2017.11.07 Condolences - Abbotsford Officer Down
Yesterday, a police officer died on the job in Abbotsford, B.C.. It
is the worst news his family, his friends and his colleagues could
receive. I add my small voice to the multitude who honour this man,
and wish his family healing through their grief.
2017.11.05 Dangerous Driving - Hazards of the Job
A guy named Romano,
2017 ONCA 837 drove an F-150 at 109km/h in a 60km/h zone. He struck
and killed a beautiful 18-year old girl who was trying to jay-walk
across the street.
He wasn't drunk. He wasn't high.
He was just trying to catch up with some people he knew.
What do you think. Was his driving criminal?
The first jury didn't think so. But the trial judge made a mistake.
The Court of Appeal ordered a new trial.
Why am I telling you this?
'Cause Romano was a police officer driving an unmarked vehicle. He
wanted to catch up with the rest of the surveillance team.
Now a girl is dead, and the family sued for $2M.
Probably Romano thought that it was important to watch this
particular target. Today, I'll bet he wished he drove slower.
I hope you think your work is important. Passion for the job gives
you the energy to do it well. But too much passion distorts one's
It's a question of striking a sober reasonable balance.
So let's all try to be simultaneously passionate and dispassionate.
I still work on that balance. I hope you do too.
Be safe out there.
2017.11.05 When to Stop Investigating - Confidence or Completeness
A guy in a mask robbed a bank in Oakville.
A cop across the street responded just as he ran out. The cop saw
the robber jump into a car. The cop drew his gun and attempted to
open the driver's side. He and the robber faced each other for a
10-20 second standoff. Because the robber had removed his mask, the
officer saw his face.
The robber drove off, but police soon found the car, abandoned. It
still contained the mask. The mask had 2 DNA profiles on it.
One belonged to Thomas McConville,
2017 ONCA 829.
That day, other investigators prepared a photo lineup containing
his face. They showed it to the officer, who picked Tom's face.
Tom's brother Shawn was in Oakville that afternoon. Shortly
after the robbery, he hired a taxi, which took him to Hamilton, 30k
Maybe he did the robbery.
Brothers tend to resemble each other. Brothers often associate with
each other. Sometimes, they share property. One might let the other
borrow his mask for a while. Shawn's picture wasn't in the photo
lineup. Maybe Tom's picture was the one that looked most like
the robber because Shawn did it.
And besides ... brothers have similar DNA. Those huge odds that the
DNA experts quote don't apply to related individuals.
The prosecution tendered no DNA evidence from Shawn.
That could have been a problem.
The trial led to a conviction, but only because of the presence of
mind of that first police officer when challenging the robber. In
court, this one wasn't the slam-dunk that it probably seemed to be
when the DNA and the photo-lineup led to Thomas.
Sometimes, you get a comfortable feeling that you've collected all
the evidence you need. Beware.
I think an investigation is complete when all the evidence has been
collected. Not "enough" evidence, but "all" evidence. In this case,
Shawn's DNA profile was relevant.
Okay. To make police budgets balance, I'll concede some
wiggle-room: "An investigation is complete when all reasonably
available sources of evidence have been canvassed." What's
"reasonably available" differs depending you're investigating a
murder or a shoplifting.
2017.10.31 Oops. Should I tell Defence I made a Mistake?
The earlier the better.
v Mamouni, 2017 ABCA 347, lots of disclosure came tumbling out
just before trial. Some examples included:
- The exhibit officer revealed that he made a mistake in his
testimony at the preliminary hearing.
- During pre-trial interviews, several officers revealed details
about the crime that appeared nowhere in their notes or reports.
- And by the way, during the investigation, the officers obtained
a General Warrant which wasn't revealed anywhere in the
When new information comes in at the last minute, it can change how
the trial proceeds. If the trial changes too much, defence can ask
for an adjournment. And blame Crown for the delay.
In this brave new regime of Jordan,
that can kill a perfectly good prosecution dead.
What must you disclose? Mr Justice Watson explained it this way:
The point is that “likely relevant” can be distinguished
from “barely relevant” as well as from “not relevant”. The Crown
should never presume that even barely relevant evidence acquired as
a product of an investigation need not be disclosed and in a timely
way. To say that the Crown has no such obligation is not the law,
largely because it is not up to the Crown to decide what use the
defence may make of any evidence, howsoever limited the relevance
may be. As it was put in Vallentgoed,
at para 63 “the Crown must produce records unless it is beyond
dispute that they are not relevant”.
Naive police officers may read this paragraph and relax. The judge
keeps talking about 'Crown' not 'police'. True. But the 'Crown'
can't disclose any information in the possession of 'police' unless
police disclose it. Therefore, a wise police officer reads this
paragraph to say:
The police should never presume that even barely
relevant evidence acquired as a product of an investigation need not
be disclosed and in a timely way. It is not up to the police
to decide what use the defence may make of any evidence, howsoever
limited the relevance may be. The police must produce
records unless it is beyond dispute that they are not relevant.
2017.10.26 Impaired Driving - Screening Device Demands - Blow a
Around 2:00am, an officer saw a speeding car. 94km/h in a 60km/h
A strong odour of liquor wafted out of the car when the officer
stopped it. Did it come from the driver or the passenger? The officer
asked the driver, Mr Norrie, 2016
ONSC 4644 aff'd 2017
ONCA 795 to step out of the car. Mr Norrie had bloodshot eyes,
and said that he last drank 2 hours earlier in a bar. He had
difficulty producing paperwork.
The officer suspected he had alcohol in his body, and therefore read
him a demand that he blow into a screening device. It registered a
fail. The officer arrested Mr Norrie and secured him in the police
car, and spoke with Mr Norrie's passenger.
