Italian police busted an international purveyor of child
pornography. They forwarded his customer contacts to law
enforcement agencies around the world. The R.C.M.P.'s
National Child Exploitation Coordination Centre sent a PIPEDA request
to Uniserve, a B.C. internet provider. Uniserve told them that
this customer, Mr Ballendine,
2011
BCCA
221
received
service
at
a Victoria residence. That
information helped Victoria Police Department get a warrant. The
found child pornography, and charged Mr Ballendine.
Mr Ballendine complained that the R.C.M.P. violated his
privacy. Did PIPEDA even apply to Uniserve? Did PIPEDA
create an expectation of privacy?
The court in this decision largely ducked those questions, because
the warrant was good even without the PIPEDA information.
But this raises a valid question for police officers. To which
corporations does PIPEDA apply, so that you can make proper PIPEDA
requests?
The answer is a little complicated. PIPEDA applies nationwide
to all corporations, except in those provinces that created their own
privacy legislation. In those provinces, (B.C., Alberta and
Quebec) the local privacy legislation applies only to provincial
corporations.
That's the bad news.
The good news is that those provinces
also created a similar authorities for organizations to release
information to local police
engaged in investigation. If you're in one of those provinces,
you should read your local legislation, and then amend your standard
PIPEDA letter to refer to your local
privacy act as well:
B.C. Personal Information Privacy Act s.18(1)(j) Alta Personal Information Protection Act s.20(f), (g), (h)
Que
Protection of personal information in the private sector 18(3)
For example, here in B.C.:
"Pursuant to the provisions of the Federal Personal Information Protection and Electronic Documents Act, s.7(3)(c.1) or the British Columbia Personal Information Protection Act, s.18(1)(j), (whichever applies to you), I request..."
Police learned from foreign sources that Mr Ballendine,
2011
BCCA
221
bought nearly $1,000 worth of DVDs of child pornography.
When the officer applied for a search warrant, this information was 2
years old. Were there reasonable grounds to believe that the
videos
remained in his possession?
In the ITO, the officer gave his opinion that child pornography
collections are "cherished and maintained", and so he expected that
these DVDs would still be in Ballendine's possession. But the
officer
provided no credentials to explain how he knew this. The court
rejected as worthless the opinion he gave because he didn't
explain his expertise.
Every time your ITO relies upon an expert opinion, your ITO must contain an explanation the expertise of the person who gives the opinion. If electrical consumption looks to you like a marijuana grow operation, explain your special knowledge of electrical consumption. If your multitudes of investigations of child pornography cases leads you to believe that collectors of such material never throw it away, then explain your special knowledge. If you rely on information a forensic biologist tells you about the durability of DNA, then ask the biologist for his or her credentials, and mention them in the ITO.
Considering that Mr Ballendine,
2011
BCCA
221
spent nearly $1,000 to buy DVDs of child pornography nearly 2 years
previously, was it likely he still had them?
In the absence of expert evidence that child porn collectors don't
throw the stuff away, the trial judge inferred that someone who spent
money to buy videos would likely want to keep them, just as people who
purchase music tend to add the music to their collections.
The Court of Appeal agreed with this logic.
This doesn't mean every time you learn that someone possessed child
porngraphy, you can assume that it's still in his possession years
later. But you don't always need expert evidence to prove the
obvious.
Police got a warrant to search the house of Mr Ballendine,
2011
BCCA
221
for
his computer and data storage devices, and to seize them.
They went there and found those things. They took them to a
forensic lab, and searched them for child pornography. Mr
Ballendine complained that the warrant only authorized police to go
into the house and seize the computer. It did not authorize the
police to conduct a second search of its contents afterwards.
The court ruled that this warrant "implicitly" authorized the second
analysis of the computer, but only because the justice knew that the
analysis couldn't be done at the scene of the search.
The defence argument appears to retain some force. A warrant
only authorizes as much interference with privacy as the warrant
authorizes. Warrants issued under s.487 of the Criminal Code
authorize entry, search and seizure, but don't really contemplate
analysis of what you seize. That's because it was drafted before
the Charter when property rights were all that mattered.
I predict that in the future, courts will say that a warrant must
explicitly state how
much the search will intrude on privacy. This will require a
change in s.487 and Form 5.
For the time being, if you intend to seize something and then send
it to the lab for
further analysis, I recommend that you state in the ITO what you plan
to do. This applies particularly to information devices like
compters and cell phones.
In a case like this one, you might write as a paragraph in your ITO:
"After I seize the computer system and digital information storage devices mentioned above, I intend to send them to an expert to analyze them for the presence of child pornography, communications relating to the acquisition of child pornography, documents and data tending to identify of the owner and user(s) of the computer system, and the authors of those communications."
Mr Hughes,
2011
BCCA
220
and
Mr
Jozic
never
met,
and never will.
They drove
their cars at around 2:00am on Highway 1. The "filthy weather"
caused other drivers to go slowly, but in blinding rain, they both
drove very fast. For several kilometers, Mr Hughes drove in the
fast lane, and Mr Jozic
matched him in the
slow lane. When they approached a slow car in the slow lane, both sped
up. Mr Jozic tried to squeeze his car between Mr Hughes on his
left and the slow car on the right. He lost control, crashed and
died, taking three of his four passengers with him.
Was Mr Hughes criminally negligent? Did he "cause" the deaths
of the people in Jozic's car?
Nobody said they were "racing". Hughes' argued that all he did
was drive fast in the fast lane: the crash was all Jozic's fault.
The court disagreed. By driving at such great speed as they
approached the slow-moving car, Hughes "carved
down the margin of error" for Jozic to pass. Therefore, both were
parties to the offence, even though they were not acting with any
common purpose. Hughes' actions were a substantial cause of the
deaths of the people in Jozic's car, and therefore he was guilty of
criminal negligence causing death. The fact that Jozic was also
criminally negligent didn't matter to Hughes' guilt.
One of the most important parts of the evidence in this case was
evidence of the reckless driving long before the collision.
When
police
investigated
the
case,
I'm
sure some focussed on the
accident scene. But this crime started several kilometres
back.
This investigation succeeded becase it looked beyond the
wreckage. Proof of this offence depended upon eyewitnesses who
saw the driving before the crash, and understanding the whole stretch
of road where the driving took place.
The scene of the crime often differs from the location of the
aftermath. When investigating, try playing the whole offence
through in your head. Back up to the beginning, and investigate
from there.
Four hours after a home-invasion robbery, police officers arrested
Ms Burke,
2010
ONSC
6530
at
her
residence.
She
declined
legal
advice.
One officer questioned her about the robbery while another officer,
standing where she could not see him, made notes. The trial judge
excluded her confession mostly because the officers could have arranged
to record the conversation electronically.
I think this decision is contraversial. I don't think it
represents the law generally across Canada. It's the bleeding
edge of a trend that judges want police officers to record their
interactions with suspects.
What I found interesting was this judge's enthusiasm for police
officers to wear and use recording devices at all times.
Evidently, this judge does not think there are privacy concerns to such
a practice.
Here in B.C., some police cars carry video cameras linked to
microphones on the officers' vests. As a result, I've seen some
useful video - although it's time-consuming to watch and expensive to
transcribe. This judge says that many officers in England wear
helmet-cams.
At the moment, I think you should warn suspects when you turn on recording devices. (Duarte, [1990] 1 S.C.R. 30) If this judge is correct, then in the future you won't need to.
Surveillance cameras often capture images of felons as they commit
their crime. What steps should you take when you recognize the
perpetrator?
Security video recorded Mr Francis pursuing a man through the
Toronto Transit system. When Mr Francis caught up, the man shot
him three times. Was the man Mr John,
2010
ONSC
6085?
When Cst. Mangiardi first saw a still photo from, he let his supervisors know that he believed it was Mr John. But the trial judge complained:
"There was no formal interview or statement, and no tape recording, setting out the fact of his recognition of the accused, the basis for it and the degree of his confidence."
It turns out Cst Mangiardi named two people he thought could be the
man in the video.
Evidence of a person's recognition of another person from a
photograph or video is admissible, but the court wants more than
"that's him". I suggest that you document:
18-year old Miss J.K. was down on her luck. She stayed for two
weeks at a rooming house in Vancouver, run by Mr Kontzamanis,
2011
BCCA
184.
It
ended
badly.
She
fell
ill.
She
saw
Mr
Kontzamanis
put a powder into a cup of wine. After that she
recalled nothing. She woke up feeling sexually violated.
His DNA was in and on her body. He said she consented to sex with
him and two other men.
She said he repulsed her. He was dirty, unbathed, unkempt,
unfit and impolite. She said she would not have consented, even
if intoxicated.
The jury believed her. The court relied upon her evidence that
even if she retained no memory of saying "no", evidence of her sexual
disinterest could establish whether she consented.
So it's fair enough to ask a complainant whether she or he felt any
attraction to the alleged sexual assailant.
A broken side mirror on a car caught a police officer's
attention. She pulled it over, intending only to give the driver
a notice to fix the mirror. Computer checks indicated that a
couple of years before the vehicle was involved kidnapping and forcible
confinement. The officer called for backup before talking with
the driver, Mr Phengchanh,
2011
BCSC
484.
Once
she
got
his
information,
she
learned
of
his
connection
to drugs and gangs. When the other officer arrived,
she asked him to do a pat-down search of Mr Phengchanh, for officer
safety. This revealed nothing.
Again, for officer safety, she searched the front of the car.
She found nothing but a curious box under the driver's seat. She
couldn't open it from the front, so she opened the back door to get
another look. That's when she found heroin. After arresting
Mr Phengchanh, the officers found more drugs and a Beretta pistol and
ammunition hidden where the air-bag ought to be.
Was the officer justified in opening the back door to look at the
box? Judge Romilly said "no". During a detention, an officer can
search only for officer safety. What this officer did to search
the car looked to him like a search for evidence, not an effort to
protect police. He excluded the evidence.
But before he got there, he thoroughly reviewed the topic of search
incidental to arrest and detention. This is a textbook on the
subject. He draws together the case law from across the country,
and tightly summarizes the legal principles.
The Supreme Court of Canada has long held that after an arrest, you
can search the person and his or her vicinity for evidence of the
offence. Cloutier
v.
Langlois 1990 SCC; Caslake
(1998 SCC).
A trial level decision in B.C. confirmed that this principle applies
to smart phones you find in the prisoner's possession. Giles
2007 BCSC 1147. (This never meant that you could search the phone
of every person you arrest. You need reason to believe that the
phone may contain evidence of the offence for which you arrested.)
Recent high court decisions throw doubt onto this general
principle. In Morelli,
2010
SCC
8,
the
court
emphasized
how
much
personal
information
electronic
devices
can
now
contain.
In
Caron,
2011
BCCA
56
at
para
60,
the
court
emphasized
the
privacy
in
digital
cameras.
(Most
smart phones now contain cameras.) In Manley,
2011
ONCA
128,
the
court
said
smart
phones
can
contain
so
much
personal
information
that
you
might
need
warrants to search them even if you obtained them
incidental to arrest.
While I think Giles remains good law in B.C., lawyers whose opinions
I respect recently warned me that they think you should generally get
warrants to search these devices even
if
you
obtained
them
incidental
to
arrest. If you're in
other provinces, that advice applies even more strongly, because you
haven't got Giles to fall
back on.
Some obvious exceptions come to mind immediately:
Other exceptions may occur to you. But the general rule is
that electronic devices like cell phones and computers do enjoy
expectations of privacy.
Cst Dukeshire shot Mr Camaso
2011 BCSC 456 dead. Camaso had set a fire in an apartment, and
radio dispatches informed Dukeshire that Camaso suffered mental health
issues. An ambulance attendant found Camaso first, but Camaso
fled.
The paramedic radioed this information and gave chase. Cst
Dukeshire caught up and pursued on foot. Other officers were
close at hand.
When Cst Dukeshire caught up to Mr Camaso, Camaso brandished metal
weapons and charged at Dukeshire. That's when the officer pulled
the trigger three times.
Camaso's family sued.
They complained that the police department failed to investigate the
incident properly. The judge agreed. The officers who
witnessed the event did not write proper reports, and may have
discussed the events before they wrote anything. They all signed
an identical incident report which was woefully brief. The judge
criticized the completeness of the scene investigation too.
But the judge awarded Camaso's family no money for the negligent
investigation. The failure to make proper reports did not harm
the family.
The trial judge found that Cst Dukeshire used excessive force in the
situation. I think that's a contraversial conclusion. The
appeal period has not yet expired. Don't take that part of the
decision as gospel.
But most of the judge's criticisms of the investigation make sense.
When you use violence against others, they will often demand an
accounting. Whether you used a gun, a tazer, pepper spray, or
your fist to subdue
another person, you should expect someone to challenge the propriety of
your actions.
If you fail to write a complete report, it looks like a
cover-up.
If you discuss the incident with the other police officers who were
present, it looks like a conspiracy to cover up the facts.
If you did inflict injury, you'll likely feel bad about it.
It's a normal human reaction to want to minimize your own
responsibility. Beware: to the extent that your account omits
facts, you'll look like a liar. (Think of the Dziekanski
affair.)
If other officers saw it, ask them to write detailed notes, but
don't discuss the events with them. If other people saw it, ask an
independent investigator to take statements from them. Arrange
for proper documentation of the incident. Photograph the scene
and the injuries (if any).
In the past, when someone assaulted a police officer, senior
officers assigned the investigation to the officer who suffered the
assault. I can't think of a worse strategy. It compels the
victim of the offence to gather the statements of all the
witnesses. You'd never ask any other complainant to investigate
the crime. It makes the investigation appear biased, and sets the
officer up as a target for accusations that he or she suppressed
evidence of his or her own misconduct.
Critics of the police have long complained that police officers
shouldn't investigate themselves. They argued it again in this
case. They want accountability. In situations like this one
it's easy to embarrass yourself.
Mr Guidolin, 2011 ONCA 264 wanted money for drugs. He mugged two women when after one used a bank machine. He got $240. Bank security video busted him. He conceded that he did the deed, but relied on a psychiatric report to show that he was "crazy" at the time. The report said he suffered from:
a schizoaffective psychosis;
(mental illness)
polysubstance abuse; and
(uses various drugs)
an antisocial personality disorder. (doesn't care about other people)
The trial judge agreed he was NCRMD at the time. After several
years in the hospital, Mr Guidolin changed his mind. Maybe he
wasn't really crazy, just guilty. He appealed the verdict, and
claimed to be guilty, not crazy.
The appeal court agreed:
"s.16 [the mental disorder defence] is not triggered merely because an accused suffers from a mental disorder that is causative of criminal conduct, even if that disorder renders the accused a danger to the public. The mental disorder can constitute a “defence” under s. 16 only if it has one of two effects. It must either render the person incapable of appreciating the nature and quality of the act or render the person incapable of knowing that the act was wrong. In this case, the NCRMD claim was based on the assertion that the appellant’s disorder rendered him incapable of knowing that his criminal conduct was wrong."
The evidence showed that at the time of the offence, Mr Guidolin
didn't care how it affected the victims. That's different from
not knowing it was wrong.
Mentally ill people can be guilty of crime, unless their illness
prevented them from "appreciating the nature and quality of the act"
(ie. they don't know what they're doing) or "incapable of knowing that
the act was wrong".
Mr Boswell,
2011
ONCA
283
murdered
Mr
Reid.
Mr
Sharpe
saw
it.
Reid
was
his
friend.
It
happened
in
Toronto's
Rexdale
community,
where
the
gang
lifestyle has instilled a code of silence. Witnesses don't talk
to police for fear of retaliation. When police first asked Mr
Sharpe, he denied any knowledge of what happened. He explained
that Reid's mother urged him to go to the police. So he gave a
K.G.B. statement, moved out of the community, and according to him,
would never return for fear of being killed.
To explain Mr Sharpe's initial lies, could the prosecution tender
evidence of this code of silence in the community? A police
officer who worked in that area could explain that for a year, in this
crime-ridden neighborhood, not a single person told police anything
about crimes they witnessed. The gangs punished with violence any
witnesses who talked, so that the gangsters could operate freely.
But this would suggest that Mr Boswell was a member of a gang.
This would improperly attack his character, asking the jury to convict
him because of his membership in a gang rather than because of the
evidence against him.
The trial judge strictly limited what the police officer could say
about gangs. But he permitted the officer to give evidence about
the code of silence. The appeal court agreed. Mr Boswell
remains convicted.
Some of you may work in communities like Rexdale. This isn't
strictly a big city phenomenon. I've seen codes of silence in
small rural communities. Evidence of this sort may help explain
the behaviour of your key witnesses. If you have it, let your
prosecutor know.
When Mr J.A.A.,
2011
SCC
17
and
his
wife
broke
up,
they
remained
in
the
same
house
for
a
time.
They
engaged
in
sex.
Was
it
consensual,
as
he said,
or a rape, as she alleged? A police officer noticed and
photographed a cut on his finger which looked like a bite mark.
This matched the story she told. The defence pointed out that
there was no cut on his penis, contrary to the story she told.
The decision itself discusses a legal rule of little importance to
police officers - after conviction, defence presented an expert who
said the cut on the finger wasn't a bite mark. Should defence be
allowed appeal based on evidence they should have presented at
trial? (In this case, yes: otherwise an innocent man could be
convicted. But not usually should such evidence be permitted at
appeal.)
The point for police officers is the value to everyone of a thorough
investigation. These officers photographed the injuries on him
and her. They photographed the scene, so that each story could be
compared against the scene.
So long as the investigators did a thorough job of collecting the
evidence for and against conviction, it's not their fault the courts
didn't come to a clear conclusion on guilt.
After arresting Mr X.Y.,
2011
ONCA
259,
a
police
officer
interviewed
him.
During
the
interview,
the
suspect
asked
that
the
recording
equipment
be
turned
off.
The
officer
left
the
room,
and
turned off the primary
recording equipment, but left the secondary system running. Mr
X.Y then explained his activities as a police informer.
The officer obtained a transcript of the full interview, and added
it to the disclosure package. He did nothing to investigate
X.Y.'s allegations that he was a confidential source. He did
nothing to mark the information as special. Crown disclosed it to
defence. At trial, Mr X.Y. applied for a stay of proceedings
because the prosecution had violated his privilege. The trial
judge said "no", but the Court of Appeal disagreed.
At first, this decision confused me. What could be so
objectionable about disclosing to the accused what he knew already -
that he was an informer?
Not mentioned in the decision is whether Mr X.Y. was co-accused with
others. If he was, then it immediately makes sense. The
same disclosure package would have been disclosed to counsel for the
co-accused, and from them to their clients.
Mr X.Y. complained of assaults and threats in jail because he was a
rat.
Informer privilege is serious business. When a suspect
identifies himself as an informer, you're playing with fire. Take
steps to seal that information up. Mark it as privileged material
when disclosing to Crown.
In X.Y.'s case, the Crown should have noticed the problem too.
The duty of protecting privilege belongs to police and Crown.
Mistakes can happen in either office. Only if both partners
independently take responsibility for protecting privileged material
can we have any confidence that we'll succeed in our duty.
If a suspect tries to raise this topic during an investigative
interview, beware. Maybe he's seeking protection. More
probably, he is suggesting a quid
pro quo - "if I tell you about these other crimes, then you'll
go easy on me for this one".
If you want to get a voluntary statement from the suspect about the
offence for which you arrested him, you should stamp out any suggestion
of a deal which involves lenience for the current offence.
Immediately mention that you can't make any promises or deals.
Defer discussions about other crimes until after discussing this
one.
"I'm interested in what you have to say about these other
offences. I'll talk about that with you later. But, I can't
promise you anything. I can't make you any special deals.
Do you understand?"
If you decide to turn him into a witness or a source, that's your
gamble. It's often a bad one. Consult with senior officers
first.
Yesterday, I commented about Duarte,
[1990]
1
S.C.R.
30.
If
you
tell
a
prisoner
that
you
have
turned
off
the
recording
device,
it
may
be
a
breach
of
his
s.8
rights
to
leave
it
running.
Although
the context in that case differs markedly from this one, the
language in that case is so broad, that I think it could apply to this
situation.
Do you have to tell them that you're recording them?
Many years ago, the Supreme Court of Canada said that any time a
police officer or agent covertly recorded conversation without judicial
authorization, it breached the other person's Charter rights.
Duarte,
[1990]
1
S.C.R.
30.
That
case
involved
undercover
police
wearing
bodypacks,
-
a
very
different
context
from
an
arrest.
When police arrested Mr Wu,
2010
ABCA
337
and
others
for
conspiring
to
traffick
drugs,
they
recorded
their
interactions
with
them.
Police
compared
those
recordings
with
hours
of
wiretapped
recordings
to
identify
who
said
what.
Defence
complained
that police should
have warned the suspects that what they said during the arrest would be
used for voice comparison. The court dismissed this suggestion.
"The phenomenon of video recording of statements taken by the police is now widely known throughout the Canadian criminal justice system. ... Indeed, the impetus for police doing so came from justice system participants, notably defence counsel..."
In my view, when arresting suspects you should still say that you're
recording them. Eventually, this quote from Wu will become so
commonplace, that you won't need to any more. But I don't think
that time has yet arrived.
When a police officer asked Ms Rivera,
2011
ONCA
225
to
blow
into
a
screening
device,
she
attempted
21
times
to
blow.
Her
responses
to
his
instructions
to
blow
included
remarks
like:
"I only had three glasses of wine"
"I only had two glasses of wine"
"I only had one beer."
"I work for you. I work in the office."
"I work for the O.P.P." [This was a lie.]
"I’ll lose my job, don’t do this to me. I only had one beer. I was just taking myself home."
"Why are you doing this to me? There are criminals out there."
She never gave a suitable sample, and she never complained of any
ill health. She never gave a proper breath sample.
At trial, she explained that a panic attack during the incident
caused her shortness of breath. She also asked the court to
exclude all of the remarks noted above, because she didn't get to talk
to a lawyer. The trial judge convicted her. The first
appeal judge excluded the gratuitous remarks, and acquitted her.
The Ontario Court of Appeal agreed.
They noted that she was detained. S.10 of the Charter says
detained people can get legal advice, but she didn't They agreed
with the prosecutor that breath screening falls into a special
exception to this rule. But they felt that all evidence except
for the refusal or failure to blow itself should be excluded.
I think the court got this one wrong. The Charter protects
people from police misconduct. During the period between
detention and access to counsel, you're required to "hold off
eliciting" evidence during that
time. Any evidence you elicit can be excluded.
But after demanding the breath screen, the officer didn't
ask her how much she had to drink or where she worked. He
didn't
elicit these remarks. He didn't violate the "holding off"
rule. Ms Rivera decided to volunteer
these remarks all on her own.
I don't know whether Ontario Crown will appeal this one to the
Supreme Court.
What does this means for Ontario officers - and possibly others?
When a suspect fails or refuses a breath screen at the roadside, the
trial judge may exclude all of the suspect's remarks except those which
form the refusal or failure itself. If so, you should:
This ruling raises the question whether - after several refusals -
you should give allow the suspect to get legal advice before trying
again. This idea runs contrary to the thinking in R.
v.
Woods, 2005 SCC 42. If you dare take this route, then you
should give the suspect immediate legal advice by cellular phone, and
you should not make a "second demand" (though there's nothing wrong
with telling the suspect a second time what the words of the original
demand were). After the suspect gets legal advice (or declines
it), you can ask questions about why the suspect is having difficulties.
I don't guarantee this will solve the problem. We'll see over
the next year or two how other courts respond to this decision.
When drafting an information to obtain a warrant, many officers rely
on templates which include paragraphs like these:
"I have personal knowledge of the matters herein described except where stated to be on information and belief, and where so stated, I believe them to be true."
"All matters contained in this information to obtain are true to my knowledge and belief."
The law requires you to disclose "negative information" - all
evidence in your possession which suggests that the warrant you seek
should not be granted.
If Patricia Perjuror told you that your suspect is innocent, you must
disclose this in your ITO, even if you don't believe it. You can
explain in your ITO why you think this information is false.
If your ITO contains information you think is false, then are either
of these
introductory paragraphs true? In a class, I suggested leaving it
out. Some police officers asked me to reconsider.
I was wrong.
For telewarrants, s.487.1(3.1)
requires you to certify that "all matters contained in the information
are true, to [your] knowledge and belief".
To get around this problem, here is some boilerplate which might
work:
I also suggested to the right person that the legislation should be
changed.
While doing routine maintenance, a computer technician at a school found a nude photo of an underage student on a school laptop. The laptop belonged to the school, but Mr Cole, 2011 ONCA 218, a teacher at the school had exclusive use of it, and permission to store private information on it. The school seized the computer, searched it, and copied child pornography from the computer onto separate disks. They gave the computer and the disks to police. Police copied the hard drive and searched it without getting a warrant.
Did Mr Cole enjoy any expectation of privacy over his computer as
against the school? Did the police violate his expectations of
privacy?
The trial judge excluded the evidence, saying that the police
violated s.8 of the Charter. The summary conviction appeal judge
disagreed. The three judges of the Court of Appeal found:
The court excluded the evidence of the police search of the computer.
The court said the factors which establised that Cole enjoyed an expectation of privacy over a work laptop were:
"Although this was a work computer owned by the school board and issued for employment purposes with access to the school network, the school board gave the teachers possession of the laptops, explicit permission to use the laptops for personal use and permission to take the computers home on evenings, weekends and summer vacation. The teachers used their computers for personal use, they employed passwords to exclude others from their laptops, and they stored personal information on their hard drives. There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops."
When the officer received the computer from the school, the officer did
a sensible thing: he investigated the teacher's expectation of
privacy. The school told him that the teachers could use the
computers for personal matters, but they also gave him a policy manual
which contained the following:
“all data and messages generated on or handled by Board equipment are considered to be the property of the Rainbow District School Board and not the property of the users of the technology.”
The court found even this did not eliminate the teacher's
expectation of privacy as against the school or the police (wow), nor
did it establish that the officer acted in good faith. (The court
did not suggest that the officer acted in bad faith either.)
The take-home messages are
Text messaging through cell phones combines the immediacy of
telephone communication with the convenience of email. Even
crooks like them.
Some telephone companies store the text messages which pass through
their systems. For a short while, they keep the messages on a
server, regardless whether the text message has been read by the
recipient.
To compel such a telephone company to disclose the messages, what
warrant or authorization do police require?
In R.
v.
Telus
Communications
Company, 2011 ONSC 1143, police obtained a
general warrant and assistance order which required Telus to produce
every day, all text messages sent and received by two subscribers:
Telus pointed out that police shouldn't get a general warrant except
if no other lawful order will do the job. They argued that the
police really wanted to "intercept" private communication, and
therefore required a wiretap authorization.
The judge found that wiretap wasn't required to obtain the messages
which Telus stored. The police didn't seek to "intercept" any
communications.
The prosecutor agreed that a general warrant was the wrong tool for
the messages which Telus had already stored. A production order
or search warrant would suffice.
The judge agreed that the general warrant and assistance order was
the correct way to require production of future data. He rejected
the idea that the police should, each day, obtain a new production
order or warrant for the messages which collected that day.
This decision indicates - but doesn't finally decide - how to use
general warrants for emails, text messages and voice mails. It's
a trial-level decision. I expect more litigation in future.
I thank Luc Cyr, a Québec prosecutor, for drawing this
decision to
my attention.
When you "seize" something pursuant to a warrant, or otherwise in
the execution of duties, you must give it back or keep it, but in any
case you must report it to a justice. Whether it's the
marijuana the warrant authorized you to search, or the cell phone you
found in the pocket of the trafficker you arrested, s.489.1
requires
you to "bring it before a justice" or at least deliver a report to the
justice.
Similarly, whenever you seize a person (ie "arrest"), s.496-503
require you to release the prisoner, or bring him or her before a
justice as soon as practicable and not more than 24 hours after the
arrest. s.503.
Mr Chung
2011 BCCA 131 kidnapped someone in B.C.. A warrant issued for him
in B.C.. Police in Ontario found and arrested him. They
kept him for 33 hours before bringing him before a justice. Noone
could explain why it took so long.
The justice ordered him to remain in custody for Vancouver officers
to arrest him and take him to Vancouver. They arrived, arrested
him and put him into a cell with an undercover officer. In that
cell he said enough about the kidnapping to convict him. Defence
sought to exclude that conversation by reason of the "arbitrary
detention" which occurred when the police failed to get him to a
justice in time.
The argument didn't work. This time. The court observed
that he was no longer arbitrarily detained after the justice made the
detention order.
Don't gamble with the clock. Get your prisoners before the
justice. And report what you seize.
Mr. Vu's,
friends
kidnapped
Mr
McMinn,
and
held
him
for
ransom.
The
friends
moved
the
victim
to
3
different
residences
before
police
resuced
Mr
McMinn. Mr.
Vu
2011 BCCA 112 acted as a jailer in all three residences. Was Mr.
Vu a "kidnapper", or did he merely commit "unlawful confinement"?
Kidnapping is unlawful confinement combined with moving a person
from one place to another without his consent. Mr Vu didn't move
the victim.
However, a way to be a party to an offence is by aiding someone for
the purpose of helping them commit it.
The evidence showed that Mr Vu knew what was going on, and he helped
guard the victim for the purpose of helping the others.
Therefore, he was party to a kidnapping.
Teen aged boys wanted to race their cars on a public highway.
They asked M.R.,
2011
ONCA
190
to
start
the
race
by
dropping
his
jacket.
He
agreed.
One
of
the
drivers
lost
control,
crashed
and
died.
Could
M.R.
be
a
party
to
the
criminal
negligence
which
caused
his
death?
The trial judge said "no", because M.R. didn't help with the driving.
The appeal court disagreed. M.R. knew it was going to be a
street race. He knew it would be dangerous: the drivers would
drive in a marked and substantial departure from the driving of
ordinarily prudent drivers. He helped the drivers get
started.
It didn't matter that M.R. didn't want anyone to get hurt: he knew the
risks and undertook them. The court ordered a new trial.
Criminal negligence is a "wanton an reckless disregard" for the
lives and safety of others. A person may be a party to criminal
negligence when they help the principal, knowing what kind of dangerous
conduct the principal will undertake.
Ms L.B.,
2011
ONCA
153
suffered
psychiatric
problems.
She
killed
her
first
baby
when
he
was
6
weeks
old.
She
killed
her
third
baby
when
he
was
10
weeks
old.
She
smothered
them
both.
Experts
called
it
"sudden
infant
death
syndrome"
or
"sudden
unexplained
death
syndrome."
When
she
had
her
fourth
baby,
she
finally
sought
help
and
confessed
all.
The prosecution charged her with first
degree murder because these killings were planned and deliberate.
The defence called it infanticide because she suffered post-partem
depression.
If the Crown proves beyond a reasonable doubt that the mother
planned and then killed her child, can the court convict the mother of
infanticide instead of first degree murder? Need the defence
prove anything to get there?
The Court of Appeal said "yes" and "no". Like provocation,
Infanticide is a partial defence to a murder. The Crown must disprove the elements of
infanticide (where they might be raised) in order to get a conviction
for murder.
When you get a case of a mother who murders her baby within a year
of birth, the extra issue to investigate is whether she recovered from
the effects of childbirth and post-partem depression before the murder.
Mr Craig found his wife by posting an ad in a Malaysian newspaper:
"western man seeking Asian woman". She married him, but he abused
her. He made her support the family. He took her money and
frittered it away on unsuccessful ventures. He drank. She
fell into depression and mental illness. One terrible night, she
suffocated him and stabbed him with a knife. The Crown charged
Mrs Craig
2011 ONCA 142 with murder. She claimed self defence, on the basis
of "battered woman syndrome".
He probably did assault her. But she provided no evidence that
she feared serious injury or death at his hands. In the absence
of such evidence, the self-defence provisions of the Criminal Code
could not apply.
The jury found her guilty of manslaughter.
Mrs Craig's story shows how utterly trapped some people can become
in destructive relationships. Mr Craig controlled her partly by
threatening to keep her child if she ever attempted to leave him.
She believed him, and feared the consequences for her son. People
like her allege, and then recant spousal violence, much to the
frustration of police and prosecutors.
For police, this case carries two main points:
In 20 years of prosecuting, I met over a thousand victims of spousal
violence. About a third recanted, usually giving new stories
which I
found unbelievable. Most of those recanters reappeared with new
injuries and new
complaints of violence. The cycle of violence continued. In
my opinion, the only way to save them from
this vicious cycle is by telling them in word and deed that we're
always
available and always ready to help stop the violence - no matter how
much they
abused our previous efforts. They need to know that there is a
safe way out. They need to know that speaking the truth about
what hurts them helps bring lasting peace.
In my experience, many do learn to speak the truth. We don't
always
get convictions or sentences which match the assaults. But
telling truth
causes change.
Somebody murdered Mr Bouthilier in his small Cape Breton
bungalow. Someone ransacked his place, tracking blood all over
the place. Mr Hawkins,
2011
NSCA
6
told
police
that
when
he
visited
Mr
Bouthilier,
he
was
fine.
However,
Mr
Hawkins'
footprints
matched
the
footprints
left
in
Mr
Bouthilier's
blood.
He
later
explained
that
he
went
back
to
the
bungalow,
and
found
Mr
Bouthilier
murdered.
Before his arrest, but after he became a suspect in the case, Mr
Bouthilier told his probation officer that he planned to move to
Halifax. He told friends he was moving "out west". He even
told police at the airport that he was flying to Halifax. But he
boarded a plane for Vancouver.
