2018.08.26 Warrants - Drafting Your Application - Confidential Source's Criminal Record
In an application for a warrant or other judicial pre-authorization, the law requires you to summarize the investigation, but give full disclosure of the important things. "Keep it short but don't leave anything important out."
You can achieve this difficult balance of short-and-complete when you know what's important.
Obviously, you need to tell the judge or justice what evidence and information supports your application. But you must also disclose evidence and information in your possession that weakens it. You owe the judge or justice all the information, not just that which helps.
Confidential sources complicate the task. You need to reveal what's important, but you must also prepare to redact anything that would tend to identify the source. "Tell all, but reveal nothing." Another difficult balance.
Investigation and trial is a two-step process. The judge or justice who issues your warrant needs to see all the important information you have. The trial judge and the defence lawyer need to see as much as possible of your ITO, to understand why the first judge or justice issued your warrant.
When summarizing a confidential source's tip, what's important includes:
- what the tip said about the suspect or target
- whether the judge or justice can trust the tipster
Because of these difficult balances, Mr Szilagyi, 2018 ONCA 695 beat some drug charges.
A source told the police that Mr Szilagyi had a firearm and trafficked drugs. The ITO explained that the source:
"had no convictions for perjury or lying to the police",
but did not spell out what the tipster's criminal record contained.
The judges didn't like that language. Maybe the source had convictions for fraud or false pretences. Because the source provided the key information to justify the warrant, the issuing judge needed more information about the source in order to assess whether to rely on him/her.
Generally, the source's criminal record is important.
But if you describe every conviction in your ITO, won't that tend to identify the source?
There's another way. If the record is important, then reveal it to the issuing judge, and summarize the parts you can reveal:
Source A has a criminal record, which I attach and mark as appendix B to this ITO. That document tends to identify Source A. In order to honour the police agreement to withhold his/her identity, I ask that it be sealed, and not disclosed to anyone.
At trial, nobody can suggest you withheld negative information from the issuing judge or justice. Because you included the record, nobody can say you mislead the issuing judge or justice in any way.
But don't just rely on CPIC. Here in BC, I find that CPIC rarely lists all of the offender's criminal convictions. Look to other databases. In BC, that means JUSTIN.
The judges had another complaint about the ITO. It did not explain how the main source knew about the gun and the drugs. It recited the source's fairly detailed description of the gun. It repeated the source's assertion that the suspect dealt drugs. It did not say whether the source claimed s/he saw this, or heard about it on the street.Suppose he said:
"I saw the gun on Wednesday morning at 9:15 when I asked him for an 8-ball from him. At that time Mr Szilagyi pointed a gun at my head and said 'you better pay your debts by the end of the day or else this gun spits the next ball into your head'. On the table he had about half a kilo of cocaine he was cutting. He said it was fresh from Colombia. I'd seen that gun before. It's a sawed-off shotgun with a black stock and a silver barrel."
Leaving this quote in your ITO would identify your source. Redacting it removes all information. Try creating a summary that the defence can see, and providing the quote for the issuing justice. If it does not endanger the source, something like this would make the judges happier:
"The tipster told me that he knew from personal observation and/or remarks that Mr Szilagyi made in the tipster's hearing that Mr Szilagyi possessed a sawed-off shotgun, and he had cocaine for sale. The tipster explained the exact circumstances under which he obtained this knowledge. S/he reported:'...'."
Of course, before disclosing to defence, you would redact the exact quote. The issuing justice sees all the information. The defence lawyer and the trial judge learn that the tipster claimed to have pretty good information and the ITO makes it explicit that the issuing justice got the full tip.
2018.08.25 Inventory Search - a Duty to Protect Property in Police
"Where a vehicle is lawfully taken into police custody (in this case, pursuant to statutory authority) the police have the authority, if not the duty, to conduct an inventory search of its contents."
The night when Mr Russell, 2018 BCCA 330 drove his car back to Summerland, BC, his tail-lights weren't working. That caught the attention of a police officer. Mr Russell wasn't supposed to be in Summerland. Indeed this officer previously released him on his undertaking not to return.
When the officer pulled him over, Mr Russel stopped his car so that it straddled the fogline of the highway. Not a safe spot.
After arresting Mr Russell for breaching his undertaking, the officer considered the car. Because it posed a hazard to other drivers, the motor vehicle legislation empowered the officer to move the car or take it into his custody by having it towed. He chose the latter.
The officer then searched the car for property. He found a wallet and a laptop bag. Mr Russell told the officer to put them back. The officer didn't. Instead, he looked inside for valuables. He found drugs in the bag.
At Mr Russell's trial for the drugs, he complained that the law did not empower the officer to search his laptop bag:
- The officer agreed that he did not search incidental to arrest.
- Mr Russell told him not to search it.
- The office had no warrant.
- An inventory search should not permit an officer to look inside bags and containers.
The judges agreed that it was not a search incidental to arrest, but disagreed about looking inside the bag. The law permits officers to make an inventory of valuables when seizing property, so as to ensure that the owner gets his valuable stuff back afterwards.
Beware. If you're going to use this power, make sure you use it properly.
When an inventory search discovers contraband, defence lawyers are quick to suspect that police used the power for ulterior motives, and they complain of unlawful search.
If you have suspicious circumstances, but not reasonable grounds, your "inventory search" will be attacked.
Read this decision. You will see that the officer gave very clear reasons why this was an inventory search, and nothing else.
If you have suspicions, try to separate the inventory search from your dealings with the suspect. If you have backup, perhaps you should explicitly assign the task of towing the car and checking it for valuables to another member. Both of you should write down in your notebooks your respective roles in the investigation before any searching occurs.
Only according to its purpose and limits.