That's when the officer noticed a partially-consumed beer in the
front console of Mr Norrie's car.
The officer believed that Mr Norrie lied about when he last drank. If
Mr Norrie had recently been drinking, then the "fail" result would not
be reliable. The officer formally released Mr Norrie from arrest. He
removed the handcuffs, but demanded a second breath test. He explained
While the officer waited for mouth-alcohol to dissipate, the officer
offered to help Mr Norrie contact counsel. But that didn't work out.
The officer read the screening device demand a third time. Mr Norrie
blew, and it registered "fail" again. Re-arrest. Back to the police
station. Access to counsel. Blow. Busted. Released on a Promise to
Things got messier after that. The charges did not get sworn before
the court date. Once they were sworn, the summons didn't reach Mr
Norrie. This caused some delay, which led to a separate issue.
The trial judge stayed the charges, finding that the second screening
device demand arbitrarily detained Mr Norrie, and prevented him from
getting legal advice to which he was entitled. The trial judge was
greatly upset by the delays in bringing Mr Norrie to court.
The summary conviction appeal judge disagreed. Because the officer
had good reason to think that the original screening test was wrong,
the officer proceeded correctly in making a second demand. And during
that time, the right to counsel remained suspended.
Do drivers ever lie about when they had their last drink? Of course
they do. Are you required to believe them? Of course not - if you have
good evidence that they are lying. When you're not sure, how hard must
you investigate to discover the truth?
Ahh. That last question is the trickiest.
As a practical matter, breath screening is supposed to be done
quickly. If the driver lied to you about that last shot of tequila
before he started driving, I think he deserves to take a detour to the
police station for a breath test. But if the open beer is right by the
driver, then perhaps, like the good officer who investigated Mr
Norrie, you should proceed more carefully.
One more thing. Remember that the officer read the screening device
three times? Be careful of that. You can only make that kind of demand
"forthwith" after you form reasonable suspicion. If the officer "made"
a second or third demand, then he was wrong, because he made them long
after he formed his suspicion. On the other hand, if made a single
demand, but reminded Mr Norrie of it after he realized that the first
test was not "a proper analysis", then he was right.
How many times you read a demand doesn't matter. But the
timing of making a demand does.
2017.10.22 Re-enactment Video
Re-enactments of a crime are hard to do well.
2017 BCCA 356 drove an SUV that hit a motorcycle. Security video
cameras in the area provided much information about how the collision
A police officer wore a GoPro camera on her head and recorded what
she saw when she drove the route Mr Gosse drove before the crash. She
intended to show the judge what the driver should have seen when his
vehicle approached and hit the motorcycle.
Unfortunately, someone placed a motorcycle in the wrong spot.
After the trial judge convicted him, Mr Gosse appealed. He said this
mistake caused the trial judge to get the wrong idea of what happened.
Re-enactment videos like this can be really helpful. But it's hard -
often impossible - to recreate the exact same conditions as the
offence under investigation.
Outdoor video is affected by time and date. Light changes depending
upon the time of day. Even if you return at the scene two months
later, lighting changes depending upon the time of year and weather.
In some driving cases, changes in foliage matters. A springtime video
of a winter event may mislead the court.
If you make one, Murphy's law says you'll get something wrong. If you
don't make one, the judge may not understand the case properly. Damned
if you do, damned if you don't.
Despite the challenges, such videos can help. In this case - even
with the mistake - the officer's video did help the trial judge and
the appeal judges understand just how visible the motorcycle would
have been to Mr Gosse when he ran it down. Mr Gosse lost his appeal.
Particularly in accident cases, police officers tend to document the
wreckage. But the crime happens before the crash. Good investigation
of the crime involves recording how the road looked to the felon
before the crash happened.
2017.10.21 Journalists are now Special
came into force on October 18. It enjoyed all-party support in
Parliament, on the basis that it provides some protection for
It goes much further than that. It protects journalists.
It creates special rules for search warrants against journalists
- If you are drafting a warrant for production of information from a
news outlet, you have new rules to follow. Read the legislation.
- Even if you don't want to discover a journalist's source, or get
the raw footage from their video coverage of a crime, special rules
apply. If you want "a journalist’s communications or an
object, document or data relating to or in the possession of a
journalist", you must apply to a superior court, not a lowly justice
of a provincial court.
- This applies even if you are investigating a journalist for a
crime. Suppose a journalist texts his ex-wife and threatens to shoot
her with the handgun he keeps in his bedroom. If you want a warrant
to enter his house and seize the gun, you need to ask a superior
court judge. If you seize his phone, then you need to ask a superior
court judge for authority to search it for the texts.
- If you get one of these special journalist warrants, you don't get
to look at any of the documents you obtain right away. You
seal up the documents, and give them to a superior court judge. You
give notice to the journalist that you want to look at the
documents. The journalist may apply to a superior court judge for an
order preventing you from looking at the documents because they
reveal a journalistic source. For the example involving the
homicidal journalist's cell phone, that will slow your investigation
- If you execute a regular warrant or production order and wind up
obtaining a journalist's communications or "an object, document or
data relating to or in the possession of a journalist", then the
rule in #4 applies to any documents you seize. The language is so
broad, it might apply to a drug dealer's score sheet or a call
girl's client list - if the document contains the name of your local
I am troubled by this bill because it was advertised as protection of
journalistic sources. If that's all you think of when investigating
journalists who commit crime, you will fall into the technical traps
The new legislation requires you to jump through extra hurdles. If
you forget, then journalists who commit crimes may beat the charges.