What Mr Hawkins did after the murder suggests that he had something
to hide. However, courts view this kind of evidence skeptically:
On appeal after conviction, defence complained that the jury was
permitted to use this evidence without adequate warning of its
frailty. However, the trial judge had cautioned the jury not to
leap to conclusions of guilt based upon what Mr Hawkins did after the
crime. The conviction stuck.
If you start from the belief that the suspect is guilty, then this
kind of evidence looks damning. But criminal trials start from
the belief that the suspect is innocent. If there are innocent
explanations for suspicous behaviour, the jury must consider them.
For example, suppose a suspect of two different robberies flees from
police. At the trial of the first robbery, it may be fairly
argued that he was only fleeing police because of his involvement in
the second robbery. And vice versa.
Of course you should collect and analyze evidence of suspicious
behaviour after a crime. But take care to consider alternate
explanations than guilt of the offence you are investigating.
By reason of the peculiar wording of the legislation, only a "peace officer" may apply for a telewarrant under s.487.1 of the Criminal Code. A "public officer" can not. In Timberwolf Log Trading Ltd. v. British Columbia, 2011 BCSC 142, this mattered because the applicant for the warrant was a logging inspector who investigated a "stumpage" (taxes on trees logged from Crown land). He wasn't a peace officer; but his work took him to places where justices of the peace don't go.
A careful examination of the legislation also seems to suggest, that anyone may apply to a justice under s.487 for a warrant, so long as the warrant authorizes a peace officer or public officer to do the searcing.
A confidential informant told police that Mr Manley,
2011
ONCA
128
was
the
guy
who
robbed
the
music
store
at
gunpoint.
The
informant
also
said
that
Mr
Manley
tended
to
carry
and
use
stolen
cell
phones.
This
seemed
credible,
considering
that
there
was
an
outstanding
warrant
against
him
for
a
B&E.
This
justified
arresting
Mr
Manley.
Did
it
justify
searching
his
phone?
When they did arrest him, an officer scrolled through the cell phone
to determine who owned it. Before locating the phone number, the
officer saw images of Mr Manley holding a sawed-off shotgun. The
officers got a warrant, and fully searched the phone later.
Relying on a lower court decision called Polius, defence argued that
searching a cell phone always requires a search warrant. The
court indicated considerable sympathy for this idea, but decided the
case a different way.
Because the officers had a reasonable concern that the phone was
stolen, they were entitled to examine it for the purposes of
determining who owned it. But once they found its phone number,
they were not entitled to search any further.
The court commented:
"While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search."
This isn't law, but it indicates the direction that court is
leaning: always get a warrant.
I think you always need specific lawful authority to search a cell
phone (or Blackberry / iPod / iPad / personal computer). You
don't get that power just because you arrested someone; but if you have
reason to suspect that a person's cell phone may contain evidence
relevant to the offence for which you just arrested him or her, then
you may search the cell phone for that evidence.
A police officer in Morinville, Alberta prepared charges against Mr Lupyrypa,
2011
ABCA
52
for
assaulting
and
obstructing
a
police
officer.
Rather
than
drive
the
30km
south
to
Edmonton,
the
officer
FAXed
an
information
and
an
explanation
of
what
occurred.
The
justice
signed
the
information
and
issued
a
summons.
Mr Lupyrypa complained that the procedure did not meet the
requirements of s.504
and s.508.1
of the Criminal Code, and therefore the charges were a nullity.
He almost won.
S.508.1 requires you to state in writing that all the matters
contained in the information are true to your knowledge and
belief.
The officer didn't. The court said you should. Make sure
your forms contain this essential language.
CSIS warned the RCMP that Mr Ahmad,
2011
SCC
6
and
others
planned
a
terrorist
attack
on
Parliament.
Police
investigated
and
arrested
18
people.
Before
trial,
the
prosecution
had
to
disclose
relevant
information
to
the
defence.
But
CSIS
collects
sensitive
information
relating
to
national
security
and
international
relations.
Some
of
this
material
couldn't
be
disclosed
to
defence
without
causing
great
harm.
Sections 38
to
38.15 of the Canada
Evidence
Act requires anyone who may have to disclose such material
to notify the Federal Attorney-General. The A-G may authorize the
disclosure, or commence a proceeding in the Federal Court to determine
what can be disclosed to whom and on what conditions.
Mr Ahmad's counsel attacked the provisions as
unconstitutional. The trial judge agreed, but the Supreme Court
of Canada overturned his decision. They agreed that s.38 is
cumbersome - other countries have more streamlined ways of dealing with
these problems - but it isn't unconstitutional. If, by reason of
lack of disclosure, the accused can't get a fair trial, then the charge
must be stayed.
Those of you who deal with information relating to national security
should read this decision, so that you know how this procedure works
and what options are available. The rest of you just need to know
that there's a special procedure to follow if you find yourself facing
the prospect of disclosing information pertaining to national defence,
national security or international relations.
When Mr Caron, 2011 BCCA 56 drove on a highway near Ashcroft, B.C. at 165km/h, he caught the attention of an officer using radar to catch speeders. The officer pursued him, and watched him pass dangerously. Eventually, Mr Caron stopped, and the officer arrested him for dangerous driving. The officer searched the glovebox for registration documents and found a digital camera.
Could the officer view its contents?
The officer testified that he had, in the past, seen photographs people took of their speedometers when achieving great speeds on highways. He figured that this camera might show the same thing. But during his pursuit and arrest, he saw nothing on this occasion to suggest that this driver had taken any pictures.
This officer did scroll through the pictures in the camera, which
showed people playing with guns. This gave him reason to search
the rest of the car, where he found loaded semi-automatic pistol and
$60,000 cash impregnated with drug residue.
The Court of Appeal said it was an unlawful search of the
camera.
The judges overturned Mr Caron's conviction.
This should come as no surprise. When searching incidental to
arrest, you need a "reasonable prospect" of finding evidence of the
offence in the place that you look. This doesn't mean you need to
know that the evidence is "probably there" before you're allowed to
look. But it does mean that in each search, you must have
observed something from which to infer that evidence related to the
offence could be in the place that you search.. If this officer
had been able to say why, in this case, he thought there was a good
chance of finding a photograph relevant to the dangerous driving, it
would have been a good search. He didn't provide that
evidence. The court found against him.
The court also observed that cameras, like cell phones and
computers, tend to contain personal, "core biographical"
information. People whose cameras you seize enjoy an expectation
of privacy over their contents. You need lawful grounds to search
such devices.
Mr Paul
2011 BCCA 46 drank a lot of booze, and snorted a lot of cocaine.
He took a hand-gun to a party and shot dead several people he
knew.. He then attempted suicide. At trial, he explained
that voices in his head told him that he should kill them and himself,
so that they would wake up in a happier place. He explained that
he decided to take that advice.
His psychiatrist testified that Mr Paul's objective was a psychotic
one, caused by the drugs, and therefore Mr Paul could not be said to
"intend" to murder.
Despite this, the jury convicted him of first degree murder.
Mr Paul complained to the Court of Appeal that the trial judge confused
the jury about "intention".
The Court of Appeal didn't agree.
Mr Paul's psychosis was by reason of self-induced
intoxication. There is no defence of insanity for such a person.
There's a big difference between motive (the reason why you do
something) and intention (whether you wanted the thing to happen, or
whether it was an accident). Mr Paul had a crazy objective,
but
that
was
just
his
"motive".
The
question
for
criminal
liability
is
whether
he
"intended"
to
kill
his
victims.
That,
he
most
certainly
did.
Therefore
he
was
properly
convicted.
Ms Earhart reported Mr Sabine missing. Police investigated,
and soon Mr Ashmore told police that Ms Earhart confessed to him.
He admitted helping her dispose of the body. Police arrested Ms
Earhart.
Because the various statements didn't add up, police kept
investigating.
Mr Earhart met Mr Big, and told him his involvement in the murder.
Police arrested Ashmore on a Friday afternoon, and carefully gave him access to counsel. On Saturday morning, they conducted a bail hearing, and the justice ordered police to:
"Take the accused into custody and to take the accused and convey him/her safely to a prison in the Province of British Columbia being either a federal institution, a provincial institution or a police lockup and deliver him/her to the keeper thereof." (emphasis added)
After this order, police interviewed Mr Ashmore in police
cells. He confessed, and re-enacted the crime for them. At
trial, defence argued that after a bail hearing, the accused is in the
custody of the court, and the police can no longer interview him.
The court disagreed.
There are cases in which police questioning after the bail hearing
was improper. But in those cases the police kept the prisoner in
their cells even though the warrant of remand (Form 8) ordered them to
deliver the prisoner somewhere else.
Because the usual remand centres in B.C. do not accept new prisoners
on weekends, the police were obliged to keep Mr Ashmore in their own
cells. The wording of this warrant permitted police to keep
him.
The court found nothing improper with interviewing him after the bail
hearing.
Unfortunately, the police also took Mr Ashmore to the scene of the
crime for a re-enactment. By the terms of the warrant, this was
unlawful, and constituted a violation of s.9 of the Charter. The
court admitted the evidence anyway, because Mr Ashmore consented to do
the re-enactment. But be warned: after a justice issues a warrant
of remand, violating that order constitutes an unlawful detention.
This decision could change the way you pursue interviews with
suspects. Rather than press to complete an interview within the
first 24 hours after an arrest, you might ask the justice to remand the
prisoner specifically into police
custody, so that you can interview after the bail hearing.
I anticipate institutional resistance to this idea, so proceed with
caution.
However, there are cases where efforts to access counsel
consume almost all of your 24 hour limit. If you explain to a
justice that the accused frittered away your opportunity to interview,
and that Ashmore allows a
justice to order the location of the remand, then a justice might be
persuaded to give you more time to interview in your cells, whether or not the arrest occurred on a
week-end.
Officers in other provinces, beware. This decision is
contraversial, and may not be adopted in your jurisdiction. Seek
advice from your prosecutors before relying on it.
In a subsequent decision, Chung 2011 BCCA 131, the court again rejected the "custody of the court" concept.
Defence relied upon the subsequent decisions of Sinclair,
2010
SCC
35,
the
defence
complained
that
the
police
should
have
re-advised
Mr
Ashmore
of
his
right
to
counsel
before
embarking
on
these
novel
or
unexpected
investigative
techniques.
The court found nothing novel or unexpected about:
Therefore, the officers had no obligation to give Mr Ashmore further
access to counsel before using these techniques.
I observe that the investigating officers actually did offer him
more access to counsel before the re-enactment, but he turned it
down. This made a favourable impression with the court. The
officers acted in good faith respecting Ashmore's rights. In a
separate Charter issue, the court admitted evidence even though it
arose from a breach of s.9.
To cover up her incestuous activity, she went down to the local Staples store and forged identification documents for her son. She threw her rough drafts into the garbage there. Police seized those documents. She complained this violated her privacy. The court found that she had no expectation of privacy in what she discarded in a store frequented by the public.
Ms B.D.,
2011
ONCA
51
married
her
son.
She
conceived
his
daughter,
but
the
baby
died
after
birth.
When the baby died, police asked the Coronor to keep a sample of the baby's blood, pending further investigation into possible incest. The Coroner did. The police arranged forensic DNA comparison of that blood with bodily samples taken from Ms B.D. and her son. At trial, Ms B.D. complained that it violated her privacy to analyze her child's DNA without her consent.
The court found that the expectation of privacy in the child's DNA belonged to the child, not the mother. And when a person dies, their s.8 expecation of privacy dies with them.
Once police had reasonable grounds to believe incest occurred, they
drafted
an application for a DNA warrant. They sought and obtained legal
advice from several prosecutors before proceedings with it - indeed the
warrant was contraversial. Defence accused the police of
"Crown-shopping", and demanded disclosure of the legal advice which the
police received.
The court said:
It cannot be that where the police consult with Crown counsel during an investigation, whatever advice the Crown may give will automatically become a materially relevant fact and admissible at trial. Further, while it is the function of Crown counsel to provide legal advice when asked, Crown counsel cannot direct the police in their investigation. Police are not bound by that advice. In the circumstances of this case, the fact that various Crown counsel may or may not have had differing views on the applicability of s. 487.05 is, as I have said, neither relevant to nor dispositive of the issues at trial.
Once the police gathered sufficient grounds to believe that the child was probably the product of incest, police made one application for DNA warrants agains both the mother and the son. Defence complained that the warrants were unlawful. The court agreed.
It turns out that s.487.05 wasn't well drafted when it comes to
incest investigation. It allows you to take a DNA sample from a
"party to the offence" for comparison against a sample which you have
already "found" or "located". But a single warrant doesn't allow
you to take DNA samples from both suspects for the purpose of comparing
them with each other.
If you have a bodily substance from a child of an incestuous
relationship, you can use a DNA warrant for the purposes of a
paternity or maternity test. Thus the DNA warrants were lawfully
obtained against the mother and the son, for the purposes of
comparing their DNA against the child.
But these officers used the DNA for a different purpose: they
compared the DNA taken from the mother against the DNA taken from the
son. The comparison was suspect against suspect, instead of
suspect against victim.
But the court admitted the evidence anyway, because there was a
lawful way for the officers to get there, had they known.
If this ever comes up again, you should get the DNA warrant against
one of the two suspects first. Once you have executed the first
DNA warrant, get another warrant against the other suspect, which asks
for authority to compare the second suspect's DNA against the victim and
the first suspect's DNA.
Suppose a stranger robs a store, and there were two clerks working
at the time. You interview the first, and she says the robber was
Harry Hoodlum. Would you interview the second clerk? Of
course. You would always interview all the witnesses to the
offence, right?
Okay, change the context. Suppose you attend a domestic
complaint. She says while she was alone with him, he assaulted
her. Are there any other witnesses to interview?
Many officers seem to think the answer is "no". They arrest
the suspect, and give him access to counsel, and sort out his
bail. In my opinion, you should always attempt to get answers
from him too. He may have the right to silence, but so do the
witnesses. Neither he nor they have any legal obligation to tell
you about the offence. But you have a duty to investigate.
You should try. Asking for only one side's version of a dispute
looks biased and lazy. If he flatly refuses to discuss the
offence, your report should say so.
And there are ways to try. If you ask him "Now that you spoke
with counsel, do you want to give a statement?" his answer will more
likely be "No." Your supervisor will be happy, because this frees
you up for the next call. The prosecutor won't be so pleased.
After a vigorous dispute with a girlfriend, most guys want sympathy.
Suppose, after the consultation with counsel, you say instead:
"You've had a pretty rough night. It's gotta be hard on a guy to have these kinds of problems with a girl. You know, she told me that you ..."
If he wants, he will tell you his side of the story. Sometimes, we learn he's innocent. Sometimes, he tells provable lies. Sometimes, he admits his guilt. (Of course, I want all this conversation recorded, so make sure you tell him early that you're recording the conversation.)
Consider a different context. You attend a single-car accident
scene. A man tells you that he followed the vehicle and saw it
"weave all over the place". He does all the talking while his
wife stands beside him nodding her agreement with what he says.
How many statements do you take?
The answer should be obvious: Two. Separately. (Don't
interview witnesses in earshot of each other.)
Suppose the husband says that the wife saw none of the bad driving
because she was asleep. Is there any point in interviewing her?
This answer isn't always obvious. But I'd like to know what
she observed about the suspect's sobriety, whether she saw him drink
alcohol, and what the suspect said to her while her husband called the
police. Some women are often quieter than their menfolk, but
observe more carefully.
The principle is simple: a good investigator interviews all the
witnesses, including the suspect. In my experience, this
principle is forgotten most often in:
Mr Bi
& Ms Deng 2011 BCCA 10 lived upstairs in a house. A marijuana
grow operation filled the basement. Condensation and fan noise
and the smell of marijuana filled the house. At trial, the
landlord's son explained that they rented the upstairs, but some guy
named "David" rented the basement. Did Mr Bi and Ms Dent
"possess" the drugs? Were they "party" to the production?
Defence argued that they might have known about it, but that
doesn't establish control.
If that were the only evidence, they would have been
acquitted. But when the police officers executed the search
warrant, they observed more carefully. An ashtray in the basement
overflowed with cigarettes of only two brands. Upstairs, they
found cartons of cigarettes of only those two brands. Upstairs,
they found English and Chinese videos. Downstairs, they found
A computer security system upstairs provided live coverage of
the electrical meter. A hole had been punched in the outside
wall, upstairs, to install this system. Downstairs, they found
theft of electricity by means of an electrical by-pass. And there was
some marijuana in the fridge.
These additional observations led the judges to conclude that the
tenants upstairs participated in the activity of the downstairs tenant.
When investigating possession, proving knowledge isn't enough.
This is just another example how careful observation and documentation
(take photographs of the whole scene, not just the contraband) may
discover additional evidence.
The entrapment defence grew up in the world of serious crime.
The courts found that unless you have a reason to suspect that a person
is involved in crime, you shouldn't try to tempt them into committing
one. (They call this "random virtue testing".) And even
when you do suspect someone of criminal behaviour, you shouldn't put
too much pressure on them to commit the offence. You can offer an
opportunity, but you're not allowed to make them do it.
In this case, nobody had any particular reasons to believe that this chain, this store, or this clerk tended to sell tobacco to minors. So the defence applies, right? Courts in Saskatchewan and Alberta said "yes". Myers, 2000 SKQB 226 and Tyzuk, 2009 ABPC 282
But not in Ontario.
The court found that people who engage in highly regulated conduct
can expect state enforcement. (Think of motor vehicle
enforcement: a peace officer doesn't need individual suspicion to stop
vehicles for seatbelt and safety checks.) The principles which
defined the entrapment defence don't apply in this regulatory context.
If you want to learn about entrapment, don't start on this
case. Go to the foundational cases:
R.
v.
Mack, [1988] 2 S.C.R. 903;
R.
v.
Barnes, [1991] 1 S.C.R. 449.
Should we call it"murder" if the killer never wanted anybody
dead? What if he just set out to steal some marijuana, but wound
up shooting someone?
Mr Shand
2011 ONCA 5 and his friends decided to steal marijuana from a local
dealer. Shand packed a handgun. When things started going
badly, he produced it. Either he pointed it at someone and fired,
or he hit someone on the head with it, and it went off.
Regardless how it happened, the victim died from the gunshot.
Of course, if Mr Shand intended to kill the victim, he was guilty of murder. But what if he didn't intend it, but knew someone would likely get killed during the attack? Because of s.229(c), the trial judge told the jury they could convict Mr Shand if he knew that his actions would likely kill someone.
Section 229(c) calls it "murder" if someone, while pursuing some
other crime, does something he knows "or ought to know" is likely to
cause death, and does kill someone. The Supreme Court of Canada
found the "ought to know" part is unconstitutional (Martineau,
[1990] 2 S.C.R. 633). Defence argued that
the rest of s.229(c) should be unconstitutional too. They argued
that no one should be called a murderer unless they intended to kill
someone.
The court disagreed. If Mr Shand
persisted in committing a serious crime, knowing that someone will
likely die, it doesn't make much moral difference whether he
specifically wanted someone someone to die or not. He plainly
chose that risk. In that sense, it's very similar to the
definition of murder in s.229(1)(ii), which calls it murder when a
person casuses death while intending to cause his victim bodily harm
which is likely lethal, without caring whether his victim lives or
dies. Mr Shand is as morally guilty as that guy. Neither
specifically intended death; both risked it.
Over the years, I have heard lawyers argue, and even some judges accept, that assaults upon police officers are not serious, because that's the kind of work that the officers took on in the first place. Some suggest that spitting is not serious, because of the minimal force involved. The Saskatchewan Court of Appeal disagrees. When police arrested Ms Charlette, 2010 SKCA 78 she spat twice in an officer's face and once on his clothing, the judges said this:
Spitting on someone is a particularly distasteful and harmful form of assault. It is almost always accompanied by the veiled or express threat of transmitting a communicable disease. The possibility of contracting a disease is real, and the fear of developing a disease preys on the victim’s mind for some time to come. Police officers, whose jobs require them to confront individuals in close quarters, have few resources to counter an assault of spitting.
One may also reasonably infer that by spitting, the person expresses
contempt for police and the rule of law generally. If you treated
the suspect with consideration and respect, and received spit in
return, then the suspect's actions speak volumes. But your
options are few.
Gone are the days that police were expected to inflict their own
"justice" in the cellblock after the arrest. You can't beat them
up or inflict unnecessary pain.
You can submit a report to Crown Counsel. Some police officers complain to me that their prosecutors show no interest in such assaults. For those lawyers, you might tactfully include a citation of this case with your report.
When a police officer pulled over Mr Sceviour, 2010 NLCA 47, he smelled like he had been drinking. The officer demanded that he blow into a screening device. Mr Sceviour made some attempts, but not enough air went in. The officer thought he was capable of providing proper samples. He said he couldn't. He offered to provide blood samples instead, but the officer "refused to demand a blood sample". An hour after his release from police custody, Mr Sceviour went to a hospital and got a blood sample taken and tested. It showed he had the equivalent of 9 mg% in his blood.
The trial judge convicted him of refusal because he failed to
provide the breath samples. The Court of Appeal ordered a new
trial because the trial judge didn't consider whether Sceviour meant to
fail to provide the breath samples. But that's not why I picked
this case to talk about.
What should you do when a driver doesn't blow but offers a blood
sample instead?
This comes up often enough to trip up officers, but not so often
that it becomes a part of routine training. The answer is: "It
depends."
The first thing is to take the concern seriously, and ask questions
about why the suspect can't blow. Note (or audiorecord) what the
suspect says. If there's a trial, this is what it will be about.
If you believe the suspect can blow, but is using the offer as a
diversionary tactic, then complete your investigation of the breath
testing first. "I understand that you're offering to provide a
blood sample. The law requires me to take breath samples if possible,
so I'll deal with that first."
You can accept voluntarily offered blood samples.
But you have no power to demand them, so don't read any
demands from your card. This investigator was correct in her
procedure, but used the wrong language to describe it.
If you believe the suspect honestly can not provide a breath sample,
then your options depend upon which kind of demand you made:
Be very wary about accessing information lawyers collect from their clients.
Police in Timmins, Ontario obtained a search warrant for the
computers in Mr Sloan's office. They had reason to believe that
the computers contained child pornography. Mr Sloan's practice
focussed on criminal defence. How were the officers to execute
their search without violating the privileged material in Mr Sloan's
computers?
The answer was to seize the computers, seal them up, and arrange for
a third party appointed by the court to search the computers for the
offending material.
Who was to store the computers while the exhibits were
detained? The Attorney
General
and
The
Law
Society, 2010 ONSC 2150 asked the court.
The court said it wouldn't look right if the police, who were
adverse in interest to Mr Sloan's criminal clients, possessed all his
private computer records. The court directed that a neutral third
party store the material.
That decision isn't actually all that important. Here's what I
think you might find useful and interesting in this decision:
A lively debate persists in British Columbia whether an officer
drafting an information to obtain a search warrant must disclose everything known to the officer
relevant to whether the warrant should be granted, or just all negative information. It
started with Ling,
2009 BCCA 70 (which suggests that you must
disclose everything),
received some support from Morelli,
2010 SCC 8 (para 58), and appears to continue with Vi, 2010 BCCA 496. Again, the court does not
appear to hit the issue directly, which leaves some room for doubt for
police officers drafting their applications.
Three adults, Ms Wu,
Mr
Wu
&
Mr
Lee,
2010
BCCA
589
lived
in
a
house
together.
Their
bedrooms
were
downstairs.
The
upper
floor
contained
a marijuana grow
operation. No locks or doors prevented the people downstairs from
reaching it. Circumstances established that each knew of
it. Defence suggested that one could be responsible for the
marijuana, and the others just lived there. Were any of them in
"possession"?
Possession is knowledge and control. But what is
control? The court said:
"What the Crown must prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised."
While there was no evidence that any of them tended the plants, the
layout established that any could go in a move them. Therefore,
each had sufficient power to be in control of the plants.
"[I]t is not unreasonable for a trier of fact to conclude that someone living in premises in which marihuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs."
Through his bonded moving buisness, Mr Suelzle,
2010
BCCA
591
orchestrated
the
shipment
of
3
packages
of
cocaine
from
Washington
State
to
British
Columbia.
His
brother
attempted
to
take
them
two through the border, but got stopped. Mr Suelzle
then provided false information to the authorities about where they
came from and why they were being transported. He blamed his good
friend Kalsi for using him to deliver drugs.
At trial, defence argued that Mr Suelzle was merely an accessory
after the fact. When he learned what his friend Kalsi did, he
merely tried to cover up for him. He claimed he never knew
what the packages contained until after his brother was arrested.
The trial judge found that Suelzle told too many lies before and
after the brother's arrest to believe his defence. The Court of
Appeal agreed.
I suspect that proving that the packaging contained false
information, and proving that the lies came from Mr Suelzle took
considerable investigation. But the work paid off.
Sometimes it doesn't. "Post offence conduct" doesn't usually
show what the suspect was thinking before the offence. The
suspect may tell lies told after the offence for reasons other
than guilt. For example, a murder suspect might lie about his
whereabouts during the killing because he had a curfew.
Starting January 1, 2011, it becomes a provincial offence in British
Columbia to possess or sell body armour without a licence or
permit.
People in the security industry, such as security guards, are exempt.
You can seize body armour, and seize it without a warrant, if you
believe on reasonable grounds that it is possessed without a permit or
exemption.
The regulations
provide that peace officers can possess body armour while employed as a
peace officer.
Did Mr Parsons
2010 BCCA 558, a commercial trucker, know about the cocaine in the back
of his truck? He was in financial difficulty. He drove to
California where he picked up a trailer. He loaded carrots
destined for Alberta, but drove instead to B.C.. At the border,
when customs officials started asking difficult questions, he fled,
leaving his identification and personal papers behind. There were
61Kg of cocaine in the truck worth $1.7 million. They were
packed in boxes atop the carrots. He told the customs officials
he was "there" when the trailer was loaded. The cab contained
$6,200 cash in a plastic bag. The going rate for a cocaine
courier is $1,000 per kilogram, so his cab appeared to contain about
10% payment.
Mr Parsons explained that he intended to quit his job, so he would
simply deliver the rig to his employer in Surrey, B.C.. (He had
once before quit his job suddenly, leaving a loaded trailer by the side
of the road.) The cash was to buy a car. When the customs
officials started asking uncomfortable questions, he feared that
someone might have planted something illegal in his truck without his
knowledge. He panicked and fled.
He beat the charge. The trial judge didn't say he was innocent -
only that Mr Parsons' evidence raised a doubt.
I do not fault the investigators. It sounds like they worked hard on this case, digging up circumstantial evidence of motive and knowledge. I suspect another judge might have come to a different conclusion.
There are no new legal principles in the decision. It reminds
us: the evidence you collect may convince you of the guilt of
a suspect, but the proof required in court is very
high.
Don't stop investigating just because you're convinced.
In my opinion, an investigation is complete when all reasonably
available sources of evidence have been canvassed. Your
budgets and the seriousness of the offence determine what's
"reasonable". But the court won't worry about your budget when
deciding guilt.
After the tenants of an apartment in Mississagua moved out, the
building manager went in to clean it up for the next tenants. On
the balcony, he found a bag containing a dead baby. He reported
this to the police, who issued press releases. Weeping and
crying, Ms Levkovic,
2010
ONCA
830
attended
the
police
station.
She
told
them
that
she
fell,
the
baby
was
born.
She
put
the
baby
in
the
bag,
and
left
the bag on the balcony. The autopsy could not reveal whether the
baby was born alive or dead.
Section 243 makes it an offence to "dispose of the body of a dead
child of the dead body of a child, with intent to conceal the fact that
its mother has been delivered of it, whether the child died before,
during or after birth".
At trial, defence complained that the word "before" should be struck
down as unconstitutionally vague. The trial judge agreed: the
legislation doesn't say whether a fetus at 2 months is a "child" within
the meaning of this section. Because the evidence couldn't
determine whether the child died before or after birth, the judge
acquitted Ms Levkovic.
The appeal court overturned this decision. The offence was
created to protect children. Hiding their bodies makes it
difficult to determine how they died, or who was responsible. The
court relied on an English decision R.
v.
Berriman from 1854 to determine the gestational age
necessary for this offence. A fetus is a "child" who, if born,
has a "chance of life".
For police officers, this means the offence remains on the
books. Note that the complete offence involves more than merely
hiding the body of a baby. You need to collect evidence of how
close to full-term the baby was, and why the suspect hid the baby.
Acting on good information from the power company, police believed
that people in several residences in the same neighorhood were stealing
power. In unmarked police cars, officers watched the residence
while other officers applied for search warrants.
After several hours, Mr Trieu,
2010
BCCA
540
drove
out
of
the
garage
of
one
of
the
suspicious
residences.
Officers
detained
him.
They
told
him
about
his
right
to
counsel,
and
he
asked
to
call
a
lawyer.
They
didn't
let
him call anyone for 25 minutes. When they searched, they found a
grow operation and documents linking him to it. They arrested
him. It took a further 20-25 minutes to get him in touch with
counsel even though the police station was only 2 blocks away.
Even before arresting him, the officers took his keys and garage
door opener, which they used to enter the residence. They also
took his cell phone.
Defence complained that the officers lacked grounds to detain
him. The court disagreed. Detention - not arrest - was the
right choice. When he first emerged from the garage, there were
reasons to suspect that he was implicated in the theft of
electricity, but not yet enough reason to believe he was
probably responsible. When executing a residential search
warrant, you should arrest only those people you believe
committed offences. But you will often have reason to suspect
all other people you find present at the scene. Those ones, you
should detain.
Defence argued that the length of the detention - 25 minutes -
converted it into an arrest. Crown pointed out that the police
never handcuffed him until they arrested him. The court
agreed. Although there is some authority that you can handcuff a
detained person without turning a detention into an arrest (Ferris),
your
decision
to
handcuff
does
seem
to
be
a
factor
judges
will
use
to
decide
it's
an
"arrest"
even
if
you
called
it
a
"detention".
Defence complained that the police violated his right to
counsel. The court agreed. While some delay was appropriate
to prevent him from calling people who might interfere with the various
searches to be conducted, these officers delayed access beyond what was
necessary.
Defence complained that the police did not have the authority on a
detention to take the cell phone, keys and garage opener. The
court declined, for technical reasons, to decide that point. I
suspect that the court would have agreed. On detaining a suspect,
you may search for weapons which you fear pose you a risk. But
detention isn't arrest. You may not search for and seize evidence.
At 10:30pm, a power company technician checked the electrical meter
at the outside of a house belonging to Mr Trieu,
2010
BCCA
540.
He
went
there
so
late
at
night
because
of
power
fluctuations
in
the
neighborhood
which
indicated
the
risk
of
an
overloaded
transformer.
Although
he
wrote
about
this
concern
in
a
report,
when
he testified he didn't mention it. (Maybe the trial
prosecutor should have asked.)
The Charter applied to his actions. To enter on Trieu's land,
he relied upon the contractual terms of a Tariff which was set by a
provincial regulation. It permitted him to enter only at "at all
reasonable times". Defence complained that 10:30 at night isn't
reasonable, and the technician trespassed. The court agreed,
commenting that the technician had not described any urgency.
Had the technician expressed concerns that power would fail, or that
a transformer could be overloaded, then his entry would have been
reasonable, and there would have been no Charter issue.
Security and loss-prevention officers of power and communication
companies would do well to know their authorities to violate privacy
(like entering land or listening to conversations), and be ready to
testify about them when called upon to do so.
Mr Singh's 2010 ONCA 808 girlfriend turned up strangled and drowned in a creek. He fled to India 10 days later, but returned to Canada 7 months later. Police interviewed his family. One brother said that on the day she disappeared, Singh came home and destroyed her phone. Another brother gave three statements. In the first two, the brother told police that Mr Singh denied any involvement, but in the third, given under oath after the police promised to drop charges against him, the brother said Singh confessed to the murder. Singh's father and younger brother gave statements that Singh confessed.
At trial, they recanted. They accused the investigators of
pressuring them, even threatening and assaulting them, in order to get
their statements. Defence counsel attacked the investigation,
suggesting
that the officers focussed on Singh, to the exclusion of all other
suspects, and suggesting that the officers misconducted themselves.
The defence strategy didn't work this time.
This case doesn't contain any big legal news. But the story
reminds us that getting information from a reluctant witness is only
half the battle. Stories may change at court, and the focus may
turn on you.
There are special challenges when gathering information from
suspects' family, or other people who hold strong allegiances.
Even if you persuade them to tell what they know, they may later
recant, and accuse you of improper persuasion. Therefore,
restrict your means of persuasion to methods you'd feel happy to
recount in court, and protect yourself by recording as much as you can
about how you dealt with reluctant witnesses.
Mr Luu
2010 ONCA 807 and Mr Dang were friends. When they were alone
together,
a shot rang out. Mr Luu summoned aid and rushed Mr Dang to
hospital,
where he died of a single gunshot wound to his chest. Who held
the gun
when it went off?
The Crown figured Mr Luu held the gun, and played with it
carelessly, causing it to fire. This theory would stand up only
if the
gun was beyond Mr Dang's reach. Various experts provided opinions:
All this evidence fell apart.
The firearms examiner conducted some experiments with gunshot
residue, but she did not create experiments which reflected the
deceased's shirt and its handling. For example, she fired a shot
from
the gun squarely into cotton fabric. But she didn't know what
kind of
fabric the shirt was made of, nor whether the gun faced the body
squarely or obliquely. These factors could affect whether gunshot
residue would stick to the shirt.
