I previously wrote about Clark, 2015 BCCA 488, a decision from BC which clarified whether you can rely on the telewarrant process in non-urgent search warrant applications.
The problem was, judges in other provinces disagreed.
Not any longer.
Yesterday, the Supreme Court of Canada agreed with the BCCA: R. v. Clark, 2017 SCC 3.
In case you missed it last time, here's what I wrote:
During a night-shift, Cst Marshinew finished preparing an application for a warrant to search a residence where Mr lived. No justice of the peace worked in his vicinity at that time of night. Must he stay up until the morning to apply in person, or could he apply at night by telewarrant?
Defence argued that there was no urgency. The investigative plan involved assembling the search team in the following afternoon. Therefore, the police didn't need the warrant immediately.
The trial judge accepted the idea that telewarrants can only be granted where there is a need for the warrant to be issued before a personal application could be arranged. The appeal court disagreed. At para 68, Frankel J.A. said:"The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week. Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued. The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated."
The judges agree that you should state, in the ITO, the circumstances that make it impracticable for you to appear personally before a justice. That generally means explaining how you know that no judge or justice of the peace (in B.C., a "judicial justice") is not available. Some provincial courts like BC issued directives from which you can quote when explaining why a Justice is not available to hear your application in person.
Section 488 of the Criminal Code prohibits searches by night unless there are reasonable grounds set out in the ITO, and the warrant specifically permits the search by night.
This section was intended to protect residents in their beds at night. But the broad language leaves no exceptions. When you apply under s.487 to examine a cell phone or vehicle, in your police station, after 9:00pm, remember to add language to your ITO and draft warrant which jusitifies and permits the search to commence after 9:00pm.
Defence counsel recently argued that this limitation applies to searches under the CDSA. It doesn't. Shivrattan, 2017 ONCA 23.
Ms Nissen, 2017 ONCA 10 liked her neighborhood. Everyone got along ... until she hired a different babysitter. The first babysitter was one of the neighbor's boys. When she got another babysitter, the first one got mad. She asked around, and learned that the boy broke into another residence nearby, stole some guns, took them to school and threatened kids. Something had to be done.
She called the police. She wanted to tell them what she knew, but she did not want anyone to know who gave them the information. The investigating officer assured her she could give her information confidentially.
He video-recorded the interview. Her information must have been good. After an investigation, police arrested the boy, and they laid charges. The first officer got re-assigned. Another officer disclosed her statement to defence.
The boy and his parents learned that she ratted him out. The dream neighborhood turned into a nightmare. The and his parents harassed and threatened her.
So she sued the police.
This decision teaches several lessons:
Documentation: If the first investigator intended to keep her identity confidential, he should have documented it clearly in the file.
Clarity: If he intended that she be a witness, then he should have clarified that with her before taking the statement.
Foresight: Early in an investigation, you want information, but later, you want evidence. Early in an investigation, people often want to complain about a problem, and tell you what they know. Later on, cooperative witnesses become reluctant when they realize that holding the crook accountable means telling the crook about the evidence against him, and who gave that evidence. The police denied promising Ms Nissen confidentiality at the beginning. At the end of the events, she was sure they did.
Balance carefully your immediate need for information against your future need for evidence. Make promises of confidentiality slowly, deliberately and clearly. And document them. In cases where you foresee trouble, you could tell witnesses what they say may come out in court.
Mr Koopmans, 2017 BCCA 10 tried to kill Mr Martin by shooting him. Mr Martin was the most important witness in the case.
Mr Martin used drugs. During the investigation, he suffered paranoia. He suspected that police were conspiring against him, and told the investigating officer so. Apparently, he also told her that an officer who attended the scene was "dancing and skipping" in front of him. At the jury trial, defence counsel sought to make an issue of this, either to undermine Mr Martin's credibility or to undermine the police in the eyes of the jury.
I suspect that an officer who attended the scene shared a private joke with another officer, unrelated to the investigation. Mr Martin interpreted the officer's antics as malice toward himself.
Even regular folks carry plenty of misconceptions about police. In your work, you tend to meet the people at the margins of society, who have drug addictions and mental disorders. Those folks can easily misinterpret you.
You deal with the misery of broken lives on a daily basis. It's hard to stay compassionate, respectful and professional all the time. To relieve the emotional toll, you need a place to laugh and joke together. If that place must be the crime scene, look around for witnesses and security cameras before you crack a joke or pull a gag.
And don't play with the exhibits.
M.B., 2016 BCCA 476 had a teenage problem: she didn't like her boyfriend's previous girlfriend ("C.B."). That girl was pregnant. And she still liked M.B.'s boyfriend ("I.S."). Might the birth of the baby distract the boyfriend from M.B.?
M.B. wrote a text message to the previous girlfriend:
“I hope you know that you’ll get stomped if you come to this school, dirty bitches like you aren’t welcome here”
Did these words constitute a criminal threat?
It all depends upon the context.
In this case, investigators collected all of M.B.'s communications to the ex-girlfriend:
“Cool. You'll have like no friends. Our school is really cliquey and no one likes fat pregnant bitches.”
“Ha ha. Been at my school for three years. I think I know how things go and I bet the kid's not even [I.S.]'s. Lol.”
“Lol cause you're a dunce ha hahahahaha wow. And I said I bet the kids not even [I.S.]’s cause you’re a dirty slut who probably sleeps with everyone just to get attention”.
They also acquired messages M.B. sent to her boyfriend about his old girlfriend C.B.:
“[C.B.]'s so annoying. I'm going to like kick her in the stomach when she moves here.”
“If she wants to fight with me I will own her ass. Just sayin'. You know I don't take people's shit.”
“Ya. So will your kid be when I fuckin' kick [C.B.] in the stomach. Joke.”
“I'm not afraid to hurt her [smiley face] because I’m a heartless bitch, rememberrrrr.”
“Holy tits. Get [C.B.] to stop fucking messaging me or I'm gonna rip her face off.”
“K well blah I’m gunna fucking hurt her.. Dude I can make myself look more preggo then [C.B.] could lol”.
By itself, the disputed message would not prove a criminal threat. But this context, persuaded all the judges that M.B. meant to frighten C.B..
When investigating relationship violence, many investigators focus too narrowly on the last bit of unpleasantness. Without context, it may appear less or more serious than would be revealed by some history.
You want more. Some current communication systems like SMS, voice-mail and Facebook permit you to recover the words exchanged before the final event. Get as much as you can.
In your investigations, if you find an GPS device device, you may get a great deal of information.
I stumbled upon R v Didechko, 2016 ABQB 376 today. The GPS in that case automatically recorded everywhere Mr Didechko went: to the bar; to the place where the hit and run occurred; to his parent's house; and then where he dumped the car. He reported the car stolen, but the GPS showed that he never gave the thief any opportunity to take it.
The trial judge found this evidence pretty compelling.
If you find such a device would produce interesting evidence, then get judicial authority to download it.
2016 ONCA 944 sat on a toilet in a tiny bathroom in an
apartment. He closed the door. His pants were down. A police
officer forced his way into the apartment, opened the door, told
him to pull up his pants, and removed him from the bathroom.
Mr Reid complained that the police officer violated his
privacy. From his perspective, they sure did.
Given the embarrassing circumstances, why didn't the judges
He probably argued that exposure when undressed upset him. But perhaps the discovery of 38 grams of cellophane-wrapped cocaine in the water in the toilet embarrassed him more.
It all depends upon the circumstances. Let's look at it from
the officer's perspective.
Sgt Dey responded to a 911 call of an assault in progress. When
he arrived, he met a woman outside the apartment who
told him that Mr Reid, her ex-boyfriend assaulted her, and he
possessed drugs, and was breaching his curfew. She said Mr Reid
could be found in unit 202. Someone in the lobby told Sgt Dey
that a black guy in unit 202 was dealing drugs and "it was crazy
up there", with people coming and going from the unit all the
These circumstances gave Sgt Dey plenty of reason to suspect
that criminal activity was occurring in the apartment, but no
lawful grounds to enter contrary to the wishes of the residents.
Cst Dey went to the door, knocked, and asked questions of the
woman who answered. She said she needed time to dress. He heard
people shuffling around inside. The door opened a bit. She
denied living there, and did not know who did. Same with the
white guy with her. They said there was nobody else in the
Cst Dey now suspected an "apartment takeover", and feared for
the safety of the lawful residents.
Fear for life justifies entry and search, but only to the
extent necessary to resolve the safety concern.
He forced his way in. He looked in the bathroom. That's when he
found Mr Reid. And the cellophane-wrapped package of cocaine.
Mr Reid didn't live there. You'll find in the decision lots of
discussion about whether he had standing to complain about
violations of privacy. But the key to this case is whether the
officer acted out of concern for life and safety.
Even though Sgt Dey knew of various crimes that might be
investigated, he bore a greater responsibility to protect life
and limb. When he acted on that responsibility, he entered and
Take no liberties with this power. Even when you exercise it
honestly, defence will attack you saying that you used this
concern as an excuse. (Write a lot of notes afterwards.) Things
can go very badly if you use this power to find evidence.
Lawsuits. Damages. Not pretty.
A guy called 911 to complain about two guys carrying handguns
at Tim Horton's. He said that he and his buddy were following
the car the gunmen got into. He gave vague descriptions of the
people, but provided a licence plate. He gave updates where to
find the car. He offered to stick around to tell police what
happened. Police found the car he described, where he described
it. It went 60km/h in a 40km/h zone.
An officer stopped the car.
Would you arrest the occupants based on this information?
These officers did.
They found drugs, but no guns.
One of them, Mr Carelse-Brown,
2016 ONCA 943 complained that the officers lacked reasonable
grounds to believe that the occupants committed a crime. The
officers knew nothing about the caller, and therefore had no
reason to trust him. The officers should have detained the car
The judges disagreed. Finding a car that matched the
description, location and direction described in the call tended
to confirm the caller. The caller seemed willing to identify
himself fully by meeting with police.
