property - The British Columbia Court of Appeal held that the power to search incidental to investiga­tive detention was limited to ensuring officer safety and the taking and inspecting of the cigarette case and the cell phone violated s. 8 of the Charter - The inspec­tion of the case could not be justified on the basis that the infor­mation contained in it was in plain view - It was only evident to the officer that the case contained pieces of identification, what that identification consisted of and what else was in the case was only deter­mined when the officer inspected its con­tents - The accused's failure to protest did not constitute consent - See paragraphs 56 to 74.

Civil Rights - Topic 1217

Security of the person - Lawful or rea­sonable search - What constitutes un­reasonable search and seizure - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1222

Security of the person - Lawful or rea­sonable search - Consent to search or seizure - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer received a report of an as­sault committed by a black male and sev­eral white males - The officer stopped a black male (the accused) and two white males walking in the area and asked them for identification - The accused produced a false identification which could not be confirmed through the police computer - When pressed about his identity, the ac­cused appeared as if he was going to run and the officer grabbed him and hand­cuffed him - The accused provided a sec­ond name and birth date, which could not be confirmed - Further efforts were made to ascertain his identity - The accused was eventually arrested for possession of stolen property (a cell phone) - The British Columbia Court of Appeal held that the officer had reasonable grounds to detain the accused for the initial investigative detention - Further, while the accused had no legal obligation to identify himself, his provision of false identities gave rise to a reasonable suspicion that he was obstruct­ing the officer in the execution of his duty and it made the extended detention rea­sonable and justified - Accordingly, there was no breach of s. 9 of the Charter - See paragraphs 30 to 55.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - A police officer investigating a report of an assault stopped the accused and two other males walking in the area and asked them for identification - The accused produced a false identification which could not be confirmed through the police com­puter - When pressed about his identity, the accused appeared as if he was going to run and the officer grabbed him and hand­cuffed him - The accused provided a sec­ond name and birth date, which could not be confirmed - Further attempts were made to ascertain the accused's identity and he was eventually arrested for possession of stolen property (a cell phone) - The British Columbia Court of Appeal held that at least by the time the officer applied the handcuffs to the accused, he was subjected to significant physical restraint which triggered his s. 10(b) rights - In failing to inform the accused that he had the right to retain and instruct counsel without delay at that point, the officer violated the ac­cused's s. 10(b) Charter rights - See para­graphs 82 to 85.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer investigating a report of an assault stopped the accused and two other males walking in the area and asked them for identification - The accused produced a false identification and lied to the officer about who he was - In the course of attempting to determine the accused's identity, the officer took a ciga­rette case from the accused which con­tained other pieces of identification - He also took a cell phone - The officer ac­cessed the address book in the cell phone and called the number for "Dad", expecting that the person would be able to identify the accused - W.D. answered and it was learned that the accused had stolen the cell phone from him - The accused was subse­quently convicted of offences relating to the robbery of W.D. and the robbery of another person (G.V.) - The British Columbia Court of Appeal held that the taking and inspecting of the cigarette case and the cell phone violated s. 8 of the Charter - However, the court concluded that the evidence of W.D. and G.V. identi­fying the accused as the person who robbed them should not be excluded under s. 24(2) of the Charter - The court con­sidered, inter alia, that the connection between the violations and the evidence sought to be excluded was tenuous in that there was no direct connection - See para­graphs 56 to 118.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Criminal Law - Topic 4853 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1214 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - An accused appealed from his convictions in relation to two robberies, arguing that the trial judge erred in not finding a breach of his ss. 8 and 9 Charter rights - While it was not raised at trial, the accused sought leave to argue that his s. 10(b) Charter rights were also breached - The accused did not raise the s. 10(b) issue as an independent basis for excluding evidence, but rather to inform the s. 24(2) analysis relating to the alleged ss. 8 and 9 breaches - The British Columbia Court of Appeal held that it was appropriate to consider whether the accused's s. 10(b) rights were violated - The factual record necessary to consider the s. 10(b) issue was fully established at trial and no new evidence was required - The fact that the s. 10(b) issue was ancillary to and in support of a defence that the accused put forward at trial, and did not constitute an entirely new defence, also militated in favour of allowing the accused to raise the issue on appeal - See paragraphs 75 to 81.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1214 ].

Police - Topic 3283

Powers - Identification of criminals - Power to request identity - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, reving. (2002), 166 Man.R.(2d) 260; 278 W.A.C. 260; 169 C.C.C.(3d) 272; 2002 MBCA 121, consd. [para. 2].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 33].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 20 C.C.C.(3d) 97, refd to. [para. 33].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 35].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 50 B.C.L.R.(3d) 109; 126 C.C.C.(3d) 298 (C.A.), leave to appeal refused (1998), 236 N.R. 390; 122 B.C.A.C. 280; 200 W.A.C. 280 (S.C.C.), refd to. [para. 35].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47; 130 C.C.C.(3d) 413 (C.A.), leave to appeal refused (1999), 239 N.R. 400; 181 B.C.A.C. 320; 298 W.A.C. 320; 61 C.R.R.(2d) 376 (S.C.C.), refd to. [para. 35].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208; 174 C.C.C.(3d) 406; 2003 MBCA 54, refd to. [para. 41].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 47].