There are many lessons for experts in this case:
For investigators and prosecutor this case reminds us:
Police suspected Mr Wedge trafficked in illegal tobacco. A
wiretap
authorization permitted police to record all telephone calls to Mr
Wedge's residence, but required police who overheard lawyers'
conversations to stop listening when they discovered who was speaking,
and seal up the recordings. A judge would later determine whether
the
calls were privileged.
Shortly after police arrested Mr Wedge, someone called his resdience
and warned his wife that there was something in the house to worry
about, and she should give "Romeo" a call to come over and pick it
up. When officers went to secure the residence, they found
"Romeo" there, and traces of tobacco on the toilet seat.
When a police officer listened to the beginning of that call, he
heard the caller identify himself as Mr Wedge's lawyer, Mr Martin
2010 NBCA 41. Instead of sealing the recording immediately, the
officer played it all the way through.
Defence complained that police effectively bugged a lawyer's
office. But this confuses the location from which a call emanated
with
the location where it was intercepted. The court didn't buy this
argument.
Defence complained that the police violated his expectation of privacy
by listening to a privileged call.
It appears that Mr Martin was not giving legal advice to a
client.
He was attempting to obstruct justice by telling someone to destroy
evidence. Such a conversation would not be privileged.
But the authorization required police to seal up the conversation
whether or not it was privileged. By listening to more than the
authorization permitted, the officer violated Mr Martin's s.8 rights.
The trial judge excluded the evidence, but the appeal court ordered a new trial. There were exigent circumstances here: the officer had reason to believe that evidence was going to be destroyed. It was still a breach of s.8 to listen to conversations which the authorization said should be sealed. But under the circumstances, it was not so serious as to justify exclusion.
A police officer pulled over a car for
speeding. Mr Noel,
2010
NBCA 28, the driver, rolled down his window to speak with the
officer.
At that time, the officer noticed no unusual smells. The officer
returned to his own vehicle to check Mr Noel's paperwork - his rental
agreement appeared to have expired. When the officer went back to
Noel's vehicle, he smelled an odour of raw marijuana. There was
another police officer, and a drug dog present. Instead of asking
either of them to confirm his suspicions, the officer arrested Mr
Noel. The subsequent search discovered 14 kilograms of marijuana
packaged in 56 vacuum-sealed plastic bags.
Naturally, defence attacked the officer's
grounds: If he didn't smell marijuana the first time, how could
he be
sure the second time that the smell came from the car?
Considering the
packaging, he probably never smelled marijuana at all.
The trial judge and the Court of Appeal
agreed with defence.
I don't think this means that need a second nose to sniff the air every time you smell something illegal (alcohol on a driver's breath, marijuana in car or wafting from a house). But a second opinion helps greatly if your first impressions are ambiguous.
The Maybin 2010 BCCA 527 brothers played pool in the Grizzly B'ar Pub. Mr Brophy interfered, by moving a couple of balls. The Maybin brothers assaulted him, and knocked him out. Mr Gains, a bouncer, heard the commotion, and approached asking who started it. Because another bar patron pointed out Mr Brophy, Mr Gains punched Brophy in the head, and then dragged him out of the bar. Mr Brophy died from head injuries. The Crown charged both Maybin brothers and the bouncer, Mr Gains.
Who killed Brophy? The doctors disagreed whether the first
assault, the second assault, or a combination of them caused his
death.
The trial judge acquitted them all. When considering whether
the Maybin brothers "caused" Mr Brophy's death, the medical evidence
gave him reason to suspect that Mr Gains inflicted the fatal
blow. Therefore, he couldn't be sure beyond a reasonable doubt of
their guilt. Similarly, when considering whether Mr Gains
"caused" Mr Brophy's death, other medical evidence gave him reason to
suspect that the Maybin brothers did the fatal damage.
The Crown appealed.
Two of three appeal court judges ordered a new trial with respect to
the Maybins. They said that the trial judge considered the
evidence too narrowly. They said it should have come as no
surprise to the Maybins that someone might get involved in their melee,
and inflict further injuries on their victim, killing him. But
they agreed that the bouncer couldn't be found guilty of manslaughter.
Usually, when many people act together, and someone dies, each can
be held accountable for the result of the actions of the group.
But in this case, the bouncer acted independently. The two
decisions review this curious area of the law, and discuss several
peculiar cases of criminal responsibility for results that the actor
did not directly "cause".
For police officers, it's always important to try to
determine what each participant in a criminal act did and why.
Often, you can't discover every detail.
Mr
Tran,
2010
SCC
58 and his wife broke up. Over the
following months,
by stalking her, he figured out who her new lover was. He snuck
into her apartment
and found them in bed together. In a rage, he attacked them with
knives, injuring her and intentionally killing her lover. The
trial judge found he was "provoked" by his discovery: although he
intentionally killed, this provocation reduced murder to manslaughter.
The Supreme Court disagreed. Provocation is caused by by a
"wrongful act" or "insult" done to the accused. It applies only
to a person who acted "on the sudden". Finding them in bed
together was neither a
"wrongful act" done to him, nor an insult. Nor was he surprised
by what he found -- he suspected it all along. Therefore, he was
convicted of second degree murder.
They went on
to say that a "ordinary person" standard must reflect current
moral standards. In the past, some people avoided convictions for
murder by complaining that the deceased made a homosexual advance
towards them, which so insulted the killer that he lost control of
himself. Today, the court explained, a racial slur might create a
provocation, but a
homosexual
advance would generally not.
This case illustrates the importance of investigating the
context. Evidence that the suspect stalked his wife, and that he
knew of her new lover, changed the encounter from a surprise encounter
to a planned revenge. He's lucky to avoid a conviction for first
degree murder. When you investigate spousal violence, history and
motives matter.
In the drug zone of Vancouver, Cst Fisher found a way to get close to drug transactions without being noticed. She watched and overheard a drug transaction between Mr Hernandez
2010 BCCA 514 and Ms Pennington. Police arrested them both. At trial, defence asked questions about Cst Fisher's location. Cst Fisher refused to answer some of the questions, for fear that word of her technique would circulate on the street, preventing the capture of other drug dealers.
The law recognizes a public interest privilege in maintaining the secrecy of such police techniques. But the judges also worry that preventing defence from asking relevant questions may render the trial unfair. For example, if the defence can't ask how close to the transaction the officer was, how can the defence explore whether the officer accurately heard the conversation? Therefore, the judges developed a compromise:
In this case, the officer gave a great deal of information about how close to the transaction she was, without saying exactly where she was. The appeal court upheld the privilege. The judges found that the trial was fair even though the accused never found out her location. Unfortunately, the trial judge made an unrelated error, necessitating a retrial.
He complained that the DRA collected private information about him,
for which the officers should have obtained a warrant. The Crown
pointed out that by a lawful regulation, Gomboc's contract with the
power company permitted the power company to share electrical
consumption information with the police. He didn't enjoy any
expectation of privacy, and even if he did, the DRA revealed no "core
biographical information".
In a frustrating 4:3:2 split, the judges of the SCC upheld Gomboc's
conviction. What the decision means depends upon how you add up
the numbers:
| # of judges |
Conclusions |
| 4 |
The information which the DRA recorded told so little about the activity of the people inside the residence that it did not attract constitutional protection. |
| 3 |
The DRA device revealed so much personal information that the police needed lawful authority to use them; but the regulations which established Mr Gomboc's contract with the power company provided that lawful authority. |
| 2 |
The DRA device revealed so much
personal information that police needed
warrants. The regulations did not authorize
the police to make the power company their agent to get the DRA
information. |
For those of you who want DRA information without relying on a
warrant, you should locate and read the privacy legislation which
applies to your power company. Unless the legislation
specifically authorizes it, you should only ask the power company to
share what it knows, but not direct them to take action on your behalf.
For all of us, the majority reminds us that privacy legislation
often permits (but does not compel) private and public organizations to
share information with police.
The minority warns that this legislation does not authorize you to
turn these organizations into your agents.
When you want information from an organization, you can often ask
for it. Whether the organization wants to cooperate is up to them.
The first question was unwise. It undermined the officer's
grounds to arrest the suspect for possession of drugs. It also elicited
incriminatory evidence while the suspect was detained, but before he
got access to counsel. It would have been much wiser to remark:
"This looks like ecstasy." If the suspect things otherwise, he
might say so. But it's not a question.
The trial judge excluded the evidence because the officer elicited evidence before resolving
Mr Nguyen's desire for counsel, and access if desired.
The appeal court disagreed with the trial judge about the second
question. You can ask questions for officer safety even
before resolving s.10(b) concerns. If the suspect volunteers
inculpatory information it may be admitted at trial. Based on
this ruling, if you arrest someone who says he wants counsel, you can
still ask questions for officer safety. If he volunteers more
information than you asked, it may be admissible.
| Question |
Answer |
Admissible? |
| "What am I going to find when I
search the car? Is there anything in there I need to know about?" |
"There's marijuana in the trunk" |
No. |
| "I'm going to search your
car. Is there anything in there that could hurt me?" |
"No, but there's marijuana in
the trunk." |
Yes. |
Mr Tran 2010 ONCA 471 participated in a "crew" which conducted gratuitously violent home invasions. At some point, his lawyer advised him to turn himself in to the police. When he did, he suffered a broken jaw. He alleged that the police beat him up in an effort to extract a statement. The officers said he tripped and fell against a desk. The medical evidence supported Mr Tran. The judge believed Mr Tran's complaint over the officers' explanation. Despite this finding, the Crown continued to rely on the assistance of those officers when organizing the witnesses and presenting the case. Defence complained that this gave these obviously biased officers the opportunity to influence the witnesses.
On appeal, the court stayed the case against Mr Tran.
When I started prosecuting, some people in the justice system
accepted
as a fact that a person who assaulted a peace officer received a
greater
punishment in the cellblock after the arrest. Times
changed. Various inquiries revealed that mistreatment of
prisoners contributed to wrongful convictions, and sometimes wrongful
deaths of prisoners. Attitudes have changed.
If violence in cell-blocks was accepted practice, it isn't any
more. Despite his guilt, Tran beat these
serious charges. Two officers risked losing their careers.
Some crimes offend us acutely. I sympathize with the officers' feelings. But when I dwell on my feelings about the offender's crimes, then I lose effectiveness in the court room. If your prisoner's crimes offend you, then direct your passions toward a perfect investigation. Kill 'em with kindness.
Did he have sufficient grounds to arrest? All the judges
agreed that this was close to the line. Two of three judges found
the arrest was lawful because:
The third judge thought that the officers didn't have quite enough
to justify the arrest, and should have watched the vehicle to see what
it would do. But because it wasn't Mr Jir's car, he felt that Mr
Jir didn't enjoy a sufficient expectation of privacy over the contents
of the trunk to be able to complain about the search.
It's commonly said that an uncorroborrated anonymous tipster can "never" provide reasonable grounds to arrest or search. That assertion is debatable. But these judges agreed that the arrival of the car where the tipster said was partial corroborration of the tip.
Back in May, the court said:
Two judges relied on the principle that police officers who keep the
peace are not disturbed by rude behaviour. Therefore there was no
disturbance, and he was acquitted. The dissenting judge pointed
out that his activity excited the crowd, which turned to watch the
arrest. That judge would have convicted him.
Rudeness and swearing, particularly toward police officers, is not
"causing a disturbance". But if it interrupts others in their
peaceful affairs, then it is. Of course, when you deal with a
boisterous loudmouth drunk, it's difficult to focus on his effect upon
other people present.
I thought this case was interesting because it distinguishes at what
point a fellow crosses the line. If Mr Swinkels wasn't "causing a
disturbance" he was mighty close.
The court disagreed. Although s.10(a) of the Charter requires
you to tell a detainee "promptly" of the reasons for arrest, you may
delay for the purpose of protecting life and limb. In this case,
the officer had reason to fear that Mr Wright might take advantage of
the vulnerability of the rival gang members to hurt or kill them.
The court reached a sensible conclusion here - life and safety takes
priority to legal rights. But take care to explain promptly why
your suspect can't leave. If you detain someone but leave him
guessing as to why, you could face some fierce questions in court.
A single
judge of the Manitoba Court of Appeal found that the trial judge's
conclusion
was so uncontraversial that he refused leave to appeal. This
means that Mr Wright loses; it also means that we won't get an
authoritative opinion from Manitoba's highest court on this issue.
During the last sovreigny referendum in Quebec, the Federal
government doled out money in what has since been called the
"sponsorship scandal". After the Gomery Inquiry identified
corruption, the federal government sued to get some of it back. One of
the defendants, the Groupe Polygone, wanted to know which civil servant
in the federal government leaked the story to the press.
The reporter baulked at answering questions which would identify the
source. Did he have to answer?
The Supreme Court of Canada found that even under Quebec's unique
system of justice, there was no blanket protection. The court can
compel a reporter to reveal his or her source; except if the
circumstances of the case show that protecting the source is more
important than getting the answers.
This matters to you because sometimes, you want reporters to
identify their sources, so that you can catch a crook. However,
the court agreed with the reporters that confidentiality of their
sources is important to their function as news reporters. This
means that you should try all other sources of information before
forcing reporters to reveal their sources. Before applying for a
warrant to search a news outlet, get some advice on drafting and
execution.
Defence counsel may challenge you on your procedures:
"Why did you handcuff my client?"
"You didn't need to put my client into the back of the police car, did you officer?"
You should be ready to explain what risks were possible. For
many
procedures, such as handcuffing a detained person, or searching a
detained (not arrested) person for weapons, the courts require you to
identify some evidence which justified a concern for your safety.
You can't handcuff or detain every person you meet.
Refer to evidence and information you knew at
the time and explain why you thought there was a risk to you. But
if defence
presses you to admit that your violation of the accused's
liberty
or privacy was unnecessary, it doesn't hurt to point out that your work
requires you to deal with the unexpected:
"My work involves unexpected risks. The four murdered officers in Mayerthorpe didn't expect an ambush by a man with a hunting rifle. The lesson I learned from that is to identify risks and minimize them so that I don't get hurt on the job."
To protect yourself from complaints, you should detain or search
in a manner which causes the least violation of their rights necessary
for your safety.
The conclusion seems obvious. But can you retrieve DNA or
fingerprints from an old investigation which did not result in a
conviction? It think "it depends"... on the how you obtained the
DNA or fingerprints (or whatever other evidence is important to
you). For example, if the DNA was obtained by a DNA warrant, s.487.08
prevents you from using it to investigate a different offence.
Evidence obtained by consent from the suspect may be used in a
subsequent investigation if the consent made it clear that the evidence
might be used for more than the investigation being made at the
time. Borden
[1994] 3 S.C.R. 145.
Undercover officers beware. This case does not mean if the
suspect invites you into his house, you can search it. You can
only look around as much as he permits you. If you want to look
further than the invitation allowed, you need a warrant.
Essentially, the court said: let's try to respect the complainant's
right to freedom of religion and the accused's right to a fair trial,
which may include the right to have the judge or jury assess her
credibility by seeing her face. They suggested some compromises,
such as arranging for female counsel to cross-examine her, or using a
less complete veil.
I observe that the Hutterian
Brethren
of
Wilson
Colony, 2009 SCC 37 objected on religious
grounds to having their faces photographed for the purposes of Albertan
driver's licences. The Albertan government insisted, and the
highest court agreed with the government. Although the context
differs, I expect that the court won't value religious freedom as
highly as fair trial rights. I predict that Ms N.S. will be
permitted to hide her face for the preliminary hearing - where
credibility isn't really in issue - but may be ordered to obey some
compromise at trial so that the judge or jury can see her facial
expressions during cross-examination.
The trial judge had a doubt that Panko knew it was there. The
summary conviction appeal judge said that doubt wasn't reasonable: In
the
absence of evidence that someone had hacked the computer, it was
speculation to suggest that someone else put the data on his desktop
without him knowing about it. The Court of Appeal restored Mr
Panko's
acquittal, saying that the trial judge held a reasonable (albeit
"generous") doubt. If there are lessons to be drawn here, they
are:
In summary:
| Further access to counsel
required |
Further access to counsel
not required |
Legal jeopardy changes:
|
Investigator explains
evidence, and suspect wants to discuss it with counsel |
| Live line-up or polygraph or other unusual investigative technique | Re-enactment of the offence |
| After access to counsel, you discover that the suspect didn't understand the offences for which he was arrested or detained. | Suspect demands presence of counsel during interview. |
The trouble was that the prior violence did not involve sex.
It appeared to arise from an isolated argument. It did not show
that Johnson harboured any ongoing desire to rape her or hurt
her. But it did make him look like a bad guy. The jury
might dislike him and convict him, without considering the strength of
the evidence of his guilt. The appeal court said that the prior
violence evidence should not have been admitted.
When you're testifying during trial, you might know a great deal of
information about the accused's past misdeeds. You should not
mention those misdeeds unless you are asked. The trouble is, many
inexperienced officers can't tell the difference between when it's okay
to mention the accused's bad past and when it's not.
The difference is simple. In court, when a lawyer asks you to
explain what you did, don't mention the accused's bad
past. For example:
If they ask why you did it, then you can mention the
accused's bad past if that was part of your reasons. For example:
The trial judge figured that the breach of his right to counsel was
minor. He admitted the evidence and convicted Mr Brown. The
Court of Appeal worried that the admission "that's my coat" might not
be voluntary. If he didn't identify his coat, he'd get colder and
colder. Isn't that a classic inducement?
I don't really know what happened in this investigation. It
looks like the officers tried to do the right thing, but fell short.
Executing a search warrant can be exciting, but the excitement can
distract you from the basics of detaining suspects: Once you have
got the scene under control, you must provide the suspects properly
with their rights, and treat them humanely. Don't elicit evidence until they have had
an opportunity to exercise their rights.
But in the McLeod case, there was no evidence presented of any
brother, and so the court upheld the conviction.
Some suspects have suspicious siblings. If your case relies
entirely on DNA, you might want either or both of:
Defence attacked the records, complaining that the Crown had not
tendered a witness who could explain how the records were created (ie
the accused). The judge admitted the evidence anyway, because it
could be proved to be in the possession
of the accused.
When you're investigating a business which profits from crime on a
large scale, you want the records of the business. These days,
those records may be digital. Think about it when drafting your
warrant. When you're investigating, you don't want only the
records, but evidence which identifies who is responsible for the
records.
The court found that police "detained" her by giving her no choice
but to come with them to give a witness statement. Of course, she
wasn't given access to counsel. And the court found her statement
was not voluntary.
When asking her to give a witness statement, the interviewer told
her that she would get in trouble if she didn't. She did tell a
lie near the beginning. The officer suggested that he would
disregard the lie, but if she told more lies, it would cause the police
to suspect her of the murder. ("Tell us the truth or
else.")
The late-night interviewing didn't help.
This case illustrates the difficult and conflicting situations of
police and witnesses at the scene of a crime. When you arrive at
a scene of chaos, you must take control by giving clear and direct
instructions to all the people present. To establish order, you
must give the people present the idea that they have no choice but to
obey.
But what a suspect tells you under those conditions is not
voluntary.
Your clear directions might turn out to "detain" a culprit who will
later complain about his legal rights.
In my view, the officer's biggest mistake was to give bad legal
advice. Don't tell witnesses "If you don't give a statement, I'll
charge you with obstructing a peace officer." Only in the rarest
of circumstances is a witness obliged to answer your questions about an
offence. If they lie, then they are obstructing a
police officer. But if they refuse to say what they saw, they
aren't.
I'm sympathetic to the officer. Who would have thought that
this young thing killed the big violent goon? In this case,
commanding eyewitnesses to cooperate turned out to be a bad
strategy. I can imagine that in many other cases, it might be the
only way to make progress in the investigation.
I suggest that you read the whole decision. Don't base all
your strategies on this one case, but it may remind you to temper your
approaches to the witnesses you pluck from the chaos of crime scenes.
An officer applied for a warrant to search the "residence and
outbuildings", but the justice granted a warrant to search only the
residence. When the search team attended, officers "cleared" the
outbuildings - a shed, a garage and a summer house for the purpose of
officer safety. All of them were locked. Even from the
outside, the shed and the garage smelled of marijuana but the summer
house did not. They found marijuana grow operations in the shed
and in a bunker under the garage. Relying on these discoveries,
they applied for a warrant for the other buildings.
Defence complained that the initial search of the outbuildings was
unlawful. The officers had no reason to suspect that the
buildings contained anything that posed the officers a risk.
The judges agreed that the police exceeded their authority. If
you have authority to search one building on a property, and nobody
answers your knock, you can go to the other buildings and knock for the
purpose of communicating with people that might be in them. But a
warrant for the one building doesn't authorize even a perimeter search
of the others, let alone an entry & walk-through.
However the judges also agreed with the Crown that police officers
can protect yourselves during a search. They said you can inspect
and even enter other buildings for officer safety "to the extent
reasonably necessary to protect
themselves and others" but you must have "a reasonable basis for
believing there is a possibility that [your] safety, or the safety of
others, is at risk." I understand that to mean reasonable grounds
to suspect that someone might
hurt you.
Defence argued that the search warrant was overbroad: it should have
permitted a search only of the common areas and Mr Imona-Russell's
room, but not Mr Campbell's room. Two of the three appeal judges
disagreed. There was enough evidence to make Mr Campbell a
suspect: As a resident, he had opportunity. He had moved in
using black bags like the one in which the woman was found. His
history of violence made him a viable suspect.
But they made one more important point. Your ITO doesn't need
to prove "whodunnit". It need only establish that evidence
relevant to the offence will be found there.
The reasons and the result in this case don't matter as much as the
principle. A justice can only issue a search warrant for the
place(s) where you have grounds to believe evidence will be. The
warrant should not violate privacy without good reason. The
dissenting judge asked if 100 people lived in an apartment complex, and
the police only have reasonable grounds to believe that evidence of a
murder will be found somewhere in the building, should a warrant be
granted to search every residence? All the judges agreed it
should not.
I guess that's why the justice in the case of Chuhaniuk 2010 BCCA 403 granted a more limited warrant than the police sought.
PS: The Supreme Court of Canada agreed with the Ontario Court of appeal.The Ontario Court of Appeal declined to decide the specific case,
but commented that you do have an obligation to consider using your
power under s.498. A blanket policy not to use it for some class
of cases will violate s.9 of the Charter.
The officer who drafted the warrant exaggerated
the quality of the confirming evidence. He said that the officers
watching Dhilon saw "a large number" of cans of paint, including "5
gallon" cans. The surveillance reports did not say how many cans
of paint were seen, nor did they refer to 5 gallon cans. This,
combined with other errors led to the exclusion of all the evidence,
and acquittal of Mr Dhillon.
In the excitement of the investigation, it's easy
to over-estimate the strength of the information you collect.
Excitement is good. It motivates you to perform your best.
But it can distort your impression of the strength of the
evidence. At court, every word you alleged against the suspect
will be scrutinized. Defence will ask: "Were there 'many'
cans
of
paint,
'some' cans of paint, or just 'more than
one'?"
Accuracy matters. In an ITO, recite the
information you actually have. If you infer more from it, explain
why. For example:
Cst X sent me an email which said, in part:
Because it took so long to remove the paint cans, I infer that they must have unloaded a large number.
- On YYYY-MM-DD he watched Mr Dhillon covertly;
- He saw two men spend 15 minutes unloading paint cans from the van Mr Dhillon drove.
It may be appropriate to add one more point:Hey, J.P.! Please, would you let me enter (this place) to search for (these things)? Because of (this information I obtained), I think that:
- (this crime) occurred;
- (these things) are in (this place), and
- getting them would help me solve the case for (these reasons).
"[d]ocumentation identifying ownership and/or occupancy of the property..."But the ITO gave no reasons why the officers expected to find such documents in the residence. Nor did it mention their intention to search any electronic devices they found for such evidence.
The Crown appealed the severance decision, saying that they could
have got convictions on first degree murder. The defence appealed
the
convictions, complaining that the trial judge instructed the jury
incorrectly. The appeals were heard separately.
The Crown won their appeal: Pickton,
2009
BCCA
300.
The Defence lost their appeal: Pickton,
2009
BCCA
299,
and
the
Supreme
Court
of
Canada
affirmed
that
decision:
Pickton,
2010
SCC
32.
Follow this link if you want to read the 41
published
trial
decisions. This was a smart judge. Just because Court
of Appeal disagreed with him on one decision doesn't make the rest of
his decisions wrong.
Severance is ordered when "the interests of justice" require
it. Typically, this arises when Crown proposes to charge someone
with unrelated offences in a single trial. Imagine that the
indictment had charged Mr Pickton with 26 counts of murder and one
count of possessing child pornography. If the last count had
nothing to do with the others, addiing it to the charges would be
unfair: Jurors might hate him so much for the murders that they might
convict him of the pornography matter out of spite. Or they might
be so disgusted by the pornography, that they fail to consider fairly
any possible doubts about his guilt of the murders.
But what if the various charges all relate to each other? In
Mr Pickton's case, one fact cried out for explanation: the DNA of all
26 missing women turned up in the same place. Nobody believes
that's just an innocent coincidence. The improbability of
innocent coincidence is what makes similar fact evidence admissible.
The trial judge reasoned this way: If body parts of 6 dead women
show up at Mr Pickton's place, then we all know it's no innocent
coincidence. If the jury hears about the DNA of 20 more missing
women at the farm, then the jury won't be any more convinced about the
coincidence than before. So we don't need to hear about the 20
women in order to determine Pickton's guilt about the 6.
But what about the other way around? If 6 missing women died
at Pickton's farm, and the DNA of 20 other missing women was found
there, doesn't that make you think that the 20 died there too?
There was another woman who survived. Like all the missing
women, she was a sex trade worker from Vancouver's seedy area.
During the time when the other women disappeared, she alleged that Mr
Pickton picked her up, took her to his farm, and attacked her.
She escaped and complained immediately to police. Unfortunately,
her character and drug use made her, by herself, an unreliable
witness.
Although charges were laid, the Crown had to stay them.
The trial judge excluded her evidence from the murder trial, partly
because she wasn't dead and dismembered like the other women. The
Court of Appeal pointed out that this focussed on the wrong aspect of
similar fact evidence. Although the witness had problems, in
combination with the other evidence, her complaints ring
true. What are the chances that she would invent her allegations
against the very same guy whose farm later contained the DNA of 26
missing sex trade workers? Admissibility of similar fact evidence
depends not upon a simple counting of similarities, but upon an
assessment of the improbability of coincidence.
The Court of Appeal found that the trial judge erred in his analysis
of this and other similar fact evidence. The trial could have
proceeded differently.
The Crown asked for an unusual order. Usually, they would ask
for a retrial. But getting Mr Pickton convicted of 26 counts of
first degree murder would have been terribly expensive. If they
got those convictions, his sentence would have been the same as the one
that the trial judge imposed: Life with parole eligibility at 25
years. Therefore the court ordered that there would be a retrial
only if the defence succeeded in their appeal.
While none of them individually proved anything, together, they
suggested to an officer that Mr Payette was delivering drugs. The
legal test to deploy a drug dog is "reasonable grounds to
suspect". Did the officer have a reasonable suspicion? The
trial judge thought he did. The Court of Appeal disagreed.
While he was speaking to Mr Payette about vehicle safety issues, he
asked a dog handler to take a drug-sniffing dog around the car.
He did not detain the driver for drugs. He testified that he did
so because he didn't want to delay Mr Payette without reason.
From this, the court inferred that the officer didn't believe that he
had grounds to detain Mr Payette.
The court found it was a close call, but these factors together did
not make reasonable grounds to suspect the presence of drugs in the car.
You don't always have to detain someone before deploying a drug dog,
but you need the same confidence in your authority to act. This
officer shouldn't have deployed the drug dog until he was confident he
could detain the driver based on his suspicion.
I feel some sympathy for the officer. His "instinct" was
right. And he deployed the drug dog early, so as to reduce the
time that he delayed the driver if his suspicion was wrong.
I don't believe in "instinct". I find most officers make
logical inferences from their observations, but lack the language to
explain their thinking afterwards. For example, look at the
factors in this case:
This guy appeared to be making a long
trip in a hurry (items 1, 3, 4) under stressful circumstances
(item 5), and it appeared that he didn't want police to stop him (items
5, 6). Long trips tend to be cheaper by plane, unless you have a
lot of luggage. Therefore, there was reason to suspect he had
cargo. Commercial couriers can move cargo cheaper than
individuals. People tend to choose the cheaper route to move
property, unless there is something special about the cargo.
Concern about police involvement suggests that what made the cargo
special was its illegality. The most common illegal cargo
transported along highways in B.C. is drugs.
The law requires you to justify your use of power. When asked
to explain their thinking, I find junior officers tend to repeat their
observations without mentioning inferences at all. In a court
room, this falls flat.
You can prepare for the court room by reviewing your observations,
and considering what each one meant to you at the time.
On the stand:
The court of appeal disagreed. While there's nothing wrong
with asking someone to tell the truth in court, there's a great deal
wrong with paying someone to give the version of the truth you have
picked out for them, even if you believe the version you want the
witness to tell.
Cst Wells made some mistakes, which the decision spells out.
But he made no mistake in seeking a briefing from the officers in the
other investigation.
When his team searched the property, they found more than guns:
property belonging to missing women provided a strong hint that the
focus of the
investigation had changed. Fortunately, senior officers from the
task force were available to help.
They suspended the search, and obtained new warrants.
They were right to do so. A warrant permits you to search only
for the things named in the warrant. While executing a search
warrant, if you find other evidence of other crimes, you can seize it
(s.489). But you can't go looking for things not named in the
warrant.
The new warrants led to evidence implicating Mr Pickton in nearly 50
murders. If the officers had gone on searching the farm without a
new warrant, Mr Pickton might be free today.
What were the officer's mistakes? In the hope that junior
officers should learn from his mistakes rather than repeating them, I
list them here. I hope Cst Wells forgives me. I have great
respect for his abilities, having worked with him since. I have
no doubt he'd avoid making these errors again.
Although she told him what he said could be used as evidence, she
did not tell him about the right to silence. This left the trial
judge in some doubt whether his remarks to her were voluntary, and
excluded them. Some might disagree with the judge's conclusions
on this particular point, but we'll never get an authoritative answer.
Mr Picton and the Crown appealed several other of the trial judge's
rulings, and the result is that he remains convicted for 6 murders.
I don't think that what the officer knew affected the
voluntariness of Picton's statement. But the judge didn't like
uniformed officers using tricks to lull the suspect into a false sense
of security.
The trial judge disagreed. The officers explained the purpose
of their questions. They had no specific reason to suspect him of
the offence. Indeed, because they didn't know if the owner of the
car had committed the offence, once of the questions on their list
addressed who else used the car. Although a police warning helps
a court to determine if the suspect's answers are voluntary, it isn't
required in every conversation.
So when dealing with a person you have not detained, when do you
need to give the police warning? This judge
reviewed the opinions of other judges, and put it this way:
"... the caution should be given when [you are] in possession of information that should alert [you] to the 'realistic prospect' that the person may be involved in the commission of a criminal offence ..."
The list of questions was a good idea. And in the context of
so many possible leads, this judge agreed that omitting the right to
silence was appropriate.
She also agreed with the officers' decision to record the answers
with pen and paper instead of audio, but this may be partly because of
the care with which the officer made his notes. Canvassers
beware: you never know when you'll meet the offender. Take
detailed notes. Include quotes.
The trial judge found that the officers detained him, and therefore
they should have told him about his rights to counsel. But she
also found that the officers were entitled to seize his shoes before
they reviewed s.10(b).
When you find people at the scene of a search, either you should let
them go or detain them. If you detain them, you must give them
their s.10 rights. But you do not need to do that if it would
compromise the search or anyone's safety.
In this case, the trial judge found that granting Butorac private
access to counsel would have taken longer than releasing him.
Although she considered the police conduct a breach of his rights, she
also felt that he would have preferred to be released than kept in
custody to consult with a lawyer. This was one of the several
reasons she gave for admitting the evidence in spite of the breach.
I liked how the police audio-recorded the conversation they had with
Butorac during the search. It helped the judge understand how the
interaction went. I trust that the officers told him early on
that they were being recorded.
In the result, the trial judge excluded some valuable
evidence. There won't be an appeal on this point: Mr Butorac was
convicted anyway.
The problem is that DNA tells us only that a particular person
touched the object. It does not always tell you what the person
was doing at the time of the touching. In this case, the majority
worried about the possibility that Mr O'Brien had handled the
mask, leaving his DNA, but someone else used it in the robbery, leaving
no DNA.
It's similar to fingerprint evidence. The presence of a
fingerprint doesn't always tell you when and how it got there.
There are two ways to answer this argument. We can ask our
forensic expert "What is the likelihood of another person wearing this
mask (or touching this knife, or touching this object) without leaving
any DNA?" Or we can look at the circumstances for an innocent
explanation for the presence of the DNA. If there is no possible
innocent explanation, then we know what the DNA means.
For example, finding a suspect's semen in a child's body tells a
great deal about what the suspect was doing. Finding someone's
DNA inside a stolen car does not tell us whether the suspect was a
thief, a hitch-hiker or a mechanic who fixed the car on some previous
occasion.
Therefore, when you find DNA evidence (or a fingerprint) before you lay the charge, stop and ask yourself whether there are any innocent explanations for its presence.
The Court of Appeal didn't like that. At the sentencing stage,
the trial judge should be told all about an offender's evil past.
But during the trial stage, no witness should volunteer information
about how evil the suspect is unless specifically asked.
Volunteering evidence of the accused's bad character makes the trial
look like biased. The reasoning is unfair: "Because Johnny
did crimes in the past, he probably did this one too." It's often
illogical: "Because he assaulted his girlfriend / drove drunk, he
probably robbed this convenience store too."