Because of the high public risk, the court approved of quick
and decisive police action. "This was a dynamic, dangerous and
rapidly changing situation involving a serious threat to public
and officer safety."
Judges might want to to work slower - detaining first and
investigating - if the crime complained of did not pose
immediate public risk.
When you arrest or detain a suspect, you don't need to tell him
in precise legal language what offence you're investigating, but
he needs to know the extent of his jeopardy. At the early stages
of an investigation, you often know little. Based on what you do
know, err towards describing the more serious offence. That way,
the suspect can get relevant advice.
2016 ONCA 964 drove his car into a pedestrian. The pedestrian
had been driving, and got out to confront Mr Moore about his
driving. The arresting officer told Mr Moore that he was under
arrest for dangerous driving. Mr Moore got legal advice from
duty counsel. Then the officer told Mr Moore that they were also
investigating him for assault with a weapon. Mr Moore wanted
legal advice, but could not reach his lawyer. Police proceeded
to interview him.
At the trial for assault with a weapon, Mr Moore complained
that the officers did not sufficiently advise him of the
charges, and that he did not get the legal advice to which he
was entitled. The trial judge rejected this, but the appeal
The s.10(a) warning tells the suspect what kind of trouble he's
in. The s.10(b) process ensures that he can get legal advice
relating to that trouble.
If you aim high at the s.10(a) stage, then you need go through
the s.10(b) stage only once. If the jeopardy increases, then the
suspect needs fresh legal advice.
Don't allege offences for which you have no evidence. For
example, don't tell the suspect that you're investigating a
"murder" until you have information suggesting that the victim
died. But if the victim's condition is critical, then tell the
suspect so. And if you give informal information like this,
write down what you said. You need to show the court that you
really explained to the suspect what trouble he was in.
When applying for judicial authorization to intrude on
someone's privacy, you must tell the judge or justice everything
that you know. What do you say about about someone you don't
When investigating a murder, police in Ottawa received a tip
that the suspect's father was overheard saying it was better the
victim was killed rather than his son. When applying for
wiretap, the affiant cautioned the issuing justice “to take a
skeptical view of the informant’s information because, to my
knowledge, it is second hand information and not direct
knowledge.” He aid that this information did “not advance
investigators in this case and can only be treated as
intelligence…” Although he asked for permission to intercept the
father's communications, he omitted this information from his
“summary of grounds for belief” in respect of the dad.
The officer had better information to suggest that the
suspect's dad knew about the murder. When investigators came
asking questions about the murder, the dad lied to police about
his son's whereabouts. Shortly after the dad met with other
suspects, he drove in a manner that would prevent police from
The officer got the authorization.
The decision doesn't say whether the police busted the suspect
for the murder. But the dad's communications revealed him to be
dealing in drugs. As a result of the interceptions, police
busted him with heroin and lots of cash.
2016 ONCA 933 persuaded the trial judge that the warrant should
not have been granted. The investigating officer forgot to tell
the issuing justice that the dad was on bail for drug
trafficking charges. His "heat checks" could have been unrelated
to the murder.
The trial judge even found that the affiant "deliberately
withheld relevant information that would have completely negated
the inferences he sought to be drawn by the issuing justice".
The court of appeal disagreed with this conclusion too, but
agreed that the officer should have included the information
about the trafficking charges.
I think that the Court of Appeal liked the caution with which
the affiant dealt with the unreliable source information.
It may have helped them conclude that the officer did not act in
Beware of leaving information out. Probably, the officer should
have included information about Mr Hafizi's outstanding drug
If you have information you think is untrustworthy, you can say
so in your application. That's a lot better than leaving the
Two men attacked Mr Pierre inflicting wounds that nearly killed
him. At the scene he said "Carl" or "Carlton" did it. He sank
into a coma for a month. When he first awoke, he wrote a name
"Karl Atire" on a piece of paper. At trial, Mr Pierre said that
was a mistake brought on by medications. He meant Carl Renous.
Police collected photographs of various people of interest,
including Mr Pierre's friends. Each face was quite different
from the others. The day after he awoke, police showed him these
photographs. Mr Pierre picked out Mr Charles,
2016 ONCA 892 as one of his assailants. He later told police
that Carl Renous was the other. Defence complained that this did
not follow proper lineup procedure.
Bad news: the investigators misplaced the picture of Mr Charles that they used in this lineup. This made for some embarrassing testimony. Good news: the investigators video-recorded the process, showed each picture to the camera. and preserved that video-recording. Bad news: the officers did not give Mr Pierre the standard instructions for a photo lineup. Good news: Mr Pierre claimed to know his assailants.
Later, when less medication flowed through Mr Pierre's veins,
the investigators did a fresh photo-lineup process with him,
using pictures of people that resembled Mr Charles. He picked Mr
Ordinarily, one uses a photo lineup to see whether a witness
can distinguish between a suspect and similar-looking people
unrelated to the offence. When the witness only met the suspect
during the offence, this method discriminates between
recognition, and mere similarity of the suspect to the felon.
When the witness knows the felon, this procedure packs less
punch: of course the witness recognizes an
acquaintance in the photopack.
Because Mr Pierre knew his attackers, the first photopack
served a useful purpose - it identified the felon. If he had not
known his attackers, it would have undermined any subsequent
Because the officers video-recorded the procedure so well, that
one could see in the video what picture Mr Pierre chose. That
reduced the impact of the misplaced photo.
That's unusual. No video-recordings I've seen of photo-lineups
captured clear images of each picture as the witness examined
them. In a recent trial I ran, it would have helped. You might
consider reviewing the video quality, camera angle, and
presentation methods you use when showing a photopack to a
Regardless how formally or informally you present pictures to
witnesses, carefully preserve the pictures you showed. Mark or
annotate the ones which the witnesses pick. Keep the
others as well. They are all exhibits. You'll need them at
In the case of Mr Charles,
2016 ONCA 892, described above, police found cell tower records
showing Mr Charles' cell phone travelled to the town where the
attack occurred, and returned to Toronto just afterwards.
The decision doesn't explain how police learned Mr Charles'
phone number. I suspect that an investigator relied upon hearsay
from a police database, or information from an uncooperative or
At trial, Mr Charles' probation officer testified that Mr
Charles gave him that phone number about 2 weeks before the
attack. Defence complained that the probation officer was a
person in authority, and Mr Charles did not give his phone
number voluntarily. The judges sided with the prosecution; but
they won't always.
I suspect that the idea of proving Mr Charles' phone number
through the probation officer was an afterthought, not a result
of considered investigation. I think this because I encountered
a similar problem this week, which I solved in a very similar
Investigators often work from what they "know" rather than what
can be "proved". When the matter comes to trial, the prosecutor
suddenly demands evidence to prove things that seemed obvious
during the investigation. And at the last minute, sometimes you
can't find witnesses to prove the obvious.
If the probation officer's evidence had been inadmissible, I'll
bet that the prosecution would have had a hard time linking the
phone number to Mr Charles.
If a fact like that underpins the whole case, take time to find
admissible evidence to prove it. For example, how do you prove
that a suspect used a particular cell phone number?
Some folks use words to tell you that they don't like being
arrested. Some use body language. Words of unhappiness do not
constitute resistance. At what point does the body language
become a crime?
During Mr Kennedy's
2016 ONCA 879 arrest for armed robbery:
One officer also said that Mr. Kennedy tried to pull away.
Did any of this amount to resisting arrest? The judges
agreed: "the offence of resisting a peace officer requires more
than being uncooperative: it requires active physical
resistance." The pulling away would be resistance. But what
about the other actions? Although Mr Kennedy's actions sat "at
the very low end of the scale of acts of resistance", these
actions constituted resistance. Anything less is not.
You often arrest or detain difficult and impolite people. From
paragraphs 31 to 35 this decision reviews a variety of
situations in which courts decided what constituted criminal
resistance and what did not. Most officers will profit by
reading them. I take from these paragraphs that "resistance"
involves applying force to the officer, or doing something which
requires force or energy which prevents or interferes with the
Good investigators never take the statements of two witnesses
in circumstances where one can hear the other's version of
events. It's all too easy to interview several people at once,
especially when eyewitnesses feel urgency to report to police
what they saw. But it undermines the statement they give
together because to the court looks like collusion - each
witness learns what the other saw, and may deliberately or
inadvertently start to describe the event the same way.
But that's just part of the problem.
Consider the unfortunate case of Ms Clause,
2016 ONCA 859. She invited Mr Martin to her house for a birthday
party. It went badly. Other guests beat up Mr Martin. He left
the party, but felt so angry, he returned to fight with his
assailants. He lost that fight too. And then someone stabbed him
in the eye. He and two eyewitnesses said Ms Clause was the
A jury convicted her, but for various reasons, the appeal court
ordered a new trial. One of the reasons involved collusion.
The eyewitnesses were Mr Martin's roommates. Only Mr Martin
gave a statement to police around the time of the attack. Their
close relationship raised a real concern with the court that
they might have deliberately agreed to name Ms Clause, or that
by discussing the case, some may have affected the memories of
others. The appeal court thought the jury should have been
instructed to consider that possibility.
How do you stop eyewitnesses from comparing their recollections
with each other? All you can do is ask:
"Before I turn off this recording device sir, I'd just like to ask you one more thing. It sounds like you and your roommate are important witnesses in this matter. Until this case finishes, could you please avoid discussing with her the details of what you saw?"
Although Mr Schouten,
2016 ONCA 872 looked, an officer noticed an odour of liquor on
his breath. It was the morning after "a local motorsports
event". The officer was checking the sobriety of drivers
emerging from the grounds.
Mr Schouten told the officer that he had not consumed any
alcoholic beverages for 10 hours, but he could not remember how
much, nor what he drank.
The officer believed that alcohol would be eliminated from the
body in 10 hours, but because of the odour, the officer demanded
that Mr Schouten blow into a screening device.
The screening device read a fail. Later, breath tests showed Mr
Schouten still had too much booze in his body to drive:
120 and 109mg%.