2017.10.21 Voyeurism - Reasonable Expectation of Privacy - Search of
2017 ONCA 778 worked as a teacher at a secondary school.
He bought an interesting camera. It looked like a pen, but it
recorded video of whatever he pointed it at.
He took it to work, where he aimed it down the cleavages of his
female students (and one teacher). He surreptitiously recorded video.
19 times. 33 victims. No consent.
Did he commit voyeurism, contrary to the relatively new section 162.1?
The trial judge said "no", because the evidence didn't prove he did
it for a sexual purpose. The Appeal Court said that the trial judge
was wrong about that. Only a prurient interest in the breasts of these
young women could explain Mr Jarvis's recordings.
The appeal court had a different concern. The section says it's a
crime to snoop like this only if the victim "is in circumstances that
give rise to a reasonable expectation of privacy". While agreeing that
what Mr Jarvis did was deeply immoral, two of the Court of Appeal
judges felt that an open classroom is not a sufficiently private place
to engage the section. It's not a bedroom or a washroom.
I sense that the Crown will appeal.
But there are other reasons to find this decision interesting. Like
search and seizure.
A police officer first responded to the complaint from the school.
The principal told him that he and other teachers had seen Mr Jarvis
holding an unusual pen as if using it to video-record students. A red
LED emitted light from the top of the pen. He aimed it down toward the
students' breasts. After the principal saw the Mr Jarvis pocket the
pen, he cornered Mr Jarvis and asked for the pen. Mr Jarvis lied,
saying he left it in the classroom. When challenged, he relinquished
The principal gave it to the school superintendent, who briefed the
police officer and handed over the pen.
Would you search the pen without a warrant?
The officer figured he lacked grounds to arrest Mr Jarvis. He figured
he needed more information to get a warrant. So he did a cursory
search of the contents of the pen. He found videos of breasts. He
relied on that cursory search to justify the warrant. The judges
didn't like that.
They found that Mr Jarvis enjoyed an expectation of privacy in his
electronic device. The officer should have sought permission from a
judge or justice before looking inside it. And they found that the
officer should have known that he needed a warrant.
Then the judges observed that this expectation of privacy did not go
very deep. The principal and the superintendent had authority to seize
the pen-camera and search its contents. The device contained
only videos of the students and no other private information. Because
of that, they found that the videos could be admitted into evidence,
notwithstanding the breach of the Charter.
The judges observed that if the officer had interviewed all the
eyewitnesses, their evidence would have justified the granting of a
warrant. The officer should not have taken the short-cut.
This last point bears consideration. You don't need proof beyond a
reasonable doubt that the contraband is in the place you want to
search. Just reasonable grounds to believe it is there.
The lessons to draw from this case include:
- Just because you want to look inside an electronic device doesn't
mean you can. Electronic devices tend to be private.
- To get into the box (or camera or cell phone) investigate outside
the box. Interview people. Look for alternate sources of evidence.
The officer could have said to the principal: "I don't have authority
to look inside this device. Do you? If you do have authority, and you
decide to exercise that authority, I'd like to know what you find." If
you have a conversation like this, take a bundle of notes. If the
teacher acts as your agent, then what the teacher finds is
2017.10.16 Evidence of Opportunity
In any "whodunnit", it helps to figure out who had the opportunity to
commit the crime.
75 women independently complained that someone sexually assaulted
them during surgeries. The only medical person common to all those
operations was Dr Doodnaught,
2017 ONCA 781, an anesthesiologist.
His lawyer asked obvious questions: how could anyone do such things
in busy operating rooms without getting caught? Maybe the anesthetic
gave the women sexual dreams. Maybe somebody else did the things these
Investigators studied how operating rooms work: to prevent infection,
the surgeon and nurses drape the patient to separate the sterilized
surgical area from the rest of the patient's body. Some of the drapes
reach up quite high. But the anesthesiologist works on the other side
of the drapes - where the surgical staff cannot see.
He had opportunity.
Opportunity does not prove the identity of a felon. Maybe somebody
else did the crime.
Dr Doodnaught liked those drapes extra-high. The women all complained
of sexual acts done to parts of their bodies that were on the
The surgical team stayed on the sterile side of the drapes. To move
to the anesthesiologist's side would breach medical protocol because
it risked infection when they returned to the sterile side.
Therefore, Dr Doodnaught had exclusive opportunity - nobody else
could have done the deeds complained of.
Okay. I took some liberties. In fact others could sneak into Dr
Doodnaught's side of the room, but they rarely did. You can read the
decision for yourself to get the full sense of it.
But the point remains, proving exclusive opportunity
establishes identity. Partly proving exclusive opportunity partly
proves identity. But even just proving opportunity helps prove the
case. Proving opportunity means showing who was there at the scene of
the crime, and who wasn't.
You discover that by learning as much as you can about the place and
the people in it. The place could be an operating room, a drug house
or the scene of an arson:
Who had access? How? What did they do there? Could anybody else have
been there at the key moment?
2017.10.16 Applying for a Warrant with Weak Grounds
After investigating for a while, you know some things for sure, and
you make reasonable inferences about other things. Beware of those
inferences. It's easy to believe too strongly in them.
After a robbery, it took investigators 2 months to gather enough
information to justify a warrant to search a residence connected to Mr
2017 ONCA 788. They had plenty of reason to believe that Silva's
girlfriend lived there. They say Mr Silva attend there once shortly
before they executed the warrant. And a phone that was loosely
associated with the robbery was registered to “Mike Silva” at that
They got their warrant, and found firearms.