For example, s. 251(6) of the Motor Vehicle Act says:
(6) Personal property present in a motor vehicle that has been impounded under subsection (1) or section 215.46, other than personal property attached to or used in connection with the operation of the motor vehicle, must be returned to the owner on request.
The inventory search is to protect and preserve property. If Mr
Russell had asked for his laptop bag, I don't think the officer could
have searched it as part of the inventory search. (Of course, for
officer safety, I think the officer might have been able to check it
for weapons before putting it in the police car with Mr Russell.)
2018.08.25 Circumstantial Proof - Alternate Theories
In April, man walking his dog came across a woman's corpse lying in the flood plain of the Grand River in southeast Kitchener, Ontario. Her mother had reported her missing back in January. Although the autopsy could not determine the cause of death, police suspected that Mr Thomas, 2018 ONCA 694, her intimate partner, killed her.
They had good reason. She went on alcoholic binges. He suspected that she cheated on him. He beat her up often. He threatened to kill her and dump her body in the woods. She sometimes needed medical treatment. She told many people about his violence.
Police executed a search warrant on his residence. They watched him approach the residence. When he saw police cars around it, he turned and went the other way, instead of inquiring what was going on.
The last people to see the deceased also saw Mr Thomas with her. It was New Year's Eve. He and she went to a bar. She danced with another man. He confronted her, yelling. The bouncer made him leave. Later, he returned, and apologized. They hugged, and left together.
Mr Thomas told people several different versions of his last contact with the woman. He did say that the last time he ever saw her was that New Years' eve, at the bar. He claimed that they quarrelled and parted ways.
Police found traces of her blood in the passenger side of his car.
The Crown presented a circumstantial case of motive and opportunity.
The jury convicted Mr Thomas of murder. He appealed on technical grounds. The court of appeal upheld the conviction.
When I first read the decision, I noticed that the evidence pointed towards guilt. Then I noticed alternative explanations for major parts of the evidence:
- The blood stains could have come from some previous incident of violence, rather than a killing.
- The victim often left the defendant to go drinking. Maybe she met someone violent.
- The accused's odd conduct and contradictory explanations could have been because he was ashamed of his own non-lethal violence, and feared that police suspected him of killing her.
Then I noticed that the judges' decision did not discuss alternative theories and what evidence set those alternative theories to rest.
Perhaps the officers did try to find anyone else in the woman's life who had a reason to harm her. Perhaps the prosecutor presented evidence to the jury that those efforts failed. Perhaps the officers did try to find evidence that the woman expressed suicidal thoughts, and but found instead evidence that she had much to live for. Perhaps that part of the evidence was so boring that the Court of Appeal never mentioned it.
But the absence of discussion of these things made me think of echo chambers and tunnel vision.
Investigating alternate suspects and alternate explanations may be boring, but it matters. Failing to do so sometimes leads to disaster. Just ask Thomas Sophonow. But usually, the extra investigation makes the case stronger.
This principle applies to investigations large and small. After the woman alleges her partner attacked her, did you check to see if he suffered any injuries? If you suspect a guy of committing a B&E because you found his fingerprint at the scene, did you consider innocent explanations for how it got there? For example, if the print is on a pop can in the residence, maybe your suspect works at a corner store, and sold the can to the burglar. Or if the print is on a window outside the window, maybe your suspect worked as a window-washer, and left his print there.
Tunnel vision can happen to anyone. Just look at our American neighbours discussing Trump. Many are trapped in echo chambers that promote or denigrate their president. There are intelligent people on both sides who fail to consider the evidence from the opposing perspective.
How do you avoid tunnel vision? Here are some ideas:
- See if you can think of ways that the main suspect could be innocent, and still leave behind the evidence that you gathered.
- Try assigning a contrarian to find all the weakest parts of the investigation.
2018.08.23 Jurisdiction - Crossing Borders - Transporting Children
Warren Jeffs, the Prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, directed James Oler, 2018 BCCA 323, a bishop of the sect, to bring Oler's under-age daughter from Bountiful, British Columbia to the USA, where Mr Jeffs, aged 48, would marry her to a man of Mr Jeff's choosing.
The next day, another man drove Mr Oler's wife and daughter just across the border to the USA, where Oler met them in a secluded park. From there, the group drove to Mesquite, Nevada, where Jeffs presided over a marriage of the girl to a man.
Section 273.3 of the Criminal Code made it an offence to transport a minor to another country so that acts will occur to the minor which would be a sex crime in Canada.
But section 6(2) of the Criminal Code prevents the court from convicting people for crimes that occur "outside Canada".
Could a Canadian court convict him? No evidence established that Mr Oler was in Canada when he received the direction from his prophet. No evidence established that Mr Oler was in Canada when he gave directions to his wife and daughter. Everything that could be proven against him occurred in the USA.
The judges held that they could convict him because there was a "real and substantial link between the offence charged and Canada". He must have communicated to his wife in Canada, and organized the removal of his Canadian daughter from her home in Canada. The transportation crime directly affected people in Canada - but hurt nobody in the USA. Even if he orchestrated it entirely from the USA, Canadian courts could take jurisdiction.
Why do you care? s.273.3 hardly ever comes up.
I'm not sayin' that Canadian courts assert jurisdiction over everyone who does something in another country that hurts Canadians. But section 6 isn't as simple as it appears. If part of the offence you're investigating occurs in another country, don't always shrug and say "Canada doesn't care". This decision reminds us that Canadian courts do care about some foreign activity that affects people in Canada.
2018.08.11 Warrants - ITO drafting - Conclusions and Judicial Duty to Inquire
I fell down a rabbit hole.