At trial, defence attacked the officers grounds: if the guy
looked sober, and last drank so long ago that he would not have
any booze left in his body, then it was unreasonable to suspect
that he had any booze in his body.
He won at trial. And at the first appeal. But he lost the
appeal that mattered.
All three judges in the Court of Appeal agreed: an odour of
liquor on the breath of the driver justifies making a screening
But notice that judges at two levels of court thought
otherwise. Some judges sympathized with the defence argument.
Those are the sorts of judges who may find other arguments
persuasive. Here are a couple of typical arguments, and ways you
can investigate in order to answer them:
|The officer mistook an odour emanting from
the car or the clothes of the suspect for an odour coming
from the breath.
||Take more than one sniff. Distinguish
between breath and body odours.
|The odour of liquor is subjective -
especially when the odour is faint.
||Get a second opinion from another officer,
especially if the suspect denies consuming alcohol.
2016 ONCA 857 fell asleep while driving a commercial vehicle.
The truck drove into oncoming traffic and killed someone.
Was falling asleep a crime? No.
But driving for too many hours without rest is. He faked his
driving logs, making it look as if he got enough rest.
Investigation into those driving logs discovered that he kept
himself awake and driving for way too long before the crash. And
a jury considered it criminally negligent to keep driving in
When a commercial truck driver crashes, you might want to
examine his log book.
2016 BCCA 440 stabbed his wife with a bayonet and strangled her.
At his murder trial, he said he did so because he honestly
believed that she wanted to die, and that she had attempted to
kill herself by consuming Valium. He asked the judge to acquit
him because if he was guilty of anything, it was aiding a
suicide, not murder.
The trial judge convicted him, and the appeal court upheld the
"Aiding" is merely helping another person to do something, not
doing it yourself.
Intentional killing another person is murder. He intended that
his actions kill her, and they did. He was guilty of murder.
People often confuse "intention" with "motive". Even if his
motive was to help her, his intention was to kill.
Most police officers turn on a recording device before
interviewing a suspect about the alleged offence. That's good,
because it provides a complete record of what you said to the
suspect. The judge needs that recording to determine whether you
put any unfair pressure on the suspect to talk.
If you do that, and you interview properly, then you can expect
lawyers to focus on conversation which occurred before you
started the recording device.
2016 ONCA 837 claimed that during the 2-minute walk from the
cells to the interview room, the investigator implied that
unless he talked about the offence, he would not get released
from custody. The investigator testified that he usually
said nothing while walking a suspect from cells to the interview
room, but could not recall if he talked with the prisoner on
The trial judge didn't buy Mr Carr's claim, but another judge
might. Those brief interactions matter.
Most investigators take care to record their interactions with
their suspect. But in my experience, the less an officer
participates in the investigation, the less care the officer
takes to record his or her interactions with the suspect. For
example, the officer who transports a suspect from the arrest to
the police station will often turn on no recording device and
take minimal notes. When that officer testifies, s/he has
virtually no memory of the conversation.
And then the defendant says "that's when the officer told me
that unless I explained what happened, I wouldn't get out of
jail" or "the officer told me that judges and prosecutors go
easy on guys who fess up".
Every officer who interacts with a suspect between arrest and
interview is a witness, and must be able to account for their
conversation and treatment of the suspect.
What do you do if you think there's contraband in the mail?
Well, there are lots of things you can do. One of them is to
involve the authorities at Canada Post. But you must do that
American law enforcement officials complained to Canadian
police that Mr King,
2016 CanLII 11698 (NL SCTD) was selling ephedrine over the
internet, and shipping it to the USA. Police investigated, and
found some evidence to support this complaint.
In a letter, a Canadian officer asked Canada Post to inspect Mr
King's outgoing mail.
That's a problem. You can't search mail. If you direct Canada Post to search someone's private mail, then Canada Post acts as your agent.
The officer realized this problem, and sent a second letter
which explained why this exportation was unlawful, and suggested
that Canada Post might examine these packages as "unmailable",
and if they found ephedrine that they might turn it over to
police.The judge still found that the officer turned Canada Post
into a police agent, even with the second letter. To this judge,
it still looked like the police were telling the postal
inspector what to do, and turning him into their agent.
There was a better way to write the letter. In situations like
this, your "request" should not read like a command but the
humble submission of information. It should state the
grounds which might move the postal inspector into action. But
it should leave the decision whether to inspect up to the postal
Dear postal inspector:
I received the following information, which suggests that Mr King is using your postal service to ship ephedrine to the USA:
I asked a lawyer at the Department of Justice, who told me that doing this is an offence because ... .
I have no authority to search mail in the course of post, nor can I request or require you to search mail on my behalf, and so I make no such request.
Only you have the authority to inspect mail. Only you can decide whether to inspect any of Mr King's mail.
Schedule 4 of the Non-mailable Matter Regulations defines any " item transmitted by post in contravention of an Act or a regulation of Canada." as "non-mailable". Section 4(d) of those regulations require you to deliver such mail to police. If you do encounter this kind of non-mailable matter in relation to Mr King, I would be the appropriate person to contact.
Please contact me if I can be of any assistance.
Some "missing person" reports waste your time. And sometimes
you meet a killer.
2016 ONCA 812 didn't like his daughters' boyfriends. By
disobeying his commands about their love lives, they offended
his sense of honour. Other members of his family shared his
offence. The four offended ones murdered the girls, and those
members of their family who supported them. The victims were
bashed on the head, placed in an old car, and pushed into a
Then the four killers went to the police station to file a
missing persons report.
Subsequent investigation proved that their reports were false.
Their statements became important evidence against them.
Most missing persons reports come from genuinely worried
people. But if it turns out that you interviewed the killer,
won't you be glad you recorded it?
A police investigation into a 2011 murder stalled, and the
prime suspect had fled the country. The lead investigator
thought that police could intercept his friends discussing the
murder with him if sufficient stimulus inspired the friends to
call him. Undercover officers would talk to the friends. Because
organized drug trade appeared to motivate the murder, the
undercover officers pretended to be connected to Montreal drug
suppliers, interested in "getting rid of" a "rat" - a witness
who spoke to police regarding the murder.
The original plan would have caused no difficulty. The U/Cs
would talk to each of the suspect's friends in public places
where they could walk away.
Instead, they cornered Ms Derbyshire,
2016 NSCA 67 one morning, and pressed her for information about
the murder. To everyone's surprise, she told them how she helped
the suspect dispose of evidence and flee the jurisdiction. For
the day, the officers controlled her movements: they took her
cell phone, and they demanded and received answers.
She was charged with accessory to murder. The case depended
upon her remarks to the police officers.
Through her lawyers, she complained to the trial judge that the
U/Cs terrified her with implied threats of serious harm or
death. In violation of her right to silence, they compelled her
to give information against herself. And she complained that the
officers' failure to record their conversations with her
violated her right to a fair trial.
I find irony in that last complaint. In Duarte,
 1 SCR 30, the court agreed with defence complaints that
without prior judicial authorization, covert recording of a
suspect's conversations violated his s.8 rights. Now a defendant
complains that failure to make such a recording violates her s.7
rights. The judges rejected this complaint. But the fact
that defence argued it suggests that defence counsel value
police accountability very highly. You can use transparency as a
factor to support the issuance of 1-party authorizations.
The judge believed Ms Derbyshire's version of the events. The
U/Cs were controlling and terrifying: the officers extorted a
confession from the accused by threats of violence. The judges
found that unacceptable, and excluded the confession.
The officers painted a less frightening picture of their
interactions. Perhaps a recording of the interaction might have
supported their version. But their testimony did not impress the
judges. One of the U/Cs did most of the talking; the other
seemed to recall very little of the conversation. The two U/Cs
and their cover man each described the operation and its
purposes in significantly different terms. The planning and
execution differed greatly.
This case offers suggestions for all police:
Two cases this week show how judges like it when police treat
suspects fairly. Here's the first.
2016 ONCA 772 walked into a police station and told the clerk he
wanted to confess to burning down his mother's house. An officer
came to speak to him. Mr Fernandes explained that he was
homeless and wanted to go to jail. The officer explained that
arson is serious, and punishable by imprisonment. The officer
urged him many times to get legal advice, and reminded him
several times that he was free to leave at any time. At first,
Mr Fernandes refused, but after a while, he relented, and spoke
with duty counsel. After that, he confessed.
Because police laid charges, I guess somebody did burn down Mr
Fernandes' mother's house.
At trial, Mr Fernandes' lawyer argued that the confession was
not "voluntary", for two reasons:
The trial judge agreed, and excluded the confession. Mr
Fernandes beat the charge.
The Court of Appeal rejected these ideas. The concept of
"voluntariness" protects the suspect from unfair pressures that
the police put on the suspect to get him to confess. In this
case, the officer didn't cause Mr Fernandes' homelessness. The
officer did nothing to coerce or tempt a confession from the
suspect. Quite the opposite. This officer put roadblocks in the
At first blush, I thought the officer went too far to persuade
Mr Fernandes to get legal advice. Mr Fernandes was not
detained, therefore section 10(b) of the Charter had not
triggered. But Mr Fernandes explained that he wanted to
go to jail. By doing so, he alerted the officer that the
usual incentive to remain silent did not apply. By urging Mr
Fernandes to get legal advice first, the officer showed the
judges that he was not going to take unfair advantage of Mr
Fernandes' desperate situation.
The appeal court liked this fair treatment, and ordered a new
When you make a breath demand of a driver, several obligations
Which one comes first?
2015 ABCA 354 caused a bad motor vehicle accident. At the scene,
officers feared that victims might die. When an officer asked
him to blow into a screening device, Mr Rowson wanted to call a
lawyer. Knowing the seriousness of the matter, the officer let
him talk to a lawyer for a short time before testing his breath.
Mr Rowson failed. The officer demanded breath for analysis, and
he later blew 117 and 105 mg%.
