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.

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:

1. 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.
2. Because the two vehicles came from different provinces, but met in the lot, I figured that the meeting had been pre-arranged.
3. 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.
4. 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.
5. Because of the concern about being observed, I figured that the bag contained contraband of some sort.

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.

Searching a Vehicle Incidental to Arrest

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:

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.)

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:

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.)

When you think the suspect got bad legal advice, I think the strongest you can say is something like this:

When someone refuses, you can say:


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:

1. Always try to record conversation with the suspect on audio or video.  Courts demand a recording, or a good reason why you didn't.
   
2. 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.
3. 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:


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.

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:

• 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
  

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.

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.


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.