R. v. Moore, [1979] 1 S.C.R. 195; 24 N.R. 181; 43 C.C.C.(2d) 83, refd to. [para. 48].

R. v. Bonnycastle, [1969] 4 C.C.C. 198 (B.C.C.A.), refd to. [para. 48].

Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.), refd to. [para. 49].

R. v. Guthrie (1982), 39 A.R. 435; 21 Alta. L.R.(2d) 1; 69 C.C.C.(2d) 216 (C.A.), refd to. [para. 49].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 60].

R. v. Yamanaka (J.A.) (1998), 111 B.C.A.C. 154; 181 W.A.C. 154; 128 C.C.C.(3d) 570 (C.A.), refd to. [para. 62].

R. v. Johnson (E.) (2000), 138 B.C.A.C. 190; 226 W.A.C. 190; 2000 BCCA 204, refd to. [para. 62].

R. v. Le (N.O.) (2001), 160 B.C.A.C. 46; 261 W.A.C. 46; 160 C.C.C.(3d) 146 (C.A.), refd to. [para. 62].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96; 48 C.R.(5th) 366; 2001 ABCA 316, refd to. [para. 62].

R. v. Power (B.) (2001), 204 Nfld. & P.E.I.R. 221; 614 A.P.R. 221; 48 C.R.(5th) 177; 2001 NFCA 50, refd to. [para. 62].

R. v. Cooke (K.L.) et al. (2002), 171 B.C.A.C. 177; 280 W.A.C. 177; 2002 BCCA 305, refd to. [para. 62].

R. v. Hunt (D.W.) (2003), 186 B.C.A.C. 24; 306 W.A.C. 24; 2003 BCCA 434, refd to. [para. 62].

R. v. Lam (H.D.) (2003), 189 B.C.A.C. 9; 309 W.A.C. 9; 180 C.C.C.(3d) 279; 2003 BCCA 593, refd to. [para. 62].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481, refd to. [para. 67].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 67].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 160 C.C.C.(3d) 449, refd to. [para. 68].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Vidulich (1989), 37 B.C.L.R.(2d) 391 (C.A.), refd to. [para. 80].

R. v. Lawrence (1990), 46 O.A.C. 345; 59 C.C.C.(3d) 55 (C.A.), refd to. [para. 82].

R. v. Tammie (A.B.), [2001] B.C.T.C. 366; 2001 BCSC 366, refd to. [para. 82].

R. v. Young (M.R.) (1997), 101 O.A.C. 81; 34 O.R.(3d) 177; 116 C.C.C.(3d) 350 (C.A.), refd to. [para. 82].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 38 O.R.(3d) 540; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 82].

R. v. Campbell (D.B.) (2003), 177 Man.R.(2d) 117; 304 W.A.C. 117; 175 C.C.C.(3d) 452; 2003 MBCA 76, refd to. [para. 82].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 88].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 88].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161; 136 D.L.R.(4th) 502; 107 C.C.C.(3d) 481, refd to. [para. 88].

R. v. Fraser (R.A.) (1993), 26 B.C.A.C. 58; 44 W.A.C. 58; 80 C.C.C.(3d) 539; 15 C.R.R.(2d) 44 (C.A.), leave to appeal refused [1993] 3 S.C.R. vi; 164 N.R. 159; 45 B.C.A.C. 239; 72 W.A.C. 239, refd to. [para. 90].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 91].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207, refd to. [para. 92].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 92].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 155 D.L.R.(4th) 19; 121 C.C.C.(3d) 97, refd to. [para. 94].

R. v. Makwaychuk (M.M.) (1993), 85 Man.R.(2d) 199; 41 W.A.C. 199; 81 C.C.C.(3d) 186 (C.A.), refd to. [para. 95].

R. v. Klimchuk (1991), 4 B.C.A.C. 26; 9 W.A.C. 26; 67 C.C.C.(3d) 385; 8 C.R.(4th) 327 (C.A.), refd to. [para. 95].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 151 D.L.R.(4th) 443; 118 C.C.C.(3d) 405, refd to. [para. 97].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 84 C.C.C.(3d) 203, refd to. [para. 97].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129, refd to. [para. 108].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 111].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 113].

R. v. Church of Scientology of Toronto et al. (1997), 99 O.A.C. 321; 33 O.R.(3d) 65 (C.A.), leave to appeal refused (1998), 227 N.R. 291; 112 O.A.C. 397 (S.C.C.), refd to. [para. 115].

Counsel:

J.T. Campbell and E. Gottardi, for the appellant;

W.J.S. Bell, for the respondent/Crown.

This appeal was heard on June 10, 2004, at Vancouver, British Columbia, before Finch, C.J.B.C., Mackenzie and Lowry, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Lowry, J.A., on September 23, 2004.