At trial, defence argued that the officer did not test Mr
Rowson's breath "as soon as practicable". Because the officer
"searched" Mr Rowson's body contrary to law, the officer
therefore breached Mr Rowson's rights under s.8 of the
Charter. The officer should not be permitted to rely upon
the "fail" result to justify the breath analysis demand. Defence
asked the court to exclude the results from the breath analysis.
The appeal court agreed that the officer breached Mr Rowson's
s.8 rights by allowing Mr Rowson to call a lawyer before blowing
into the screening device. But they disagreed that the breath
tests should be excluded. They sympathized with the officer, who
plainly recognized the seriousness of the situation, and
properly worried that Mr Rowson should get legal advice.
The Supreme Court of Canada agreed with the Alberta Court of
To answer the question I posed, the correct priority of events
But judges like it when you really care that the suspect gets
legal advice when he faces jeopardy.
Social workers received confidential tips that a child living
at the residence of Mr Noftall,
2016 NLCA 48 faced danger because he grew and sold marijuana
from that place.
The social workers decided to investigate. But they lacked
equipment, skills and training to handle the potentially violent
reactions of criminals who lived there. They asked a police
officer to accompany them.
Without a warrant, two social workers and cop entered Mr
Noftall's place, for the purpose of investigating a child safety
complaint. But this cop had experience taking down grow
operations. And the place smelled of growing marijuana.
The social workers told Mr Noftall they didn't need a warrant.
Mr Noftall took a social worker and the officer to his (small)
grow. An insecure rifle hung nearby, with ammunition at the
Mr Noftall complained that the officer violated his rights
under s.8 of the Charter. The trial judge figured that because
the officer merely accompanied the social workers for their
protection, the officer did not breach s.8. The appeal court
disagreed: after the officer smelled growing marijuana, the
officer should not have "searched" by going to the grow room.
Instead, the officer should have compelled Mr Noftall to wait in
the kitchen while the officer phoned for a warrant.
Telewarrant: Although the Criminal Code provides for oral
telewarrants, you should be very cautious of using them. You get
one chance to say everything perfectly. Nobody checks your work.
And if your forget to mention something important, things will
go badly at trial.
Search: I agree that when you enter a private residence without
a warrant and without consent, you must act in accordance with
the lawful authority that got you in there. If a situation
arises where you have reasonable grounds to believe that
evidence of a crime will be destroyed if you do not freeze the
scene, or search the place, then s.487.11
applies. You don't need a warrant. But you should limit your
warrantless searching to the least necessary. Get a warrant once
you get the scene under control.
Despite the breach, the court admitted the evidence. Mr Noftall
When police arrested Mr Day,
2016 NLCA 52 for drug trafficking, he shouted out to his
girlfriend not to say anything to police. At trial, he testified
that he had nothing to do with the pound of marijuana in the
trunk of his car, and suggested that maybe his girlfriend put it
The judge didn't find his testimony persuasive. What Mr Day
shouted to his girlfriend did not easily mesh with his innocent
explanation. And besides, his girlfriend had recently
texted him "the bags you gave me are done" and Mr Day replied,
“Don’t worry, I’ve got you”.
All too often, prisoners in police custody call out to each
other with advice or instructions about what to say during the
investigation. Those remarks can make a significant impression
on the trial judge, if you take the trouble of writing them
2016 NLCA 33 worked in a Newfoundland police station. Posted on
the wall in the drug section of her office, she noticed a
picture of her cousin.
She warned her cousin that he was being watched. Indeed he
was. But investigators found out that she violated her
oath of confidentiality.
She lost her job. She got charged with obstruction of justice.
The trial judge sent her to jail. (The appeal court reduced the
sentence to a conditional sentence, but only because she
confessed, she apologized, and she pleaded guilty.)
Leaks do happen. Beware of conflicts of interest. Supervisors
might want to tell this cautionary tale gently, not to threaten
staff, but to remind them of the harm they can do to themselves
when they feel the improper tugging of family ties.
Security video can prove independent events to a high degree of
confidence. I hope that you routinely look for security
video in the area of offences you investigate. Here's a case
from earlier this year which illustrates what to do.
2016 ABCA 204 drove a stolen truck. He took it to a 7-11, where
he had the bad luck to be noticed by an off-duty police officer.
The officer watched Mr Saddleback get gas, and pay for it inside
the convenience store. Because Saddleback looked particularly
suspicious, the officer called in other officers. Those officers
pursued the truck. Mr Saddleback fled and escaped. The store
security video was the only way to prove the driver's identity.
Security video evidence tends to suffer from some routine - and
avoidable - flaws. Those problems arose in the trial:
Everything turned out okay. The clerk remembered Mr Saddleback
from that day, and was able to testify that the video accurately
depicted what occurred when Mr Saddleback attended. The court
accepted the clerk's testimony that the video accurately showed
what happened when Mr Saddleback attended.
You won't always be so lucky.
Cst Vachon-Zee recognized a frequent offender sitting in the
passenger seat of a Chrysler Cirrus. He didn't recognize the
driver, Mr Mr Ali,
2016 ABCA 261. A computer search reported no concern that the
car was stolen. But the officer was suspicious. In his
experience, thieves often stole this model of car. He wanted to
know what the passenger "was up to", and to check whether the
car was stolen. He decided to check the ownership documents.
The car stopped when signalled to do so. An odour of fresh
marijuana wafted from the driver's window. The officer arrested
the driver, and on a search incidental to arrest, found crack.
At his trial, Mr Ali argued that an officer who stops a vehicle
to investigate crime needs reasonable grounds to suspect that
someone in the vehicle was involved in crime. The appeal court
agreed. If you're going to stop a vehicle to investigate crime,
you need more than mere suspicion.
But this officer also wanted to check vehicle ownership
documents. You don't need reasonable grounds to suspect
that a traffic safety offence is being committed to stop a car.
Courts call this a "dual-purpose" stop. Defence counsel
distrust you when, after the fact, you try to justify a stop as
a stop for vehicle safety enforcement. If you find something
interesting, they will cross-examine you for a long time.
Therefore, when your instincts tingle, and you want to pull
over a suspicious vehicle, think about what you're
investigating. If you have solid reasons to suspect crime, pull
it over. If you don't have solid reasons, consider whether
licencing and registration, sobriety and roadworthiness interest
If they do, actually investigate those issues. Make inquiries
over the radio or the on-board computer (if you have one). Ask
questions about that topic.
By the time you encounter drugs or stolen property, it's too
late to come up with excuses for stopping the suspect.
Sometimes, confidential sources provide good information.
Judges issue warrants and authorizations. Police bust bad guys.
Defence counsel then attack the process by which police
obtained the warrants and authorizations: did the officer who
applied for the warrants and authorizations accurately describe
the reliability of the sources, and the information they gave?
Should the officer have mentioned other information which tended
to undermine the source's credibility or suggested the warrant
should not have issued?
To ask that question, defence counsel ask for documents
relating to the information that the confidential sources gave:
Source handler's notes, source debriefing reports, everything.
"Full answer and defence", counsel cried.
Many judges agreed. But that risks identifying the
confidential source. Some judges assumed that redacting the
documents would suffice to protect the identities of the
Today, in R.
v. McKay, 2016 BCCA 391, BC's top court responded.
No. Defence is not entitled to everything. Only what's relevant
to what the officer knew (or should have known) when he or she
applied for the warrant.
No. Redaction does not always protect confidential sources.
Little bits of information can burn a source.
Defence is still entitled to disclosure when challenging an
authorization or warrant, but they need to show why disclosure
of the material may assist in showing that the authorization
should not have been granted.
This decision solves some problems in BC, particularly for the
RCMP's Human Source Unit.
When you apply for an authorization to listen to private
communications, you must identify an offence, and all the
persons you "know" whose communications you have reasonable
grounds to believe may assist in the investigation of that
Those people are "knowns". You need to identify them in order
to intercept their conversations lawfully. And if you knew about
them, and failed to identify them in the application, then even
if you do intercept their conversations, the court may exclude
the recordings from evidence.
So how much do you need to "know" to make a person "known"?
Two separate teams of police investigated what appeared to be
two separate schemes to import cocaine from Argentina to
Kelowna, BC. The two teams shared some information. There were
enough similarities to raise suspicion that they may be related.
It turned out that Mr Montgomery,
2016 BCCA 379 and an associate participated in both. The first
operation identified them. Wiretap captured their conversations
in the second investigation. They complained that the police
should have identified them as "knowns" when applying for the
authorization in the second investigation.
The court had no difficulty rejecting this argument. "Known"
needs to be reasonable belief, not mere suspicion.
But the test remains slightly weird. You must have reasonable grounds to believe that "probably", listening to this person's conversation "may" assist the investigation of the offence. The court noted at paragraph 92 the prospect of further litigation on this topic.
"On a dark desert highway, cool wind in his hair," Cst Ferguson
stopped a car driven by Mr Prestupa,
2016 SKCA 118. Okay, it was prairie, not "desert". And "cool"
understates the chill of Saskatchewan in January. A screening
device registered a "fail" when Mr Prestupa blew into it. Cst
Ferguson read him a breath demand.
That triggered an obligation to test Mr Prestupa's breath "as
soon as practicable". Cst Ferguson's police station lay 75 or 80
km away; other police stations were a bit closer. Mr Prestupa
asked the officer to let his parents pick up his car, rather
than allow it to be towed. Cst Ferguson agreed. They called his
parents. Meanwhile, Cst Ferguson called for a breath technician
to attend his detachment to test Mr Prestupa's breath. It took a
while for the parents to arrive. He left the scene 47 minutes
after the initial stop.
Cst Ferguson drove rather quickly back to his detachment. 75 or
80 km in 33 minutes. Hmm.
Mr Prestupa blew 190 & 180mg%.
At trial, Mr Prestupa complained that the officer did not test
his breath "as soon as practicable": there were closer police
detachments to which they could have gone.
The trial judge agreed, but the appeal courts didn't buy it.