Ordinarily, I write about recent decisions. A paragraph in a recent decision caught my attention, and led me to Restaurant Le Clémenceau Inc. v. Drouin,  1 SCR 706. Judges sometimes refer to that case when rejecting "conclusory statements" in ITOs. Here's a loose translation of the ITO in question. Can you spot the "conclusory statements"?
- As an official of the Ministère du Revenu du Québec, I conducted an investigation in the "Restaurant le Clémenceau Inc." concerning evasion of a meals and hotels business tax of Québec.
- As a result of certain facts revealed by this investigation, I have reasonable grounds to believe and believe that "Restaurant le Clemenceau Inc." made false or misleading statements in a PR4 report for the month of August 1977 by failing to include in the said report an amount of $ 299.20 of tax collected, thus committing an offense under section 62 (a) of the Act respecting the Ministry of Revenue, RSQ, chapter M-31.
- I also have reasonable grounds to believe that documents, books, records, papers or other things that may be used as evidence of an offense under a tax law or regulation made by the Government under such a law, are kept in the premises and outbuildings of "Restaurant le Clémenceau Inc." located at 649, boul, Laure, Sept-Iles, province of Quebec.
Except for paragraph 1, the whole ITO was a conclusion. The Supreme Court of Canada did not like it.
When you apply for a warrant, the judge or justice who receives your application must determine for him- or her-self whether there are good reasons for your belief that a crime occurred and the proposed search will recover evidence of it. How can the judge do that if the application does not explain the "certain facts" which led the applicant to believe that the crime occurred and that the evidence sought would be in the place to be searched?
To be clear, paragraphs 2 and 3 are not wrong. Indeed, they make a fair summary or introduction. But the ITO needs to explain the evidence or information the investigator gathered or received which led him to those beliefs.
But that's not why this decision caught my eye. The court said:
In order to perform his duty of supervision, the judge had to determine whether the facts on which the informant's belief was based were such that his belief was indeed reasonable. None of these facts are disclosed by the information. The judge then had a duty to ask for further information, which he elected not to do.
The issuing judge or justice has a "duty" to ask for more information when your ITO fails to spell it out.
For justices and judges, this leads toward a danger zone. If they advise you how to draft your application, then they compromise their independence. Gray 1993 CanLII 3369 (MB CA) and Gordon,1999 CanLII 18640 (MB CA)
But they can ask questions relevant to the exercise of their powers, Clark, 2015 BCCA 488. They ought to give reasons when they reject an application, so that if you apply again, the next judge or justice can know what went wrong in the first application. Duchcherer and Oakes, 2006 BCCA 171.
If they do ask you questions, disclose what they asked and what you answered in your report to Crown. If you do apply a second time, then disclose in your second application the fact that you previously applied and the reasons the first justice or judge gave for turning you down.
2018.08.06 Plain view, s.489(2) and "lawfully in a place" -
photography during the seizure
Five days ago, I worried that photographing what you seize pursuant to s.489(2) might be seen as a "search". (See the next article.) Two days later, the Ontario Court of Appeal addressed that concern. I'm grateful.
A 15-year-old girl told police that her friend's father, Mr A.H., 2018 ONCA 677, lured her using Facebook. The interviewing officer saw Mr A.H. hurrying away from the police station, and worried that Mr A.H would destroy evidence. The investigator sent police officers attended to Mr A.H.'s residence to arrest him. They did so, at the door of his apartment. Mr A.H. "told the officers he needed to get his shoes, turned around and went back into the apartment. The officers followed him in. One accompanied him into his bedroom while the other stayed in the kitchen where he observed the open computer and the cell phone. He took a photograph of the screen of the computer, which showed an open Facebook page, which displayed the appellant’s email address and read: 'Your account has been deactivated'. The officer then seized both items." (para 28)
Mr A.H. argued that the officer needed a warrant to enter his house and seize the computer.
The court disagreed. Because the officers had already arrested him, they had him lawfully in custody. When he re-entered the residence, they could lawfully follow, to keep control over him and prevent him from destroying evidence. The power to seize under s.489(2)(b) does not include a power to search, but these officers did not "search". Photographing the thing and then seizing it was not a "search" but a "seizure".
2018.08.01 "Plain view" and s.489(2) of the Criminal Code
"He's in the house, drunk. There are lots of guns laying about in there. I'm scared for my safety, and the safety of the children."
That's what she told police when they responded to her 911 call regarding domestic violence. The attending police couldn't help but notice that Mr Warren, 2017 MBCA 106, the man she complained about, came out of the house a couple of times, agitated and belligerent.
The officers arrested him outside the house because they feared he would assault her.
One of the officers went into the house, with the complainant's sister, to check on the children. As soon as he went in the front door, he saw four unsecured firearms and ammunition in plain view. He seized them, and Mr Warren was charged with firearms offences.
At trial, Mr Warren convinced the trial judge that the officer should have secured the residence and got a search warrant. The judge agreed with the officer that he was entitled to enter the residence for the purpose of ensuring the safety of the children. But when the officer's purpose changed from protecting life to gathering evidence, he lost his authority to remain in the house. The trial judge felt that the common law "plain view" doctrine didn't apply, because it requires that you encounter the evidence "inadvertently". This officer knew, going in, that he would find guns.
The Court of Appeal disagreed. Section 489(2) of the Criminal Code authorized the search. It works similarly to the common law power of "plain view", but does not require "inadvertent" discovery of the evidence.
The officer lawfully seized the guns.
This scenario of domestic violence and guns in a residence arises often. But the details bedevil any effort to create a standard operating procedure. I see lots of mistakes, because general duty officers often work under too much pressure to assess all the principles which apply. Here is a list of the main ones:
- A police officer can not enter a private residence without one of:
- lawful authority or
- consent of a person who as authority to give it
- Reasonable suspicion that a person inside my in in danger of serious physical harm ("exigent circumstances") provides lawful authority to enter and put those fears to rest. However, you may not search for evidence when doing so.