Sometimes bad character or similar fact evidence may be
admitted in a trial. But leave that decision to lawyers and the
judge. Don't volunteer information about the accused's evil
character until you are asked.
You can tell the difference by the question you are asked.
"What did you do?" means tell us the steps you took. "Why did you
do that?" asks for the information you had at the time. When
answering the first type of question, avoid mentioning the suspect's
criminal record, what witnesses said he did, what information you had
received about him. When answering the second type of question,
you can tell the judge what you knew. For example:
| What did you do? What happenned next? |
I attended at 123 Main Street in
response to a dispatch. I spoke with Ms Battered and her neighbor. I arrested Mr Goon. |
| Why did you arrest Mr Goon? What were your grounds? |
The dispatcher said that he had
assaulted Ms Battered. Ms Battered told me that he punched her in the head 5 times for burning his breakfast. I knew that Mr Goon had a long history of violence against his girlfriends because I had dealt with him before on similar complaints. |
Because the second question is dangerous, prosecutors and defence
counsel usually avoid asking it. Unfortunately, inexperienced
police officers often confuse the first question for the second.
This causes trouble like what happened in Mr O'Brien's case.
When counsel asks the second question, you are usually being asked
to explain why your use of power (arrest, detention or demand) was
justified. If so, it's usually important to list all
the reasons for your beliefs at the time. Take time to answer
completely. Give the judge all the dirt.
Mr Bisson told someone else that he "forced himself" on the
complainant and penetrated her vagina with his fingers. At trial,
he claimed the digital penetration was consensual. She complained
of penile penetration.
The trial judge found the confession persuaded him that her
complaint was true. Even though he didn't decide whether the sex
was intercourse or groping, he convicted Mr Bisson.
Defence appealed, complaining that the judge
This case illustrates two common issues.
The appeal court approved of the trial judge's view of the initial
denial: "[S]he said nothing happened, not because it was true,
but because she did not want to involve the police. She wasnt
satisfied in her own mind that she wanted to put herself and Justin
Bisson through this ordeal, she did not know what to do so she was
trying to do nothing."
The doubt about rape made no difference to the conviction. The
charge was sexual assault, not rape. It didn't matter which
version of
the sexual activity was true, so long as the judge was persuaded that
the sexual activity occurred without the complainant's consent.
It was enough for the trial judge too, but not for the summary conviction appeal judge. That judge discounted any symptoms which could be attributed to the accident: Imbalance and the dazed look counted for nothing. The red eyes could be explained by powder in the air bag. All that remained was an odour of liquor and an accident. That judge found the Cst Lucas should have interviewed the witnesses before jumping to conclusions about impairment by alcohol.
Ontario's highest appeal court agreed that you should consider evidence in the suspect's favour, but emphasized that you can form reasonable grounds from the totality of the information you received, including:
For an impaired demand, the court pointed out that you need not be convinced the suspect is a falling-down drunk. Impairment may be from "slight" to "great". "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road."
But this court went further to compare the "reasonable grounds" necessary for a warrant as compared to an arrest, affirming a previous decision:
"The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant."
Some officers do jump to a full breath demand without reasonable grounds. For example, an odour of liquor on the breath can not, by itself, establish "impairment". You need more. But you don't need proof beyond a reasonable doubt to make a demand. S.254 requires you to make your demands "forthwith" after forming your grounds. An odour of liquor on the breath and an inexplicable single-vehicle accident can be enough.
While the lead investigator was preparing a re-draft of his application, officers conducting surveillance reported seeing what appeared to be another drug transaction in progress. The lead investigator directed them to arrest everyone involved. They found cash, got a new warrant, and recovered lots of drugs.
At trial, defence argued that the police improperly overruled the JP. The JP had rejected the warrant application. By ordering an arrest, the officer was second-guessing the court. If there weren't grounds to search, then there weren't grounds to arrest. The trial judge agreed that police overstepped their jurisdiction, and excluded all the evidence of Mr Bacon's guilt.
The appeal court disagreed, saying:
"...the refusal [to issue the warrant] could not have disqualified the officers belief in the grounds of arrest. The officer was not obliged to alter his belief to conform with the JJPs opinion. The validity of the arrest had to be judged according to the terms set by [the relevant case law]: the presence of a subjective belief and objectively reasonable grounds."
Essentially, if you actually have reasonable grounds to arrest, you can arrest, even if a JP doesn't agree with you.
But there's a simpler explanation to this case. Consider the different questions that the police and JP wrestled with:
| Justice of the Peace issuing a search warrant | Police officer deciding whether to arrest |
|---|---|
| Did someone traffick in illegal drugs? Are the drugs - or evidence of the drug trafficking - still in the house? |
Did this guy traffick in drugs? |
The JP never said that the officers lacked grounds to arrest. The JP simply wasn't satisfied that the evidence was still in his house. Those are two very different conclusions.
The Court of Appeal disagreed. Spousal privilege
prevents a
spouse from being compelled
to testify against her/his mate. In this case, the wife never
took the stand.
There is a specific provision in s. 189(6)
of the Criminal Code which prevents the admission
of spousal
communications obtained through the wiretap provisions. But
this
recording wasn't obtained that way.
"Privilege" remains a freedom from testimonial
compulsion.
Just like when you're testifying, you can't be compelled to name your
confidential sources. Likewise, the Crown couldn't compel Mrs
Siniscalchi to testify about what her husband said to her.
But a
third party who heard to them talk may be compelled to testify about
what they said.
This case appears to end the confusion in B.C. about whether
police
need judicial authority to get inmate telephone calls from remand
centres. The answer is: "yes". See the separate page I
wrote on this
topic for more detail.
You can establish "reasonable grounds" from a confidential
informant
alone, but you can't do it that way. Your ITO must provide
sufficient detail that the justice can see why the information is
trustworthy.
The appeal court found that this ITO should never have been
issued. It also criticized the police officer for applying
for
the production order without checking his sources.
Epilogue: Despite this, the court upheld Mr Siniscalchi's
conviction, however. The evidence in the recordings was
trivial
compared to the rest of the case.
Someone raped a 7-year-old girl. Police found semen
on her
clothes which matched Mr Johnson's
2010
ABCA
230
DNA.
At
trial,
the
expert
testified
that
the
odds
of
the
DNA
of
someone
unrelated
to
Mr
Johnson
also
matching
that
semen
were
890
billion
to
1.
"That's fine," argued defence counsel. "But Mr
Johnson has
male relatives. One of them might have done it. The
expert
failed to calculate the odds of one of them leaving this DNA.
All
we know for sure is that it's possible that one of those guys left the
DNA. We don't know the odds."
The jury and the appeal court rejected this
argument. The
appeal court noted that there was other evidence which suggested that
Mr Johnson, and not someone else, committed the crime.
Despite this result, I think this argument will be made again
in
future. If the case relies on DNA, then as a prosecutor, I
would
like to have
it wasnt supposed to be that bad
Quotes can be pretty powerful. This one remark
proved:
That made her guilty as a party to aggravated assault.
We prosecutors would prefer to receive audio-recordings of the accused's remarks during offences and after. Such evidence is damning and makes the case easy to prove. (Call us lazy.) But you're not going to get audio in most cases. In a case like this one, you'd have to arrange a one-party consent wiretap, and make an agency arrangement with Greg's sister. It's simply impractical in many situations.
But you can interview witnesses carefully.
Avoid paraphrases. Get quotes.
Whenever a witness tells you "s/he said that...", ask the witness to repeat the words the suspect actually said, as if the witness were the suspect at the time they were said. Tell the witness you want - if possible - "the exact words the guy/gal said".
For example:
| Paraphrase | Quotation |
|---|---|
| I asked her why my
brother was
in hospital, and she said that it wasn't supposed to be that bad. |
I asked: "Why is my
brother in
hospital?" She said: "It wasn't supposed to be that bad." |
| He threatened to
put two bullets
in my head. |
He said: "I've got
a gun, and
I'm gonna put two bullets in your head." |
While Prime Minister Cretien visited Vancouver, police received information that someone would throw a pie at him. Officers saw Mr Ward, 2010 SCC 27 running near a group of protestors. He looked somewhat like the description the tipster gave. They arrested him, partly strip-searched him, and detained him for about 4.5 hours. They seized his car, and attempted to get a search warrant for it, but when they realized they lacked grounds, they let him go, and gave him a ride to where they had towed his car.
Mr
Ward
is a lawyer who often acted against
the police on behalf of various social protest groups. He
sued
Vancouver police for false arrest, false
imprisonment and arbitrary detention.
The
trial
judge found that the police did not act in bad faith, and
therefore they need not pay for false arrest or imprisonment. The
trial judge did find that they breached his Charter rights, and
ordered them to pay $5,000 for the unnecessary strip search and
$5,000 for the unjustified detention, and $100 for seizing his car.
The Supreme Court upheld the two $5,000 awards, but overturned the $100 award. In so doing, the court limited police power to strip search prisoners:
"Mr. Ward did not commit a serious offence, he was not charged with an offence associated with evidence being hidden on the body, no weapons were involved and he was not known to be violent or to carry weapons. Mr. Ward did not pose a risk of harm to himself or others, nor was there any suggestion that any of the officers believed that he did. In these circumstances, a reasonable person would understand that the indignity resulting from the search was disproportionate to any benefit which the search could have provided. In addition, without asking officers to be conversant with the details of court rulings, it is not too much to expect that police would be familiar with the settled law that routine strip searches are inappropriate where the individual is being held for a short time in police cells, is not mingling with the general prison population, and where the police have no legitimate concerns that the individual is concealing weapons that could be used to harm themselves or others" (at para. 97.)
This
would
suggest that before you decide whether to strip search a
prisoner, you must consider all the circumstances of the suspected
offence, his history, whether he will stay in a cell by himself or
with others, and how long he will stay. I see a curious contrast
between this case and Cornell, which they
delivered only
a few days later.
The Supreme Court of Canada found the officer's approach in this case to be justified. "Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present.” To depart from the "Knock and announce" rule, you must have " reasonable grounds to be concerned about the possibility of harm to [your]selves or occupants, or about the destruction of evidence."
They said that courts should not "
micromanage the police’s choice of equipment".
In B.C., police officers used to enter all marijuana grow
operations
without knocking and announcing. The
BCCA
rejected
this
policy - they said you need reasons for each
hard entry. The SCC didn't disagree.
Therefore, I suggest:
This was a massive investigation, from which many officers and
counsel learned many lessons. Congratulations to them all.
B.C.'s Criminal Justice Branch already decided not to try him
for
the other murders if he remains convicted of these six.
Likely,
the press and the public will discuss the relative benefits of putting
him on trial for the many other murders that the investigators believe
he committed. The family members of those victims want
justice. But there are many destitute people who could
benefit
from the millions of dollars required to run such a trial.
Spending those millions on Picton won't save any lives: he's serving a
life sentence. Other psychopaths still walk our streets.
The victim couldn't recognize the robber in a photo
lineup.
Nobody showed the lineup to the other eyewitnesses.
Some judges would have acquitted. This trial judge
convicted,
and the Court of Appeal upheld the conviction. All
the
judges agreed: eyewitness identification of strangers is risky and
unreliable evidence. The victim and the eyewitnesses saw the
robber for only a few moments. Under those circumstances, it
would be difficult for them to remember his face.
What made this case strong enough for conviction was the
circumstantial matches: the suspect matched the robber in:
When investigating an offence by a stranger, ask the witnesses
early
to describe every possible detail. Height, weight, skin and
hair
colour, eye colour, clothing, etc. Document identifying
features. Photograph all of your suspect, not just the face.
Showing your suspect to an eyewitness at the scene is a risky
short-cut. After you've done it, dont bother showing that
eyewitness a lineup. It's not probative. She will
certainly
recognize the suspect in the lineup, but will she be remembering the
face of the robber or the captive in the police car? Showing
a
suspect in a police car to a witness can create a strong impression in
the mind of the witness that the suspect is the guilty
person. Even if you do catch the right guy, and the
witness
accurately identifies him, defence will argue at court that the witness
could be wrong, and you caused the witness to be mistaken.
On the other hand, showing a suspect to an eyewitness may
quickly
clear an innocent person. It's essential to your
investigation to
know "Have we got the right guy?"
This case says that showing the suspect to a witness minutes
after
the offence may
produce
probative evidence. In this case, the witness controlled the
identification, not the police. If you are in control, I
suggest
that you ask the witness for a full description of the felon before letting the
witness see the
suspect.
If many hours have passed, and you no longer need to know
instantly
"have we got the right guy?", consider using a photo lineup instead.
| Riskier |
Safer |
| "s. 9(1)(c) of the
Act clearly
provides an
absolute
prohibition against the decoding of encrypted subscription program
signals unless they emanate from a lawful distributor in Canada and
that distributor authorizes their decoding" |
"I believe that s. 9(1)(c) prohibits the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding" |
| "This court must
add a
term
authorizing the police to enter the residence wearing tophats and
Groucho Marx glasses. R.
v.
Kaboodle, 1871 SCC 13" |
"I understand from R. v. Kaboodle, 1871 SCC 13 that this court should add a term authorizing the police to enter the residence wearing tophats and Groucho Marx glasses." |
| When the previous justice denied my first application for a search warrant, he misunderstood the difference between searching a "place" (our police locker) for a "thing" (the computer), and searching a "receptacle" (the computer) for "data" (the child pornography). While it is obvious that I don't need a warrant to search my own locker, it is also obvious that I do need a warrant to violate the suspect's privacy interest in the data in his computer. R. v. Morelli, 2010 SCC 8 | My previous application perhaps did not set out clearly enough the difference between searching a "place" (the police locker) for a "thing" (the computer), and searching a "receptacle" (the computer) for "data" (the child pornography). I respectfully agree that no warrant would be required to search my own police locker. But I submit that I do require judicial authority to override the suspect's substantial privacy interest in the data in his computer. R. v. Morelli, 2010 SCC 8. |
Because the police swore no information, the undertaking expired on the PTA date.
I receive a surprising number of questions on this topic. Here are the answers.
If you release a suspect on an undertaking with a PTA:
1. The suspect must obey the
conditions of the
undertaking until the
case is over.
Some
officers
think
it
lasts
only
until
the PTA date. This is wrong. If you swear an
information
before the PTA date, the undertaking lasts until the case ends
with a
conviction & sentence, acquittal, stay of proceedings or
withdrawal
of the information. See form 11.1. (The accused can
apply
to court to change the conditions. See s.503(2.2).)
2. Section 505 of the Criminal Code requires the information to be sworn "as soon as practicable". If you delay swearing the information until just before the PTA date, then the PTA expires, but the undertaking does not. Oliveira, 2009 ONCA 219.
3. If you fail to swear the information before the PTA date, then the undertaking expires. Nothing will protect the complainant from the suspect. Killaly, 2010 BCPC 138.
When the suspect exercises his s.10(b) rights, do police have
to
answer the lawyer's questions?
The court did not give the black-and-white answer police
officers
want. They said that there is no general obligation in every
case
to answer counsel's questions. But they left open the
possibility
that in specific cases, the lawyer might need information from you in
order to advise the client.
What do you do when the lawyer wants to ask you
questions?
I
don't know of any cases which answer this question
definitively.
Here are my suggestions, but I can't guarantee that the judges will
agree:
Under Saskatchewan's Highway
&
Transportation
Act, this truck could be prohibited from
further travel in Saskatchewan. For some of the infractions,
such
as the log book, an officer could search it for evidence.
The officer looked inside the trailer, and something seemed odd. He began to suspect drug trafficking. The officer searched inside the cab for documents which would confirm or contradict the log books. He found a small duffle bag, whose contents crackled like paper when he touched it. In his experience, truckers often packed papers in odd containers, so he looked inside. He found $115,000 bundled in small denominations. His training told him this matched the packaging drug traffickers used. He arrested Vatsis & Nolet for possessing proceeds of crime, and called for backup. They found that the inside of the trailer was 3' shorter than the outside. In a hidden compartment, they found over a $1,000,000 worth of cannabis.
Defence argued that the police officer violated their privacy. The cab of a commercial truck is the driver's house and bedroom, and should enjoy privacy. The trial judge excluded the evidence and acquitted Vatsis & Nolet on the basis that the officer continued searching the truck because he was more interested in criminal offences than transport safety.
The Supreme Court of Canada agreed that s.8 protected the cab. But commercial trucking is a highly regulated industry. Once the officer found the violations, the cab enjoyed little expectation of privacy. To the extent that you enforce highway safety regulations, you enjoy significant powers of search, which you can employ even when you suspect that you will find evidence of more interesting but unrelated offences. Because the officer looked in the duffle bag for evidence relating to the log books, his search was lawful. But if you pretend to use those powers so that you can get into private places and investigate other things (like trafficking), you violate s.8 or 9.
This raises a tough issue for police investigating conspiracies. When you're surveilling suspects, can you randomly stop a vehicle and check driver's licence information for the purposes of identifying your suspects? The court repeated its position from earlier cases:
[R]andom checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search”.
The court accepted that these gave him reasonable grounds.
I'll bet when this officer saw the money, his gut told him it was dirty. In my experience, those police "instincts" are usually the subconscious assemblings of highly logical inferences. Some officers fail to take the time afterwards to write down all the things they saw that led them to that "gotcha" conclusion. When those officers get to court, they can not explain why they knew they found a crook, and they call it "instinct", "hunch", or "gut". Judges reject those explanations. You need reasonable grounds to arrest.
This cop did explain the many observations he made which led
him
to
believe that this was dirty money. I suspect he took some
time
when writing his report to reflect on the many suspicious indications
he observed before he found the money.
Don't wait till court to explain your thinking. By
that
time,
you will have forgotten half of what you saw, and you won't be able to
connect the dots. After you exercise your powers of arrest or
search, think about what you saw, and why you acted. Then
write.
The next day, however, another police officer searched it
again,
for
the purpose of creating an inventory of its contents, for civil
purposes. She found further evidence. Without
discussing other
cases
on
inventory
search, the court observed that she had no
lawful authority for this search, and therefore the search violated
s.8.
However, the court found that evidence to be admissible under s.24(2).
In the absence of specific authority to conduct an inventory
search,
any evidence you find when doing one may well be excluded in a criminal
trial.
Defence argued that the smell of burnt marijuana establishes
only
that the suspect did
possess
marijuana, and does not establish the quantity. Possession of
less than 30g of the stuff is a summary conviction offence.
Police can't arrest for summary conviction offences unless the find the
person committing the offence. Defence said that Cst Ryzak
caught
his suspect too late to arrest him.
The judge disagreed. There were other reasons beyond
the
smell
to believe that Hardenstine still possessed marijuana:
The officer didn't read the "Supplemental"
(Prosper)
warning promising to
hold off eliciting evidence until he had a reasonable opportunity to
get advice. Instead, the officer asked him who owned the bag
that
contained the drugs. He said he did.
The court found that the officer breached his rights, and
excluded
the admission.
When a suspect expresses a desire to speak with counsel, and
then
changes his mind, you should remind him that he is entitled to a
reasonable opportunity to get legal advice. Don't
ask questions of the
suspect until the suspect exercises that reasonable opportunity, or
very clearly declines it.
Sgt Topham thought there were other reasons to believe that Mr
Harding was committing an offence:
Defence complained: We all know that people metabolize
alcohol. If I drank a single beer yesterday, you won't expect
the
alcohol to remain in me today. If I drink a beer at 6:00pm,
do
you think there will be any alcohol left in me at 10:00pm?
Section 254(2) does not give police the power to demand a breath screen
when they think the suspect has been drinking, but only if the officer
thinks there is still
alcohol in the
person's body.
The trial judge agreed, and found that the demand was unlawful.
Lots of judges would agree with him. In this case
appeal
judge
did not. I've seen plenty of appeals based on this issue.
Before you make your demand, turn your mind to the legal
question.
The question isn't "Has this guy been drinking?" The question
is
"Is there any alcohol left in this guy's body?" (If you read
your
screening demand card, you'll find those words there.)
Defence was right. Courtroom identifications of
strangers
are
artificial, because it's always obvious who's on trial.
Fortunately, the investigators did much more work to prove
identity.
They asked the girl many questions about the stranger. She
told
them:
The trial judge said he did. The appeal court
acquitted
him of
both charges, relying in part on some ideas from Morelli
2010
SCC
8, and in part on testimony from the experts in the trial:
At some point during his testimony, the officer said that he
made
his demand "based on what the family members told me". This
is a
classic mistake in testifying. Defence relied upon this to
argue
that the officer considered no other information than the enraged
remarks of upset family members, and therefore his opinion wasn't
objectively reasonable. The court rejected this argument,
referring to other parts of the testimony where the officer mentioned
his other observations.
When a lawyer asks you for the reasons or grounds for your
detention, arrest or demand, take some time to list everything you
knew, and any logic you applied to it.
In accident cases, officers on the witness stand often forget
to
mention the most obvious detail: the unexplained accident.
If the suspect caused the accident, then you may infer that
the
suspect drove badly. If you have evidence of alcohol
consumption,
then in the absence of
other
explanations for the accident, you may infer that alcohol
impaired the driver's ability to drive. It's so obvious that
at
court, many officers forget to say it. In the mayhem of motor
vehicle collisions, some officers never think it.
The court's decision recites some of the investigating
officer's
testimony. I noticed he made a point of slipping in one other
phrase: he believed that the driving occurred within the 3
hours
before his arrival. That was smart. When pulling
over
impaired drivers, you never need to turn your mind to the question of
when the driving occurred - you saw it. When you arrive an an
accident scene involving an impaired driver, you need to establish the
time of driving, and who was driving. Don't rely on the time
of
the dispatch: ask people, feel the hood of the car, look around.
"... many instances of abusive conduct by state officials, involving deliberate non‑disclosure, deliberate editing of useful information, negligent breach of the duty to maintain original evidence, improper cross‑examination and jury addresses during the first trial."
The OPP investigated the police officers and prosecutor involved, and issued a short statement to the press that they found no evidence of deliberate police misconduct. An association of Ontario criminal lawyers applied under the Ontario freedom of information law for access to the documents relating to this decision. The cabinet minister responsible for deciding whether to release the documents turned the application down, and the Ontario Privacy Commissioner agreed with him.
The criminal lawyers claimed a constitutional right to disclosure: "How can we exercise our constitutional right to freedom of expression under s.2(b), if the government withholds the important information we want to talk about?" The Supreme Court found that s.2(b) is mostly about expressing - not obtaining - information. But it does include "a right to access to documents only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints." Ultimately, the court found that Ontario's freedom of information legislation was constitutional, but the Privacy Commissioner should reconsider his decision, remembering that partial disclosure is better than nothing, and give a more detailed explanation of his conclusions.
In a nutshell, when there are good reasons not to disclose government documents (such as privilege), they shouldn't be disclosed; but otherwise, expect openness in everything you do. Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23.2010-06-12 Child Pornography - Defence of "legitimate purpose related to art" & "harm to children"
- Mixed in with Mr Katigbak's, 2010 ONCA 411 collection of adult pornography were 628 images and 30 video clips of child pornography. He was a photographer. He kept the adult porn for "entertainment", but he explained the presence of the other material as research toward the creation of an art exhibit educating the public on the evils of child abuse. He collected it for 7 years, but had never pushed his project beyond mere musings. The trial judge figured this was a "legitimate purpose" within the meaning of s.163.1(6), and therefore acquitted him.
The appeal court doubted Mr Katigak's explanation, and cautioned trial judges from accepting such explanations too easily.
But the court decided this case on the "harm to children", finding that every download from the internet harms the child involved once more, even if the consumer never pays any money for it. Mere consumption fuels demand, and results in more abuse.
2010-06-12 Search & Seizure - Flashlights at Night
- Mr Grunwald, 2010 BCCA 288 and his friends loaded a pickup truck with $110,000 worth of marijuana bud, packaged in garbage bags. (There was also $400,000 cash in the cab.) A canopy with tinted windows covered the truck bed. At around 11:00pm, Csts Mulrooney and Croft stopped him at a vehicle check stop in Hope, B.C.. Both independently smelled marijuana. While dealing with licencing and insurance, Cst Mulroney shone a bright flashlight into the tinted windows. Inside he saw the garbage bags. One was open enough that he could see a zip-loc bag of weed. He arrested Grunwald.
Defence argued that shining the flashlight into the truck bed constituted an unreasonable search, because at night the objects were not in "plain view". The court roundly rejected that notion:
"If a flashlight is used to see what would be visible in daylight hours, such as objects in the back of a pickup truck or the interior of a motor vehicle, the item does not cease to be in plain sight when the sun goes down."
2010-06-12 Search & Seizure - Vehicle Detention & Charter
- When police stopped Mr Grunwald, 2010 BCCA 288 at a traffic stop, and smelled fresh marijuana coming from the vehicle, they looked into the truck for marijuana. Defence complained that the purpose of the stop changed from vehicle safety to investigation of a drug offence, and therefore, the officer ought to have told Mr Grunwald about rights to counsel.
The court disagreed. Police may conduct a lawful vehicle stop without reviewing rights to counsel. The fact that the officers suspect other offences doesn't change that. If the officers find evidence of other offences in the course of dealing with the motor vehicle issues, then the purpose of the detention changes, and the officers must explain s.10(b) rights.
Beware. If you stop someone for motor vehicle purposes, but investigate him for something criminal, you convert the detention into one which requires a s.10(b) warning. Strilec 2010 BCCA 198.
2010-06-06 Confessions - Police Warning
- If you ever wondered where the language of the police warning comes from, look no further than the decision of R. v. K.F., 2010 NSCA 45. In that case, the trial judge mistakenly found that the police officer failed to tell the suspect that he had a right to silence. The majority ordered a new trial because of this obvious error. The minority judge went further, to discuss where the police warning in Canada came from.
I found the history interesting. If that sort of thing bores you, then take this little point from it: The law does not require you to give a police warning to a suspect. If you forget to read it, the court might still accept the subsequent conversation. But proving voluntariness is much, much, much easier if you do tell the suspect that he has no obligation to answer your questions; and what he says could be used in court as evidence.
2010-06-06 Hearsay - Preserving the Evidence of the Old and Frail
- A 70-year-old man complained that someone broke into his home, took him to an automated teller machine, and made him withdraw cash. Police found his window screen cut. Security video showed him making withdrawals from his bank machine in the company of Mr Paul, 2010 MBCA 51. The old man picked Mr Paul out of a photo lineup, but before trial, he died. At trial, the Crown relied on the recorded statements the old man gave to the police. Defence argued that they weren't as reliable as sworn evidence. The judges disagreed. There was some evidence to corroborate the old man's testimony. Mr Paul's conviction stuck.
In my experience, old folks tend to be particularly vulnerable to the trauma of crime. When your complainant is old or frail:
- Take a really good statement - preferably on video; and
- Investigate the details the old victim alleges.
Even if the crime diminishes the victim's mind, your investigation may preserve enough evidence to bring the felon to justice.
2010-06-05 Reliability of an Anonymous Tip - Arrest or Detention
- At 8:00am, Police in Edmonton received a tip that Mr Safi, 2010 ABCA 151, aged 21 would arrive that same day on a Greyhound bus from Vancouver, carrying cocaine and perhaps a handgun. The officers investigated, and found that a 21-year-old guy by that name was involved in a recent weapons complaint. He lived in Surrey but was on a recognizance condition not to leave Alberta. The bus company told them that the bus would arrive at 11:07. The officers met him as he got off the bus.
Would you arrest or detain? Would you search him for officer safety? Would you search him for evidence?
The officers searched him and found drugs and a handgun. The trial judge found the officers had reasonable grounds to believe that Safi possessed drugs; the appeal judges seemed to agree, but with greater hesitation. Other courts might disagree: anonymous sources carry little weight. The call could have been a malicious prank.
These officers had many lawful options which all courts would accept:
- They had reasonable grounds to believe that Safi breached his recognizance by leaving Alberta. They could arrest him for that offence. After an arrest, they would need to search him for weapons, simply for officer safety.
- They had reasonable grounds to suspect that his luggage contained drugs. They could deploy a drug dog.
- They had reasonable grounds to suspect he possessed drugs and a firearm. They could have detained him, and searched him immediately for weapons.
2010-06-05 Value of Interviewing - the "Useless" answer
- Police found Mr Ominayak's, 2010 ABCA 152 palm-print at the scene of a rape. When police interviewed him, they asked him if he knew how it could have got there. He said "I don't know". At trial, the Crown used this evidence against him: he could offer no innocent explanation. Defence complained this violated his right to silence: he had no obligation to explain the evidence. The court rejected that argument. While it's true that the accused has no obligation to answer questions, in this case he did answer the question. The answer he gave hurt him.
For police, this case highlights the value of interviewing suspects, even if you don't expect them to tell you the whole truth. Even if they lie to you, the lies can help probe the case.
In my opinion, no investigation is complete until you give the suspect an opportunity to explain his or her version. An investigation should be objective. Fairness requires you to attempt to get both sides of the story. Of course, you can't force a suspect to explain. But no matter how small the case, you ought to ask.
- "You told me you had two beer, but I don't believe it. This instrument says you were driving drunk. How much did you really drink?"
- "Your girlfriend told me you slapped her and called her a "two-timing whore". Has she been sleeping around on you?"
In many general duty police investigations, the investigator's shift ends before anyone catches the suspect. Later, the arresting officer knows too little about the case to feel comfortable asking any questions. Nobody asks the suspect anything about the offence. I suggest that the investigator who wants the suspect arrested could leave indications in the file about what to ask the suspect after arrest. The officer who arrests should get information from the file, and attempt to interview.
- "Your girlfriend says you shoved her into the closet. I'd like to hear your side of it."
- "You cashed a stolen cheque, and you told the clerk a lie about where it came from. What's really going on?"
2010-05-28 Voluntariness of Confessions - Interrogation Tactics -
Mr S.G.T. 2010 SCC 20 married a woman and adopted her daughter. At age 14, the girl complained that he sexually abused her. The girl's mother called police, but they didn't call back, and so she dropped the complaint. The girl complained again at school, and the investigation took off. The officer who interviewed Mr S.G.T. made a classic mistake: he insinuated that an apology would make his legal troubles go away. At the end of the interview, S.G.T. wrote an apology (which the trial judge excluded from evidence). A few days after the charges were laid, Mr S.G.T wrote another apology. This one he sent by email to the girl's mother, who no longer lived with him. The trial judge used it to convict S.G.T. The Appeal Court objected, saying that S.G.T. wouldn't have written it but for the police officer's trick, and therefore it should have been excluded too. The Supreme Court of Canada sided with the trial judge. (For brevity, I omitted several details of Mr S.G.T.'s interesting and contradictory defences.)
The high court decided there wasn't sufficient connection between the police interview and the email to the mother to render the second confession inadmissible. Two of seven judges disagreed. But that's not what's important for police officers.
When police officers try to persuade a suspect to confess, the conversation often drifts into discussions about the legal process. This is natural. The suspect wants to know who's going to hear what he tells you. The police warning answers this, but sometimes suspect wants to know more. It's perfectly fair to tell him: "I write a report. I give it to the prosecutor. The prosecutor makes decisions about the case."
But when deciding whether to confess, the suspect also wants to know "What's in it for me?" Police officers are tempted to answer this second question while discussing the first: "If you confess, the prosecutor and the judge will be favourably impressed, and will treat you better."
Don't do it.
That's the classic "hope of advantage" which renders a confession inadmissible.
During the interview, Mr S.G.T. expressed fear that he would lose access to his son, the complainant's half-brother. The officer told a false story about how the officer publically slapped his kid while travelling in the U.S.A.. He said child welfare authorities seized his child. The officer apologized. The welfare people realized he was a good guy, and returned the child.
Although the Court of Appeal and the dissenting judges of the Supreme Court of Canada didn't like the lie, the real legal problem with this story was its suggestion that a confession and apology would win legal advantages for Mr S.G.T..
It's okay to talk about spiritual advantages: "Confess, and make things right with God."
It's okay to talk about moral advantages: "You hurt this little girl. You need to make it right with her. You should apologize. By denying what happened, you hurt her a second time. She told the truth, and you tell the world she's a liar. How can she ever trust you, or any man again?"
It's okay to talk about social advantages: "You made a mistake. We all do. But people respect the guy who can admit his mistakes and move on." But don't talk about the judge or the prosecutor, the likelihood of charges or the length of sentence. If the suspect raises those questions, duck them: "Oh, those aren't in my control."
2010-05-14 In-Custody Informer Witnesses
- In a hotel room in Lloydminster, Saskatchewan, Jarita Naistus died of strangulation and beating. Forensic examination of the scene found a little DNA belonging to Mr Hurley, 2010 SCC 18, but it was so little that the Crown figured that someone cleaned up after the murder to eliminate prints and DNA. Hurley admitted being in the room to purchase cocaine, but denied killing her. Police offered a reward for information about the murder. They approached a prisoner who was facing charges himself, asking for information. He told them that while he was in prison with Mr Hurley, Hurley admitted killing the woman, but it wasn't until later that the prisoner remembered Hurley saying he cleaned up the murder scene until later.
The trial judge warned the jury to be "extremely cautious" of the prisoner's testimony, but didn't fully explain why. The appeal court disagreed whether this jury instruction sufficed for a fair trial. Then new forensic evidence arose, showing more of Hurley's DNA at the scene. The Supreme Court of Canada granted a new trial. They said the jury should have been warned more completely of the unreliability of in-custody informer witnesses, and the new evidence might show that there was no clean-up at the scene.
Why are in-custody informers so dangerous?