The phrase is "as soon as practicable" not "as soon as
possible". And besides, there was no evidence that the
other detachments had breath-testing equipment and breath
technicians at the ready.
Several ideas emerge from this case:
Many tasks will slow you down. Impaired driving prosecutions
can fall apart if you:
Some of you encouraged me to write about the Supreme Court of
Canada's recent decision R.
v. Jordan, 2016 SCC 27.
It discusses trial delay - the legal wrangling, adjournments
and court scheduling conflicts that seem to have no relation to
Why did these police officers care? Because all their hard work
will go to waste if the court throws out a case that took too
What can police do about delay? Doesn't it all happen at the
Crown office and the court house?
There are some things you can do little about. If the
government won't pay for prosecutors, judges or courthouses,
then delays may mount.
But the courts often blame police for delays. Usually for late
Some officers find it difficult to sympathize with this
criticism. Collecting, vetting and packaging every little bit of
paper, digital information, photograph and video is a colossal
chore. It's boring, and the little bits of information that you
miss are usually unimportant in the big picture.
If you feel that way, try imagining that you were about to buy
a house. An expensive one. You will commit all of your money,
and you will sign up for a large mortgage. This purchase decides
your finances for the next 20 years. On the day of the deal, the
vendor hands you a folder containing 1,000 pages of documents
including maintenance receipts and at least 30 reports from
property inspectors who examined the house in the last 5 years.
Would you sign on the dotted line without reading the folder? At
least 30 purchasers paid for property inspections, and walked
away without buying this house. Are you sure about this?
That's how defence counsel feels when "new disclosure" shows up
just before trial. They don't want to start the trial until they
know everything about the case. The diligent defence lawyer will
ask for an adjournment. Judges sympathize. They grant the
adjournment. And they blame police for failing to provide the
disclosure in time for trial.
Clever defence counsel capitalize on this sympathy. I've seen
cases where the late disclosure of a single page of trivial
information resulted in an adjournment. And the court blamed the
delay on the police.
Delays lead to stays of proceedings.
What can you do?
General duty officers
Disclosure ain't the only problem you can fix.
When a warrant issues for an accused, when the charge is laid,
or later, make real efforts to find him. And if your first
efforts fail, make sure you follow up regularly. If the guy
leaves Canada, even
failure to pursue extradition promptly can count against
This post is long, but I did not explain the Supreme Court of
Canada's decision. I don't think that fine points matter much to
police. In a 5:4 split decision, the majority concluded that a
judge should generally kill a prosecution if the Crown or court
delay it more than 18 months ... unless there's a good
explanation. Cases in superior courts get 30 months. The
minority predicted problems with this one-size-fits-all
approach. The judges all agreed that delay is a bad thing, and
that the prosecution and its partners bear the burden of
bringing accused people to trial promptly.
The court breathed new life into the right to a speedy trial.
Defence counsel will look for reasons to blame you for delay.
Section 254(3) requires you to make breath demands "as soon as
practicable" after you realize that the suspect's ability to
operate a motor vehicle is impaired by alcohol. Some
officers arrest the suspect but forget to read the breath demand
at the scene. By the time they reach a police station, it's no
longer "as soon as practicable".
This case suggests an interesting solution.
2016 ONCA 572 crashed his car into another car, injuring the
people in it. He had been drinking. The attending officer got
distracted by the chaos of the accident scene. At the scene, he
arrested Mr Guenter for impaired driving causing bodily harm,
but he only got around to reading the demand at the police
Lucky for him, the breath technician had his own way of dealing
with things. The breath tech always:
The court found that the investigator's breath demand was not
made "as soon as practicable", but the breath technician's
demand was. The breath tech learned from the investigator that
the suspect drove while impaired, and then promptly demanded
breath samples. That (new) demand lawfully required Mr Guenter
to blow, even if the first one didn't.
About 2 hours after the crash, Mr Guenter blew 170mg%. The
evidence was admitted, and Mr Guenter was convicted.
Does that mean every breath technician should now emulate this
breath technician in every case?
I don't think so. Not only must the demand be made as soon as
practicable, but you must test the suspect's breath as soon as
practicable too. In ordinary cases, where the first breath
demand was properly made, defence can argue that making another
one wastes time.
If your colleague arrives at the police station, and then
remembers to read the breath demand, you can save his or her
investigation by asking your colleague for the evidence and
information which suggests that this person - within the
preceding 3 hours - operated or had the care or control of a
motor vehicle while impaired by alcohol. If the answers satisfy
you, you can make the demand "forthwith or as soon as
practicable". After your demand, let the suspect speak to
counsel again if desired.
Until I read this decision, I would have doubted the lawfulness
of this procedure. If you use it, expect prosecutors and defence
counsel to challenge your actions. Bring them copy of Guenter,
2016 ONCA 572 to explain yourself.
In some provinces, including Ontario, when drivers crash their
cars, legislation requires them to tell police what happened
when police ask. But the right to silence means that suspects of
crimes can't be compelled to explain their involvement. This
case explored the interaction between right to silence,
statutory compulsion, and a police officer's duty to hold off
eliciting evidence before a detainee got his right to counsel.
2016 ONCA 572 was drunk. His car crashed into another car
injuring its occupants. But who drove his car?
The first police officer to attend asked Mr Guenter if he was
hurt. Mr Guenter replied "No. My heart hurts because I
feel bad for hitting this vehicle with a family in it."
After an officer arrested him for impaired driving causing
bodily harm, he banged his head on the hood of the cruiser. He
later blurted out - of his own accord - things like "drank too
much J.D.”; “I smoked weed”; “a couple of beers, it’s
Christmas". " I made a mistake. I was at a Christmas party. He
shouldn’t have turned in front of me."
He also said: "Shoot me in the back of the head.” “Shoot George
too. He ran into the bush.” “I should have never let him drive.”
At trial, Mr Guenter testified that another guy named George
drove the car.
His earlier comments proved he drove. Were they admissible?
His lawyer argued that legislation compelled him to tell the
officer about the accident. Therefore, admitting these remarks
would violate his right to silence. But the prosecution pointed
out that the officer asked about his health, not about the
accident. The judges agreed.
His lawyer argued that after the arrest, everything that Mr
Guenter said before he got to talk to a lawyer should be
excluded. The prosecution responded that after detention or
arrest, police must hold off eliciting evidence from the
suspect. That's what these officers did. They asked no
questions. They weren't trying to get evidence out of him before
he spoke with a lawyer. Mr Guenter volunteered these remarks of
his own accord. The judges agreed.
Mr Guenter was convicted.
In B.C., the legislation no longer compels drivers to give
explanations for accidents to the officers who attend. Before
detaining a BC driver at an accident scene, you can ask
questions, knowing that the answers won't be excluded from
In other jurisdictions, officers need to gather information
from other sources than the driver.
At trial, defence will challenge your version of how these
When a detained suspect blurts out information of his or her
own accord, the investigating officer rarely has a notebook open
and a pen in hand. A subsequent
decision dwelt upon the value of contemporaneous audio
and/or video recording during these dynamic interactions. I
agree, but with caution. Making lots of audio or video
recordings means storing, disclosing and transcribing lots of
recordings too. It's the way of the future, but I suspect it
costs more than most proponents realize.
Some drug dealers complained to police of a couple of home
invasions committed by men with guns.
Police suspected two buddies Keenan and Kelman, both drug
dealers and users. One day, when they were both in custody,
police made them an offer: lead us to the gun used in the first
robbery, and you'll get bail. They accepted the deal, produced a
gun, and - with the consent of Crown - they got bail.
A little while later, police told Keenan that he would soon
face charges over the first home invasion. Keenan gave a
statement. He told police he was the getaway driver. He named
Kelman and his friend, Mr McGown,
2016 ONCA 575 as the robbers who entered the house.
All three got charged. Keenan, the rat, pleaded guilty, and made arrangements be sentenced on the basis of his police statement. Kelman also pleaded guilty and got sentenced. McGown wanted a trial.
At the preliminary inquiry, Keenan testified for the Crown. He
gave a new version. He wasn't the driver, his good buddy
Kelman was. He went into the house with McGown.
Keenan got sentenced as the driver. He even got a reduced sentence because he "cooperated" with the state.
At trial, Keenan testified for the Crown. He was the only witness who could establish that McGown participated. He gave much the same story as he told at the preliminary inquiry. Defence pointed out that his "cooperation" with the Crown involved admitting that he didn't take full responsibility at sentencing for what he did. He was a liar that manipulated the system. That undermined his credibility.
His good buddy Kelman testified for the defence. Kelman agreed
that he, Kelman drove the car. Indeed, much of his story matched
Keenan's version. But Kelman said that his good buddy McGown
wasn't even there. Oh, no. Some other dude he didn't know
participated in this crime. A stranger. Some friend of Keenan's.
The judges believed Keenan the rat, not Kelman. McGown went
down. But only because other evidence confirmed that Keenan told
some truth, and there was no evidence to suggest that Keenan was
protecting some third party.
Beware of rats. Their statements sound great. Confirm
everything that you can. When these folks reach the court room,
their testimony often changes. Sometimes dramatically. Don't
offer them special deals, immunity or reduced sentences without
Crown's blessing ... and lots of documentation. Because at
trial, you will look like a fool if it appears that the rat
Can a judge authorize a police officer to disobey legislation?
2016 ABCA 232, the Alberta Court of Appeal seemed to suggest
that a judge may issue a General Warrant which authorizes a
police officer to disobey s.10(a) of the Charter. I expressed
some discomfort with that notion. Just a few days earlier, the
Ontario Court of Appeal held that a General Warrant can not
authorize a police officer to disobey s.503 of the Criminal
Code. This decision makes more sense to me.
Even though the court held that the officers breached Mr Poirier's,
2016 ONCA 582 rights, you gotta give them some credit for trying
to do this one correctly.
Reliable confidential sources told police that Mr Poirier sold
drugs. Whenever he wasn't selling, he stored them in his rectum.