The trial judge felt that the grounds contained in the ITO did not
sufficiently connect Mr Silva to that address to justify searching it
for evidence of the robbery. The trial judge felt that the officers
should have investigated more. The decision doesn't say what he was
looking for, but I suspect he wanted some evidence to show that Silva
stayed there so often that he would leave his possessions there.
After all, that's what a warrant application needs to establish: "the
stuff I'm looking for will probably be in the place I want
The judges had mercy on the officers, and admitted evidence anyway.
Because they acted in good faith. They asked a justice if their
evidence sufficed, and the justice said "yes".
But beware: when drawing weaker inferences, it is easy to overstate
the evidence. If you do, the judges won't be so merciful.
2017.10.16 Recording all Interaction
When police arrested Mr Silva,
2017 ONCA 788, he gave a statement taking responsibility for the guns
they found. At trial, he told the judge that the police threatened to
charge his girlfriend unless he made the statement, and promised to
release her if he did.
The officers denied making such threats or offers.
It's easy to see how such a conversation might arise. Imagine that
the conversation actually went this way:
Suspect: Did you arrest my girlfriend?
Suspect: If I tell you I'm responsible, will you let her go?
Officer: We'll see.
At trial, the defendant will say "the officer promised me that my
girlfriend would go free if I confessed".
How do you defend against that?
The best defence is a recording device, which records all
conversation from the point of arrest until you're done speaking with
2017.10.07 Swearing Affidavits - Hearsay and Process
What's the difference between knowing and believing? Lawyers may
explain that you "know" what you experienced, but you "believe" what
you learned from credible sources. When you swear an affidavit or
information to obtain, lawyers are going to read it. It pays to
distinguish between what you saw and what you learned from others.
In B.C., serious administrative penalties hit drivers who get caught
with too much alcohol in their bodies. The police officer sends a
sworn report to the Superintendent of Motor Vehicles. The driver can
contest those penalties by challenging the sworn report. Mr Brar,
2017 BCCA 322 challenged such a report. He complained that the officer
swore to the truth of facts that he had no personal knowledge of. He
did this by attaching calibration certificates to his report, and
swearing to the truth of the report. But he didn't do the
calibrations, therefore he could not swear that the certificates were
accurate. The affidavit would only be true if he swore that he
believed that the instruments were properly calibrated.
It was a clever argument, but the BCCA did not buy it. The
legislation permitted the Superintendent to consider unsworn documents
... and besides, the preamble to the officer's report could be
interpreted to mean that he knew only his report to be true.
Such arguments do not always fail. Whenever you swear to the truth of
a fact in an ITO, check it a second time. You can swear to the truth
of thing you experienced. But avoid asserting that you know something
to be true - even if you believe it to be true - just because someone
told you so.
For example, if you didn't calibrate the instruments, but you must
swear to its calibration, then you should choose your language
|I tested the driver's breath using instruments I know to be
||I tested the driver's breath using instruments which I believe
were correctly calibrated because I received certificates of
calibration for those instruments from a colleague. I attach
copies to this affidavit.
2017.09.28 Confessions - Outside Pressure
The private security company Brinks cares about money. And when they
suspect their staff are up to no good, it appears that they ask
Brinks issues guns to some of its staff. It protects money. Some
money disappeared. So did a gun.
Brinks reported the missing gun. Brinks management suspected their
own employee took it. The security director told Mr Foster,
2017 ONCA 751 if he returned the money, they would not pursue the
theft with the police. Mr Foster returned most of the money. Then the
security director told him they had reported the gun. He asked Mr
Foster where the gun was. The security director did not promise to
withhold his confession from police, but did say he would be prepared
to tell the court that he had cooperated. Mr Foster confessed that he
threw it in the lake, and he took them to spot.
Brinks told police everything they knew. Police found part of the
gun. Police interviewed Mr Foster. He confessed.
The lawyers saw a problem with the Brinks interviews: a "quid pro
quo". If you do something for me, I'll do something for
you. And not just any kind of something: the offer was a
confession in exchange for legal immunity. If you, as a police
officer, even intimate such an arrangement with a suspect, then the
judge will exclude any confession you receive. A confession tainted by
such an offer will taint subsequent confessions, unless something
breaks the connection between them.
The basic rule is that judges won't accept a confession to a person
in authority unless the suspect gave it "voluntarily". There are lots
of ways for a statement to be obtained involuntarily. If you don't
know them, read Oickle
again. (If you are a police officer and you have never read Oickle,
then it's like you have an STD. Don't tell anyone, but get the problem
fixed immediately. I made it easy for you, click
Inducements which suggest that the suspect will get legal immunity in
exchange for a confession generally don't meet that test.
The investigating officers could have taken greater care to separate
themselves from the Brinks investigation. They referred to it during
their interview. Lucky for them, those references did not elicit any
The appeal court expressed substantial reservation that the Brinks
security director was a "person in authority".
Doesn't management have "authority"? Kinda. Management has authority
over employment, but in this context "person in authority" refers to
criminal investigation and prosecution. Management doesn't control
The appeal court found a sufficient break between the Brinks
interviews and the police. See para 11.
The lawyers proceeded on the assumption that the Brinks security
direct was a person in authority. In a similar situation, you should
If the confession to management was clearly voluntary, then go ahead
and refer to it in your interview of the suspect.
But if there were offers of immunity, then make sure that the suspect
understands that you're starting with a clean slate. And when asking
questions about the offence, don't refer to the confession that the
suspect gave to management.