- They are often highly motivated to gain advantages for themselves, such as reductions of charges, sentence, obtaining parole or paying debts.
- They often care little about the harm they might do others. That's what got them into serious trouble in the first place.
- They are often highly persuasive liars. Their criminal lifestyles tend to develop their skills in deception.
Statistics show that they figure significantly in wrongful convictions. (In some cases, the real killer claims that someone else confessed to him.)
For these reasons, courts learned to treat these witnesses with great suspicion. But sometimes these guys actually tell the truth.
If a prisoner offers you information about a serious crime, you must protect the sanctity of hold-back information with great care. Perhaps an officer who doesn't know anything about the investigation should take the prisoner's statement. You want incontravertible proof that the informant didn't do the crime nor infer the details he offers from newspaper accounts or other sources available to him. Don't make any deals for evidence without involving the prosecutors - the more the guy gets for his evidence, the less credible he appears on the witness stand.
2010-05-13 Post-Offence Conduct & Hearsay
- Mr Polimac 2010 ONCA 346 loved his house more than his partner, Ms Pauls. They bought the house and lived in it for 15 years. Their relationship deteriorated, particularly when she learned of his mistress, and of his mistress's pregnacy. He kept telling his partner that he would leave his mistress. He kept telling his mistress he would marry her. Just after he promised his mistress that she and the baby would move into the house with him, his partner "fell" off a cliff to her death while hiking with him. Was it murder?
He said they chose to picnic close to the edge; her friends said Ms Pauls was afraid of heights.
Mr Polimac said that his relationship with his partner improved. Her friends told police that she complained of assaults, and she slept with a knife by her bed. Ms Pauls said he shoved her into a fridge and held a knife to her neck.
When police asked, he denied having a mistress. The mistress told police that he asked her to lie about their relationship.
He told police that after she fell from the cliff, he rushed to her aid, and she screamed for help. Medical evidence suggested her injuries would have prevented her from speaking.
He forgot to mention to police until late in their investigation that he went hiking alone in the same spot the day before.
Hearsay
What the deceased said to her friends about the relationship was classic hearsay. Ordinarily, a court will not admit it; but if it's "necessary" and "reliable", the jury may hear what the friends claimed she said. Because she was dead, hearsay was "necessary", but was it reliable? One of the friends asked Mr Polimac about the fridge & knife incident. He explained that he was peeling potatoes. This limited concession established that the complaint wasn't invented.
Proving the reliability of the deceased's remarks requires more than just the fact that she said them. Independent corroboration makes a big difference.
Lies
A jury can not convict the accused just because they don't believe his testimony. The jury is not permitted to convict him only because he lied. (He explained that he misled police about his mistress to save her from embarrassment.) But the court explained:
"If significant parts of the statements were found to be deliberately false, the proximity of many of the statements to Ms. Pauls’ death, the detailed and precise narrative set out in the statements, the persons to whom the statements were made, and the fact that the appellant was not under any suspicion when the statements were made, taken together, provide a basis to infer deliberate fabrication to avoid liability."
If your suspect misleads you about a small detail, the court will not be impressed. But a witness who provides a significant pattern of lies may be giving you evidence of his guilt. For prosecution purposes, we need to prove that the lies were deliberate, and motivated by a desire to avoid criminal liability.
During a sudden death investigation, you won't know what details matter. Recording the statements of all witnesses may help discover a killer.
2010-05-11 Assault - What is "Bodily Harm"?
Mr Moquin, 2010 MBCA 22 met a woman on a telephone chat line. Within weeks he was living at her house. He assaulted her several times leaving injuries. She complained of:The trial judge compared these to the effects of a common cold or sore throat, and concluded these were not "bodily harm". The appeal court disagreed. "Pain causing discomfort, if it is more than trifling and transient, is sufficient, even if it does not impair a person’s ability to function." These injuries each sufficed to establish bodily harm.
- bruising lasting several weeks
- a sore throat that lasted several days
- a hand injury which prevented her from opening doors for a few days
2010-05-11 Traffic Stops & Dogs Sniffing for Drugs
- What questions can you ask during a traffic stop? What can you do with the answers? A Winnipeg police officer saw a rental vehicle bearing Alberta plates. He had encountered some of these vehicles driven in Manitoba by suspended or unlicenced drivers, so he stopped it to check the driver's licencing and insurance. He asked questions specific to those concerns, and some more general questions. The driver, Mr Schrenk, 2010 MBCA 38, gave these answers:
The officer observed two cell phones on the console, a suitcase in the back seat, and a collection of food wrappers and bottles for drinks. As he returned the driver's licence and rental agreement, the officer noticed Mr Schrenk's hands shook violently. He couldn't put the licence back into his wallet. Then the officer talked some more:
- Q: Licence? A: British Columbia
- Q: Rental contract? A: Rented in Calgary less than 24 hours previously, and was due at Dorval Airport outside Montreal in 24 hours time.
- Q: Where do you live? A: B.C., but I flew to Calgary and rented a car to drive to Toronto to visit relatives. (Dorval is a long way past Toronto.)
- Q: Why fly to Calgary and then rent? A: Can't afford the flight to Toronto. (The officer observed that the rental contract exceeded the price of a plane ticket to Toronto.)
- Q: What do you do for a living? A: "The ministries."
The officer suspected that Schrenk was a drug courier. He detained him and told him (inadequately) about the right to counsel. Within a few minutes, they deployed a drug dog to sniff the exterior of the vehicle. It indicated that drugs were in the trunk. They arrested Schrenk and found lots of drugs.
Officer
Shrenk
“You’re free to leave, Mr. Schrenk, have a safe trip.” "Thanks"
“Mr. Schrenk, could I ask you a couple of questions? You don’t have to answer if you don’t want to.”
“Yeah, sure.” (Eyes averted)
"Is there a big drug problem in British Columbia"
"I wouldn’t know anything about that." (Looks away and sits on his hands.)
Defence argued that the officers lacked reasonable grounds to detain the suspect and deploy the drug dog. The court disagreed. All they needed was reasonable grounds to suspect the presence of drugs. The court liked how quickly the police officers deployed the drug dog. A "detention" ought to be brief.
Defence argued that during a traffic stop, an officer must ask questions addressed only to the very specific issues in a traffic stop. The court agreed, but said:
"[i]t is reasonable for such questioning to include particulars of a trip, such as destination, route and purpose. Given that the rental car was from Alberta and the accused indicated his residency was in British Columbia, it was reasonable for the officer to establish the residency of the driver to ensure proper licencing, an area rationally connected to road safety. The answers he received legitimately raised his suspicions, leading to other questions."
Defence complained that the police used the answers to advance a drug investigation. The court agreed, but found nothing wrong with that.
The only mistake was the officer's failure to give a complete Charter warning. However, the drugs would have been found anyway. The court let the evidence in.
This is a good example of how to move from a traffic stop to a drug investigation. While it isn't necessary in every case to tell the driver he's free to go, you should do so if:
- you do not have grounds yet to detain the driver; and
- you want to change the topic of questioning away from traffic safety issues.
2010-05-09 Dealing with Foreign Police
- R.C.M.P. officers contacted police in Antigua, asking for information which could be lawfully disclosed about Mr Mathur's, 2010 ONCA 311 banking. Antiguan police provided some very helpful records by breaking Antiguan law. The Crown declined to investigate the Antiguan police improprieties on behalf of defence. At his trial, Mr Mathur asked the judge to exclude the evidence from his trial, because it was illegally obtained. The court found that because the police had deliberately sought only lawfully obtained evidence, the evidence could be admitted.
Police forces in other parts of the world operate with varying respect for the rights of their citizens. Be careful when asking for their cooperation that you do not inspire them to commit illegal acts on your behalf. The defence made much of the Crown's refusal to investigate the foreign misconduct. The clean approach of the police won the day.
2010-05-09 Defence of Property & Excessive Force -
Lieutenant‑Colonel Szczerbaniwicz, 2010 SCC 15 and his estranged wife argued over their separation. She threw onto the floor the diploma he earned for a Master's degree. He shoved her, and she fell and suffered injuries. She complained of an assault. He said he merely defended his property. The judge convicted him. The force he used exceeded the force necessary to defend it from damage.
The main point in this case is that the court said that force used to defend property must be objectively reasonable. The court took particular interest in the fact that the diploma could be replaced. The force used was excessive.
2010-05-09 Search & Seizure from the Media -
A reporter from the National Post 2010 SCC 16 suspected Prime Minister Jean Chretien of obtaining government benefits for his golf course business. His investigations led him to a source who asked that his identity never be revealed. The reporter promised anonymity, and the source provided him with a letter from the Business Development Bank of Canada, which, if genuine, would show the Prime Minister acted in conflict of interest. The Bank said it was a forgery. Police asked the National Post for the original letter, but the newspaper refused to deliver it, and refused to say from whom they got it. Instead, they told the police that the reporter had hidden the letter outside their offices. The police applied for a warrant, but told the judge that the press had asked to be present at the application. Without letting the press make submissions, the judge issued a general warrant and an assistance order compelling the newspaper to bring the letter and the envelope to their offices so that the police could sieze them there. The press complained, but the appeal courts shot them down:
Do media lawyers have a right to attend and argue search warrant applications before they are granted?
Generally, no. The judge should decide. But the warrant ought to contain conditions:
- The execution of the warrant must interfere with the operations of the media as little as possible; and
- The items seized should be sealed so that the media can apply to court to determine the validity of the search warrant.
Do Reporters' Confidential Sources Enjoy Privilege?
Police officers' confidential sources enjoy privilege because of the important role confidential sources play in stopping crime. The newspaper claimed that their sources play an important role in democracy and keeping the public informed. The court agreed that confidentiality of reporters' sources is important, and could sometimes enjoy privilege. But in this case the forgery had the potential to bring down the government. The public interest required the criminal investigation to proceed.
If you want to search and seize from the news media:
- your warrant requires special conditions
- you may have to seal up what you seize pending further applications to court
- you should get lawyers involved early in the process
- you don't necessarily have to invite the media to argue whether the warrant should be granted in the first place - but it's best to let the judge decide this point.
2010-05-07 Search & Seizure incidental to Detention
- police officers took positions around the location of a robbery to see if they could locate the perpetrator, who was described as "Caucasian male of about 30 years of age, five feet eight inches to five feet ten inches in height, 180 pounds to 200 pounds in weight, with brown hair and wearing neutral coloured clothing". Mr Darling, 2010 BCSC 546 matched this general description. When a junior officer saw him, he stopped Mr Darling, explaining that he was investigating a robbery, and that Mr Darling met the robber's description. Darling gave an innocent explanation for his activities, but then said the officer was going to arrest him, and started to cry.
The officer then said he was going to search Darling for evidence. He didn't mention the right to silence nor the right to counsel. He found cocaine.
The judge excluded the evidence. Because the officer only suspected Mr Darling was the robber, the officer could only detain. On detention, a police officer can not search for evidence.
For officer safety purposes, the officer could have searched for weapons. But that wasn't what he testified he was doing. (You can search for evidence after an arrest. But this officer didn't arrest.)
The judge also disliked the failure to tell Mr Darling his legal rights immediately after the detention.
These principles should be familiar to all police officers. I mention this case only because I keep seeing the same mistake frequently repeated in police and court reports. If you read this website, you probably know about this issue. Perhaps you might discuss it with the junior officers with whom you work, in case they do not. See this page for more detail.
2010-04-28 Seizing Exhibits - Continuity
- Someone broke into a garage and stole a bicycle. The homeowner saw him cycle away. He wore a shirt and jacket. Soon thereafter, a police officer saw Mr Popham, 2010 ABCA 114 cycling, shirtless, into a building complex. When the officer first saw him, the officer believed he saw a black bag hanging from his shoulder. The officer lost sight of him for a short while, then saw him riding the bicycle without a bag over his shoulder. In the building complex, a civillian heard a shed door open and close, and saw Mr Popham emerge from near it, and then get arrested by police. In the shed police found property from the B&E. They also seized Mr Popham's cell phone. Mr Popham denied the offence. He was caught riding a different bicycle from the one stolen. He was acquitted.
The big problem in the case was poor exhibit handling: The officers couldn't say whether Popham's cell phone was found in the bag of stolen property, or in his pocket. This is not unusual. I find that junior officers on general duty do sometimes track exhibits poorly. Continuity of exhibits rarely comes up.
I suggest:
- when possible, photograph exhibits before seizing them;
- always record exactly where you found it, what it was, and to whom you gave it
- separate exhibits (bag & tag)
I'm sure your various police forces and detachments have standard procedures and protocols. Supervisors, you may wish to review them with junior members, and practice on simple files, so that when the complicated file arises, your members know what to do.
2010-04-28 Informer Privilege & Obstruction of Justice
- Relying in part on a confidential informant, police got a warrant to search Mr Quereshi's place. They found drugs and guns, and charged Mr Quereshi and his friends. Quereshi hired a lawyer, who hired Mr Barros, 2010 ABCA 116, a private investigator, and ex-cop. Barros investigated and interrogated Quereshi's associates to determine who the rat was. After challenging and accusing various people of being the source, he met with the investigating officer. He told the officer that he had determined who the source was, and that he had not told the lawyer who it was "at this time". He suggested they meet with the prosecutor "to explain the dilemma I'm in". The officer got the impression that the purpose of the meeting was to force the prosecution to drop the case against Quereshi's group. Barros himself explained that he expected that result.
They charged Barros with attempting to obstruct justice, and extortion. The trial judge acquitted. She said that although the police are prohibited from violating informer privilege, the defence may seek out the informer's identity as part of full answer and defence. A majority of the appeal court disagreed, and ordered a new trial. The investigator's conduct was calculated to subvert a legal protection and prevent the determination of the charges on their merits. I suspect there will be a further appeal.
If someone comes to you saying "drop the charges or I will reveal the identity of a confidential informant", they may be committing extortion - depending upon the circumstances. In this case the threat was not clear-cut, but the court was prepared to find there was a threat.
If someone harasses potential sources, trying to identify a confidential informant for the purposes of preventing a trial, they may be obstructing justice.
2010-04-27 How Long to Preserve Evidence
- In 1994, Jennifer (12) and Tiffany (10) complained to their mother that her boyfriend, Mr Sheng, 2010 ONCA 296 sexually abused them, but mom didn't do anything about it. Jennifer complained to a teacher, who called in a social worker. In a formal interview, Jennifer said she dreamed the abuse. She later testified she did this because it was the "easier way out". The girls' father took them to another interview, conducted by two men. It was taped. The girls made some vague allegations, but Mr Sheng denied them. Police closed the case.Over 10 years later, Jennifer confronted Mr Sheng, while secretly recording the conversation. She brought this new evidence to the police, and a prosecution commenced. Defence demanded the recordings of the past interviews -- but they were lost. The investigating officer threw the tapes into a drawer where they sat until they were erased. The trial judge found Sheng guilty, but stayed the case by reason of the lost evidence.
The Court of Appeal ordered a new trial observing: “[t]he police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future.”
Police frequently embark on investigations which quickly lead nowhere. Most of these files disappear forever. But the occasional one turns out to be crucial: the last sighting of a murder victim, or the damning proof of a serious crime.
When it comes to evidence and allegations, you can't always distinguish between gold and garbage. But electronic storage of information takes little space, and can survive many years. I suggest that you organize even the "junk" information that comes in, and store as much as you can (photographs, digital audio / video statements, etc). Document your decisions to abandon investigations, so that you can explain later why you discarded what everyone later claims is "crucial evidence".
2010-04-23 Inventory Searches in British Columbia
- Even though Mr Strilec's 2010 BCCA 198 dirt-bike lacked a headlight and a tail light, he drove it around dusk on a busy rural highway. A police officer stopped him and asked questions. Mr Strilec responded: no, he had no licence. No, the bike wasn't insured. No, the bike didn't belong to him.
The officer (correctly) told him that driving without insurance is an arrestable offence, but he also said he was not going to arrest Strilec, just detain him. The officer patted him down for weapons, handcuffed him and placed him in the back of the police car from which he could not escape.
Computer searches shows that Strilec had no licence, and further, under s.104.1 of the motor vehicle, any vehicle he drove could be impounded. He seized the bike, and removed personal effects from it, so that he could give them to Strilec. That's when he found the cocaine.
Defence complained that the inventory search violated Strilec's expectations of privacy. The court rejected this, and adopted the Ontario line of cases (Nicholosi & Wint).
"... the authority to impound provided by s. 104.1 of the Motor Vehicle Act carries with it the duty and responsibility to take care of the vehicle and its contents, and to do that the police must be able to conduct an inventory of the vehicle’s contents."
Will Strilec authorize inventory search in all cases of vehicle inventory search? I hesitate to give a simple answer to B.C. officers. Impoundment sections in the Motor Vehicle Act differ. S.104.1 authorizes officers to remove personal property from an impounded vehicle. S. 105 (prohibited and suspended drivers) permits the driver to remove personal property himself. I think B.C. officers who impound vehicles under that section should not conduct an inventory search until after the driver gets a chance to remove property.
2010-04-23 Motor Vehicle stops and Right to Counsel anywhere in Canada
- When the officer found the cocaine, he returned to Mr Strilec 2010 BCCA 198 (see above), and told him he was under arrest for trafficking in cocaine. Mr Strilec immediately responded "Trafficking? I was just smoking." The officer then told him about his right to counsel under s.10(b). Without that evidence, the Crown could not prove Strilec knew about the cocaine in the bike, and he would be acquitted.
Strilec complained that the officer should have told him about his right to counsel earlier, when he was handcuffed and placed into the police car. The court agreed.
Every time you stop a driver for vehicle safety concerns, it's very clearly a detention. The court said:
"traffic safety stops are incompatible with the rights conferred by s. 10(b) of the Charter. ... however, the incompatibility is acceptable only because the driver of a vehicle is not arrested but only briefly detained."
The court held that by handcuffing Strilec and placed him into a police car, the officer extended the "brief detention" into a "de facto arrest". This triggered the right to counsel. Because the officer didn't tell him about counsel until after the arrest for trafficking, the officer breached Strilec's rights. For this reason the court excluded the remark, and acquitted Mr Strilec.
This decision suggests that when you use your power to stop vehicles on the road, the obligation to inform suspects of their s.10(b) rights may trigger when you handcuff them, or lock them into your police car, or otherwise extend the detention from a regular traffic ticket or breath screening.
2010-04-10 Party to an Offence - What Were They Thinking?
- Mr Laboucan told his group of friends that he wanted to find a girl to rape and kill. He picked the girl at a mall, and persuaded her and her friend to accompany them to a party. One of Laboucan's friends, Mr Briscoe, 2010 SCC 13, drove the group to and from the crime scene. He chose a secluded spot, provided and transported weapons, and taking participated briefly by holding the 13-year-old victim and telling her to shut up, and by threatening her friend. Mr Laboucan and others in the group raped and killed the girl. Mr Briscoe told the police afterwards that he just thought Laboucan was going to frighten her. He didn't know exactly what was going to happen, and he didn't want to know. Even though he "aided" Laboucan, the trial judge acquitted him. Section 21 says an aider is not a party unless his acts were done "for the purpose of aiding" the principal to commit the offence.
The Alberta Court of Appeal and the Supreme Court of Canada ordered a new trial. They said Briscoe knew Laboucan intended to harm the girl, and deliberately ignored any further information he received about the nature of the harm. This is "wilful blindness". Courts can impute knowledge to those who turn a blind eye to crime. This differs from mere recklessness. It's not just that Briscoe gambled that something bad might happen,
"he refrained from obtaining the final confirmation [of what Laboucan was going to do] because he wanted in the event to be able to deny knowledge..."
Sometimes, when you interview a minor player in an offence committed by more than one person, the lesser player will admit knowing some of what the main actor was going to do. But the minor player will deny that he knew what the major player's ultimate intentions were. They will say things like "I didn't wanna know [what the main player was going to do]". This is evidence of wilful blindness, and may convict the minor player. If you reach this point, spend some time exploring it with the suspect. Review what he knew (so that it was obvious what was coming next).
2010-04-05 Search & Seizure - Reasonable Grounds - Tips
- When a tipster tells you that someone is committing a crime, do you need confirmation that the crime is indeed being committed? A tipster gave a police officer 8 credible tips, for which the officer paid money. The tipster gave the officer another tip, that a dark-haired young female named "Ashley" could be found in downtown Fort McMurray driving a specific car bearing a specific licence plate. The tipster said Ashey carried a large quantity of cocaine for trafficking. He found a matching car driven by a dark-haired woman named Amanda Hillgardener, 2010 ABCA 80. He arrested her for trafficking and found cocaine in her purse.
The trial judge said the officer should have followed the car for a while, and watched for activity that looked like crime. Because the officer had not confirmed she was actually committing crimes, the arrest and search were unlawful.
The appeal court disagreed. At law, where a tipster's information is sufficiently compelling, there is no obligation to confirm independently that the tipster's allegation is true.
But folks, don't mess with this. Even if you know and trust the tipster, take some time to confirm what you can. In this scenario, before making an arrest, a prudent officer might research the car and information about drug dealers named Ashley.
2010-04-02 Circumstantial Evidence of Possession - What to Look for at the Search
- Police officers suspected that there was a marijuana field growing at at a 62-acre rural property. They got a warrant, and found they were right. They arrested Mr Rong 2010 BCCA 165 in the house at the property. Was he responsible for producing marijuana in the field?
There was evidence connecting 3 other people to the property. Defence argued that those other guys could equally have been the growers, leaving Mr Rong as an innocent "found-in".
I don't have a copy of the warrant these officers executed. But look at what they found that linked Mr Rong to the offence:
I'll bet these officers asked for permission to search the house and vehicles for gardening tools & equipment, and identification documents.
- garden hoses leading from the house; and new garden hoses in the house
- full bottles of fertilizer in the basement & similar empty bottles at the field
- various gardening tools in the living areas of the house
- gardening tools in a van; and keys to the van in the house with Rong's wallet
What would have happened if these officers told the issuing justice that all they wanted to look for was marijuana plants? They might have been permitted to scan the house, but otherwise, their only permission to search would have been to seize plants in the field. Mr Roon would never have been convicted.
Drug cops know this well. In their ITOs, they explain why they think the drugs are there, but the smart ones go on to explain what other evidence they expect to find which would tend to identify the persons responsible for the drugs.
General duty officers don't draft search warrants as frequently, and they investigate a wider variety of offences. Their natural temptation is to ask for a warrant to search the residence only for the specific exhibit or contraband in question. Take a page from the drug cops' book. You're often investigating more than just the contraband, but also who's responsible for it. What lawful things will you find at the suspect's place which help prove the case? Explain in your ITO why you think those things will be there, and how they help solve the crime.
(My pet peeve is the search which finds contraband in a bedroom, like a sawed-off shotgun under the bed. Officers often tell me whose bedroom it is, but give me no evidence that proves who used that bedroom. The contents of a wallet on a nightstand makes a big difference. Consider asking for permission to search the other bedrooms for identifying documents and clothes, to establish that your suspect didn't use those bedrooms.)
2010-04-01 Charter Rights Generally - "Good Faith" - s.24(2)
- Tips and surveillance led police officers to believe that the Hoang family used two residences in Surrey to produce crystal meth. The officers obtained search warrants for both residences; but they found no drugs and no lab. Then they figured it might be where Mr Wong 2010 BCCA 160 lived, because of his association with the Hoang family and other observations. The officers feared that Wong might destroy evidence, having heard about the searches of the Hoang properties. But they didn't have probable grounds to believe that exigent circumstances existed. Therefore, the officers hastily prepared another warrant application for Wong's place. They got the warrant, and found drugs and the remnants of a lab. Of course, you know what happened at trial. In their haste, the officers made a significant error in the ITO. Defence pounced on it.
The trial judge found that without the error, the search warrant would not have been granted, and that overall, the officers did not have reasonable grounds for the search. However, he also found that the officers acted in good faith under difficult circumstances. He admitted the evidence anyway. Defence appealed, but the BCCA upheld the conviction.
This case shows a basic principle: Try to respect Charter rights, and the Courts will respect you.
These officers could have searched Wong's place without a warrant. "It was exigent circumstances, man. If we didn't go in, he'd have destroyed evidence." They were smart not to. They would have lost at trial. They didn't have probable grounds to believe Wong would destroy evidence, and they didn't actually have sufficient grounds to believe they would find evidence there.
By seeking judicial authority even when doing so was cumbersome, the officers showed a commitment to the rule of law. The judges obviously liked that so much that they admitted the evidence even though they found the warrant should never have been granted.
2010-03-27 Sexual Assault - "Consent" -
Mr J.A., 2010 ONCA 226 had a common-law wife who said that from time to time, they engaged in bondage and erotic asphyxia - he would choke her to unconsciousness during sex. On this one occasion, she testified that she consented to being choked to unconsciousness. He did further sexual acts with her while she was unconscious. She left unsaid whether she consented in advance to these acts while she was unconscious. The court took this absence of evidence to mean she could have consented to them. The Crown said whether she consented in advance or not, once she was unconscious, she was in no position to change her mind, and therefore the consent was invalid.
The majority of the court disagreed: A person can consent in advance to sexual acts done to her while unconscious. However, they noted a distinct absence of evidence as to the risks of this choking behaviour. With expert evidence, the court might might decided this case differently.
What really happened? The complainant told the police that none of the sexual acts were consensual. Police wisely took a video-recorded statement from her. At trial, she recanted, saying that she lied about consent because she was angry at the accused. For their own reasons, the prosecutors decided not to rely on the video. It could be that they were trying to preserve her credibility for "next time".
What can you draw from this?
- The experts say sado-masochistic sexual assault is serious.
- Intimate partners may recant at inconvenient times. It's wise to video-record a complainant if you think she will recant. But beware of asking her to swear an oath if she's likely to lie. Perjury compounds the problems of a battered woman: no one will believe her when she finally decides to speak the truth.
- Consent while unconscious isn't usually consent. (This was a split decision - judges disagree on this issue.)
2010-03-21 Search & Seizure - Search Warrant - Applying a Second Time
- If the justice turns down your warrant application, can you apply for a second opinion? In Bacon, 2010 BCCA 135, the court says yes:
The JJP’s decision disposed of a discrete application but it did not bind anyone. The police could have applied again on the same material to a Provincial Court judge who would have been free to make a de novo decision without regard for the JJP’s view of the material: R. v. Duchcherer, 2006 BCCA 171, 208 C.C.C. (3d) 201 at para. 29.
However, your ITO must clearly state that the previous Justice turned you down, and the reasons why you think the next justice should reconsider.
2010-03-19 Morelli - a big, contraversial case
- A computer technician visited Mr Morelli's, 2010 SCC 8 house to install an internet connection for Morelli's computer. The timing came as a surprise to Morelli. The technician saw a webcam aimed at a child's play area in the computer room. Morelli's computer was on, displaying explicit pornography. The "favorites" on his browser contained links to adult pornography websites, and two links to child pornography websites. A 3-year-old child was with him. The technician didn't finish his work. When he returned the next day, the child's play area was cleaned up, the webcam faced the computer user, and the computer hard drive had been reformatted. The technician worried for the safety of the child. Four months later, a police officer got a warrant and found an extensive child pornography collection. The trial judge convicted, the Court of Appeal rejected his appeal, but Mr Morelli won in the Supreme Court of Canada by a margin of 4:3.
This decision is like a textbook of issues for police officers. As a result, this article is long.
2010-03-19 Child Pornography - "Possession" v. "Accessing" - Morelli, 2010 SCC 8
Section 163.1 defines the offences of "possession" of child pornography and "accessing" child pornography. The majority decision clearly distinguishes between the two. Accessing is "just looking"; possession is more.
Possession is "knowledge" and "control".
The links on Morelli's browser were evidence that - at some time - Morelli accessed child pornography. But he did not control the data files which contained the images. Therefore, he did not "possess" the images on those websites. There was a possibility that his browser's cache stored copies of those images on his own computer, where he could control them. But there was no evidence that he knew those images were still accessible on his computer. Therefore, the majority said, the police had no evidence that he "possessed" them.
(I respectfully disagree with the court that there was "no evidence" of such knowledge. When people format their hard drive, they lose all information on it. People keep information on their computers because its of value or interest to them. One takes the drastic step of formatting only as a last resort. Therefore, the officer had reason to infer that Morelli took a drastic step before the technician returned in order to hide his illicit images. The majority dismissed this inference, saying that Morelli might have merely been embarrassed by showing adult pornography to the technician.)
2010-03-19 Search & Seizure - Warrant Drafting - Picking the Right Offence - Morelli, 2010 SCC 8
- Nobody puts a link into their "favourites" without knowing where it the link goes. When drafting the ITO for Mr Morelli's computer (see above), the officer alleged that Morelli "possessed" child pornography. The majority said that the officer had no evidence of possession, but they did have evidence of "accessing" child pornography.
When drafting an ITO, many officers feel a temptation to allege the most serious offence. Resist this temptation. When you are investigating an offence, don't over-estimate the strength of your evidence. Pick the offence that your evidence definitely proves.
In this case, the officer probably suspected Morelli was "making" child pornography. It's a good thing he didn't allege that offence. The difference between possessing and accessing is more subtle. Given the links in the "favourites", it was likely Morelli accessed child pornograph. But there was no evidence that he downloaded it into his permanent storage. The officer might have been safer to draft an ITO for accessing child pornography rather than possessing it.
If you get a warrant on the basis of a minor offence, but find evidence of a more serious offence, you can lay the more serious charge. Even if the warrant alleges only a minor offence. For example, the mass-murderer Picton was busted by a search warrant for an unregistered firearm. The warrant got the officer into Picton's residence. Of course, if an investigation changes direction as a result of something you found in the search, you must get a new warrant. The body parts in Picton's residence justified a new warrant alleging a more serious crime, and the new warrant permitted the officers to search for more than a gun.
2010-03-19 Search & Seizure - Warrant Drafting - How to Use an Expert - Morelli, 2010 SCC 8
- The officer wanted to search Morelli's computer four months after the technician saw the child pornography links. Would there be any evidence there? He got advice from experts who said people who liked child pornography tend to collect and hoard it, so it would likely still be there.
In his ITO, the officer explained the advice, but not their expertise. If a car mechanic told you the habits of sex offenders, he might be right, but not convincing. If a psychologist told you the same information, her information would be convincing because of her expertise. The ITO must explain the qualifications of any expert it relies on. For example:
"I spoke with Dr Psycho Logist, who told me that she has a doctorate in behavioural psychology. She said that she researched and studied the behaviours of people who use child pornography."
2010-03-19 Search & Seizure - Warrant Drafting - Is what you want Still There? - Morelli, 2010 SCC 8
- In every search warrant application, you must satisfy the justice that the thing(s) you want are in the place you want to search. This ITO said that Morelli formatted his hard drive. It didn't explain why the officer thought that the computer would still contain evidence of any past offence.
In child pornography investigations, the psychological evidence may answer this question - but you must spell it out clearly. In other investigations, you need to point out why the stuff's still there.
2010-03-19 Search & Seizure - Reasonable Grounds - Profiling - Morelli, 2010 SCC 8
- The court didn't like the expert opinion that the officer recited: "these type of offenders are habitual and will continue their computer practices with child pornography." The ITO failed to explain what that "type" was, and what evidence showed that Morelli was that type. For example:
"Dr Logist told me that people who bookmark child pornography sites tend to collect and store images of child pornography."
2010-03-19 Search & Seizure - Warrant Drafting - Reasonable Grounds - Disclose Everything? - Morelli, 2010 SCC 8
- The majority criticized this officer for omitting some minor details - that he was married, the child was his daughter. Omitting these details made Morelli seem more suspicious than he was. In a throw-away line, Fish J., for the majority said: "The informant’s obligation is to present all material facts, favourable or not." (Para 58). It is the same idea as was applied in Ling, 2009 BCCA 70. I don't think Fish J. really considered the consequences of this remark.
I think this idea is wrong and unworkable. I agree that you must disclose all information in your possession which suggests that the suspect is innocent, or which suggests that the warrant should not be granted. Despite Ling and Fish J.'s throw-away line, I do not think you must recite every fact known to police which supports the issuance of the warrant. If five sober witnesses give statements that the suspect placed the murder weapon in his house, how would the justice be misled if you failed to mention that a sixth witness, who was drunk, gave a similar statement?
There are times that disclosing the fact of an informant identifies the informant. No amount of editing of the ITO can protect that informant. I can not believe that the law requires you to draft ITOs in a way which will prevent any prosecution if the search is successful.
Unfortunately, until the court reconsiders this remark, I suspect it will return to haunt us.
2010-03-16 Search & Seizure - Surveillance from the Air - Binoculars & Zoom Lenses
- A police officer flew in a helicopter over a rural area to look for marijuana grow operations. He saw suspicious greenhouses on Mr Kwiatkowski's, 2010 BCCA 124. On several different dates, the pilot flew around the property while the officer took photographs using a zoom lense. From one angle, he could see - through an open door - what he thought was a marijuana plant. Because a later search of the property proved he was right, Mr Kwiatkowski complained that this warrantless search violated his rights of privacy.
There are limits to how low a pilot may fly. In rural areas, the limit is 500 feet, but pilots must fly at least 1,000 feet above populated areas. This pilot flew more than 1,000 feet over the property.
Many factors lead the court to find this search did not violate any reasonable expectations of privacy. Major points included:
- The technology of zoom lenses aren't any more advanced than binoculars
- The subject of the search was a greenhouse, not a residence
- The officer saw no more than anyone in a passing plane would see.
- The helicopter did not enter onto the property, nor fly over it.