- Reasonable belief that evidence inside the residence may be lost or destroyed if you don't enter also provides authority to enter and search. However, you should minimize the intrusiveness of this entry. Generally, the best procedure is to freeze the scene, and get a warrant.
- Section 117.02 and 117.04 authorize you to enter into the residence and seize the firearms where there are exigent circumstances. Generally speaking, by arresting the guy who poses the danger, you generally terminate the exigent circumstances.
- If you do have consent or lawful authority to enter, then you can seize evidence that you notice while inside. 489(2) But you can't search for evidence unless you have lawful authority or consent from a person who can give you that permission.
Before you seize the gun pursuant to s.489, perhaps you should document carefully where you saw it. Careful! If you photograph too much, there's a good argument that you expanded the seizure into a search for evidence. If you don't photograph, then the defendant will allege that you could not have just seen the gun, because it was stored in a hidden spot.
2018.07.29 Impaired Drivers who crash - Right to Counsel
Ms Culotta, 2018 ONCA 665 didn't drive drunk. She operated a boat.
She and her friends were holidaying at the family cottage, on an island in Lake Muskoka. They attended a social event at a yacht club, where she drank.
At 2:00am, they headed home ... in the dark, with rain pouring down. Ms Culotta went fast. The boat hydro-planed.
There are hundreds of islands on Lake Muskoka. Her boat hit one of them. The crash injured her and her passengers. Help came. A boat took them to a marina, where ambulances met them at about 3:00am. A police officer attended.
The officer asked the less-injured women "who drove the boat?" Ms Culotta said "I was the driver".
The officer saw some ambiguous indicia of alcohol consumption: Ms Culotta slurred her words - but her face was injured. She had watery eyes - but she had been out in the rain, and crying. The officer arrested her for impaired operation of the boat. The judges found that his grounds were insufficient.
The officer did not tell her about her right to counsel because he did not want to interfere with the medical treatment that the ambulance attendants were giving her. Only after arriving at the hospital did he tell her she could get legal advice. When asked if she wanted to consult a lawyer, she answered:
“No, my parents should be here soon. We have a family lawyer.”
The hospital staff took extra samples of her blood, because they expected police would need them. The officer sealed the extra vials.
At 5:30 am, after Ms Culotta received treatment, the officer released her unconditionally, but explained she was still under investigation. He explained her legal rights to her. She declined another offer to get legal advice, and gave a statement. The officer did not have recording equipment, and so he simply wrote down questions, asked them, and wrote down her answers. When it was done, he asked her to review it, and sign it. She did.
The officer investigated further. He developed good grounds for a search warrant, and with it, he obtained medical records and blood samples from the hospital.
The hospital's tests showed that Ms Culotta's blood contained more than 80mg% of alcohol. So did the police analyses.
At trial, Ms Culotta's lawyer's arguments included:
- The arrest breached her right not to be arbitrarily detained - s.9 of the Charter - because the officer lacked reasonable grounds.
- Failing to tell Ms Culotta about her right to counsel before the hospital staff took blood samples violated her rights under s.10(b) of the Charter.
- The investigating officer persuaded the hospital staff to take extra blood samples. That was a seizure. Sealing the extra vials of blood constituted a seizure of her private bodily fluids. Because the officer lacked grounds to believe that Ms Culotta committed an offence, this violated s.8 of the Charter.
- The statement should not be admitted because it was not audio- and video-recorded.
Vehicle crashes complicate the task of determining whether you have reasonable grounds to believe that alcohol or a drug impaired the suspect's ability to control the craft. Did booze, injury, or shock cause the suspect to slur their speech or stagger? Sometimes, you can examine the crash scene for clues that suggest that bad driving caused the crash. This officer couldn't. Sometimes passengers or rescuers can tell you about bad driving or other symptoms. The decision indicates none of that.
Serious vehicle crashes arise sufficiently infrequently that many officers don't know what to do. If you're not sure, I suggest that you read the demand quietly to yourself before reading it to the suspect. The demand language contains a checklist which covers most of what you need to know:
- identity - the suspect
- operation - drove a car or boat or flew a plane;
- impairment - at the time she drove, something so affected the suspect that she wasn't safe to drive. Despite the injuries after the crash, you need to figure out how drunk the driver was before the crash;
- by alcohol/drug - impairment from other causes don't count.
- when - To make a breath or blood demand, under the current legislation, you need to know that the driving occurred within the preceding 3 hours. After December 18, 2018, the legislation will drop those time limits. I think that you shouldn't make a demand if you don't think you'll get any evidence.
- confidence - To arrest or make a demand, you need evidence which leads you to think that probably a crime occurred. (The evidence does not need to convince you beyond a reasonable doubt of guilt, but mere suspicion that the driver was drunk doesn't cut it.)
Right to Counsel
All the judges agreed that the officer disobeyed s.10 of the Charter by failing to tell Ms Culotta about her right to counsel right away after the arrest. The judges (and the prosecutor) agreed that the police analysis of the extra blood samples should not be evidence in the trial. One judge felt that this breach of Ms Culotta's rights was so serious that the court should exclude all blood-analysis results.
The judges disagreed whether Ms Culotta's comment about her family's lawyer was a request for legal advice.
You can draw two things from this:
- After a detention or arrest, you want to move quickly to telling the suspect about legal rights, if at all possible.
- Some judges will find that quite ambiguous remarks are actually requests for legal advice. It doesn't matter what you think the prisoner meant, but what the judge thinks. Therefore, when you get an ambiguous remark, you would do well to clarify.