2017.09.23 Disclosure - 911 Calls - Save Now, Spend Later
A friend of the family overheard Mr M.G.T.,
2017 ONCA 736 fight with his wife. The friend called 911. Police
attended, and took statements. Mr MGT was charged. The friend
testified, so did the wife. The judge convicted Mr MGT of sexual
Mr MGT appealed. During the appeal, the Crown noticed that the
friend's 911 call was never disclosed to Crown or defence.
Mr MGT added that failure to disclose relevant evidence to his other
complaints. Those complaints failed on appeal.
With respect to the 911 call, it would not have added anything to the
But it might have.
You have a duty to disclose all evidence relevant to the charge. It's
hard to see how the content of 911 calls is not relevant.
The police had a standing agreement with the Crown not to disclose
the 911 calls unless the Crown or defence ask for it. My office has a
similar agreement with our local police. It's expensive to download,
redact and disclose every 911 call, especially considering that so few
cases go to trial.
This cost-saving policy means that after any conviction, the defence
can ask for the 911 call, in the hope that it will reveal something
new. If it does, the appeal court may well order a new trial, which is
I generally prefer to get the 911 calls before trial. Those
dispatchers often elicit information that the investigators miss.
Costly in the short term, but cost-efficient in the long term.
2017.09.22 Sex and Murder
To understand this case, one needs to review some easily-forgotten
basics about murder.
Sexual activity - consensual or not - does not turn a killing into a
murder. "Murder" involves intentional killing, (or
intentional infliction of mortal wounds.) If a man kills a woman
during a rape, it isn't murder ... unless the evidence proves that he
meant to kill her (or inflict mortal wounds).
But if he did mean to kill her, then he's in big trouble. Murdering
someone in the commission of a sexual assault is first degree murder.
2017 ONCA 720 intentionally killed a woman by strangling her. Then,
with a knife, he sliced her sweater and bra, exposing her breasts. He
cut a line along the bottom of one breast. He stripped her lower
clothing off. He dumped her body. He explained to an undercover
officer that he took these steps to make the killing look sexual, to
throw investigators off the track. He denied any sexual purpose in the
Sexual assault involves violation of sexual integrity of a person who
could consent but didn't. If a person is already dead before a sexual
assault begins, then it's not sexual assault. No matter what sexual
indignities a person commits to a corpse that they find, it isn't
Was this murder "first degree" or "second"?
Surprise! It's first degree.
Someone who does sexual things to a corpse without regard to whether
they are alive or dead is attempting to engage in sex
without consent. And that suffices to raise murder from second degree
to first degree. And a guy who assaults his victim with the intention
of doing sexual things to her without her consent is committing a
sexual assault already, even if he ends up killing her before getting
to the sexual part of the attack.
2017.09.20 Detention for Motor Vehicle Safety - "Not on a Highway"
2015 ONSC 5730 leave to appeal dismissed 2017
ONCA 722 caught the attention of a police officer when, at
1:22am, he ran across the parking lot of a MacDonald's. He got into a
car that was parked at a hotel, and drove 300m along a highway, and
pulled into the parking lot of a nearby motel.
The officer suspected that Mr Nield might be drinking. The officer
approached the vehicle, and opened the driver's door. The officer
quickly learned that his suspicions were true.
Mr Nield complained that the officer had no authority to stop him.
The Supreme Court of Canada repeatedly affirmed that you can rely on
powers conferred by vehicle safety legislation (in Ontario, the
Highway Traffic Act) to stop drivers at random. In Ontario, the HTA
defines "driver" to be a person operating a vehicle on a "highway".
Most parking lots don't meet its definition of a "highway". Therefore,
the officer could not rely on that power to stop Mr Nield.
The trial judge agreed, and threw out the case.
The Crown appealed, pointing out that police officers have other
powers. Under the common law, the Crown argued, a police officer may
stop a vehicle for public safety regardless whether it is on a
"highway" or not. The summary conviction appeal judge agreed.
To appeal again, Mr Nield needed "leave" (permission) from the
Ontario Court of Appeal. They denied leave, saying that this question
is not really much in debate.
I dunno. I can think of people who might debate this topic
If you suspect some driver might be drinking, but the car is not on a
"highway" (by whatever definition applies in your province or
territory), I suggest that you take a moment to assess whether that
driver poses a real public risk. If you detain someone in a car at a
campsite because of the possibility that he might drive drunk, I think
you might encounter an unsympathetic judge.
2017.09.17 Journalists accompanying Cops - Balancing Openness and
Democracy thrives when the public knows the truth about how the
government exercises power. The courts understand this well. They try
to avoid publication bans except when necessary, and try to
accommodate the press. CBC
v. Canada (AG), 2011 SCC 2
Police are also an arm of government. Police should also want the
press to explain to the public how and why officers act as they do.
It appears that senior officers at the York Regional Police
understand this principle. They permitted news reporters to watch
officers operating Ontario's "RIDE" programme.
The officers stopped Mr Gautam,
2017 ONCJ 577.
The reporters video-recorded the interaction. Mr Gautam failed the
screening device. The officers took Mr Gautam into a breath-testing
van, and offered him access to counsel. Mr Gautam talked to a lawyer
in a phone booth. The reporters aimed a camera through the window and
recorded that too. They recorded him providing breath samples at
152mg% and 146mg%. And they interviewed him afterwards. He explained
that he had only one drink. (I guess it was a really big one.)
A few days later, the local TV station aired a story starring Mr
At trial, the judge threw out the evidence and acquitted him.
Why? Mr Gautam complained that he could not speak frankly with the
lawyer while the camera recorded him. The judge believed him. The
judge felt that broadcasting the interaction violated Mr Gautam's
privacy rights. The judge did not blame the officers on the street,
but their management, for permitting unrestricted recording and
I sympathize with both sides.