2010-03-16 Search & Seizure - "Knock & Announce" on rural property - Gunpoint Arrests
- When executing the warrant they obtained for Mr Kwiatkowski's, 2010 BCCA 124 greenhouses (see above), police did not immediately announce themselves. Instead, they set up a "staging area" in trees near the greenhouses. From this vantage point, they heard noises, and watched Mr Kwiatkowski watering plants in a greenhouse. They then entered that greenhouse, announced themselves, arrested him at gunpoint, and took him back to the staging area. An officer took up a position amongst the greenhouses, and arrested another man when he approached, again at gunpoint.
Defence complained that this search violated the knock-and-announce rule. He said the officers should have attended at the residence (which was a long way off) and announced themselves before attending at the greenhouses. Or at the very least, when entering onto the rural property, the officers should have shouted to alert people to their presence.
But the "knock an announce" rule applies specifically to homes and dwelling-houses. The court said:
"To require the police to first alert persons working in or around the greenhouses was, as the trial judge accepted, impractical and an invitation to those present to flee, destroy evidence, or set up an ambush"
When searching non-residential buildings, there are still many reasons to announce yourself. Do not take this one line to mean that should stop announcing yourself when searching them. But the knock-and-announce rule doesn't seem to apply to open spaces.
With respect to the gunpoint arrests, the Crown argued that threat of force differs from use of force.
"To ignore the modern realities of the dangers associated with sophisticated illicit operations such as this one would, in my opinion, be extremely naive. The police arrest of the appellant and his co-accused using drawn weapons was not, in these circumstances, unreasonable."
2010-03-13 Delay in Complicated Prosecutions
- The Federal Crown charged Mr Ghavami, 2010 BCCA 126 as a minor player in a drug conspiracy. The Provincial Crown charged many of his co-conspirators with another group of offences. The Provincial prosecution so occupied his co-accused, that the Federal Crown could not proceed on Ghavami's trial for 3 years. So for 3 years, Ghavami's bail terms restricted his liberty significantly. The trial judge stayed the charges against him because the trial took too long. He found that the Crown caused the delay by choosing to prosecuting him together with his co-accused, knowing that the other accused would be preoccupied. The Crown should have prosecuted him separately.The Court of Appeal overturned that decision. Unless the court finds abuse of process, the court has no business criticizing the Crown's charging decision.
This decision does not affect every-day policing. However, in big conspiracy cases, it takes some heat off the prosecutor. The prosecutor is now freer to lay the right charges, without worrying that they might eventually be stayed because they take a long time to prosecute.
2010-03-10 Similar Fact - Probative Value of Old Files
- Mr Jesse 2010 BCCA 108 attended a party where a woman got drunk and passed out. After the party, everybody left but him and another fellow. The next morning, others found the woman still passed out, but missing her underpants. In the night, someone had forced a wine-bottle cork into her vagina. Who did it? The prosecution tendered evidence that 12 years earlier, Mr Jesse was convicted of forcing two plastic shopping bags into the vagina of a different unconscious woman. The trial judge found that this unusual behaviour helped determine he was responsible for the bottle-cork. Of course he appealed.
He complained that the two acts weren't sufficiently similar, and the time difference between them rendered them less probative. The appeal judges disagreed.
He complained that using evidence from the previous trial was unfair: transcripts from the previous trial were lost, which made it more difficult to cross-examine those witnesses. Fortunately, enough records of the previous proceedings were preserved. The witnesses from the original trial were available, and able to testify and be cross-examined. The court dismissed this complaint too.
Lessons police officers can draw from this case include:
Similar fact evidence can prove a great deal, particularly if your suspect commits a peculiar crime, or commits his crime in a peculiar way. When you get a weird offence it's worth researching your suspect's past.
Completeness of the records matters. In this case, the court registry destroyed court records after 7 years. That policy since changed. When deciding what to keep and what to destroy, you know that 99% of your records will never be looked at again. But that last 1% can make all the difference in serious cases. You never know which 1% is the good stuff.
The court discussed another rule of law: even though he was convicted 12 years earlier, the Crown had to prove his guilt of the earlier offence all over again. You never know when an investigation is finally over.
2010-03-01 Possession of a Stolen Car
- Felons stole 2 similar cars, raced them dangerously, and crashed. They fled together, laughing. A dog track led to 3 young men, one of whom was Mr Smith, 2010 ABCA 46. Fingerprints of the other two were found in the two cars. Was Mr Smith guilty?
The trial judge convicted him, but the appeal court entered an acquittal. No evidence established that Smith stole or drove either car. No evidence established that he knew either car was stolen, and even if he did find out that a car was stolen, there was no evidence that he had any control over the stolen car.
These cases frustrate investigators and prosecutors. Guilt seems so obvious, but proof so difficult. I can't criticize the officers in this case, but here are some ideas I have seen that worked in other cases:
- Is there probative property in the car? When you arrest, you don't know what belongs to the suspect and what belongs to the owner. Clothes, receipts or other documents in the car can reveal much, but only after you go through them. Often, you need the owner's help identifying what belongs to who.
- How do the suspects' heights compare with the position of the driver's seat?
- If there was a crash, do the suspects' injuries reveal their locations in the car?
- What do the suspects say? (These cases are ideal opportunities to practice your interview skills.)
2010-02-27 Eyewitness Identification of Strangers
- Police attended a complaint that shots had been fired. About 10 minutes after they arrived, a cabbie and a pedestrian who saw the incident pointed out Mr Carroo, 2010 ONCA 143 as the shooter. The officers arrested him and found gunshot residue on his hands. So identification isn't a problem, right?
Some things went wrong at trial:
Fortunately, some other things went right:
- At trial, an expert testified said if someone is within 50 feet of a person who fires a gun or picks up a recently discharged gun or spent ammunition, residue can be transferred to them. (Mr Carroo could have been near the shooter without being the shooter.)
- In the hallway at the courthouse, one of the witnesses waited to testify. An officer pointed Mr Carroo out to him, identifying him as the person charged. When the witness testified that he recognized the accused as the shooter, the court gave it little weight because of what occurred in the hall.
- The officers and the eyewitnesses' descriptions of the shooter focussed on some different features than the police officers recorded in their notebooks.
The appeal court upheld the conviction because of these extra details. But a lot of litigation might have been avoided.
- An eyewitnesses said that three women accompanied the shooter. The officers found the accused with three women.
- A different eyewitness said that a woman with the shooter wore white pants. An officer noted that one of the women with the shooter wore white pants with a red stripe.
Therefore, where the culprit and the eyewitnesses don't know each other:
- get descriptions early. If you record a description in your notebook, I recommend that you ask the witness to check your notes, and sign off on their accuracy.
- take statements from the eyewitnesses which ask for descriptions of the culprit and his/her associates
- take photographs of the suspect's appearance (not just his/her face).
- take photographs of his/her companions if you can.
- don't tell an eyewitness who the bad guy is. Not before or after a photo lineup. Not in the hallway before testimony.
- If the eyewitness recognizes the suspect outside the court room while waiting to testify, tell the prosecutor before that witness testifies.
2010-02-19 Use of Force - Documentation After the Fact
- Mr Nasogaluak, 2010 SCC 6 led police on a high-speed pursuit. When trapped in a cul-de-sac, he reversed his truck at a police car. The officer's evasive maneuvers prevented a collision. He swerved at another officer's vehicle. He too made high-speed evasive maneuvres. He finally stopped, and got part way out of his car. An officer ordered him at gunpoint to get out with his hands up. Instead, he got back in. Another officer grabbed him, but Nasogaluak clung to the vehicle. An officer punched him in the head twice, tackled him to the ground and got on top of him. Nasogaluak continued to resist and prevent the officers from handcuffing him. The officer punched him, breaking his ribs. While in custody, he complained of being hurt, and having difficulty breathing, but managed to provide breath samples at 190 & 180 mg%. When asked if he was injured, he said no. It turned out that the broken ribs punctured and collapsed his lung. The next day, he required emergency surgery.
The sentencing judge imposed a very low sentence. He found that the officer's last punch constituted excessive force, which violated his rights under the Charter. The appeal courts found that other judges might disagree; but they didn't overturn that finding.
Most of this case discusses technical sentencing issues. It's not important to most police officers. I don't think you should consider it a leading case on the appropriate use of force.
I do think it points out an important principle about what to do after a tense and violent incident. Write down out what happened and why.
These officers made no record of the force they used during the arrest. In their report, they didn't mention the drawn firearm, nor Mr. Nasogaluak’s injuries. They "provided their colleagues and superiors at the station with little to no information about the incident, and no attempts were made to ensure that Mr. Nasogaluak received medical attention." The judges didn't like this. It seems that the trial judge inferred that the officers failed to document it, as an effort to cover it up. Is it any wonder that the trial judge concluded that the officers went too far?
In my opinion, if you use significant force in your duties, the best way to make your actions seem improper is to behave as if you are embarrassed by what you did. You give defence so much to use against you. This is what happens when you get to court:
- Officer, you believed that my client endangered your life?
- You were angry with him?
- When you caught him, you lost your temper?
- You punished my client, didn't you?
- And afterwards, you realized that writing it up would get you into trouble. So you just covered it up!
Many officers I've met learned to control their tempers. Failing to document their appropriate uses of force can undo so much good work.
2010-02-16 Detention on a Pretext
- A Crimestoppers tipster said that marijuana was growing on Mr Lauriente's 2010 BCCA 72 large rural property. As part of their investigation into who came and went from that property, police officers stopped him "for speeding". They didn't give him a ticket, but they secretly photographed him. They had no reliable evidence that he was speeding. The court found that the stop was for the purpose of investigating the grow-op, and therefore they called it an arbitrary detention.
I disagree with the judges on this point. The officers plainly had reason to suspect that the occupants of the vehicle were involved in an offence. The stop wasn't arbitrary at all. However, the officers lied about the reason for the stop. That was a clear breach of s.10(a).
Whether the officers breached s.9 or s.10(a) makes no difference to the result. The officers made several other mistakes:
- s.8 breach: They trespassed on the property.
- s.8 carelessness: The ITO for the search warrant contained mistakes of sloppiness and inaccuracy.
- s.9 arrest without reasonable grounds: When they found the grow in a distant outbuilding, they arrested everyone at the residence, even Mrs Lauriente. But they had no reason to believe that Mrs Lauriente was involved.
- s.10(b) eliciting evidence before access to counsel: After Mr Lauriente asked for access to counsel, but before he got to speak with a lawyer, police asked him questions (eg. "Where are your keys?"). His answers led the officers to evidence against him. The court excluded the evidence.
The court excluded the evidence.
Section 9 of the Charter generally prevents you from stopping a someone without any reason. If you have reasons to suspect that a person is involved in a crime, then you have reasons to stop him.
Section 10(a) of the Charter requires you to tell people that you stop why you stopped them. If telling the suspect the reason for the stop will damage the investigation, then don't stop them.
If there are two reasons to stop a suspect, you can enforce just one of them. If Mr Lauriente were really speeding, then the officers could have investigated that properly. They wouldn't have to mention the grow operation. If he wasn't speeding, then the officers had two choices: stop him and tell him they had information that there was a grow operation at his place; or let him go by and watch for some other reason to stop him.
2010-02-10 Exigent Circumstances Search - Protecting Life -
"Sarah" called 911 from Vancouver. She said that she had received a call from an unknown male who said he had been paid $100 to call her to say he had someone tied up 475km away at 5065 Canim Road, Buffalo Creek. She gave no personal information, such as her last name, a call-back number, or an address. Sarah had told dispatch that she did not know the male, but she gave dispatch the phone number which she said showed on her cell phone display as having come from the unknown male. The prefix was local to Buffalo Creek. She claimed to be in labour, and did not want the police to call back. Police attended that address, phoned the number and spoke with an occupant, and got them to come outside. Ms Brunskill 2010 BCSC 187 and Mr Leahy emerged. They denied having anyone tied up on the property. Police searched the residence anyway, on the basis of exigent circumstances. They found nothing. They unlocked some outbuildings, and found a marijuana grow operation.
Godoy says you can search to save people from serious bodily harm if you have "reasonable grounds to suspect" that they are in danger. This judge concluded that the tip was too unreliable, too weird, to base a reasonable suspicion. The judge excluded the evidence. The judge said that the officers should have accepted the occupants' word and gone away.
I'm not sure what I would have suggested if I were the commanding officer. I find that truth is stranger than fiction. Desperate people do very strange things. Would the result have been the same if they found evidence of a kidnapping or a murder? In Pillay (2004) police acted on a similarly tenuous tip, and found evidence of murder which was admitted at trial. That decision was was upheld on appeal, although with some skepticism 2007 ONCA 207.
2010-02-10 Photo Lineups - Creating a Fair Lineup
- Six sex-trade workers complained of being robbed. One of the women described her assailant as having distinctively braided hair. Police showed her a photo-lineup which contained only one person - Mr Powell, 2010 ONCA 105, with hair braided in that fashion. She picked him. The trial judge rejected her identification, and the identifications of the other witnesses. For a variety of reasons, the trial judge acquitted on all the charges. It must have been a frustrating result for officers involved. But we can draw a useful lesson from the case.
With photo-lineups, you only get one chance to do it correctly. You must be fair to the suspect: you need pictures that are sufficiently similar that the suspect doesn't stand out in any significant way.
However, a lineup of identical twins isn't fair to the complainant either.
The prosecutor down the hall from me is finishing a murder case involving a lineup which contains photos of two different men who looked virtually identical. The eyewitness picked the wrong guy. As luck would have it, identity isn't the issue in that trial. It could have been significant.
2010-02-07 Right to Counsel - "Holding Off Eliciting Evidence"
- Mr Volk, 2010 SKCA 3 drove too fast on Highway 1. Two police officers watched him overtake an emergency vehicle, so they stopped him. The officers approached the two sides of the vehicle and spoke to the driver and passenger. Both smelled raw marijuana in the car. They conferred behind Mr Volk's vehicle, and confirmed with each other what they smelled. They arrested Mr Volk for transporting a controlled substance, and told him about his right to counsel. He wanted a lawyer. Although the officers had a cell phone, they didn't let him use it.
The officers asked him where the marijuana was, and told him that if it was just a small quantity, he would be on his way with just a ticket. He said "yes, I have a little bit", and he retrieved three baggies containing a total of 21 grams. Then the officers searched the vehicle and found 14.5 pounds of marijuana and 180 gms of psilocybin.
Defence complained that the officers deliberately breached Mr Volk's s.10(b) right by "eliciting" evidence from him before satisfying his right to counsel. The court said he was right, but under s.24(2), they admitted the evidence anyway.
Before the decision in Grant last year, this result would have been expected. The officers were going to find the evidence anyway. But that decision changed the legal terrain. Other judges might well come to a different conclusion: the officers deliberately breached his rights, and obtained evidence through that breach.
This decision makes no new law. It's just another recent example of a mistake I see too often in reported cases, and in my prosecutions. After you arrest or detain, the prisoner has the right to talk to a lawyer before answering your questions. Until he speaks to one (or turns down the offer), you can not ask him about the offence. If he volunteers information, write it down. It's admissible. But you can't ask questions.
2010-02-06 Impounding Vehicles
- Three times, Cst Churkoo caught Mr Waugh, 2010 ONCA 100 driving without proper insurance. On each occasion, Cst Churkoo signalled him to stop. One time he did. On the other two occasions, Mr Waugh drove away either after or while being stopped, thereby preventing the officer from impounding the vehicle. On the last occasion, Mr Waugh displayed in his rear window a licence plate which was probably obtained on false pretenses. That time he deliberately locked his car keys inside the car so that the officer could not seize the licence plate. Did he obstruct a peace officer in the execution of his duties?
Mr Waugh argued that the Ontario Highway legislation did not grant police any general power to impound vehicles, and therefore driving away didn't obstruct the officer. There are specific sections, but none applied to his case.
The court found that in Ontario, when an uninsured vehicle causes a hazard by being left on a highway, police have a common-law power to remove it, in order to protect the public. Not only was he guilty by driving away, but also by preventing Cst Churkoo from investigating the licence plate.
From this case, you might think that Ontario police officers enjoy a general power to impound uninsured vehicles found on public roads. That would certainly stop rebels like Mr Waugh from driving their uninsured cars again.
For you Ontario offices, I urge restraint. The court relied on a doctrine which requires you to use the least power possible under the circumstances. Is the vehicle really a hazard? Are there alternatives to impounding the vehicle? For example, in many cases the driver might pay to tow the vehicle to the owner's private property.
For all peace officers, however, this case tends to confirm your general power to prevent public hazards by moving, and sometimes impounding, private property. Just be careful not to overstep your powers. I suggest that you choose solutions which least affect the owner's rights.
2010-02-02 "Party" to an Offence - Presence at the Scene - Membership in a Group
- In the dead of night a witness saw two men hanging around the railway tracks behind a bicycle store. A stolen truck backed in at the front of the store. Two men got out and approached the store. Damage to the lock showed they tried to break in, but the store's alarm sounded. Three men fled around the back to the tracks. They joined the two men at the back, and the group of 5 ran together until caught by police. Mr Foster 2009 BCCA 584 was one of them. He was violating his curfew at the time. He didn't testify. The trial judge convicted him as a party to this attempted break-in. Was he?The trial judge found that the two guys on the tracks at the back "could" have been look-outs, but he didn't say for sure. The Court of Appeal ordered a new trial because of a mistake the trial judge made about the evidence.
This kind of scenario arises often, and defences abound. Defence argued that Foster might have run simply because he didn't want to be caught violating his curfew. Foster might have been one of the guys on the tracks, and they might have had nothing to do with the break-in.
Mere presence at the scene of a crime does not make a person guilty of a crime. I can go with my friend to a neighbor's house, and watch him break in and steal. So long as I neither help nor encourage my friend, nor participate in any way in the offence, I won't get convicted.
When you catch a group of people involved in a crime, it helps to isolate each one's involvement. Ask the witnesses to describe the clothing and appearance of each participant. You'll get descriptions like "the big guy" or "the guy with the hat". Take pictures of more than the suspects' faces. Photograph their appearance, with all their clothes on. Determine their relative sizes.
Interview the suspects. The larger the group, the greater the chances that someone will spill the beans.
Evidence of the relationships between the suspects sometimes helps. Did Foster associate with the other guys in the past?
2010-01-30 Sexual Assault - What is "Consent"?
Mr Hutchinson's 2010 NSCA 3 relationship with his girlfriend hit some rocky times. He wanted her, but she wasn't sure. She insisted that he wear condoms when they made love, except during her period. He thought having a baby would bring them closer together, so he secretly punctured all the condoms in the box. She conceived, but soon dumped him. When he told her not to use the remaining condoms, and why, she went to the police. She got an abortion, and suffered minor complications.
Did she "consent" to intercourse with him? Did his trick inflict "serious bodily harm" or a significant risk of it?
The prelim judge said "yes". The trial judge said "no". The judges of the Court of Appeal disagreed too: 2:1 for the prosecution. Both decisions at the appeal level make sense, and explain the intricacies of this area of the law. I suspect there may be a further appeal.
For sexual assault cases "consent" is defined in two places: s.265 and s.273.1.
The first section is the "consent" relevant to all assaults. Historically, a guy could obtain a woman's "consent" to sex even by telling lies, or making false promises of marriage, or forgetting to mention that he had VD. But when AIDS came along, the Supreme Court of Canada said that lying about (or failing to mention) serious communicable diseases was fraud. (Cuerrier) Consent obtained by fraud is no consent. Pregnancy isn't a disease, but the two judges considered the associated health risks, and the health risks of abortion to be sufficiently serious.
The second section applies only to sexual assault. "Consent" is the "voluntary agreement of the complainant to engage in the sexual activity in question". In this case, the judges disagreed whether "the sexual activity in question" was "intercourse" or "intercourse with a functioning condom".
For you police officers, this finely-tuned debate won't arise often. If the complainant says a lowly prosecutor seduced her by claiming to be an undercover cop, then he did not sexually assault her. However, if she says he promised to wear a condom, but didn't, then there may be a charge to lay.
2010-01-30 Investigations in Foreign Lands
- In 2002, American soldiers in Afghanistan arrested 15-year-old Omar Khadr 2010 SCC 3 for throwing a grenade that killed an American soldier in battle. They transferred him to Guantanamo Bay, where a military tribunal determined that he was an "enemy combatant". American military prosecutors charged him with war crimes. Khadr is a Canadian citizen.
In February and September 2003, agents from CSIS and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities. In March 2004, knowing that the Americans subjected Khadr to a month of sleep deprivation to soften him up, they tried again, but Khadr refused to answer questions. He did not have access to a parent nor legal advice. He asked to return to Canada.
In previous proceedings, the American and Canadian Supreme Courts found that the Guantanamo Bay investigations violated international law.
The court found that Canadian participation in this illegal questioning violated Khadr's s.7 rights. Khadr asked the court to order the Canadian Government to ask the American government to return him to Canada. The Supreme Court declined to make a specific order affecting Canada's international relations. Instead, the court declared that Canada violated his s.7 rights, and left it to the government to sort out the mess.
Most of you won't be involved in international diplomacy. Some of you might find yourself visiting foreign nations to investigate. Before interviewing prisoners in foreign lands, you may want to inquire into the treatment of suspects. You should distance yourself from inhumane treatment of prisoners. This does not mean that all the protections of the Charter apply, but torture offends Canadian courts, and Canada's international obligations.
2010-01-25 Major Investigations - Arrest Planning
- After a long investigation into organized crime, 1,200 officers of the Toronto Police Service went out one day and arrested Mr Brown, 2009 ONCA 633 and 85 of his closest friends for a wide variety of serious and violent crimes. Every one of the prisoners enjoyed the right to a bail hearing within 24 hours (see s.503 of the Criminal Code). But here were too many prisoners to put through the court process. Many didn't get their bail hearing for weeks.
They demanded release because of the violation of their rights. The judge agreed that the police should have made arrangements in advance with the courts, so that the huge influx of bail hearings could be accommodated. He awarded costs against the Crown: $2,000 each for 9 prisoners. The Crown appealed this award: telling too many people the police plan risked leaks. The courts had no sympathy. If the police knew of security problems in the courts, then the police should address them.
I'm sure the police concerns were real. But I imagine that court services were offended that nobody warned them of the huge influx of bail hearings they would have to handle. I'm sure there's much more to this story than the judgment reveals.
The lesson major case managers can draw is that the work doesn't end with the big arrest. It merely kicks off a new phase which involves you and many others. Make plans with your partners in Crown for bail hearings, disclosure, plea negotiations, trials and even appeals. Plan for prisoner, witness and exhibit management.
2010-01-24 Drug Dealer's Phones - Taking the Call
- When police officers arrested Ms Williams, 2009 BCCA 284 for trafficking in drugs, her telephone rang several times. The officers answered it. The callers asked for her by name, and wanted to buy drugs. One officer asked the caller to call again later. He did. Another caller arranged for a specific drug transaction.
The judges agree that the callers' desire for drug transactions was admissible against Williams as circumstantial evidence that she was a drug trafficker. (This isn't new law, but it is a strong decision on the point.)
At trial, Ms Williams testified that the police lied. Several people testified for the defence that they were the ones who called her phone when the police answered, but they did ask for drugs. The trial judge did not believe them.
If you do take calls on a suspect's phone, you should take careful notes, immediately, of what the callers say, and what number they call from. You might want to investigate the callers too.
2010-01-23 Impaired - Care or Control
- Poor Mr Larocque, 2010 ONCA 43. His car got stuck. Perhaps he was too drunk to drive it (the decision doesn't say). He had the keys in his pocket, and he repeatedly asked a passer-by for a rope with which to pull his car back onto the road. Was he in care or control? The court said yes. It didn't matter whether he was in the car or not. If his efforts to get the car back on the road succeeded, then he could be a danger to others. His appeal failed. Poor Mr Larocque.
2010-01-23 Similar Fact Evidence - The power of Independent Details
- Two young women worked in different hotels. Each complained that while they were vacuuming a hotel room, a man who was naked from the waist down, approached her from behind, threw a pillow case over her head. He jabbed something sharp at her, threw her down, and sexually assaulted her. The events occurred in July and August of the same year. The only evidence of identity was DNA on a pen on the floor of one hotel room which matched Mr Carpenter 2010 BCCA 27. The jury convicted him of both attacks. Was it fair to blame him for the second, considering there was no direct evidence linking him to the crime?
The Court of Appeal said yes. If the DNA evidence satisfied the jury that Mr Carpenter did the first one, then they could rely on the striking similarity between the two attacks to find that Mr Carpenter did both.
This case makes no new law. I mention it because it illustrates the power of similar fact evidence, where there are strong similarities. It works for identity, but it works for other issues too. When interviewing complainants, witnesses and suspects, ask for detail. If you get details, investigate them.
Suppose these two women worked in the same hotel, and discussed their experiences before testifying. Would the court have reached the same conclusion? I doubt it. I recommend that you preserve the independence of witnesses' information. Take witness statements out of the hearing of other witnesses. Discourage them from discussing the details with each other.
2010-01-19 Search & Seizure in a Gangster's House - Report to a Justice
- Somebody shot bullets at James Bacon, 2010 BCPC 1, and if he had not been wearing body armour, he might have been killed. He and his brother were engaged a war with a rival criminal gang, and were prime suspects. There were shell casings on the street where the shooters were. But it looked like James shot back. There were more shell casings of a different calibre where James had been.
Police later found a secret compartment in his vehcle, which contained prohibited or restricted firearms. This led to charges against both brothers.
Defence complained of an abundance of Charter breaches:
- After police cleared the residence but before getting a warrant to search the house, another officer entered and poked around looking for evidence. He found body armour.
- While executing a warrant to search the house for guns, ammo and clothing, an officer snooped through some paperwork, and wrote down an interesting telephone number. He poked around inside a computer and several photographs of the strange modifications to Bacon's vehicle.
- Nobody reported this extra evidence to a justice. The officer considered it "intelligence" not "evidence".
- Not only did the officers exceed the authority of the warrant in where they looked, but they did not report to a justice the evidence they secured.
The trial judge agreed that there were many breaches, but, luckily for the officers, she found that the guns could be admitted into evidence. If she convicts these guys, they will likely appeal. I can't predict what the appeal court will do.
This is a high-profile case here in B.C.. The ongoing gang war was big news, and the Bacon brothers were in the thick of it. The officers probably felt substantial pressure to make headway in this investigation. The temptation to snoop everywhere in that house must have been huge.
But when it comes to privacy, there is no difference between "intelligence" or "evidence". You need lawful authority to search and seize stuff that doesn't belong to you. When you do seize private stuff, you have to report it to a justice. Gangsters may have guns, but they also have lawyers. Expect the lawyers to scrutinize your actions when you get to court.
2010-01-16 Is Hard Drug Use a Public Scourge, a Health Issue, or a Constitutional Right?
All three, it seems. In the "Downtown-East Side" of Vancouver, Canada's most drug-addicted neighborhood, various levels of government set up an experimental harm reduction centre. Addicts could shoot up in clean surroundings with clean needles. The purpose was to prevent overdoses, and infection through shared needles, and to counsel them to change their ways. For a while, the Federal Minister of Health exempted them and the staff who worked there from possession and trafficking charges under the CDSA. A change of government ended that. The clinic, PHS Community Services Society, 2010 BCCA 15 and some addicts complained to court that the addicts needed the health care available at this clinic, and that using the drugs was't a choice for them, but a necessity. The judge agreed, and declared that sections 4(1) and 5(1) of the CDSA (possession and trafficking) have no force or effect (but he suspended the ruling for the time being).
One judge found that possessing drugs in the clinic is illegal once again ("drugs are a public menace"). One judge found that that at the clinic, the provincial jurisdiction over health overrides the CDSA, and the clinic may carry on ("addiction is a health issue"). One judge found that the sections of the CDSA are unconstitutional, and so the clinic may carry on ("addicts who can't quit have a right to safety"). For these different reasons, the clinic may keep its doors open.
I oversimplified the arguments in this summary. Don't debate this issue around the office without reading more fully.
I would expect further appeal to the Supreme Court of Canada.
2010-01-15 Detention & Search
- Five years ago, someone called police complaining of suspicious vehicles and a person hanging around them for hours. An officer found Mr Reddy 2010 BCCA 11 in the driver's seat of a vehicle parked just outside a drug dealer's residence. The car was registered to someone else. Reddy said he was waiting for a friend for a few minutes, but it was too hot in the basement suite to wait there, so he sat in the car, outside in the (hot) sun. On request, he identified himself. The officer remembered that Reddy had been the passenger of a prohibited driver, who carried 6 machetes under the driver's seat. The computer system said that Reddy's probation order required him not to carry cell phones or pagers.
The officer asked him to step out of the car so that he could search it for cell phones or pagers. Mr Reddy removed his jacket, and left it in the car. Then he fled. The officer found two loaded handguns in the pockets of the jacket.
Defence complained that the detention and search were unjustified. Two of three judges agreed: The officer had insufficient grounds to suspect any particular offence had been or was about to be committed. Therefore the officer could not detain. When you detain a suspect, you can search for weapons that pose you a risk. But this officer searched for evidence of an offence. To that, he needed to be able to arrest.
The court did not say that you need to know the exact offence. For example, if you suspect there's drug dealing going on, you don't need to know the exact drug.
Hindsight 5 years later
I think the officer had sufficient grounds to suspect Reddy was dealing in drugs: his probation conditions suggested a conviction for dealing. His association with a guy who armed himself to the teeth suggests a connection to drug dealing. His proximity to the drug dealer's house suggested dealing. According to the telephone complaint, Reddy hung around in a hot car for hours, which suggests he was performing a task; and his lies about how long he was there suggested he didn't want to tell the police what that task was. Therefore there were grounds to suspect drug dealing. But not grounds to arrest, and therefore no grounds to search for evidence.
The officer did have grounds to suspect weapons, but at trial, the officer didn't mention any such concerns.
This case doesn't say anything new. But it's an issue that still arises often. Officers today must be clear on the differences in powers between detention and arrest.
2010-01-14 ASD testing - "Forthwith" or 15 minutes?
- A police officer stopped Mr Smith, 2009 SKCA 139 driving a few blocks from a bar. Mr Smith said that he drank 4-5 drinks, ending his last drink 5 minutes before he left the bar. The officer dealt with him for at least 5 minutes before requiring him to blow into an ASD. The user's manual for that particular ASD stated that the user should try to ensure that 15 minutes had passed from the time of the last drink to minimize the possibility of a falsely high result because of residual alcohol remaining in the mouth of the person giving the sample.
Defence complained that the officer hadn't waited long enough. The Court of Appeal rejected this position:
This case raises several issues:
- an investigating officer need not question a suspect with respect to when he last drank: Bernshaw
- the mere possibility that a suspect may have drunk alcohol within the 15 minutes preceding the administration of the ASD test, does not preclude an officer from requiring a suspect to take the test and to rely upon the result, where the officer acts bona fide
- there was no evidence how long Mr Smith spent between leaving the bar and getting stopped.
- How long should you delay in order to get an accurate ASD reading? Over the course of my career, I have heard that the time frame for mouth alcohol to dissipate is 5, 7, 15 or 20 minutes. I am not an expert on this topic, so don't take the time frame from me. Read your manual or talk to a qualified toxicologist. Don't accept as true what other officers (even senior ones) say.
- Section 254(2) requires you to administer an ASD test "forthwith". Don't wait unless you have a reason. If you that mouth alcohol will affect the result, then wait. The case law says if you merely suspect there is mouth alcohol, you don't have to wait.
- This case is on the borderline. The officer had sufficient reason to believe that there had been recent drinking: Mr Smith said so. But the officer had reason to believe almost enough time had passed to eliminate mouth alcohol. The officer could have saved a great deal of litigation by asking "how long ago was your last drink?"
What if he doesn't answer? You can't force him to answer, or his response will be inadmissible as being involuntary.
If you find someone driving away from the bar, talking or smelling of recent drinks, but he doesn't answer that question, I suggest that you simply comply with s.10(a): "For this instrument to give me an accurate reading, I have to make sure you haven't drunk anything within the last 15 minutes. I think you may have, so you're going to have to wait for a few more minutes before I test your breath." Don't ask the question. If he wants to volunteer the information you seek, great.
2010-01-14 Breath Demands - "Are You Gonna Blow?"
- In my jurisdiction, I keep reading police reports of officers who make breath demands, and then ask immediately if the suspect will comply. In my view, this is a bad practice:
In my opinion, the idea of refusing ought to come from the suspect, not you.
- It gives the suspect the idea that s/he has a choice whether to blow or not. This is false. It's an offence to refuse. I think you should avoid prompting your suspects into committing an offence.
- The suspect has not had an opportunity to get legal advice about whether to blow. In some cases, the officers ask this question even before suggesting that the suspect has a right to counsel. Courts see that as unfair, and they exclude evidence of refusals where the accused didn't get legal advice.
If the suspect does refuse, and then gets legal advice, an old B.C. decision says it's up to the suspect to tell you if he changes his mind. But I suggest that you should ask the suspect after s/he emerges from the phone call: "Are you gonna blow now?"
2010-01-09 DNA Science Questioned
- Scientists tell us that a DNA match means that it's highly likely that the known DNA came from the same person as the DNA you found at the crime scene. But those scientists rely upon statistics calculated from some early DNA research on hundreds of DNA samples. In a recently published article, some scientists produced evidence that the statistics may be wrong. Unrelated matches may occur much more often. They want access to the hundreds of thousands of DNA profiles in American DNA databanks, to calculate those statistics more accurately.From a scientific and justice perspective, I think that scientists should have access to the databases, so that the reliability of DNA matches is known accurately.