I noticed that the officer put Ms Culotta's health ahead of his investigation of her crime. I think he got those priorities correct. I suspect that the judges felt unsympathetic because he didn't get around to telling her about her rights for 45 minutes. The judges probably felt that the officer could have found the 20 seconds necessary to mention lawyers earlier than he did.
Extra blood samples
Don't ask medical people to gather evidence for you while they treat your prisoner, unless you have lawful authority to gather it yourself. This officer testified that he did not ask the technician to take extra samples. Nor should you.
Putting bits of tape over the hospital's vials and marking them with your initials for the purposes of continuity is not a seizure - if you give control over the vials back to the hospital. I don't know why this argument had any traction. R. v. LaChappelle, 2007 ONCA 655 at para 41.
None of the judges found that the investigating officer erred by handwriting Ms Culotta's statement - because the circumstances prevented him from recording it any other way.
But if you can video-record a suspect's statement, then do so.
If you can't, follow this officer's procedure. Write the questions. Write the answers. Ask the person to review the written statement to ensure that it is correct.
But hey! Don't you carry a smart phone on duty? Most phones - even the dumb ones - can record audio. Learn how to make your phone record audio - or even video.
2018.07.27 Informer Privilege
When someone offers you information on the condition that you not reveal their identity, it seems simple: you get information that will help you bust bad guys. It's not simple. Your obligation to protect their secret is a heavy burden, which you must carry even to your personal prejudice.
When police investigated "the Surrey Six" and their involvement in a high-profile murder, 80 people gave information to police on condition that police not reveal their identities.
Something went wrong. Sgt Brassington, 2018 SCC 37 (and several other officers) are now charged with breach of trust, fraud, obstruction of justice. Publication bans prevent disclosure of the details.
In order to make full answer and defence, these officers wanted to tell their own lawyers details about what they knew about the confidential sources. The lawyers (quite properly), asked the court if that would be okay.
The Supreme Court of Canada required the officers to keep these secrets even from their own lawyers, unless they could show that disclosing the identities of the sources was necessary for the purpose of showing the innocence of the officers.
That's hard to do. I have not yet seen a case in which the defendant succeeded in showing it.
I doubt that any of you will find yourself in former Sgt Brassington's position. I sure hope not. But this case is relevant to any officer who receives information from a confidential source. The take-home message is: this stuff is messy and dangerous.
If you rarely handle such information, get advice and read your procedural manuals. If you often handle such information, review your procedures, read your procedural manuals, and seek advice.
Don't identify confidential sources unless you know you must.
2018.07.25 Arrest and Detention - Right to Counsel
A town north of Regina held a country music festival. Lots of people went. An experienced officer went there to help.
He caught Mr Knoblauch, 2018 SKCA 15 driving over .08.
The officer recorded in his report that after he explained the right to counsel, Mr Knoblauch declined to call a lawyer.
An in-car video camera recorded the event. It showed that the officer did explain the right to counsel, but never asked whether Mr Knoblauch wanted to call a lawyer. Mr Knoblauch never "declined".
The trial judge convicted Mr Knoblaugh. The appeal court found that by failing to ask the question, the officer breached Mr Knoblauch's rights under s.10 of the Charter.
The appeal court restored the conviction. The Charter imposes on you a duty to explain the right to counsel to a prisoner, and to facilitate the prisoner's access to counsel if the prisoner chooses to exercise the right. The Charter does not impose on you any duty to force the prisoner to choose.
But it's a really good idea to ask "Do you want to call a lawyer?" The answer helps show that the prisoner understands his or her right, and it shows the judge that you were actually interested in facilitating the prisoner's access to counsel - if that's what the prisoner wants.
The video recording proved that even an experienced police officer can make mistakes. How does one maintain the vigilance necessary to avoid making such errors? Fear of humiliation might help. I don't think this officer enjoyed discovering on the witness stand during cross-examination that his report asserted a fact which the video recording proved was false.
2018.07.24 Police investigative technique privilege
A "Stingray" (cell site simulator), helped police bust Mr Truax, 2018 ABQB 113. It assisted their judicially-preauthorized wiretap operation collect conversations that inculpated him.
At trial, Mr Truax sought technical details about the device. The trial judge ordered disclosure. Police objected on the basis of police investigative technique privilege. Basically, they argued:
"If we disclose how this device works, then the bad guys will build a device that detects or defeats it. That that will harm law enforcement efforts."
The superior court agreed with the police argument because the technique:
- is used by police in their law enforcement functions,
- is not publicly known, and
- if disclosed may assist offenders to interfere with or defeat police investigative functions.
However, this privilege must yield to fair trial rights. If the defendant needs this information in order to ensure that his trial is fair, then the judge will order disclosure.
This device did not intercept conversations. It identified phones.
The court found that the accused's right to a fair trial did not
depend upon receiving information about how it worked. Mr Truax didn't
get the disclosure he asked for.
2018.07.24 Execution of a Search Warrant - Empty House
When you execute a search warrant, s. 29 of the Criminal Code requires you to bring a copy along with you, if possible, and show it to people in the place, if they ask to see it.
Do you have to leave a copy of the warrant at the place when you're done? If the place was empty, and you got the warrant by telewarrant, then s.487.1(8) requires it.
What if you applied in person to a justice, you get a warrant, and you find the place empty when you execute it? No legislation says you need to leave a copy. Some would say it's just good practice, but the judge in Boekdrukker, 2018 ONSC 266 held that it's a legal requirement too.
When you execute a search warrant, and someone in the place demands to see the warrant, then s. 29 of the Criminal Code also requires you to show it to him or her.
Do you need to show it to the homeowner if you arrest her outside the house, before the search begins?
The same judge concluded that you do.
Because the officers in that case failed both requirements (and strip-searched her in a room which had no door), the judge excluded evidence of drug trafficking.