In this era of "fake news" and anti-police rhetoric, the public
benefits from learning the truth about what police officers do. The
senior officers had a good idea. But they should have set limits.
Legally-speaking, the worst part was how the camera interfered with
the privileged conversation with the lawyer. That's an obvious breach
of s.10(b) of the Charter.
But there's another problem. Our new media make privacy a precious
internet never forgets" Mr Gautam did not consent to the
video-recording. Police compelled him out of his car and into the
baleful gaze of the camera. The journalists were not assisting the
officers to investigate, they were making a story for public
consumption which affected Mr Gautam's privacy.
You should welcome the press and let them see how law enforcement is
done. But set limits on the journalist which protect the privacy of
the people under your control. Although the distressed citizens make
great stories, you can only consent to aim the camera at yourselves,
not the citizens. "No. While we execute this search warrant, you can't
come in. We wish you could, but the judge granted permission only to
us." "Yes, you can video-record the officers at this roadblock, but
you must not air anything that identifies the people we stop." "No,
that guy is conferring with his lawyer. Turn off the camera and give
I thank Louis-Philippe Theriault for pointing out this interesting
case to me. But for him, I would have paid it no attention.
2017.09.01 Right to Counsel - Eliciting Information after Arrest or
What can you say to a suspect after the arrest but before you give
him access to the lawyer from whom he wanted advice?
For good - but now historical - reasons, the standard police warning
used in parts of Alberta contained this language:
You may be charged with <offences>. You are not
obliged to say anything unless you wish to do so, but whatever you say
may be given in evidence. Do you wish to say anything?
When an officer arrested Mr G.T.D.,
2017 ABCA 274 for sexual assault, the officer dutifully advised him of
his right to counsel. Yes, Mr GTD wanted legal advice. Next, the
officer recited that warning.
Mr GTD responded that he “did not think it was rape”, because he and
the complainant had a prior relationship.
That comment hurt him at trial. He appealed. He complained that
the officer asked him to talk about the offence before he got a chance
to get the legal advice he required. That violates his right under
s.10(b) to legal advice without delay.
All three judges of the Alberta Court of Appeal agreed.
Two of the judges reviewed the history behind this language. I found
it interesting. Long before the Charter, judges recommended that
police ask the question, in case the accused had something exculpatory
to say about the offence, like “no no, I wasn’t there. You need to
talk to my twin brother Harold” or “Sleasy Simon lent me this car. I
didn’t know it was stolen.”
That was then, this is now.
Right after you arrest someone, avoiding discussion about the offence
right after you arrested someone is like not discussing the rhinoceros
in the room. It’s hard to find some other subject of
conversation. After arresting a person for a crime, many an
officer has asked “why did you do it?” Bad idea.
Lots of people want to start talking about the crime. But if the
suspect wants legal advice first, then the police officer can’t ask
about the crime until after the suspect gets legal advice.
Opinions vary whether you need to shut down a guy who just starts
talking on his own. Some argue: if you didn’t ask him questions,
then you didn’t breach his rights. Others say: to show the judge how
fairly you treat the suspect, you should stop him from talking about
the offence until after he gets legal rights.
I think both answers have merit. I suggest that you choose your path
depending upon how vulnerable the suspect is. If she’s a seasoned
offender with lots of experience with cops, let her talk. If he’s a
rookie, or suffering a mental disability, or drunk, maybe slow the
conversation down. Whichever you do, take abundant notes (or
audiorecord) what the two of you said.
2017.09.01 Privacy - Can you Ask a Corporation to Snitch on
Information Protection and Electronic Documents Act (PIPEDA)
tells corporations to use customer information for business purposes,
but not to pass it around in ways the customer wouldn't expect.
Corporations should publish privacy policies which tell their
customers how much customer information the corporation will share
with other people or agencies. And that helps set the customers'
reasonable expectations of privacy over their data.
seemed to say that if a police officer told a corporation that they
were involved in a criminal investigation, and ask for information
about a customer, the corporation could - if they wanted - disclose
information about their customer. Nobody was quite sure because PIPEDA
was drafted badly. Some of its provisions are circular.
The confusion ended after R.
v. Spencer, 2014 SCC 43, when the Supreme Court of Canada
noticed that the provision required that police have "lawful authority
to obtain the information". The court said that means police needed a
warrant before they could rely on this provision. I found that
interpretation weird because a different section already permitted
corporations to comply with court orders. Besides, when police have
judicial authority to get information, the officers don't have to ask
a corporation to comply, and the corporation can't refuse.
Essentially, with their strange interpretation, the court erased
PIPEDA is a Federal act, and it applies only to Federal corporations.
What about provincial ones?
Many provinces created similar legislation which achieves similar
goals. The provincial legislation was drafted more clearly.
v. Orlandis-Habsburgo, 2017 ONCA 649, the court considered
Freedom of Information and Protection of Privacy Act. (MFIPPA)
Basically, an Ontario electric company shared information with police
about Mr Orlandis-Habsburgo's power consumption on request. That led
to a bust. Mr Orlandis-Habsburgo complained that it was unlawful for
the power company to share information with the police when they
asked. What do you think? MFIPPA says:
An institution shall not disclose personal information in
its custody or under its control except,
(g) if disclosure is to… a law enforcement agency in Canada to aid an
investigation undertaken with a view to a law enforcement proceeding
or from which a law enforcement proceeding is likely to result.
I thought that's pretty clear. The judges didn't.
They came to the conclusion that the power company can give
information if they choose, but the police can't ask for information
unless they get a warrant.