From a police perspective, this means that defence has a new attack on DNA matches. Your investigation should not stop after a DNA match. Investigate all reasonably available sources of evidence about who committed the crime. Even if this new scientific article turns out to be wrong, this is good police practice, because there are defences to DNA evidence:
- transfer - your suspect's DNA may have transferred from some innocent source to the suspicious location where you found it. For example: "My DNA was on the murder weapon because I shook hands with the real culprit just before he killed the victim. I remember it because the culprit was wearing gloves."
- innocent explanation - the presence of your suspect's DNA may not necessarily prove the case. For example: "Sure, my DNA was found in the victim's vagina. I had sex with her. After she left my place, she must have been raped and murdered by a stranger who wore a condom."
- continuity & contamination - first responders don't always consider the risks of DNA cross-contamination when handling exhibits. Can they say that the exhibit from which the DNA was taken was never in contact with exhibits which obviously would carry the suspect's DNA? Did the suspect's shoes travel to the police station in the same trunk as the knife that inflicted the injuries? Did the same officer handle both without changing gloves?
2010-01-07 Search Warrants - Editing the ITO to Protect Confidential Informants
- Crime-stoppers tips and known tipsters of known and unknown reliability gave police reasons to believe that there were drugs in Mr Blake's, 2010 ONCA 1 house. Police got a warrant and found them. To comply with disclosure obligations, Crown had to give defence and the court copies of the ITO. To comply with the obligation to protect the identities of confidential informants, the copies were edited ("redacted") to block out information which would tend to identify the sources. The trial judge found that insufficient information remained in the redacted ITO to justify the issuance of a warrant. The search therefore violated s.8 of the Charter.
But he admitted the evidence anyway under s.24(2).
The Court of Appeal upheld that finding, noting that the police in this case did everything appropriately: they got a warrant because they knew of a crime; but they protected the identities of informants, as was their duty. The good faith of the police made the difference.
There is an uneasy tension between law enforcement using confidential source information, and the obligation of full disclosure for the purposes of proving that police complied with the law. This decision could be seen as pushing the balance a little in favour of police.
Don't bank on it. When preparing ITOs which include confidential source information, try to write them so that after editing / redacting, enough information remains that a justice could be satisfied that what you seek is probably there.
Protecting the identities of your sources remains even more important than convicting the guilty. This decision merely emphasizes that when you do protect them, you are acting in good faith.
2010-01-06 Right to Counsel - Officer's Duties
- When police took Mr Brown 2009 NBCA 27 to the police station to provide breath samples, they told him about his rights to counsel. At first he didn't know whether he wanted to talk to a lawyer, and asked to call his parents. The officer let him talk to his mom for 20 minutes, after which Mr Brown wanted to talk to a lawyer, but he didn't say who. The officer called duty counsel. Mr Brown spoke with duty counsel, then said he was ready to provide his breath samples. At trial, he complained that the officer breached his right to counsel of choice. The trial judge agreed, but the Appeal court didn't.
The court explained that you have a duty to provide a "reasonable opportunity to get legal advice". But if your prisoner wants legal advice, then he or she must pursue it with diligence. Brown didn't mention to the officer the name of the lawyer that his mom gave.
Your duty varies with the circumstances. If the prisoner wants a specific lawyer, then giving him a phone book or directory may be an appropriate response ... unless you know that the prisoner is illiterate. But an illiterate prisoner can't complain about your behaviour if he keeps his disability secret.
The court spoke of sensitivity to the context. If your prisoner doesn't know the name of a lawyer to call, then a directory of all lawyers in the province doesn't really help him: how can he know who's an appropriate lawyer to call? The Yellow Pages would be of greater assistance because it advertises lawyers' specialties.
If the prisoner does know the name of a lawyer, and you have trouble finding a phone number, I suggest several steps:
Nowadays, you find the most current information on the Internet:
- Ask for the spelling of the lawyer's name. Write down what the accused says. (I had a case where the officer mis-spelled the name, and then couldn't find him in the legal directory. Whose fault was that?)
- Look up the lawyer in whatever directories are available to you.
Whatever you do to find the lawyer in question, document it.
- Your province's Law Society may publish all the lawyer's names. See Links on this site.
- Canada Law List might help. It does allow searches by specialty (like Criminal Law).
- Search Engines like Google or Yahoo
- People finders like Canada 411
2010-01-05 Seizing Computer Evidence
- Even if you aren't a computer geek, you sometimes need to seize computers and other electronic devices from suspects or crime scenes. If you handle them correctly, electronic devices can provide great evidence. But you can look like an idiot when you do the wrong thing. The U.S. Department of Justice has just published an updated guide for First Responders, describing some best practices when seizing electronic evidence. Although it's a bit long-winded, at least it shows you pictures of what you want to seize, and suggests procedures that you should follow. They left out a couple of practical steps which come up often:
Text messages and call history on a cell phone
The prosecutor wants the exact wording of every message, and all the related information, like date, time, nick-names or originating telephone number. One technique that works well is to photograph the cell phone's screen as you scroll through the messages. Don't forget to look at outgoing telephone calls and text messages as well as incoming ones.
Emails to a victim's computer
You want more than just the text of the email. Most email programs display less about the originator of an email than they know. Ask victims not to delete offending emails; ask them to forward the emails to you, so that you can forward them to an internet expert for analysis. (PS: And you should forward it as soon as you get it. I'm told that the lifespan of the useful hidden information in some cases is only weeks.)
2010-01-01 Reasonable Grounds - Working in a Team
- After a team of officers gathers sufficient evidence, one of them will decide to arrest. At trial, that decision-maker may be challenged to describe all of the information which justified the arrest. How you communicate and record it matters. Source information, electrical records and surveillance led police to arrest Mr Budd 2009 BCCA 595 and his buddies for producing "B.C. bud" at three different residences. At trial, the officer who directed the arrest did not - or could not - describe all of the details provided by the confidential source northe police surveillance. Defence therefore argued that he didn't have sufficient grounds to order the arrest. The Court of Appeal found that what the officer did know sufficed to justify the arrest.
The details were collected by other officers. This officer might have done better on the witness stand if he had recorded the details justifying his arrest as those details were communicated to him. After dynamic situations, where information came in too fast to record, you might take time to write out your grounds, and where they came from.
2010-01-01 Right to Counsel - Delaying Access to Counsel
- After police arrested Mr Budd 2009 BCCA 595 (see above), they wanted to search all three residences. But they couldn't search all three residences immediately. They feared that during the delay, Budd and his buddies might use their access to counsel to orchestrate the disappearance of evidence. Therefore, they put a "hold" on his access to counsel for the purpose of securing the residences. But they didn't release that "hold" until 3 hours after the residences were secure. Although this made no difference in the specific situation of this case, the court remarked that you need clear reasons to suspend this constitutional right. If you do suspend access to counsel, you must permit access as soon as it becomes possible.
The court did not say how clear the reasons must be, but I think that future decisions may apply the standards used in exigent circumstances searches. In this decision and a previous one, the court seemed to draw a distinction between risk of harm to police officers and risk of loss of evidence. For the former, it may be that reasonable grounds to suspect this risk suffices to justify suspending access to counsel. For loss of evidence, it may be you need grounds to believe that evidence will be lost.
2009 Developments in the Law
2009-12-29 Fingerprint Evidence - Sufficiency & Content
- Someone removed glass from the rear of a building, and leaned the panes up against the building. Someone entered through the resulting gap, and stole lots of valuable stuff. A fingerprint examiner found Mr D.D.T.'s, 2009 ONCA 918 fingerprints on the glass. A judge concluded that sufficed to prove his guilt of the B&E and theft. The Court of Appeal disagreed.As usual, the expert could not say when D.D.T. touched the panes of glass. Unusually, the expert prepared no diagramme of the locations of the prints. Nor, it seems, did the examiner look at every print on the glass to determine if they all came from D.D.T.. He said there were many, but he matched only 7.
If D.D.T. were the only person whose prints appeared on the glass, then his responsibility for moving the glass would have been easy to find. If the exact locations of D.D.T.'s prints showed how he handled the glass, the conviction might have stood.
Investigators: a fingerprint match merely tells you that a finger touched a surface once. You want more evidence, to determine the circumstances in which that fingerprint got there. Questions you want to ask might include:
- when was this surface last cleaned?
- what kind of weather/moisture/cleaners has this surface been exposed to?
- where on the surface are the prints, and what are their orientation?
- are there other prints on this surface?
Fingerprint examiners: some of you investigate thoroughly, and report all the information you can obtain from the surfaces you examined. The rest of you can learn from their example: in forensic sciences, taking short-cuts may save time, but can lead to embarrassment.
2009-12-28 Production Orders - Who is an Appropriate Target? Is a Corporation a "Person"?
A police officer obtained a production order that Mr Sullivan 2009 BCSC 1769, an employee of Telus, produce documents relevant to an investigation. Mr Sullivan complained that Telus didn't ordinarily permit him to deal with the records in question. The judge exempted him from producing the records, and pointed out that a production order can compel a corporation (such as Telus) to produce records.
A production order differs from a search warrant because you must name the person who has possession or control of the documents or data, and that "person" must give you the information you seek.
Not every employee of a corporation will have access to its records. A well-behaved corporation will comply with production orders, and so you need only name the corporation in your application or order. (Take care to use the correct corporate name. Many corporations do business under a name different from the registered corporate name.)
Name a living person instead of a corporation if:
- there isn't a corporation;
- you can't find out the name of the corporation;
- the corporation is falling apart; or
- the shareholders won't care if it gets prosecuted.
2009-12-19 First Degree Murder - The defence of Abandonment
- Suppose a group plan a killing, but part way through, one backs out, is that one still guilty of first degree murder? Ms Bird, 2009 SCC 60 and others planned to kidnap a 13-year old girl, and take her to a remote place, where she would be raped and killed. They took the victim and her friend there. Ms Bird struck the victim on the head with a wrench, and helped hold her down for another member of the group to rape her. Then Ms Bird took the victim's friend away from the scene "because [the friend] was cold and did not need to see this". The trial judge found Ms Bird had abandoned the plan to kill by walking away from the scene. Two of three judges in the Court of Appeal agreed with the trial judge, but the Supreme Court of Canada sided with the dissenting judge Costigan 2009 ABCA 45. Abandonment requires "a change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose". What Ms Bird said indicated that she expected the killing to occur. She said nothing to stop it or withdraw from the plan and was therefore guilty of first degree murder.
When interviewing suspects and witnesses, it's important to distinguish between regrets after the fact, and conduct during the offence. What did the suspect(s) actually do or say during and after the offence?
2009-12-18 Production Orders against the Media
- A police officer shot Mr Yellowback in the hip. Because she said he charged at her with a weapon in his hand, he was charged with assaulting a police officer. Mr Yellowback wouldn't give a statement to the police, but he did talk to the press at a press conference organized for the purpose of his first nation to demand a public inquiry into the matter. A few days before the press conference, a CBC reporter told an RCMP officer that it would occur. No police officer attended. Police obtained production orders against several news media including the CBC, which fought the order, and won. CBC v. Manitoba (A.G.), 2009 MBCA 122.
The ITO gave the false impression that the police first learned of the conference after it occurred. This fact was not relevant to any of the statutory preconditions for a production order, nor was it relevant to Mr Yellowback's constitutional rights. It was, however, relevant to the issues involving searching the media.
When determining whether to issue a search warrant or production order, the justice or judge can still refuse the application even if the preconditions for the order are satisfied. Where the the target is a news media organization, the courts take extra steps to protect the privacy of news gathering. The ITO should disclose ordinarily disclose "whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted." This ITO mislead the issuing judge on this point. The court felt the police should have attended the press conference to investigate, instead of leaving the task to reporters.
The ITO also omitted information the police had from watching broadcasted portions of the press conference that CBC might have recordings of one-on-one interviews, which had not been broadcast. This was important because it told the justice or judge that information still private to the CBC would be obtained if the order was granted.
The key points for police officers drafting search warrants or production orders against media are found at paragraph 37:
This decision contains technical discussion about the process of challenging production orders. Although useful to lawyers, it won't help police officers much. If there's one point to remember, it's this: if you want a search warrant or production order against the media, get advice.
- Address all the statutory requirements for the warrant or order;
- Investigate all alternative sources of information of the kind the news agency has;
- Disclose those alternate sources for the information you seek and what you did to investigate them;
- Identify what parts of the information you seek have already been broadcast or published;
- Craft conditions for the execution of the order or warrant, to ensure that "the media organization will not be unduly impeded in the publishing or dissemination of the news" and any residual privacy interests are protected, whether by publication ban or otherwise.
2009-12-18 Interviewing a Suspect - Consent to Record
- There's an odd idea still floating around that you need a suspect's consent before you can record the conversation you have with him or her. It's wrong, and this week in R. v. Young, 2009 ONCA 891, the court said so:
"... police are entitled to begin to videotape or tape record an accused’s statement. If the accused then objects or refuses to be videotaped, at least there will be a record of the accused’s refusal."
I would add that you should inform the suspect that you are recording the conversation, especially if you are outside the police station.
I've seen a fair number of videos from cameras attached to police vehicles, particularly in impaired driving cases. Because of R. v. Duarte, [1990] 1 S.C.R. 30, I think officers using those systems must mention them early in their dealings with suspects, at least until such cameras become commonplace and expected.
2009-12-17 Regulatory Enforcement & Right to Silence
- Mr Rice 2009 BCCA 569, shot a moose out of season and loaded it into a pickup truck. Because of his aboriginal status, he could hunt in his traditional territory. But he wasn't in his traditional territory. As he drove out of the area, a conservation officer stopped him, and asked "who shot the moose?" He replied "I did." The trial judge exluded that evidence. The Wildlife Act compels hunters to answer questions about hunting. Because the officer believed that Mr Rice probably committed an offence, making Mr Rice answer the question violated his right to silence under s.7 of the Charter. And the officer detained Rice without telling him about his s.10(b) rights to counsel. The Court of Appeal disagreed.
People who participate in heavily regulated conduct, such as commercial fishing or earning taxable income can expect audits. The Wildlife Act required all hunters who shoot moose to report the kill. Mr Rice could hardly complain that a Conservation Officer asked him a question he was obliged to answer anyway.
The court found that the Wildlife Act's power to audit hunters coming out of hunting areas implicitly limited s.10(b).
This case doesn't help police officers who investigate crime. You guys can never compel suspects to answer questions. It does help other peace officers who enforce regulated activities. If the legislation requires a suspect to report a specific activity, then it appears that you can ask about that activity when you conduct your audits, even if you think an offence has occurred.
2009-12-05 Reasonable Grounds -
Mr Oneba Burke closely resembled his brother Abede Burke 2009 SCC 57. Cst Akel learned of an outstanding warrant for Oneba's arrest, and encountered him a few days later. Oneba fled before Cst Akel and others could handcuff him. A week later, Cst Akel encountered Adebe, but mistook him for Oneba. Cst Akel arrested Adebe, who protested that he was not Oneba but the officer searched him anyway. Cst Akel located drugs. At trial, Adebe complained that the arrest breached his right not to be arbitrarily arrested. He said Cst Akel should have investigated his identity before searching him. The trial judge agreed, and excluded the evidence. The Crown's appeals to the Quebec Court of Appeal and the Supreme Court of Canada failed.
It didn't help that Cst Akel's evidence at prelim and trial differed significantly.
From now on, any time that a suspect gives you an innocent explanation about their identity or their guilt of the offence, defence will argue that you were obliged to investigate the explanation before making any arrest. However, that is not what the Supreme Court decided. Because the trial judge found that Cst Akel didn't have reasonable grounds to arrest, they wouldn't overturn the verdict.
In the recent case of Shepherd, 2009 SCC 35, a police officer disbelieved the suspect's explanation for his peculiar driving, and proceeded with arrest and breath demands. Because there was other evidence for the officer's grounds, the court found his arrest and demand were reasonable.
The majority in Burke said they were deciding it "on the particular circumstances of this case" That's judicial code for "we might decide the next case differently". I expect the significance of this case will be exaggerated, but there is a lesson to draw from it:
If a suspect offers you an innocent explanation ("You've arrested the wrong guy." or "This isn't what it seems."), you can avoid looking like a jerk by making some effort to look into what the suspect is saying. Don't forget s.10 rights, and take careful notes. If you can prove that he tried to mislead you, that evidence will sink him in court. If his story checks out, then he will trust cops more in future.
2009-12-03 Seizure & Search - s.489(1)
- As part of an investigation into the murder of Mr Little's, 2009 CanLII 41212 (ON S.C.) wife, police obtained a search warrant for his house. As they were searching for other things, they noticed his cell phone, with a blood stain on it. They seized it too. Later, they searched it. Did they need a warrant? This judge said that the seizure was lawful as a "plain view" seizure, or a seizure under s.489(1) of the Criminal Code. But searching its contents required judicial authority.
Beware. The courts have not considered deeply the extent of searches permissible under s.489. But the judge's reasons make sense. The section only permits "seizure" not "searching". If you grab a digital storage device which because you think it is evidence, it looks like you're fine. But if you grab it because you think it contains evidence, you may need a warrant. Especially if it is likely to contain large quanitities of private information.
2009-12-03 Internet Luring
- In a chat room, 32-year old Mr Legare 2009 SCC 56 pretended he was 17. A 12-year-old girl told him she was 13. They engaged in highly sexualized chat. He said how he'd love to perform oral sex on her. She gave him her phone number. When he called, he spoke to her sister, who complained. The trial judge found he found Mr Legare not guilty because he never discussed meeting the girl for sex. The Supreme Court disagreed. "“facilitating” includes helping to bring about and making easier or more probable — for example, by “luring” or “grooming” young persons..." "Luring" doesn't require proof of a plan to meet with the victim, but it does require proof of a specific intention to make the young person more amenable to the offences in the section. Sexually explicit language is not an essential element of the offence. The court ordered a new trial.
In this decision, the court makes it easier and harder to get a conviction for this offence. While the Crown need not prove the accused planned to meet with the child, the court emphasized a need for proof of what the accused was thinking when he committed the offence. When you bust the suspect and interview him, you want your interview to push past the excuse to get to the motive: "Oh, sure it was a game and a lark. But you wanted to see how far the kid would go with it. You kept going because you wanted to see how interested the kid was in sex. And by typing "...." you encouraged the kid to go further."
Before Legare, another court figured evidence of sexual gratification would assist. (Colley 2009 BCCA 289.) After Legare, I'm not so sure that's accurate. But it wouldn't hurt to ask the suspect if he got a sexual thrill from the conversation.
2009-12-02 Wiretap - Roles of Affiant & Agent
- Mr Ebanks 2009 ONCA 851 escaped prosecution for attempted murder because the trial judge didn't like the materials filed for the wiretap application. He thought that the police misled the authorizing judge, and the Agent should have reviewed the entire police file before proceeding with the application. It was huge file. The agent couldn't review it in a week. The Ontario Court of Appeal decided that the application wasn't so bad after all, and Mr Ebanks will face trial again.
After a discussion of the specific facts in the case, the court discussed the roles and duties of affiant and agent. The affiant is responsible for the facts and full disclosure. The agent is responsible for the legal procedures. The agent:
"... should not become an investigator and engage in a wholesale review of the file. This would blur the line between the mutually independent functions of the police and the Crown, each of whom properly maintains a distinct role in the criminal justice system."
The trial judge also demanded that future wiretap applications contain tables of contents, indexes, cross-references, and sworn appendices. While these can be useful, the Court of Appeal said they are not necessarily required.
2009-12-02 Impaired Driving - Care or Control - Driver's Intentions -
Mr Ruest, 2009 ONCA 841 told his friends he wanted to drive home. They could see he was too drunk and tried to persuade him not to, but he insisted. One of the friends called the police. Using a remote started drvice, Mr Ruest started his vehicle. His girlfriend sat in the passenger seat. Police arrived while he was still clearing ice and snow from the vehicle. He had not yet got in to drive. The car wouldn't move until he put the key in the ignition. The trial judge said he wasn't in care or control. The Court of Appeal decided he was. The fact that he intended to drive established the risk that he would set the vehicle in motion.
Next time you catch a drunk in or around his car, you might investigate what his or her intentions were if you didn't come along. "How were you going to get home?"
2009-12-02 PIPEDA Requests -
Drug cops working in an airport in Nova Scotia routinely asked Westjet to let them see the passenger list to see if there was anyone suspicious on it. Westjet permitted them to see enough information that they had cause to suspect Mr Chehil, 2009 NSCA 111 might be carrying drugs. The officers brought a drug sniffing dog to sniff his luggage. Soon enough, the officers found 3.5 kg of cocaine in his luggage. The trial judge found that the officers violated Chehil's rights under s.8 of the Charter, because PIPEDA created an expectation of privacy. The Court of Appeal disagreed: "Mr. Chehil cannot rely upon the limitations in s. 5(1) of the PIPEDA yet ignore the disclosure permitted by s. 7(3)(c.1)(ii)..."As I read this decision, you breach of s.8 of the Charter only if you ask a person or corporation to reveal information that you know the person or corporation should not reveal. For example, doctors owe their patients a duty of confidentiality. Therefore, you shouldn't make a PIPEDA request to a doctor's office for medical records of a suspect (unless it's one of the emergencies set out in the Act).
In my view, this decision resolves much of the confusion arising from Ontario's various conflicting decisions around PIPEDA. It breathes life back into PIPEDA requests.
2009-11-26 Voluntarines
s - Police suspected that Ms Fitzgerald 2009 BCSC 1599 caused a fatal car accident and then left the scene to escape responsibility. Their information was that she cleaned the car and arranged for clandestine repair. They arrested her at 8:00am. They told her lawyer that she would be brought to a justice as soon as practicable. Instead, they lodged her in cells till 1:00pm. Then they interviewed her for 4 hours, during which she asserted her right to silence 147 times. Eventually, she answered some questions The judge found that the officers' persistent questioning :"... took the situation to a point where I am driven to conclude her right to choose whether to remain silent or to speak to the police was rendered meaningless. Time after time, her assertions of her right to remain silent were ignored, simply bulldozed over. The interview continued without any apparent end in sight. A reasonable person in the position of the defendant would be entitled to conclude that the right to remain silent, to choose not to answer the questions of the police, was not going to be respected in that interview. Constable Grimmer’s persistence was so determined, so relentless, that in my view, the detainee’s right to choose was vanquished."
Even the judge found it difficult to say at what point the officers crossed the line between persistent persuasion and oppression. However, the burden on the Crown to prove voluntariness is "beyond a reasonable doubt". Therefore, when attempting to persuade someone to speak, taking breaks and changing tactics may be appropriate. As an interview gets longer and longer, avoid creating the impression that the suspect has no right to choose whether to answer the questions.
2009-11-21 Informer Privilege
- Mr Basi and others 2009 SCC 52 are charged in B.C. with government corruption. Because a confidential informer provided police with information, Crown refused to disclose information which tended to identify the source. Defence asked the judge to look into whether the documents were really privileged. The Crown was prepared to explain to the judge why the information was privileged, but not in the presence of defence counsel. Defence counsel offered to undertake to keep all privileged information secret from their clients. The trial judge figured that such a promise would sufficiently protect informer privilege. The Supreme Court of Canada disagreed. Under no circumstances (except innocence at stake) should defence counsel learn the identity of an informant.
This means is that your sources continue to remain confidential, unless they witnessed or participated in the crime. It had become increasingly popular in B.C. for defence counsel to offer to withhold privileged information from their clients, in exchange for accessing it. The Supreme Court of Canada put a stop to this practice.
The court gave a definition of what is and isn't privileged information:
The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.
2009-11-11 Detention - Dog Sniff - Reasonable Grounds to Suspect
- How sure do you need to be that a specific offence occurred before you can detain a suspect? On Highway 1, near Moose Jaw, Saskatchewan, police officers saw Mr Yeh's, 2009 SKCA 112 car weave side to side on the road. They stopped him to see if he was tired or impaired. There was no smell of booze or drugs in the car, but his hands shook and he stared straight ahead. Without telling him what they were doing, an officer commenced Standardized Field Sobriety Tests for drug impairment. Mr Yeh cooperated. The officer couldn't say Yeh was impaired. He did form the suspicion that Yeh consumed marijuana within the previous 4 hours. But the officer's training didn't cover recency of consumption. The officer then detained Mr Yeh on suspicion that he was transporting narcotics, and deployed a drug-sniffing dog, which indicated drugs. A later search revealed $9,000 cash, 18 lbs of marijuana and lots of ecstacy.
For technical reasons, seven judges heard this appeal instead of the usual three. They criticized the officers for failing to tell Mr Yeh the reasons for the detention. But this case wasn't about s.10(a) of the Charter.
The officer didn't really explain any reasons beyond guesswork why he thought Mr Yeh might be transporting drugs. If he smoked drugs, to they extent that he smoked them, they were gone. There were not "reasonable" grounds to suspect him, and therefore not sufficient grounds to detain.
The Supreme Court of Canada made it clear that deploying a drug dog requires "reasonable grounds to suspect" the detainee of a drug offence.
2009-11-11 Search & Seizure - Suspecting an Offence
- So many judges of the Saskatchewan Court of Appeal heard Mr Yeh's appeal (see above) because they wanted to clear up a previous decision called Nguyen, 2008 SKCA 160. In that case, they said that you can't detain someone unless you had a specific offence in mind. It's not a problem if you receive a 911 call about a robber wearing a red bandanna: you know there was a robbery, and you have reason to suspect people in the area who wear red bandannas. But what if you don't know what the offence is, but you have reason to suspect a crime? For example, when you encounter people who react to uniformed police by hiding or discarding objects. (eg. Nesbeth 2009 ONCA 597) You don't know what the crime was, but you have reason to suspect that one was committed.
6 judges of the 7 agreed that you can detain in either circumstance. While this isn't news for B.C. or Ontario cops, it should come as a relief to officers in Saskatchewan. Likely this idea won't spread to other provinces now.
2009-11-10 Search & Seizure - Reasonable Grounds
- New Brunswick police officers went to a busy parking lot just off Highway 1 to meet with an informant. While they waited, they saw a Nova Scotian rental vehicle perform heat checks before parking in a spot with a view of the area. The driver, Mr Tontarelli, 2009 NBCA 52 sat and waited. A Québec vehicle turned up and parked beside it. The Nova Scotian driver went to the passenger seat of the Québec vehicle and the drivers shook hands. After 20 minutes, he emerged carrying a duffel bag, which he stowed in his car, and the two vehicles returned to the highway, each headed to their respective provinces. The officers concluded this was a drug transaction, and arrested. The duffel bag contained dope. The other car contained $16,000. Naturally, defence argued that the officers didn't have reasonable grounds. The trial judge and the appeal judges found they did.
I think it's important to link your observations into inferences. This decision shows no such effort. It isn't difficult:
In this case, the officers also had training and experience in drug investigation. The officers did speak of their experience with Highway 1 being a thoroughfare for drugs, and rental cars often used to transport them.
- Because of the way that the first guy moved his car, and kept looking around the parking lot, I drew the inference that he was concerned about who was watching him.
- Because the two vehicles came from different provinces, but met in the lot, I figured that the meeting had been pre-arranged.
- Because the vehicles appeared to be returning to their respective provinces, I figured that purpose of the meeting was achieved by the transfer of the duffel bag.
- Because both vehicles appeared to have travelled a long way, for the purpose only of the exchange, I figured the contents of the duffel bag must have been valuable.
- Because of the concern about being observed, I figured that the bag contained contraband of some sort.
2009-11-10 Searching a Vehicle Incidental to Arrest - Tontarelli, 2009 NBCA 52
Defence argued that after arresting Tontarelli, 2009 NBCA 52 for an indictable offence, in the absence of exigent circumstances, police still needed a warrant to search the vehicle. I'm surprised anyone still thinks that after the Supreme Court of Canada's decision in Caslake. This decision explains clearly where that idea came from, and why it's wrong.
One of the police officers didn't seem to know whether he "detained" or "arrested" the driver. Be very clear. You can't search for evidence of an offence after a "detention". You can search the suspect and his or her vicinity for evidence of the offence after "arrest".
2009-11-09 Internet Luring - "I thought I was Just Role-Playing with an Adult"
- When an internet chatter says she's under age, the accused is presumed to believe it unless he takes "reasonable steps" to find out how old the victim is. See 172.1(3) and (4). What are "reasonable steps"?
In two cases, undercover officers impersonated 13-year-old kids on sex-themed internet chatrooms. Mr Thain, 2009 ONCA 223 and Mr Levigne, 2009 ABCA 359 both testified that they thought that they were chatting with adults, and gave reasons:
Thain
Lavigne
- the chat-room was designated as adult-only;
- his observation before saying anything to mandy13 that she was logged into a pornographic website unlikely to be frequented by a child;
- when he asked her about her age, she stated that she was 13 but added “lol”, slang for “laugh out loud”, suggesting a joke;
- mandy13 used what he regarded as a joke e-mail address
- mandy13 purported not to have a photo available;
- mandy13 was familiar with a “blush” command, causing his screen to turn pink, despite claiming to be new to the chat room.
- to enter the chat room, one must create a profile which describes you as over 18;
- moderators on the chat room will screen for and exclude underage participants;
- adults sometimes pretend to be minors;
- etownjessy13 typed fast.
Neither man took any steps himself to find out the age of the other chatter beyond making the observations listed above. The Ontario Court of Appeal thought that Mr Thain had done enough to assure himself. The Alberta Court of Appeal found that Mr Lavigne didn't. They said that the accused must take reasonable steps himself to ascertain the age of the other chatter. I don't think the two decisions can be reconciled.
Regardless which approach prevails, undercover officers involved in these investigations should carefully manage the digital impression they give to the other chatter.
2009-11-06 Malicious Prosecution - Must the Prosecutor Believe the Accused is Guilty?
- Your prosecutors feel relief this week. Mathew Miazga 2009 SCC 51 prosecuted a difficult child sexual abuse case involving multiple adults. He got some convictions at trial, and they were upheld on appeal, but the Supreme Court of Canada ordered a retrial. Eventually, the children recanted. The defendants sued him for malicious prosecution. The trial judge said that it was so obvious that the prosecution had no case that the prosecutor must not have believed that the accused were guilty; he had to pay for the harm he did to them by the prosecution. The Supreme Court of Canada pointed out that several courts found that the accused were guilty. The case couldn't have been so terribly weak. And besides, there is no requirement that a public prosecutor personally believe in the guilt of the accused. The prosecutor must assess the strength of the evidence, and prosecute only for the purpose of bringing people to justice. There was no evidence Miazga had any malicious purpose in prosecuting the accused.
Most of this decision doesn't matter much to cops. It does emphasize that the decision to prosecute belongs to the Crown, and that courts should not second-guess this decision except in the clearest of circumstances.
2009-11-05 Impaired Driving - Breath Samples given "directly into" Approved Instruments
- Mr Mulroney, 2009 ONCA 766 got busted for driving over .08. There must have been something wrong with the certificate, because the qualified technician had to testify. He forgot to say that the suspect blew "directly into" the approved instrument, as required by s.258. At trial and at two appeals, defence argued that the court must acquit. The Court of Appeal agreed that there must be evidence that the samples were given "directly into" the instrument. But in this case, the evidence (just) sufficed.
Usually, the certificates of the qualified technicians cover this point. Most officers don't have to worry about this point. But if there's something wrong with the certificate, then this evidence must be given in live testimony: "The suspect blew directly into the instrument."
2009-11-05 Circumstantial Evidence - Testing Keys
- Armed with a search warrant, police officers searched an apartment for drugs. It was a hive of drug trafficking activity. While they were there, someone came to the door. Nobody could say whether the door was locked. An officer posted inside at the door heard the jingle of keys, and the door opened. Mr Munif 2009 BCCA 451 came in, and was promptly arrested. He had keys in his hand, and bundles of cash and a couple of cell phones in his pockets. He had a few drugs packaged in street-level quantities. Was he part of the trafficking operation, or was he just a customer? Nobody tested the keys in the door. After his conviction, he appealed, saying that the evidence linking him to the trafficking operation wasn't strong enough. In this case, the court upheld the conviction, but it was a near thing.
When you're investigating illicit property (stolen car, drug house, etc), and you arrest a felon with keys, consider testing the keys to see if they fit the locks.
2009-10-24 Service of Documents - Notice of Intention
- In the last few days before Mr Yonis's 2009 ABCA 336 drug trial someone realized that the certificates of analysis had not been served on defence. Police officers went to his lawyer's office and gave the certificates to the secretary. They told her that the certificate would be tendered "next Thursday".
Like many sections of the Criminal Code, s.51 of the CDSA requires the prosecution to give defence a copy of any certificate or report in the case along with notice of the prosecution's intention to use the document at the hearing. In this case, the trial judge found and the appeal court agreed: although the certificates were adequately served on the lawyer, the notice of intention to rely on them were not. The judges blamed the lawyers:
"It is not difficult for the federal Crown to create, and use, an adequate and informative style of written notice of intention that incorporates the relevant certificates by reference, and then to effect service of the written notice and copies of the certificates either upon the accused personally, or upon defence counsel acting for the accused. This latter service can be effected either personally, or by service upon a person at his law office authorized to accept service of documents."But you know that the lawyers will download the work onto you. If they ask you to serve a certificate, you might ask if there's a notice of intention to go along with it.