2018.07.24 Expectations of Privacy - Hallway in an Apartment
Hallway cameras in apartment buildings will usually require judicial pre-authorization.
Mr Batac, 2018 ONSC 546 complained that police video-recorded the hallway leading up to an apartment where police found lots of drugs. He asked the judge to exclude evidence because the video-recording violated his expectation of privacy.
He didn't own the property, but he did have a key. It was a large apartment building, which recently installed lots of surveillance cameras and electronic locks. Police didn't get a warrant to record who came and went from the apartment. When the door to his apartment opened, the camera could record activity as far as 10-12' into the apartment.
The trial judge agreed with Mr Batac: the police did violate his expectation of privacy. The judge did not say that all hallways in all apartment buildings enjoy an expectation of privacy. It depends upon all the circumstances.
If you want to use electronic equipment to watch such areas, you might want to read this decision and the decisions it refers to, to see what factors persuade judges whether people in the apartment enjoy a reasonable expectation of privacy in those areas.
Mr Sandhu, 2018 ABQB 112 complained of pretty much the same thing, for pretty much the same reasons. This camera did not view any of the interior of the apartment. None-the-less, the judge excluded evidence of the drugs found in the apartment in question.
2018.06.29 Three Ways to Identify the Felon - Recognition Evidence
Two men took a taxi to the Surrey Central Inn. Shortly after the taxi arrived, two men in masks robbed a clerk inside. Next, just outside, two men attempted to car-jack a car. Evidence suggested that the two men in the taxi were the robbers.
The big question was "whodunnit?"
At trial, the taxi driver and the victim of the car-jacking pointed at Mr Field, 2018 BCCA 253 in the dock and told the court that they recognized him as one of the two men in question.
The judge ignored the identification evidence from the two eyewitnesses. The judge knew that eyewitness identification of strangers often goes wrong. He had good reasons. The taxi driver meets way too many customers for these guys to make any real impression on his memory. The car-jacking victim saw two masked men, under highly stressful conditions, for only a short time. Both of these guys came into a court room and saw one prisoner in a dock. It was easy for these witnesses to believe that the guy that looks like a criminal was the criminal.
The in-court identifications didn't prove the case.
But there was more evidence.
A video-recording system inside the taxi captured images of the two
men who went to Surrey Central Inn.
The trial judge compared Mr Field to the taxi security video. Although he probably noticed some resemblance, he also knew from other testimony that Mr Field's appearance changed between offence and trial. Therefore, he refused to rely on his own impression of the similarities between the robbers and the defendant.
Showing the video to the judge didn't prove the case.
But there was one more kind of evidence.
Early in the investigation, police suspected Mr Field. They sent pictures from the security video to probation officers who knew him, but they didn't say who they suspected. One probation officer recognized Mr Field. That probation officer forwarded the picture to another probation officer, again not naming Mr Field. The second probation officer also recognized him.
That persuaded the court beyond a reasonable doubt that Mr Field committed the robbery.
Mr Field's appeal failed.
The court noted the three ways to prove identity:
- Eyewitness identification of a stranger.
- Judge's comparison of the defendant to images of the offender.
- Recognition by people who know the defendant.
The eyewitness identification would have been much stronger if the eyewitnesses picked Mr Field from a photo pack shortly after the offence. Showing a witness one person and asking "is this the man?" can have the effect of telling the eyewitness "this is the man." This kind of eyewitness identification formed part of many wrongful convictions. Judges don't trust it. As an investigator, you want to show eyewitnesses lots of faces to choose from, not one suspicious one.
If security cameras capture really clear pictures of the felon, then the judge can compare the defendant to the culprit. Beware. Some defendants change their appearance while in jail. To prevent that problem, take good pictures of your suspect, and supply them to Crown as part of your report.
As this case demonstrates, recognition evidence can prove the case, if you do it correctly. When you send images to the person who knows your suspect, don't supply the suspect's name. And ask that witness not to name the culprit to any other potential recognition witnesses.
As Steve Jobs used to say: and one more thing....
In some police reports, when describing video of the offence, officers will write a summary of what the video captured "the accused" or "the suspect" doing.
Security video captures "the culprit" or "the felon" or "the robber" or "the assailant" or "the exhibitionist" committing the crime. "The suspect" is the person you think did it. "The accused" is the person on trial. Don't mix 'em up. The big question in an identification case is whether they are the same person. Even if you believe that they are, use different words for "the felon" and "the suspect", to show that you understand the issue.
2018.06.16 Impaired Drivers - Serving Documents
Mr Fitzpatrick, 2017 CanLII 85809 (NL SC) drank too much to drive. Police busted him. After he blew into the instrument, the technician who analyzed his breath prepared a certificate which could be filed at trial, proving how much booze was in him at the time. The investigating officer served him with a copy of the breath technician's certificate ... or at least ... the officer thinks he did, based on his "usual practice".
Section 258(7) of the Criminal Code prohibits the court from accepting such a certificate "unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate."
The trial judge refused to accept the certificate because the officer didn't give sufficiently persuasive evidence that Mr Fitzpatrick received a copy. The appeal court agreed.
Routine events are easily forgotten. Some officers routinely swear an affidavit of service of the certificate. Doing so - or at least making notes of the event - may help you when such a case comes to trial.
2018.06.16 Youth Statements
After consuming ecstasy, 16-year-old N.B., 2018 ONCA 556 went for a walk with his cousin to a convenience store. He returned without his cousin, and got changed. He went to a friend's residence where he told everyone that his cousin was in trouble and needed help. Someone "told" him that his cousin had been attacked and dragged into "Lackie's Bush". He took some friends and relatives there, and found his cousin, dead. He freaked out, and hugged the body.