The investigating officers obtained a general warrant which
authorized the officers arrest Mr Poirier and to hold hold him
for as long as it took him to defecate all the drugs out, and to
watch him and control him so that he did not conceal or destroy
the drugs during this vigil.
It took 43 hours. In stages separated by many hours, Mr
Poirier eliminated crystal methamphetamine, heroin, cocaine and
Dilaudid. Each time something came out, he told the
officers that was everything. And then later, more came out.
Defence complained that this was not a search, but a detention.
Section 487.01 - the General Warrant section - empowers a judge
to authorize police to "...use any device or investigative
technique or procedure or do any thing described in the warrant
that would, if not authorized, constitute an unreasonable search
or seizure in respect of a person or a person’s property".
The court disagreed: it's a search that takes time because of
the passive nature of the searching: the police just watch till
nature takes its course.
After an arrest, s.503 requires you to bring your prisoner
before a justice "without unreasonable delay" and within 24
hours (unless no justice is available).
Defence complained that s.487.01 does not empower a judge to
authorize police to disobey the Criminal Code. The court agreed.
Reasonably promptly after the arrest (not at the 24-hour mark),
the officers should have brought the prisoner to a justice of
the peace, and asked the justice to order that Mr Poirier be
detained in their custody to complete their execution of the
But the officers made some other mistakes, which resulted in Mr
Poirier's acquittal. See below...
As described above, a judge authorized police to perform a
"bedpan vigil" on Mr Poirier,
2016 ONCA 582. Mr Poirier excreted lots of drugs. But there were
The officers in this case used the General Warrant legislation
in a creative way. The court approved. But the officers got
distracted by the complications of executing it. Perhaps Mr
Poirier was not a congenial guest. It looks like the officers
lost track of some basic principles of handling prisoners. We
can learn much from this investigation.
Will Duval wrote me: "Here's a good suggestion for your website..."
He's right, damn him. I spent many hours thinking about what to
write about this difficult case.
In their homes, people enjoy a right of privacy from the
government. As a police officer, you can't enter or search
people's houses except with lawful authority, such as a warrant,
exigent circumstances, or permission from a person who lives
But can you knock on the front door?
Long ago, some officers received a tip that Mr Evans,
 1 SCR 8 grew marijuana in his home. Because other
investigative approaches failed, they knocked on his door and
explained that they were there to investigate a grow at the
residence. Oddly enough, when Mr Evans opened the door, they
smelled green marijuana, so they arrested him, and took down his
All the Supreme Court judges agreed that in the absence of
contrary indications, an officer may assume that every resident
of a home offers an invitation to people to come and knock on
the front door (or ring the doorbell) to communicate with the
residents. But four of the seven judges added a
limitation: this "implied invitation" invites only
communication, not searches for evidence against the residents.
Although these officers wanted to talk to the occupants, they
also wanted to sniff the air when the residents opened the door.
That intention turned the door-knock into an unconstitutional
So, if you suspect someone committed a criminal offence, and
you approach his home with the intention of gathering evidence
of the criminal offence from a resident there, then you breach
his s.8 rights when you knock on the door (and may breach his
rights even when you set foot on his front walk). But you
may lawfully knock on the door if all you intend to do is
communicate with the resident. You can knock and talk even if
you suspect that the resident committed the offence you're there
to investigate. You can even talk about the offence. And
if you discover evidence during this conversation, it's all
good. But only if your initial intention was just to talk.
2016 SKCA 105 backed his car into another vehicle, causing
negligible damage. A witness thought he was drunk, and called
the licence plate in to police. An officer went to Mr Rogers'
apartment to investigate. When the officer knocked on the door,
Mr Rogers opened it. He looked, sounded and smelled
intoxicated. The officer arrested him, and demanded breath
samples. Mr Rogers blew 270mg%.
Depending how you look at it, the legal trouble began when the
officer knocked on Mr Rogers' door, or it began in court, when
the officer answered questions about what he intended to do when
the door opened:
So your purpose in attending at Mr. Rogers’ home was to determine whether he had been the person driving, correct? A
And more importantly, whether his ability to operate a motor vehicle was impaired. A
And you would agree that the observation made of a suspected impaired driver’s appearance, demeanour, speech, and actions are critical pieces of investigation in an impaired driving investigation?
Yes. They are what form my grounds.
But going back to my question, you knew that the minute you opened the door you would be able to gather evidence regarding Mr. Rogers. A
Not necessarily. The minute he opened the door is when I would start observing to determine whether or not I had ... any grounds.
If the officer's only purpose in knocking had been to speak
with the occupant to find out who drove the car, then the knock
wasn't a search. But the Court of Appeal judges agreed
that this officer's knock was a search because he intended to
secure evidence. And because no judge granted a warrant to the
officer permitting him to do that, this was an unlawful search.
Evidence excluded. Drunk driver acquitted. The judges explained
that they simply followed the law set out by the Supreme Court
of Canada in Evans.
If you think the legal trouble started with the officer's
admission that he was looking for evidence, then your solution
to this conundrum would be to lie in court when answering
questions about your motives when you knocked on the door. I
disapprove. Not only would this be perjury, but any good
cross-examiner will reveal it to be perjury. Goodbye career.
I think the legal trouble started at the door, not in the court
After reviewing many similar cases, they commented:
"There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive..."
Where's the line? Talking with the residents is okay -- even
about the offence. Knocking on the door in the hope of
seeing evidence like symptoms of impairment isn't.
You have a general duty to investigate, but the courts chastise
the officer who does try to gather evidence at the door. How do
you avoid this problem?
By respecting the privacy of the home. If all you're allowed to
do is talk, then you might deliberately limit your ability to
see evidence in the residence and smell the breath coming from
the suspect. You might knock, and then move as far back as
possible while still being able to talk. Fully explain why
you came, and invite the suspect outside, or ask for permission
This approach raises two problems:
I don't think the law requires police to render themselves
vulnerable to attack. At the door of the suspect's residence,
keep watching for dangers, and routinely position yourself for
I do think that the law limits your investigation. In some
cases, exigent circumstances may justify entering the residence
to preserve evidence.
But not in this case. No doubt, with every minute, Mr Rogers'
liver was busy removing alcohol from his bloodstream.
Definitely, evidence was disappearing. But you can't rely on
"exigent circumstances" to enter unless you know that an offence
probably occurred. This officer had only reasonable suspicion.
In s.487.11, the Criminal Code permits you, in exigent
circumstances, to search for whatever a search warrant will let
you find, "if the conditions for obtaining a warrant exist".
Search warrants require probable grounds. You can't use this
power if you have only a reasonable suspicion. And besides, a
search warrant won't authorize you to sniff a suspect's breath
nor watch his "appearance, demeanour, speech, and actions".
I do not expect the Supreme Court to clear this up any time
soon. In Evans, the court divided 4:3. In the similar
case of Feeney,
 2 SCR 13, they divided 5:4. In MacDonald,
 1 SCR 37, 2014 SCC 3, they divided 4:3. In each of these
cases, the court considered how a police officer should behave
at a suspect's door. In each case, their conclusion conflicted
with previous case law.
Thank you, Will Duval, for pointing this case out.
What evidence could have helped determine whether Mr M.T.L.
2016 YKCA 11 raped his friend's fiancee?
The complainant spent an evening drinking with her friend, Mr
M.T.L.. Through the evening, she sent text messages to her
fiancee to join them. At the end of the evening she slept at Mr
M.T.L.'s place. That's where the sex happened. But did she
consent? Afterwards, she sent a text message to her fiancee
about the encounter. She went to a hospital, where a doctor
found redness and soreness in her genitals. She declined a
formal sexual assault exam. After she complained to the police,
Mr M.T.L. allegedly sent her a message threatening to commit
suicide unless she told everyone that she lied.
The investigating officer never examined her cell phone.
According to her, she offered her cell phone, but the police
weren't interested. According to the officer, the complainant
told him that she was using a "loaner" cell phone which was now
wiped and returned to the phone company. No messages remained.
The trial judge convicted Mr M.T.L.. The appeal court
ordered a new trial, worrying that perhaps the complainant
Cell phones pack a great deal of information these days. In a
case such as this, the content of the text messages before and
after the incident could probe the complainant's feelings toward
her fiancee: if they showed that she loved him that night and
wanted him to join them, then she wouldn't likely cheat on him.
The timestamps could help determine when the important events
I can't say from reading the decision what really happened with
the cell phone. If the complainant was right, then the cop
missed some important evidence. If the cop was right, then the
complainant destroyed important evidence.
Lots of complainants have told me over the years that they
offered additional evidence to the investigating officer, but
the officer wasn't interested. When I asked officers to follow
up, I receive mixed results. Sometimes the cop missed key
evidence. Sometimes, it's useless information.
It's easy to understand why an officer might discount their
ideas. Distressed people often don't think straight, and often
express themselves badly. Some are crazy, and some just sound
crazy. It takes time and patience to distinguish between the
In this case, the completeness of the investigation mattered to
the appeal judges. You may be called upon to explain why you
didn't follow a specific investigative lead. This case
illustrates how important that explanation may become to the
I think of it this way:
If you ignore a potential source of evidence, someone may ask
When can you search the contents of a vehicle?
Ontario's courts developed rules around inventory searches,
based upon their legislation. The rules in other provinces
differs, according to the applicable legislation available to
In two decisions, the Ontario Court of Appeal recently reviewed
this area of the law.
Late at night, police officers driving an unmarked car watched
2016 ONCA 597 visit a couple of gas stations. He went into the
kiosk several times, he bought nothing, he came out. He drove
away fast, through a MacDonald's parking lot, as if to shake
someone following him. He drove to another gas station, and went
into the kiosk. The officers told him to stop and tried to talk
to him, but he fled, discarding his keys. He left the car
unlocked. (He explained that he thought these plainclothes
officers intended him harm; he did not know they were police.)
An officer searched it for identification. When he found a
firearm, he applied for a search warrant before searching
further. The trial judge found that the search for
identification was lawful, and even if it wasn't, the officers
had authority to do an inventory search when they impounded this
abandoned car; they would have found the gun anyway.