2009-10-24 Impaired - Fail to Provide - Blood Demand instead
- Police received a complaint of an impaired driver. They found Mr Caruth, 2009 ABCA 342 driving a car and wearing clothes which matched the description given. He successfully blew into a screening device, which registered a "fail", but when he returned to the police station, he didn't blow hard enough into the instrument to get a proper analysis. When asked why, he said "asthma". The officer didn't test the instrument to see whether it would accept air. Instead, relying on his own personal experience with asthma, the officer took Mr Caruth at his word, and made a blood demand instead. He gave Mr Caruth access to counsel, and then took him to hospital to take blood. (No prizes for guessing whether his blood-alcohol level exceeded .08mg%.)
Defence complained that the officer should have tested the instrument immediately to determine whether it would accept a breath sample. I agree. I can't count the number of cases I've seen recently where the accused attempts and fails to provide a breath sample into a screening device or breath analysis instrument, and the officer concludes the investigation. Those officers will all face cross-examination: "How do you know the instrument or the mouthpiece wasn't blocked?" It's a simple matter to keep the mouthpiece and blow some air through the instrument with a new one.
However, the court did not need to decide the case based on this complaint. For the judges, the issue was whether taking a blood sample was justified. Did the officer have reasonable grounds to believe that the accused was incapable of providing a breath sample? Defence said the officer should have got a medical opinion before making the blood demand.
The judges observed that you don't need proof beyond a reasonable doubt to make a blood demand. It was appropriate for the officer - who suffered asthma himself - to believe that asthma prevented Mr Caruth from blowing. When someone complains of an inability to blow by reason of a health condition, it's appropriate to ask a few questions to satisfy yourself about the issue. If you think there is substance to the complaint, you may be able to make a blood demand in place of a breath demand ... even if the suspect successfully provided one breath sample previously.
2009-10-21 Detaining Suspicious Motorists
- When you suspect a motorist of involvement in a crime, when can you use highway safety legislation (it has different names in different provinces: M.V.A.; H.T.A.; T.S.A.) to pull over the vehicle? In Dhuna, 2009 ABCA 103, an officer in an unmarked car followed a vehicle. It braked and turned every time a marked police vehicle came near it. This officer worked in a car-theft squad. He checked its plates, but nobody had reported this vehicle stolen. Suspecting car theft anyway, he detained the driver to see if the car was properly registered. Mr Dhuna responded by tossing away a bag of cocaine. After arresting him, the officer found drugs and weapons in the car. At trial, Mr Dhuna complained that the police used traffic safety legislation to investigate car theft - which has nothing to do with safety on the road.
The Court of Appeal found that car registration was as enforceable under their T.S.A. as driver sobriety - the officer didn't need "reasonable grounds to suspect" in order to check a driver's registration. The fact that the officer was also interested in car theft didn't affect the lawfulness of the stop. (This is similar to the Kaddoura, 2009 BCCA 113 case I wrote about in March.)
Does this mean that you can stop any vehicle on the road, any time you want? No. The court also agreed with an older case, Houben, 2006 SKCA 129. In that case an officer stopped a pickup truck in a quiet neighborhood in the middle of the night. He was curious about property crime, but had no reasonable grounds to suspect this driver (who turned out to be drunk). Because the officer was not concerned about traffic safety, that detention was arbitrary.
You can stop a car if you're actually investigating highway safety, or if you have reasonable grounds to suspect that the driver is involved in some kind of criminal activity.
Remember, if you do stop a vehicle (or anyone else), you must explain the reason for your stop (s.10(a) of the Charter). If you're stopping a driver to determine if he's safe on the road, or registered and insured, say so. But if you're stopping a driver because you think he might be preparing his next B&E, don't pretend it's a traffic stop. If you have both sets of concerns, it seems okay to use one as the reason for the stop.
2009-10-17 Criminal Agents - Who can Trust a Crook?
- Police in Manitoba busted Mr Grant, 2009 MBCA 9, a full-patch member of the Hell's Angels. They had help: an established criminal acted as their agent in various large drug transactions with Mr Grant. In order to prevent any suggestion that the agent strayed into entrapment or other unlawful conduct, the officers told him very clearly not to communicate with Mr Grant except under police supervision and wiretap. What a surprise! The agent did get together with Mr Grant several times during the operation, allowing defence to suggest that the agent avoided police recording in order to suppress evidence favourable to the defence.
The case discusses the legal procedures around defence complaints of non-disclosure. Those aren't of interest to you, except that the prosecution won.
What protected the police in this case was careful and clear documentation of the agent's instructions from the police. When a criminal works with you, the terms of your agreements must be particularly clear. "Understandings" will be misunderstood. "Oral contracts" and "gentlemen's agreements" won't hold.
2009-10-15 Identity - Association Evidence & Fingerprint Evidence
- Fingerprints at the scene proves identity only if other evidence establishes the context. Several men, including Mr Nalasco, invaded a home in Hamilton. They demanded money and drugs from the occupants who were drinking and smoking marijuana. The victims cooperated at first, then resisted. One victim grabbed an axe and struck one of the men. Mr Nalasco shot a gun, hurting a couple of the victims. The attackers fled. A victim watched one of them leap-frog over a car. He said he saw the guy place his hand on the car to get over it. A fingerprint on the car came from Mr Samuels, 2009 ONCA 719. Was Mr Samuels one of the attackers? Or did his fingerprint just happen to be there from some accidental touching at some other time?
A police officer testified that 3 years earlier, he found Mr Samuels associating with Mr Nalasco. This was admissible evidence to help show that the presence of the fingerprint was more than just an unlucky coincidence. (Isn't it amazing how many "hitchhikers" you find riding in stolen cars? Evidence of prior association undermines this classic claim.)
The appeal court didn't care much for the association evidence, but liked the careful examination of the scene where the fingerprint was found.
A sharp-eyed officer had noticed a footprint in the mud approaching the car on the path taken by the attacker, and a fresh muddy dent on the car in a location consistent with the leap-frog motion described by the witness. Someone had the bright idea of asking the car's the owner about the damage: they learned it wasn't there the night before.
In my opinion, both sorts of evidence were worth collecting. Fingerprints can be explained away. "I could have touched that car when it was driving around town." Protecting, examining and investigating the scene of a print often provides more information than the print itself. And it's more difficult to believe that the suspect's fingerprints innocently appeared where his buddy and friends committed a crime.
2009-10-13 Impaired Driving - Notice to Seek Greater Punishment
- In May of last year, the section numbers for impaired driving and over .08 changed from s.253(a) & (b) to s.253(1)(a) & (b). I just encountered this odd decision which asserts that a Notice to Seek Greater Punishment which recites the old section numbers is ineffective. Although I respectfully differ with the judge's reasoning, I do agree that your forms should be corrected and updated.
2009-10-13 Right to Counsel - Repeating Yourself When You Get Home
- When an officer pulled over Ms Devries 2009 ONCA 477, he figured she was too drunk to drive. He demanded her breath and read her rights, and asked her if she wanted to speak to a lawyer. She said no. When he got her back to the police station, he didn't ask her a second time whether she wanted to speak to a lawyer, but proceeded with the breath tests. She argued that, at the roadside, the officer should have explained that access to counsel would occur at the police station. The court rejected that idea, and upheld her conviction.
The judges did agree that even if the suspect rejects the roadside offer of legal advice it's a good idea to ask a second time when you arrive at the police station.
2009-10-12 Right to Counsel & "Bad" Legal Advice
- What should you do if the suspect comes out of the phone room saying that the lawyer told him to do something really strange?
Mr Beers 2009 NBQB 149 (not published - email me if you need a copy) crashed his car, killing a 14-year old pedestrian. Police believed he was drunk, and made a breath demand. After he spoke with Legal Aid, he told the officer that the lawyer advised him to refuse. (It is, of course, a crime to refuse, and it is a crime to counsel another person to commit an offence.)
An officer advised him that the offences of impaired causing death and refusal were similar. The officer told Mr Beers and the lawyer that he thought the lawyer committed a criminal offence and would be investigated. Mr Beers talked to the lawyer again, and decided to blow. At trial, he complained that the officer violated his right to counsel. The trial judge agreed.
The officer was correct that counselling a refusal is counselling the commission of an offence. Back then, lawyers who advised their clients used to do so very carefully: "If you refuse you could get five years. If you blow, you could get life." The client might interpret this as a recommendation to refuse to blow. But if you read those sentences again, you will see that it isn't. The judge wasn't prepared to find that the lawyer did commit an offence.
The officer was wrong when he said refusal and impaired causing death were similar. At the time the offences carried very different penalties.
(By the way, the penalties are now the same for impaired, over .08 and refusal:
The officer was wrong then, but would now be right.)
Injury
Max Penalty
None
5 years
Bodily harm
10 years
Death
Life
Because of the death of an innocent youth, tempers ran high. The officer's behaviour intimidated Mr Beers and the lawyer, effectively changing the legal advice. That's where the problem lay.
So what should you do when the lawyer appears to give the suspect bad legal advice? Consider the principles involved:
When you think the suspect got bad legal advice, I think the strongest you can say is something like this:
Do
Don't
- Promptly provide access to legal advice.
- Treat suspect fairly.
- Warn suspect against committing offences.
- Give legal advice.
- Inquire into the legal advice given. (It's privileged.)
- Undermine the solicitor-client relationship. (Telling the suspect that the lawyer gave bad advice is a no-no.)
I am not a lawyer, and I can't give you legal advice. But what you're saying sounds a bit strange to me. If you want an opportunity to get a second opinion, I will help you get that. Do you want another opportunity to get legal advice?When someone refuses, you can say:
Refusal is a criminal offence for which I will charge you. Do you understand?
2009-10-02 Confessions - "Off the Record" conversations
- When police arrested Mr Narwal 2009 BCCA 410 for kidnapping and extortion, Cst McLaughlin arranged to record the interview on video. But Narwal told the officer that he wouldn't speak about the victim on the record. He pointed at the camera. Cst McLaughlin agreed to go "off the record". Mr Narwal explained that the victim killed some drug couriers and kept the dope. Narwal and his buddies were just trying to get their money back. He was trying to divert the investigation toward a murder, and away from the kidnapping. Crown tendered this conversation at Narwal's trial. Defence objected that it wasn't recorded, and police tricked Mr Narwal.
The court agreed unanimously that if you have a good reason not to record a conversation with the suspect, then the absence of a recording does not prevent the court from hearing the conversation as recorded by the officer.
The majority found that there was no trick. It was the accused's idea in the first place. One judge disagreed. This means Mr Narwal can get another opinion from the Supreme Court of Canada.
For you folks:
- Always try to record conversation with the suspect on audio or video. Courts demand a recording, or a good reason why you didn't.
- If you do get unrecorded conversation about the offence, make very detailed notes immediately. Cst McLaughlin spent a long time recording everything he could remember about this conversation. The work paid off.
- Don't offer "off the record" discussions. Avoid them. But if the suspect offers it, you can do it.
2009-10-01 New Criminal Code Offences
- Cops, Guns & Organized Crime - New criminal code offences came into force today. It looks good on the surface, but carries some hidden gotchas. Here are some highlights of Bill C-14:
Section 270.01 defines offences of assaulting a peace officer with a weapon, or causing bodily harm. Section 270.02 defines aggravated assault of a peace officer. This might seem good, because serious assaults on peace officers deserve more serious treatment in the Code. Until now, if someone assaulted a peace officer using a weapon or causing harm, it took two charges to cover all the legal elements. Now it takes only one. Before October 1, 2009, we could get two convictions for someone who hurts a cop or attacks one with a weapon. Now we get one. The penalties remain essentially the same.
When sentencing offenders who assaulted peace officers, judges must now give denunciation and deterrence prime consideration. s.718.02. This indicates Parliament wants these offenders sentenced more harshly than before.
Section 244.2 now defines an offence of recklessly shooting a firearm in the direction of people, or where they might get hurt. There are minimum penalties for the use of restricted or prohibited firearms. This means that gangsters who engage in shootouts in public places get serious jail time, even if they hit no one. It also means that police officers who fire their service pistols recklessly may go to jail for a minimum of 5 years. Have you considered the benefits of taking a refresher course of firearms training?
Peace bonds for gangsters can now be 2 years long!
Murders committed for organized crime become first degree murder, even if they were not planned and deliberate.
2009-09-29 - Right to Counsel - Reasonable Opportunity
- When Cst Penny demanded breath samples from Mr MacDonald Brown v. R., 2009 NBCA 27, Cst Penny also told him about his right to counsel. Mr MacDonald-Brown asked to call his parents. Cst Penny let him talk with his parents for 20 minutes. After that Cst Penny asked again whether he wanted to speak with a lawyer. He did, but he didn't name any lawyer, and Cst Penny didn't ask for a name. Cst Penny called duty counsel. At trial, Mr MacDonald-Brown complained that he didn't get to speak to the lawyer of his choice - Mr Cooper.
In this case, the Court of Appeal rejected this complaint. If Mr MacDonald-Brown wanted a specific lawyer, he should have said so. But the court decided this way because Cst Penny created an "atmosphere of cooperation" with Mr MacDonald-Brown. It is simpler and may avoid much litigation if you put the question squarely to the suspect:
"Do you want to call a lawyer?" "Who do you want to call?"
If the suspect doesn't know the name of any criminal lawyer, you can suggest duty counsel. But the suspect may wish to check the Yellow Pages, or call a friend. These are reasonable steps, and you should facilitate them as much as available resources allow. Create that "atmosphere of cooperation" which justified Cst Penny's actions. (The call to a friend to get the name of a lawyer is not a privileged conversation. It does not require privacy.)
A "reasonable opportunity" to get legal advice may require more than one conversation with a lawyer. This week, my office reviewed a report which described how a suspect spoke with Legal Aid for 4 minutes, but complained that that the lawyer wasn't interested in his situation. He wanted to speak to another lawyer, but the police officer wouldn't allow it. I don't think a judge would be impressed.
While we're on the topic, have you checked whether the legal directories available to your suspects are up-to-date?
2009-09-27 - Expectations of Privacy in the "Office Computer"
- Mr Cole, 2009 CanLII 20699 (ON S.C.), a high-school teacher, received a laptop for the purposes of teaching. Somehow, nude photos of a student of the school found their way onto his hard drive. School technicians found the offending material, and the school seized the computer back from him, and gave it to the police to examine. Mr Cole complained that he enjoyed an expectation of privacy over the contents of the computer. The trial judge agreed, but the appeal judge did not. The school's ownership and acceptable use policies clearly set out that they could examine his data. He did not enjoy an expectation of privacy over the laptop computer.
When a business complains that contraband arrived on an employee's computer, you should ask what policies govern the employee's computer. Does the company have the right to look inside the computer? If they do, then they have the authority to ask you to look too.
2009-09-21 - Arresting for Summary Conviction Offences - "Finds Committing" - Marijuana Smoke (and mirrors)
- Police officers on patrol noticed the occupants of a vehicle react strongly to police presence. The car pulled off the road into a parking lot. The officers followed, making computer queries as they did. The vehicle was related to bail breaches and Marijuana trafficking. An officer approached the car, and smelled fresh marijuana smoke. He arrested the occupants for possession of marijuana, but found only cocaine, in the possession of Mr S.T.P., 2009 NSCA 86. Mr S.T.P. complained of unlawful arrest.
The offence of possession of small quantities of marijuana is a summary conviction offence, for which an officer may only arrest if the officer "finds" him "committing" the offence. This officer may have had reasonable grounds to believe that S.T.P. still had marijuana in his possession, but didn't actually see it. In Janvier, 2007 SKCA 147, that court said you must actually observe the offence before you can arrest. But this court found that you may draw reasonable inferences from your observations to conclude that the person "is committing" an offence.
No police officers can arrest based on the smell of marijuana smoke alone. But the smell, combined with other observations may lead an officer to believe reasonably that a suspect still possesses some marijuana. In Nova Scotia, that officer can arrest the suspect. In Saskatchewan, that officer can not. For the rest of us, the answer is less clear. If you find yourself in that situation, you certainly have reasonable grounds to detain a person for investigation. You just can't search for evidence of the offence.
2009-09-20 - Search & Seizure - Expectations of Privacy in a Residence
- Having formed reasonable grounds to suspect that there was a marijuana grow operation and Mr Gomboc's, 2009 ABCA 276 residence, police attached a Digital Recording Ammeter (DRA) to his power line. This gave them enough evidence to get a warrant. 2 judges of the Alberta Court of Appeal found they violated his expectations of privacy. 1 didn't. Maybe the Supreme Court of Canada will hear this one. (Yes, the appeal is underway. - HW 2009-12-20)
2009-09-14 - Detention - Search for Officer Safety
- A plainclothes police officer, saw an adult and a teen in a Green Cavalier, associating with drug users. A similar car had been used in a fraud a month earlier. The officer called for backup, and after they arrived, approached the driver's side on foot. He showed his badge, called out police, but had to ask 3 times for the driver to roll down his window. With his right hand, the driver, Mr Crocker, 2009 BCCA 388 tucked a folder or envelope under his seat; his left hand clutched something tight. When the driver finally rolled down the window, the officer demanded that he open his left hand. In it was drugs. The officer seized the drugs, but Crocker took off. When police finally caught him, they found a counterfeit cash and identification mill.
Was the original demand "open your hand" an reasonable search incidental to detention?
At court Johnson explained that he suspected that Crocker could have had a weapon in his hand, and therefore his demand was a search for officer safety. Defence complained that:
The trial judge agreed, and dismissed all charges. The appeal court disagreed. In a strong, clear, unanimous ruling, the court identified the risks you officers face every day while doing your duty to investigate crime. When detaining an unknown suspect, you don't need to wait for risks to become overt before checking them out. Courts should be reluctant to second-guess you when you have safety concerns. Crown will recite this decision for years to come.
- Johnson had no specific reason to expect violence from Crocker - the only offence he knew about was a fraud.
- Johnson could describe no specific weapon that thought might be in Crocker's hand
- Crocker showed no hostility
I must add my usual caution: Please don't use officer safety as an excuse to search for evidence. If you do, you will lose credibility for yourself, and judges like the trial judge will second-guess even the honest efforts of other police officers to protect themselves from risk.
2009-09-14 Exigent Circumstances Search - Clearing a Scene to Preserve Evidence
- When the police finally caught up to Mr Crocker, 2009 BCCA 388 (see details above), it was in the apartment building where he and his daughter shared a suite. They arrested him in the underground parking area as he was getting into the green Cavalier. He possessed lots of drugs, $25,790 of counterfeit money, fake id and profiling information. The officers figured there would be more evidence in the suite. Fearing that the daughter would destroy the evidence before the officers could get a search warrant, the officers entered it and cleared the scene, removing the daughter.
Defence complained that this warrantless search was unreasonable: although the officers knew that the daughter was in the suite, they had no reason to believe that she knew anything about Crocker's arrest. The trial judge and the Court of Appeal agreed. You need reasonable grounds to believe that evidence will be lost or destroyed in order to enter a residence without a warrant.
Please note: you don't need "reasonable grounds to believe" to enter to protect a person from death or serious injury. In those cases, you need only reasonable grounds to suspect the harm.
2009-09-14 Dumb Charter Breaches after Arrest
- The officers who arrested Mr Crocker, 2009 BCCA 388 (see details above) made two dumb mistakes. They elicited information from him about the offence before respecting his right to counsel (s.10), and they performed an unnecessary strip search, contrary to policy, when they lodged him in cells (s.8). These breaches added fuel to defence counsel's fire. Defence asked the judge to exclude all the evidence found because the police didn't respect Mr Crocker's rights.
In the reports I read, I see these mistakes too often. Immediately after arrest, do not ask the suspect about the offence.
"You're under arrest for assault. Why did you hit Mary?"
Not only will the answer you get be excluded from evidence, but it may lead the judge (like the trial judge in Crocker) to exclude a bunch of other evidence too.
Deal with s.10 first. Then you should (always) ask the suspect for his or her version.
Because the Court of Appeal disagreed with the trial judge about some of the breaches, the result of the appeal favoured the prosecution. But the appeal might not have been necessary if the officers had followed the basic rules about rights to counsel and whether to strip search.
2009-08-29 Alibi - Reluctant Witnesses -
A girl named Carise introduced several strangers to 14-year-old boy named Marlon. The strangers wanted drugs. Marlon took them to his marijuana dealer Mr Hannaford while Carise stayed behind at his house. The strangers attacked Marlon and robbed Mr Hannaford. When police investigated, Marlon picked Mr Wright, 2009 ONCA 62 out of a photo lineup. But Carise wouldn't talk.
Two years after the robbery, and a few days into the trial, defence gave “alibi notice”: Now Carise said that Wright came with her to Marlon's house, but stayed with her and talked while the others went to Hannaford's place.Because the defence kept their alibi secret for two years, the judge told the jury that they could draw an “adverse inference”: Wright could have concocted it with Carise. The jury figured Carise was a liar. They convicted. The Court of Appeal ordered a new trial. The rule that defence must reveal an alibi violates the accused's right to silence. Therefore, it should be construed narrowly.
The common law requires defence reveal an alibi because alibi requires the police to investigate matters entirely divorced from the offence. In this case, the police always knew that Carise was involved. Alibi notice didn't turn the police toward a new avenue of investigation, and so the defence never had to give it. No adverse inference should be drawn from the failure to give alibi notice.
For police officers, this case demonstrates how a reluctant witness may turn out to be a hostile witness. Documenting exactly how the reluctant witness refused to assist helps Crown cross-examine later. Quote in your notes the exact expletives used against you. In court, Crown can use those quotes can demonstrate the energy with which the witness refused to reveal the truth when you first asked.
2009-08-27 Expert Evidence - The Teardrop Tattoo
- Mr Abbey, 2009 ONCA 624 belonged to a Toronto street-gang called the "Malvern Crew". They hated the "Galloway Boys". A guy named Tevin, a member of the Galloway Boys robbed Mr Abbey. Someone who looked like Tevin got shot dead. Did Mr Abbey pull the trigger? Several months after the killing, Mr Abbey got a teardrop tattoo on his cheek. Crown proffered a sociologist named Dr Totten who studied street gangs. He said that in that culture, Mr Abbey's tattoo meant:
Because the Crown could eliminate 2 & 3, that meant the teardrop tattoo was a confession to the murder. Several ex-members of the Malvern Crew agreed with Dr Totten's testimony. But the trial judge excluded all this evidence, and Abbey was acquitted.
- he killed someone;
- someone close to him died; or
- he spent a long time in jail.
The Court of appeal ordered a new trial. The trial judge's first mistake was to require a sociologist to testify like a scientist, with error rates and scientific method. Some areas of expertise can not be measured that way. The second was to exclude the evidence of the gang members about the meanings of tattoos in their culture.
This is a big decision for lawyers because of an increasing debate about scientific method and expert evidence. For police officers, it means that your practical experience may qualify you as an expert, even if your methods are not strictly scientific. And unless the Supreme Court of Canada accepts a further appeal and changes the law some more, tattoos can talk.
2009-08-23 Privilege - Secondary VIN Numbers on Vehicles -
The location and methods of examining secondary VIN numbers remains privileged. Smith, 2009 ABPC 88.
2009-08-16 Spousal Privilege -
Spousal privilege (still) does not extend to common-law partners. Martin, 2009 SKCA 37.
2009-08-11 Privilege
- After a fatal industrial accident at a nuclear power plant operated by Bruce Power Inc., 2009 ONCA 573, a government regulatory body investigated whether the company violated any labour standards, and the company investigated for the purpose of defending itself from charges. The company produced a report, which it clearly identified as privileged. The government investigator obtained a copy of the report. Charges were laid, and the Crown proposed to use the report in the prosecution. Because of the violation of the defendants' privilege, the court stayed the case.
The information in this case was privileged in two different ways:
If you obtain information over which a suspect or witness enjoys privilege, you should sequester the information, and seek legal advice. Don't share the information with other investigators until you get the green light from a lawyer.
- Solicitor-client privilege - where a client explains facts to a lawyer for the purpose of getting legal advice, and the lawyer's advice in response.
- Litigation privilege - where a person gathers information in preparation for litigation
2009-08-07 Search Incidental to Arrest - Cell Phones & Electronic Devices
- There is now doubt whether police officers can search cell phones incidental to arrest.
Sgt Burke had good reason to believe that Mr Polius, a drug dealer, directed an underling to commit murder. Sgt Burke directed another officer to arrest him for "counselling the commission of an indictable offence", but did not explain any details of the offence. The arresting officers seized Polius' cell phone and looked briefly at its contents. Later, an officer who did know about the offence examined the cell phone thoroughly.
The trial judge said that the arresting officers should not have looked at the contents of the cell phone. I agree. Because those officers knew nothing about the offence for which they arrested Mr Polius, they had no reason to believe that examining the contents of the cell phone would reveal evidence of the offence. A search incidental to arrest is lawful only if you're looking for weapons, or if you have some reason to believe that there will be evidence of the offence in the place that you examine.
But the trial judge went much further. He said that the investigating officers should have obtained a warrant to examine the cell phone. He said that a cell phone contains so much personal information that it's like a locked briefcase. He said that if you find a locked briefcase in the possession of a person you arrest, you can not search it incidental to arrest. You need a warrant, and you should not seize any information which is not plainly relevant when you examine the thing.
In B.C., this is not the law. Giles, 2007 BCSC 1147.
The trial judge was concerned about the quantity and quality of private information that electronic devices can contain. I think that concern has merit. However, I do not think that his decision canvassed all the authority available. A strip-search and an anal cavity search may be performed without a warrant (Golden, 2001 SCC 83). The "locked briefcase" analogy fails in light of Smellie (1994) 95 C.C.C. (3d) 9 (B.C.C.A.).
Unfortunately, Ontario officers must operate under legal confusion until this issue is fully addressed. Despite what he found was a Charter breach, trial judge admitted the cell phone evidence under s.24(2). The Crown won't be able to appeal this decision.
Ontario police officers should get advice from their prosecutors. When deciding whether to search a cell phone for evidence, incidental to arrest, the question to ask yourselves is: "Do I want this case to be the test case?" If not, get a warrant.
B.C. officers are sitting pretty. But the rest of you now know there may be legal confusion on this topic.
The Polius decision is not available for free on the internet yet. I'll try to persuade CANLII to upload it.
2009-07-18 Detention - At What Point does a Conversation turn into a Detention?
Several officers saw Mr Grant, 2009 SCC 32 walking down the street near a school troubled by crime. He looked suspicious. A uniformed member got out of his police car, and stood on the sidewalk in front of Mr Grant in order to speak with him. Mr Grant, naturally, stopped. The officer asked "What's going on?", and asked Grant for his name and address. Grant produced a provincial health card. Because he kept fidgeting with his jacket, the officer asked him to keep his hands in front of him. Two plain-clothes officers attended. They flashed their badges, and stood behind the first officer for officer safety, but also blocking the sidewalk. The first officer had a short conversation:
Q. Have you ever been arrested before?
A. I got into some trouble about three years ago.
Q. Do you have anything on you that you shouldn’t?
A. No. (Pause.) Well, I got a small bag of weed.
Q. Where is it?
A. It’s in my pocket.
Q. Is that it?
A. (Male puts his head down.) Yeah. Well, no.
Q. Do you have other drugs on you?
A. No, I just have the weed, that’s it.
Q. Well, what is it that you have?
A. I have a firearm.They found a loaded revolver. But were his answers given before or after "detaining" him? Should the officers have given him the right to counsel?
A detention is more than just making a person stop for a moment. The court re-affirmed its previous view that a person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”. The "reasonably" part is important. It depends upon all the circumstances. "[P]olice must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions."
The court found that the police actions here were a detention, and Mr Grant should have been given his s.10(b) rights. However, they admitted the evidence, by reason of a new analysis of s.24(2) of the Charter. More on that later.
The other case on detention is Suberu, 2009 SCC 33:
Constable Roughley responded to a call about a male person attempting to use a stolen credit card at the Cobourg LCBO. There were two male suspects in the store. When Constable Roughley entered the store he saw another officer at a cash register talking to a store employee and a male. Mr. Suberu walked past Constable Roughley saying:
"He did this, not me, so I guess I can go.”
Constable Roughley followed Mr. Suberu outside. While Mr. Suberu was getting into the driver’s seat of a minivan, Cst Roughley said:
“Wait a minute. I need to talk to you before you go anywhere”
While Suberu sat in the van, Roughley asked a few questions:Q. Who’s the guy inside you were with?
A. A friend.
Q. What is your friend’s name?
A. Willy. Q. Where are you from?
A. Toronto.
Q. How did you come to be in Cobourg today?
A. Willy asked me to drive him.
Q. From Toronto to Cobourg?
A. Yes.
Q. Who’s van is this?
A. My girlfriend’s.
Q. Who is your girlfriend?
A. Yvonne.It turned out that those answers linked Mr Suberu to a bunch of crimes from Toronto to Cobourg. Were they admissible? Or did the officer "detain" Suberu before asking them? Should he have given s.10(b) rights before asking the questions?
The court found that "a reasonable person in [these] circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention." They expected that officers encountering dynamic situations will ask questions to "orient" themselves. That's not detention. They were impressed that Cst Roughley did nothing to interfere with Suberu's movement. And Suberu himself didn't testify that he felt detained.
Once the detention is triggered, you must give rights to counsel without delay.
These cases suggest when you encounter a generally suspicious person, to avoid "detaining" them, you should talk and act in a way the conveys to the person the brief and voluntary nature of the conversation you intend to have:
Less likely to detain
More likely to detain
"May I speak with you?"
"I need to ask you some questions."
"Could you wait a minute? I want to ask you some questions about what's going on."
"You're going to have to wait while I ask you a few questions."
Walk with suspect in the direction he's going.
Block suspect's path
One officer close to suspect
Many officers near or around suspect
2009-07-18 Excluding Evidence After a Breach
In Grant (earlier), the court found that the officers detained the suspect. But they admitted the evidence anyway. That's because at the time, the legal definition of detention was fuzzy, and the officers were trying their best to respect the suspect's rights and do their duty. The analysis arises in s.24(2) of the Charter. Section 24 is the prosecutor's problem, not yours. I have always said: "If you try to respect Charter rights, then my argument under s.24 is likely to succeed; but if you don't try, then I don't stand a chance." Grant makes this point even stronger.
No longer is the seriousness of the case a significant factor in the analysis. (Emphasizing this is the new decision Harrison, 2009 SCC 34.) You folks in drug sections should be pleased to hear that inadvertent and minor breaches of the Charter should no longer lead to exclusion of evidence. You folks in homicide units, beware! Section 24(2) is no longer your friend. Fishing trips lead to trouble.
The court emphasized the importance of distancing itself from habitual Charter violations. You folks in drug sections who regularly conduct "no-case seizures", beware! If, someday, you encounter something important - like a dead body in a trunk - defence can use evidence of your past misconduct to exclude the key evidence you encounter this time.
The court also rejected a rule of automatic exclusion of any kind of evidence, especially after technical breaches. For prosecution of impaired drivers, this case is a big boost to the Crown.
2009-07-18 Reasonable Grounds
A police officer saw Mr Shepherd, 2009 SCC 35 drive through a stop sign without stopping, and speed. The officer turned on his emergency equipment, but Shepherd accellerated and changed lanes several times. After 3 km, he stopped. He showed symptoms of alcohol consumption. He told the officer that he didn't stop because he thought the police car was an ambulance. The officer figured Shepherd was impaired, and read a demand. The trial judge said that Shepherd's explanation was just as likely as impairment: after all, the accused demonstrated control over his vehicle throughout. Therefore the officer didn't have reasonable grounds. The Supremes disagreed. While you ought to consider all the information available to you, reasonable grounds is not the same as proof.
I say, if you believe that probably the guy is guilty, and as a whole, your observations and your information support this belief, then you have reasonable grounds. You can disbelieve people. Like the guy that smells like a brewery who denies drinking. You can draw inferences. He doesn't want you to know he has been drinking because he knows he's had too much.
This decision applies to all "reasonable grounds" situations, including warrants, wiretap, arrest, and even swearing informations. It does not change the law. Because the issue keeps arising, it's nice to have a recent restatement.
2009-07-13 Articulating a Detention
Just after midnight, young Mr N.O, 2009 ABCA 75 stopped his car outside an apartment building. He entered the building through the first of a double set of doors. Another male, who had been sitting on the stairs inside the second door, reached his hand through that door to the youth’s hand. They exchanged something from hand to hand without pausing to speak, then parted. The man inside disappeared inside. The youth returned to his car, where a watching police officer detained him for a drug transaction. Mr N.O. possessed 14 individually wrapped packages of crack cocaine. Was the detention arbitrary? The Court of Appeal didn't like how the officer testified.
What the officer said
What the court didn't like
How to do better
The incident occurred at 0022 hrs
"Since not all law-abiding citizens are home before midnight, it is difficult to see how the time of night could form part of the necessary constellation of circumstances objectively justifying detention."
If, in your experience, certain kids of crime becomes more prevalent late at night, then you could say so. If you find drug addicts tend to stay up late, and use, you should say so.
Apartment blocks "in this area" had been plagued with drug transactions. Citizen complaints and his own experience led to arrests in lobbies of apartments.
"The officer’s evidence about the location and type of building where such events occurred was too vague to contribute to reasonable grounds to detain. He did not specify the size of the “area” or the types or numbers of apartment blocks in it. With such specificity, there may be other facts when a detention could be justified."
Specify the area. Say whether such transactions or arrests occurred in this building. Describe the other buildings, and why you expected similar behaviour in this lobby.
In the officer's experience, hand-to-hand exchanges are typical of drug transactions.
"But in many innocent circumstances one person may hand a small object (such as a key or an earring) to another. ... a quick innocent exchange of, say, a key, might have been preceded by an earlier telephone conversation; a jilted boy