Police were called, and they attended.
N.B. pestered one of the officers for information, interfering with his efforts to investigate. The officer punched him and arrested him for causing a disturbance. A different officer took N.B. back to the police station for questioning about the death of his cousin. They put him in a locked interview room.
When they started a witness statement, N.B. asked if he was arrested. The officers told him he was arrested for breach of the peace, and he would be released. They knew that the cousin died, but they did not tell N.B., for fear of upsetting him.
N.B. gave conflicting statements about what happened. At first, he told police that he and his cousin split up at the convenience store. When the officers told him (falsely) that there was security video, N.B. changed his story. He said he went to Lackey's Bush with his cousin to smoke pot, and a group of guys attacked his cousin, and N.B. ran away.
The change of story led the officers to arrest him for murder. The trial judge convicted him, but on appeal he got a new trial.
- he did not have to make a statement to the police as a witness;
- he was free to leave at any time;
- he could consult with a parent, adult, or counsel, and have any of these people present for the interview.
The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.
The appeal court made several main points.
- For such a statement to become evidence, the Crown must prove beyond a reasonable doubt that police did what that section requires.
- Three things trigger s.146: arrest, detention, or the investigating officer has reasonable grounds to believe that the young person committed an offence.
- "Detention" includes psychological detention. Even when the officer thinks the kid is free to go, the kid reasonably believes he isn't free by reason of what the police officers said and did.
The officer who punched N.B. was later convicted of assault causing bodily harm and obstruction of justice. Those events occurred in the execution of his duties on some other occasion, but his explanation of that event resembled his description of events with N.B.
What lessons emerge?
- Police officers need to keep calm when others aren't. I know that's easier said than done.
- In the chaos when you first arrive, everyone's a witness, and everyone could be the culprit.
- As suspects, young people get special treatment, whether you detain them or not.
2018.06.16 Statements & Corroboration - Exception to the Rule against Hearsay
General duty policing teaches young officers some bad habits.
In the daily rush from file to file, the duties of an officer who first responds to a call for service make it seem that an investigation ends when all the witnesses give statements.
When a suspect or an important witness reveals what happened, that's not the end of the investigation, but the beginning. The good investigator asks "What parts of these statements can further investigation confirm or refute?"
Mr Larue, 2018 YKCA 9 and his girlfriend Christina didn't like Christina's previous boyfriend Gordon Seybold. Gordon Seybold died when fire consumed his grow-op. The forensic pathologist couldn't say what killed him - heart attack, fire or violence? But his blood on the business end of a baseball bat tended to suggest violence. Mr Larue's blood turned upon the handle of that same bat.
Christina found a great new job with an organization run by Mr Big's sister, Ms Big. She told Ms Big that she and Mr Larue killed Mr Seybold. Mr Larue fought with Seybold first. Then both of them hit Mr Seybold on the head with a baseball bat.
Mr Seybold also got involved in the organization. He told a similar story.
Mr Larue and his girlfriend underwent separate murder trials. At Mr Larue's trial, the girlfriend refused to testify. Could the Crown use the girlfriend's statement?
The trial judge said "yes". Then the Supreme Court of Canada gave its decision in Bradshaw, 2017 SCC 35. To admit hearsay statement of an accomplice, generally the courts will need corroboration of "material" parts of the accomplice's statement. Was there independent evidence that confirmed her assertion that Mr Larue participated in the assault?
His DNA on the handle of the bat, and his admissions of involvement to Ms Big made the difference.
You only find corroboration if you look for it.
A uninterested investigator merely interviews witnesses. A biased investigator tries to find evidence which matches the complainant's version (and ignores anything that doesn't). An interested investigator makes a real effort to capture all the evidence, and ask the suspect what happened. A good investigator reviews what the witnesses and suspect said searches for evidence which confirms or rebuts their various versions.
That takes more time that general duty likes to give. Rarely does general duty teach young officers to become good investigators.
2018.06.16 DNA - secondary transfer
The remarkable sensitivity of forensic DNA testing becomes a curse to police.
When police officers examined the crime scene in Larue, 2018 YKCA 9, they seized some guns and a baseball bat. The officer who handled the exhibits did not change gloves. That opened the door for defence to argue that police transferred the suspect's DNA from one exhibit to another during exhibit processing. That mistake caused one judge to dismiss the value of a forensic discovery of Mr Larue's blood on the handle of the baseball bat that killed the victim. Other judges took a different view.
Have you recently checked your supply of disposable gloves?
2018.06.15 Entrapment - Confirming Tips about Dial-a-Dopers
A tipster gives you the phone number of a drug trafficker. You call it, arrange a purchase, and bust the guy. Simple.
Not so simple.
Your job as a police officer is to prevent crime, not encourage it. If you persuade someone to commit a crime that they would not otherwise have committed, then the courts call your behaviour an "abuse of process".
Where you have a real reason to suspect that a person, or place, or phone line is involved in the commission of crime, you may create an opportunity for someone to commit a crime, and then bust them if they do.
Doesn't the tip give you real reason to suspect a phone line?
It depends a bit on the quality of the tip, and the conversation you have with the person who answers when you make your call.
Separately, police got tips about Mr Williams and Mr Ahmad 2018 ONCA 534. Investigators did minimal investigation of the Williams tip, and no investigation of the Ahmad tip. The trial judge in Williams case found that the police entrapped him, and stayed the trafficking charge. The trial judge in Ahmad's case relied upon the conversation during the call to find that the police used the phone call to investigate the tip, found no entrapment, and convicted.
The loser in both cases appealed.
The Ontario Court of appeal analyzed what makes for entrapment in dial-a-dope cases. They found no entrapment in either case. But the judges disagreed on the analysis.