The court of appeal disagreed. The officers reasonably suspected
that Mr Dunkley was up to no good, but did not have sufficient
grounds to arrest him. Reasonable suspicion authorizes you to
stop someone, and search for officer safety. But this empty car
posed no risk to them. Reasonable belief - that the
suspect probably committed crime - permits you to search the
suspect and his vicinity for evidence. The court found that the
officers' observations did not meet this higher standard.
Finally, the court considered whether the officers could do an
inventory search. Section 221
of Ontario's Highway Traffic Act permits officers to impound
"abandoned" vehicles. But the court observed that nothing about
the way this guy parked his car indicated an intention to
abandon it. The officers made him run away. This was not an
"abandoned" car. Lacking any justification for the search, the
court excluded the evidence.
A police officer saw two cars racing. He pursued one of them -
an Acura - into a dead-end street. He found it parked in a
driveway at a different address than the registered owner. A guy
in an oversize white shirt walked away from the vehicle. Another
officer found Mr Ellis,
2016 ONCA 598 nearby, wearing an oversize white shirt. Mr Ellis
lived at the same address as the registered owner of the
Because the computer system flagged Ellis as a gang member, an
officer patted him down for weapons. Something in his pocket
felt hard. The officer asked him to empty his pockets. Ellis had
a cell phone and keys for an Acura. The officer returned them.
After discussing these details with the first officer, the
second officer arrested Ellis.
Police then searched the car for identification of the driver,
and found a handgun.
The court approved of the pat-down search of Mr Ellis. There
were grounds to detain, and reason to fear that he might harm a
The court held that the police lacked authority to search his
car as part of the arrest. Although the officers had reasonable
grounds to arrest him for "careless driving", the other
preconditions for search incidental to arrest did not apply. Mr
Ellis had put 50m between himself and the car - it wasn't close
enough to be in his vicinity at the moment they arrested him.
And there was no reason to believe that searching the car would
discover evidence of careless driving.
On the other hand, the court found that this car was
"abandoned", because Mr Ellis parked it in a stranger's
driveway, in a position likely to block access to vehicles. An
inventory search was inevitable, and the police would have found
the gun. The court upheld Mr Ellis's conviction.
For Ontario officers who discover a recently-driven vehicle,
this pair of decisions sheds a little light on whether it is
"abandoned": if the car will be a nuisance to other drivers,
then it may be abandoned. If it's parked normally, it may not.
But other factors may lead judges to other conclusions.
For all officers, these decisions illustrate the limitations of
search incidental to detention and search incidental to arrest.
But I would add some cautions. The Ellis case does not establish
a 50m limit for the "vicinity" of the arrest. Time also matters.
Suppose you pull over a vehicle for an offence, and the suspect
flees. If you chase him and catch him 100m from the car and
arrest him, I think you can search his car incidental to arrest.
But if you find him 30 minutes later, only 25m from the car, you
Both cases emphasized the narrow scope of a search for officer safety. In the Ellis case, the suspect's gang associations justified police fears. The judges liked knowing that the officer who searched for officer safety returned the items immediately. This proved that the officer was not snooping for evidence. In the Dunkley case, they rejected the idea that the officer searched the empty car for officer safety: it posed the police no danger.
Even though s.8 of the Charter guarantees everyone's privacy,
judges can authorize you to intrude into the privacy of the
targets of your criminal investigations.
But can you stop someone without telling them the truth about
why? Section 10(a) of the Charter requires you to tell people
why you detained or arrested them. But sometimes, you need to
withhold the truth. Is there a provision of the Criminal Code
which permits this?
Albertan police were investigating Mr Whipple,
2016 ABCA 232 and others for drug transactions. They didn't want
their targets to know that a judge granted a wiretap
authorization in respect of their communications. From
intercepted communications, the officers knew that Mr Whipple
would transport methamphetamine. They obtained a General Warrant
to search Mr Whipple's car. That order authorized the police to
mislead Mr Whipple - if necessary - as to the reason for
The officers actually found Mr Whipple committing a traffic
infraction. They didn't need to mislead him about the reason for
the traffic stop. And they did, quite quickly, inform Mr
Whipple of the drug search too.
Defence complained anyway. They pointed out that s.487.01
creates exceptions to s.8 of the Charter, but not to s.10(a).
The trial judge agreed, and ruled that the general warrant was
The Court of Appeal disagreed.
They observed that the general warrant authorized police to
search Mr Whipple's car, which is a matter under s.8 of the
Charter. The fact that it authorized police do the search
in an unusual way did not invalidate the general warrant.
The way they saw it, the interference with Mr Whipple's s.10(a)
rights was necessary to the execution of a justified general
I dunno. My gut urges caution. Because s.487.01 only
permits police to do what would otherwise be an "unreasonable
search or seizure in respect of a person or a person’s
property", I still don't think that s.487.01 can be used - by
itself - to authorize police to lie to detainees about why they
In this case, if there was any authority to permit police to
lie about the reason for a detention, I think it came from s.186
- the wiretap provision. If the wiretap operation required
ongoing secrecy to achieve its purpose, then a judge exercising
the wiretap powers could make a specific order pursuant to
s.186(4)(d) ("... such terms and conditions as the judge
considers advisable in the public interest") which would protect
the secrecy of the authorization.
But I can think of situations in which no existing legislation
could help. Suppose a confidential source tells you that
right now, a terrorist is driving to a daycare to blow up
children. The source begs you to lie to the suspect about your
reason for stopping him. She tells you that his colleagues know
what he's going to do today, but only she knew which daycare he
decided to hit. You find the suspect's vehicle on the road one
block away from the daycare. It commits no traffic violations.
Of course you stop the van. What do you tell the driver?
I think you should lie. The suspect has a right, protected by
s.10(a) of the Charter, to know why you stopped him. You would
violated that right. But the source has a right, protected by
s.7 of the Charter, to life.
I think that Parliament should pass legislation by which a
judge may authorize a police officer to lie about the reason for
a detention. This case illustrates why such legislation makes
sense. I also think that there should be an exigent
I thank Cst. S.D. Smith for bringing this decision to my attention.
Last year, I wrote about this case. Last week, the
Supreme Court of Canada weighed in. Although the court
overturned the Alberta Court of Appeal's rulings, my suggestions
for police remain the same. I repeat them here, so that you can
Mr Villaroman 2016 SCC 33 brought a Macintosh computer to a computer store for repairs. Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net. Links in the file system suggested that someone viewed the files too. The two people who lived with Mr Villaroman did not put the files there. But was it Mr Villaroman? The trial judge thought so, and convicted him. The appeal judges weren't so sure. The one account had no password. They said.
"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."
The Supreme Court of Canada found that the Court of Appeal
erred in their re-assessment of the case by speculating about
innocent explanations for the evidence in the computer. But the
court also commented that a different trial judge could have
acquitted Mr Villaroman based on the same evidence.
It's clear that they sought judicial authority to search the computer for child pornography.
With the benefit of hindsight, I see that searching for probative non-criminal data might have helped. For example, I don't think they looked for emails with similar date stamps as the pornography. If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.
Can you snoop through the emails? Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search. Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant. And the warrant should explicitly grant you that authority.
Playing armchair quarterback, I suggest that the investigator
in this case could have sought authority "to search emails,
stored communications and documents in the computer bearing date
stamps close in time to the date stamps associated to the child
pornography for evidence of who operated the computer at the
times when the child pornography was downloaded, viewed or
Mr Winchester bought guns. Legally. 45 guns over 6 months. Police received information that he sold them on the black market, and got search warrants for several places, and got Mr Winchester's cell phone. In it, they found text messages that proved Mr Marakah, 2016 ONCA 542 committed firearms offences. The trial court found that the police violated Mr Winchester's s.8 Charter rights during their search. Mr Marakah asked the trial judge to exclude the text messages from his trial because he still enjoyed an expectation of privacy over them. Even though the police found them in someone else's phone.
The trial judge found that Mr Marakah had no expectation of privacy in the text messages in Mr Winchester's phone. Even though police searched Winchester's phone unlawfully, the court admitted the text messages from the phone into Mr Marakah's trial.
Two out of three appeal court judges agreed with the trial judge. They rejected the reasoning of the BC Court of Appeal in Pelucco, 2015 BCCA 370, which reached the opposite conclusion in a similar situation.
But those Ontario judges didn't say what you wanted them to say: "A person who sends text messages to another person always loses any expectation of privacy in those messages." See para 78. An explicit arrangement or guarantee of confidentiality between sender and recipient may create an enforceable expectation of privacy. But that's the exception in most cases, not the norm.
Therefore, in Ontario, most of the time, the sender of text messages doesn't enjoy an expectation of privacy in them after they arrive in the recipient's phone.
When courts of appeal disagree with each other, the law becomes confused.
Because people use text messaging so much, on phones and other communication technologies, you want clarity.
Because one Ontario judge disagreed, Mr Marakah can, if he wants, require the Supreme Court of Canada to hear his appeal.
Why would an officer take DNA samples from a suspect? The answer is easy: to identify the suspect. I suggest that if you do not know the suspect very well, you will want to take a photo of the suspect's face at the same time as you take the samples, so that you can remember whose DNA you got.
In a recent case of mine, a police officer in one city assisted another officer in another city by executing a DNA warrant on the prime suspect. The officer who executed the DNA warrant had no other involvement in the case, and met the suspect for only a few minutes.
Two years later, at trial, the officer couldn't remember the face of the defendant. Considering the purpose of DNA comparison, this tended to defeat the work he did taking the sample. Fortunately, he did take care record information from suspect's driver's licence, and compare the photo on it with the face of the suspect.
Can you take a picture of the person from whom you take the bodily samples? Defence counsel might argue that doing so violates s.8 of the Charter. "If it ain't in the warrant, you can't do it." I observe that the Criminal Code makes no provision for photographing he suspect at the time you take bodily samples. Instead, s.487.07(3) requires you to ensure that the suspect's "privacy is respected in a manner that is reasonable in the circumstances".