I find that a troubling conclusion. Historically, police work relies
upon the consent of the populace. A "good citizen" cooperates with
investigators by telling what he or she knows about the offence under
investigation. But it's all by consent. Citizen enjoy the right to
decide not to tell what they know. If they don't like the
investigation, they can stay silent. But a citizen doesn't make that
decision until a police officer asks.
The court's interpretation prevents police from asking corporations
to be "good citizens".
I may have over-simplified the logic of the decision. But as I read
this decision, it blocks police investigations.
Suppose there's a murder in the parking lot of a building, and you
think the killer may have walked in or out of the lobbies of nearby
buildings, then you need a warrant or production order in order to
persuade the management to let you review the security videos of their
Of course, if all you have is the possibility that the
killer walked through these lobbies, then you lack sufficient grounds
to justify the warrant.
No security video to assist your investigation. Whether it catches
the guilty or clears the innocent, apparently, you can't have it.
I still don't believe it. I procrastinated several weeks before
writing about this case because I'm still not certain I fully
understand it. The logic in the decision is more complicated than I
have described it in this description. I've got more thinking to do. I
may modify this post later.
2017.08.22 Search & Seizure incidental to Detention - Guns
If you have reasonable suspicion that a car contains an unlawful gun,
can you search the trunk?
At 8:23:10 p.m, an anonymous tipster called 911. The dispatcher typed
a summary of his information:
WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR
STORE IN A WHITE VEH -BKND714 [the licence plate number]
COMP SAYS HE SAW A LARGE BAG
IT WAS IN THE TRUNK OPEN
COMP BELIEVES HE SAW A GUN - 1M/A.SIAN-30-40’S
COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN
THINKS THIS MALE IS DEALING DRUGS
COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE CAR AND
BELIEVES HE SAW IT IN THE MALE’S POCKET
SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVER’S SEAT
VEH COMES BACK AS RENTAL CAR
TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING BY-CHANGES
BELIEVES HE SAW IT
MALE ALSO HAS A BRN HAT ON
COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE
Attending officers drove arrived at the the liquor store at 8:24:53pm
but did not see the vehicle in the parking lot. A few minutes later,
they did find a matching vehicle and driver pulled over, engine
running, on a nearby road. Licence plate and car, and the driver - Mr
2017 ONCA 654 - was indeed Asian, and wore a hat.
They told him that they were investigating a gun complaint. He
responded "no no no". They did not tell him about his right to
counsel, but nor did they question him. They patted him down, and
checked the vehicle for weapons. No gun.
Another officer arrived. He stepped into the driver's seat and pulled
a lever which opened the trunk.
There, indeed was a bag in the trunk. It contained 23kg of cocaine.
And no gun.
The trial judge convicted Mr Lee. He and two judges of the Court of
Appeal agreed that the police searched the trunk lawfully. One judge
in the Court of Appeal agreed with Mr Lee's lawyers that this search
went too far.
This decision does not declare open season on the trunks of cars
driven by suspicious people. The majority said:
"... this decision must not be read as condoning an
unlimited search of a car for police or public safety purposes
whenever there is an investigative detention."
The majority said that the details in the tip (gun, bag in trunk,
possible drug dealing) raised a specific concern about public safety.
When the officers searched the driver and the cabin of the car, they
found no gun. Because so much about the tip was confirmed, they had
real reason to fear that a gun remained unaccounted for. That
justified opening the trunk.
The other judge looked at the same facts from a different angle. The
pat-down and search of the cabin resolved any immediate concerns about
public safety. Even if there was a gun in the trunk, it wasn't going
to hurt anyone immediately.
It's the kind of case that would divide the judges of the Supreme
Court of Canada.
In the mean time, don't go popping trunks just because of this
decision. To go into a trunk during an investigative detention:
- tell the suspect why you're detaining
- tell them about the right to counsel
- this case suggests asking questions before they talk to a lawyer
may be problematic (though opinions differed)
- don't go into the trunk unless you have specific reasons pointing
at a live risk to police or the public.
2017.08.19 Identification - Security Video
A fight broke out at a bar. A guy walked up and fired a handgun
several times, hitting several people. Who was the guy?
Two officers and a server at the bar testified that they watched the
security video and recognized Mr M.B.,
2017 ONCA 653 as the shooter. The officers knew him from watching him
on the street (he was involved in drugs). The server knew him because
he showed up at the bar from time to time. She did not say he was
there that day.
The three witnesses were sure, but the video quality was poor.
The trial judge convicted. The appeal court threw the conviction out.
Security video always looks more convincing to the investigator than
it does to the judges. If the face is hard to make out in the video,
you probably want independent evidence.
In this case, other evidence could have included:
- did Mr M.B. have a dispute with any of the people that got shot?
- did anyone see Mr M.B. in the bar or near it that day?
- are there any witnesses who can say Mr M.B. possessed a handgun at
2017.08.12 Exhibit Destruction
In 1999, some guy broke into the home of a 75-year-old woman. He lay
on top of her and covered her face with the sheets. He told her to
relax. She yelled. It appears he stole some money, and moved an orange
juice container from the fridge, and emptied it.
The investigating officers threw out the orange juice container. They
wish they had kept it.
Twice more in the months that followed, a guy broke into the homes of
old women. He took drinks from their kitchens. He stole their money.
He went into their bedrooms and assaulted them in their beds. He raped
one of them. DNA from the rape matched Mr Nicholas,
2017 ONCA 646. On the other one, DNA from a drink container matched Mr
Nicholas. But did he do the first one?
The Crown prosecuted him for all three B&Es. Several times over.