If you engage in such operations, you need to read this decision, because it highlights the ground rules.
After you get a tip, and before you make the call, consider investigating the tip:
- How recent is it?
- How credible is the informant?
- Do your information systems contain any information about the phone number or the suspect?
If, after that effort, all you have is a bare suspicion, you can still make the call, but you need to let the person who answers establish that there are drugs for sale.
Read the decision to see how that's done.
2018.06.14 Cupid's arrow in the Workplace - Stinchcombe and the Secret Affairs of the Heart
Police suspected Mr Biddle, 2018 ONCA 520 of three rapes committed in 1986. By 1987, he was convicted of all three. He successfully appealed two convictions: the Supreme Court of Canada ordered new trials. That process took so long that by the time the court ordered the new trials, one complainant didn't want to proceed again, and the other case was too weak to go on its own. The prosecution gave up.
Mr Biddle's third conviction depended upon the complainant's identification of Mr Biddle. That wasn't done very well. A police officer took her to a courthouse where he was appearing on his other matters, and asking her if she recognized him.
Not exactly a great lineup.
He lost the appeal on that conviction in 1993, but he never gave up fighting.
In 1999, the complainant and the officer who showed her Mr Biddle revealed that through the course of the investigation and prosecution, they fell in love. They married, and later, divorced. But they never revealed their blossoming relationship through the course of the prosecution.
Both swore up and down that the officer did not reveal information about the investigation to the complainant. But there are hints in the proceedings that he did. Those hints could have been used effectively by defence counsel to create doubt.
And so, 25 years later, the Ontario Court of Appeal ordered a new trial.
I can not imagine that it will proceed.
There are some tough lessons here.
Identification: It seems simple to show the suspect to the victim and ask "is this the culprit?" If the incident happened months before, you create a suggestive event which may cement a false identification. Even if the identification is correct, the evidence looks weak.
Disclosure: The defendant is entitled to know all information which may assist in the defence of the case. The existence of a romantic relationship between an investigator and a key witness is something defence needs to know.
In the early stages of a romance, the lovers rarely know where the relationship will go. It seems like a fragile flower - the chill of outside criticism might kill it like a late frost. It seemed offensive to these two new lovers that professional obligations should require disclosure of such a personal matter.
And yet the court ruled that they did. The professional obligations of a police officer intrude into personal life.
2018.06.03 Note-taking - Never enough
A police officer stopped Mr Lotfy's 2017 BCCA 418 pickup-truck because it speeding between Whistler and Vancouver. The cab stunk of air-fresheners, and the driver was nervous. A computer check indicated that other police officers arrested Mr Lotfy with a large quantity of marijuana a few months earlier. Then the officer smelled the smell of fresh marijuana. He arrested Mr Lotfy, and found lots of marijuana in the truck.
At trial, defence challenged the officer's grounds for arresting Mr Lotfy.
The officer wrote in his notebook only one of the things that made him think Mr Lotfy's truck contained marijuana: the odour. No note about the nervousness. No note about the air fresheners.
Defence attacked: if the officer didn't write a note about these things, then they may not have happened. Maybe the officer is making up observations after the fact to justify jumping to conclusions at roadside.
The attack failed: the officer could point to notes he made about these topics in the report to Crown Counsel. He wrote that within days of the incident.
But I bet he wishes he made more notes.
When your investigation moves from innocent interaction to search to discovery of contraband, what you observed at the beginning of the interaction makes all the difference. After the excitement of arrest and discovery, you need to take your mind back to the beginning, and record all the observations which led you to take action.
2018.06.02 Loose lips sink ships - Revealing evidence to Witnesses
On July 26, 2005, someone murdered Mauricio Castro. At trial, the Crown argued that it was a killing related to drug trafficking. One of the witnesses was Mr Khananisho.
Mr Khananisho told police that he put Mr Deleon and Mr Restrepo in touch with Mr Allen, 2018 ONCA 498.
On the witness stand he was pretty reluctant.
Years after the conviction, after a meeting with Mr Allen's girlfriend, Mr Khananisho recanted.
He claimed that the police told him enough detail about the killing that he could invent a story that matched. He said police told him to tell "the truth" (meaning their truth), or he would be charged with conspiracy to commit murder.
On the strength of this recantation, the defendants appealed a second time. Had Mr Khananisho been a more important witness at trial, or a more consistent witness on appeal, the court might have permitted a second appeal.
Several lessons for officers flow from this case:
- Avoid telling witnesses what other evidence you have before - or after - you take a statement.
- Keep a complete record of the conversations with important witnesses.
- Applying pressure on a witness to get a statement may backfire in the long run.
2018.05.26 "Person of Interest" - What does it mean?
At the morning briefing, four officers learned of a homicide that occurred the night before. They saw images from security video of people of interest. Although one officer thought he recognized someone, he did not identify that person at the briefing.
The four officers went to the crime scene to pick up more security video. On their way back they talked with two guys who looked like the people in the video.
Those two guys were later charged with murder. They asked the judge to exclude the evidence that those officers obtained during their conversation. They said that they were "detained", and did not receive information about access to counsel.
The four officers testified poorly. They did not make notes at the time. They reconstructed events. They contradicted each other.
All of them tried to assure the court that this was not a "detention" because the defendants were only "persons of interest", not suspects.
It didn't work.
The judgment is pretty clear: "Person of interest" isn't a magic phrase that turns a detention into an innocent encounter. (R. v. Jama, 2017 ONSC 470 at para 47). These officers were investigating a homicide. The judge found that these four officers stopped these two guys and talked to them for quite a while. The officers did not tell them why, nor did they offer an opportunity to get legal advice.
I think this case provides a good example how routine work can go wrong quickly, when done in a "routine" fashion. General duty officers, read and beware!
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