I think you can. In B.C., the case of Multani, 2002 BCSC 68, the court approved of officers taking photos of drivers they detain for traffic offences, for the purposes of identifying the driver afterwards. I think the same logic applies to the execution of a DNA warrant.
Indeed, I would go further, and suggest that you can video-record the execution of a DNA warrant for the purpose of proving compliance with the terms and conditions of the warrant. Police did this in an old case Kanuma, 2002 BCSC 355
I learned recently that RCMP recruits learn at Depot how to take bodily samples for DNA analysis. The RCMP here in BC use a kit, which contains a checklist to follow. I suspect that someone trains them to follow the checklist.
Checklists can make junior officers complacent.
When you execute a DNA warrant, your authority comes from the warrant, not the checklist. Read the warrant. If the warrant tells you to something different from the checklist, then obey the warrant.
Angel Daley, 2016 ONCA 564 tried to pawn jewellery at Money Mart. Her friend Sharon Stockton, waited outside in Angel's car. The clerk the store noticed that Angel's jewellery resembled stolen jewellery depicted in a recent police flyer, so she called police.
The police who attended tried to figure out whether Angel's jewellery was the stolen jewellery depicted in the flyer. Meanwhile, they wouldn't let her go. Therefore, they "detained" her. For approximately 40 minutes. Without telling her of her right to counsel.
From her, they learned about her car, waiting outside. An officer spoke with the friend, and saw more jewellery in Ms Stockton's possession that looked like stolen jewellery. He arrested her, searched the car, and found Angel's fentanyl, and a rather nasty knife.
At trial, Ms Daley's lawyer asked the judge to throw out the evidence: 40 minutes of waiting demands an explanation; and detentions trigger rights to counsel. They complained as well of an unlawful search.
The trial judge admitted the evidence, but the appeal court threw it out. Nobody explained why looking at some jewellery took 40 minutes. In the absence of an explanation, the detention was arbitrary. The officer should have given Ms Daley her right to counsel. (The judges agreed that the search was lawful.)
We all know that you can overlook important evidence when you move too fast. This case suggests that you can also cause trouble by going too slowly while a detained suspect waits. I suspect that the officer stopped Ms Daley from leaving the store, and then slowly and methodically figured out what the problem was. If it looks like a detention will take a significant time, then you should talk to the suspect about lawyers. If it does take a long time, you may need to explain why.
Over the last several years, judges reached different conclusions on whether you need a production order or wiretap to compel a telephone company to disclose text messages stored in their servers. Last week, the Ontario Court of Appeal weighed in. Here's the current list, by province:
I think this issue is now pretty much decided: production order, not wiretap.
Similarly, a search warrant is an appropriate tool to search cell phones for text messages. Desjardins, 2014 QCCS 6790
Last week, the British Columbia Court of Appeal published a decision it made 6 years ago. R. v. Lising, 2010 BCCA 390. I don't know why it took so long. It remains interesting reading for officers who deal with confidential sources and agents.
For 10 years, Michael Plante collected debts for the Hells Angels. In 2003, after an arrest for extortion, Plante decided to work for the RCMP by infiltrating the Hells Angels. The RCMP paid him handsomely: over $1M over several years. All he had to do was help the police bust the gangsters ... while committing enough crime that the gangsters would continue to trust him.
A cop named Bob Paulson oversaw the project. He saw a problem. The public pays police to prevent crime, but this project involved paying a guy to commit crime. That participation would make the police parties to Plante's crimes. Canadian law requires police to obey the law, not break it. Police officers don't get a mulligan just because they're trying to catch bad guys.
Fortunately, a couple of years earlier, Parliament passed legislation enabling specially-designated officers to authorize a person to do things that would otherwise be crimes. s.25.1.
If you use the legislation, then these acts aren't crimes, so I'll refer to them as "acts".
How does that work?
Investigative plans take time to develop. While working with police, Mr Plante intimidated witnesses, ripped grows, and trafficked in large quantities of drugs and firearms. It took many months for police to prepare a Letter Of Agreement (LOA) which set the ground rules for Mr Plante's immunity from criminal prosecution. (There were several LOAs after that.)
Although s.25.1 and similar provisions in the CDSA justified some of Mr Plante's "acts", others were crimes.
The investigating police were parties to the crimes. Defence applied for a stay of proceedings.
But Bob Paulson did some things the court liked.
The handlers did some things the court liked.
Mr Plante did some things the court liked.
These things resulted in:
Even though the police and Mr Plante did not comply immediately nor completely with s.25.1, the court denied the defence application, and the Hells Angels who were convicted at trial lost their appeal.
And Bob Paulson got a promotion.
Despite its age, I think this decision remains worthwhile reading for police officers. It reminds officers of highest principles: police enforce the law, but are not above the law. This applies as much to traffic cops as organized crime investigators. And it demonstrates practical steps you can take when working with nasty people.
A confidential source told police that Mr Reid, 2016 ONCA 524 kept firearms in a specific storage locker. Relying almost entirely on what the source said, police applied for, and obtained, a warrant to search that locker. They found guns. Lots of them. Stolen only a few days earlier.
What the police found suggests that this source enjoyed a position very close to the criminals. Obviously, this source would not want to be identified.
At trial, defence applied to quash the warrant.
As required by the case of R. v. Garofoli,  2 SCR 1421, the prosecution had to disclose a copy of the original application. Before doing that, the prosecution redacted (deleted) from the application everything that tended to identify the source.
This source was too good - almost everything s/he told the police tended to identify him/her. After redaction, what remained could not justify the issuance of the warrant. Mr Reid would win the application, and beat the charges.
The prosecution moved to Garofoli's "Step 6": the prosecution prepared a summary of the confidential source's information. The summary contained too little detail to identify the source, but just enough to explain why a warrant could issue. The prosecution gave that summary and the original unredacted application to the trial judge, and asked the judge to determine whether the summary fairly explained what the confidential source told police. The judge compared them, and found the summary accurate. The prosecution gave the summary to defence.
Working from the summary, defence complained that the original application failed to spell out what criminal record the source had, whether the source faced outstanding charges, and whether the source had previously given information to a police force. Defence complained this was essential information which the first justice needed in order to decide whether to trust the source and issue the warrant.
These are fair complaints, but they didn't succeed because of the very detailed information this source gave. In other cases these issues may make or break the case. When relying on confidential informants, search for this information, and include it as an appendix. Here's what you can write to achieve this:
I searched for source A's criminal convictions in CPIC [and any other database available to you], and I attach as Appendix A1 the complete list of what I found.
I searched for source A's outstanding charges in [whatever database is available to you], and I attach as Appendix A2 the complete list of what I found.
I investigated source A's past performance in giving information to police. I understand that 7 times in the past 5 years, source A gave police information about criminal activity. Further investigation confirmed the source's information 3 times. The other times, the source's information could neither be confirmed nor contradicted. I attach as Appendix A3 more detailed explanations of the information this source provided, and how further investigation confirmed it.
Naturally, the prosecution will redact the appendices. A1 and A2 tend to identify the source. But what remains in your application shows the trial judge that you disclosed the information which the first judge needed to assess the credibility of your source.
Similarly, you can summarize the source's information in your application, and include the details for the prosecution to redact. Suppose your source says "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns." That information identifies your source. You may summarize it, and include the detail for redaction:
Source A reported that Mr Reid possessed firearms in locker 13 at the premises of Vigilant Custodian Storage within the last 14 days. Source A claimed s/he obtained this information not by gossip, but from her/her own observation or by hearing or overhearing the words of a person who claimed direct knowledge. Specifically, Source A said: "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns."
Plainly, the emphasized portion must be redacted. What remains is true, but does not point so directly to the identity of the source. It leaves open the possibility that the staff at Vigilant Custodian Storage saw the guns, or that they or someone else overheard Mr Reid and the source talking. And the remaining information explains why a warrant should issue to search the locker.
Why should you bother preparing the "step 6" summary when applying for a warrant? After all, the prosecution can do it at trial.
Step 6 is controversial. In Mr Reid's appeal, he tried to argue that it's unconstitutional. Step 6 is tricky to do. If you lay the groundwork when you apply for the warrant, then the prosecution stands a better chance of success at trial.
A woman called 911. She said she heard her neighbours arguing. The male threatened to kill the female. The female cried and pleaded, “please don’t kill me.” She heard loud banging and crashing coming from their apartment.
Officers attended, and knocked at the door. No answer. After they knocked more, a woman answered. She refused to open the door. She spoke to someone behind the door, but she told police she was alone.
What would you do?
These officers feared that a man posed the woman serious risk of harm which they felt obliged to prevent. They sought permission from superiors to break in. Before that occurred, the woman stepped out of the apartment, unharmed. Without her permission, the officers entered and searched. They found Mr Lowes, 2016 ONCA 519 hiding under a bed. They found drugs.
The trial judge excluded all the evidence. He reasoned that the officers could have assured themselves of the woman's safety by questioning her, by questioning the neighbor who made the 911 call or by getting a warrant.
The appeal court ordered a new trial.
The neighbor's information gave reason to fear for the woman's safety. The woman's apparent lies at the door about who was home gave the officers reason to fear that the man was controlling and directing her.
In my opinion, the trial judge correctly identified an important principle: even in exigent circumstances, where life and limb are at risk, you should not search private places if there are reasonable alternatives by which you can ensure people are safe. But the trial judge's proposed alternatives in this case weren't reasonable. The woman already told lies; questioning her wasn't a good way to ensure her safety. The neighbor was in a poor position to assess the woman's safety. And the officers lacked sufficient grounds to justify any warrant. The appeal court found that entry and search was the reasonable response to the situation.
Therefore, this case provides some guidance for first responders who encounter similar situations all too often.
I particularly liked how these officers sought a second opinion from a senior officer before entering. In the excitement of the first response, it's easy to act without second thoughts.
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