The Crown wished that the officer had kept the juice container. If it
had Mr Nicholas' DNA on it, the case would have been easy. Instead,
they had to use similar fact evidence to prove he did it - which is
more difficult. (The jury found him guilty none-the-less.)
The officer wished he had kept the juice container. At the last
trial, the defence lawyer cross-examined the officer long and hard
about why it was thrown out.
Would you keep it today?
2017.08.12 Taking DNA by Consent
When Mr Nicholas,
2017 ONCA 646 went on the rampage, police had no DNA to match against.
They collected around 100 names of possible suspects, and asked each
in turn to provide DNA.
They went about it the right way. They prepared a form which made
sure that each fellow knew he could decline to give DNA. They offered
access to counsel. They recorded most of the process with an
audio-recorder. You can read the form in this earlier decision: Nicholas
(2004 Ont CA).
The first time Mr Nicholas went to trial, he complained that when
taking his DNA, the police detained him and coerced him. But he didn't
testify about how he felt at the time. That trial judge found that the
DNA was properly taken. That trial judge made other legal errors which
led to a retrial.
The next time Mr Nicholas went to trial, he testified that the police
detained him and coerced him into giving his DNA. Because of the
form and the audio-recording the next trial judge concluded
again that he gave it voluntarily. You might want to look at that
But the police did make a mistake. They did not accurately record on
the form all of the offences that they were investigating. That
breached Mr Nicholas' rights under s.8. The judge admitted the
Getting DNA by consent from a hundred suspects is a boring business.
You won't know which one (if any) did the crime. It's easy to slip up
on the 75th suspect, and hard to remember him from all the others. But
if your offender gives you DNA (and it's amazing how often they do),
you can expect an enormous court battle over what happened.
In addition to audio-recording, I would suggest that you also take a
picture of each suspect, so that you can identify the person from whom
you got the DNA. (Is the electronic date and time correctly set on
I recommend that you record the process of obtaining consent
on audio or video.
2017.08.08 Expert Witnesses
Some of you give expert evidence about unusual areas or topics.
Don't fudge your results.
It's not professional, and can cause untold costs and grief. In Abbey,
2017 ONCA 640, an expert claimed to have strong evidence about the
meaning of teardrop tattoos among gang members. Perhaps he did have
special knowledge, but he fudged the statistics he offered to support
this opinion. Lawyers eventually figured it out, destroying his
reputation. But not before he cost the public masses of litigation
costs. Now, his evidence is worth nothing. It is possible that a
murderer will walk free, or that an innocent man suffered a decade of
2017.08.07 Warrantless Search - Guns and Gangs
A member of the Hells Angels started talking to police.
Three days after a B&E and theft of 29 firearms and lots of ammo,
police arrested this guy for the crime. Where did the guns go? The HA
member told police that he sold the guns to Mr Strauss,
2017 ONCA 628, but he did not know where Mr Strauss stashed them. He
told police where the exchange occurred. Strauss stashed the guns and
returned 45 minutes later. Because this occurred in a rural area,
police figured the guns could be no more than a 20-minute drive from
where the informant gave the guns to Strauss.
Eight days after the B&E, the officers started searching
properties in the area. Without warrants. No luck.
Thirteen days after the B&E, police discovered a property in the
area belonging to Strauss' parents. Still without a warrant, they went
to a barn on the property. They picked a lock, and searched. They
found 17 guns, lots of ammo and drug trafficking paraphernalia.
Mr Strauss was arrested on other matters, and happened to be in
custody with the Hells Angel informant. (Was it really a coincidence?)
The Hells Angel informant then told police that Mr Strauss commented
that the police failed to search the false wall in the barn, where
more guns were hidden.
This time, police got a warrant, and found the guns, just as the
The judges were pretty annoyed by the warrantless search, and
excluded all of the evidence from the first search of the barn. The
trial judge liked the honesty of application for the warrant to search
the barn a second time. He admitted the evidence from the second
search. The appeal judges were too outraged by the campaign of
warrantless searches. They excluded all of the evidence from the
searches of the barn, and Mr Strauss beat the charges.
To search private property, in the absence of exigent circumstances,
you need consent from an authorized person, or a warrant.
In these situations, I can see why police might view the warrantless
search as necessary in the public interest. They likely had reason to
believe that these firearms posed a general danger to the public, even
if the guns did not pose a specific imminent danger at the time of the
search. By proceeding with a warrantless search, they would get the
guns off the street, whether or not there was a conviction.
Great policy. Lousy law. The trouble is, I know of no lawful
authority to proceed in that fashion. And unless you get lawful
justification under s.25.1 of the Criminal Code to do an act which
violates s.348 of the Criminal Code, you're exposing yourself to
What can you do to pursue such a policy? In the past, police have
been secretive or euphemistic about "no case seizures" to remove guns
or drugs from circulation. I think the transparency of s.25.1 of the
Criminal Code provides a better model. Or perhaps you need legislation
which - in cases of high public risk - permits you to search
suspicious places with less than probable cause. That legislation
might prevent you from using evidence so discovered from being used to
incriminate people whose privacy you violate.
2017.08.07 Arrest - Reasonable Grounds - Eyewitness Descriptions
Eyewitnesses make mistakes. They mis-remember or fail to see crucial
detail, even moments later. There are abundant psychological
experiments which prove this: Gorilla.
All these tricks show that what we focus on affects how much we
notice of the rest of our surroundings.
When a victim of a violent attack describes it, or the people
involved, they may make mistakes. That affects how you should assess
Police attended an assault complaint at Dundas & Wellington in
Toronto. They spoke to the complainant inside a Mac's convenience
store. He told the officers that two men and a woman assaulted him. He
knew one man and named him. He said that the other man had dark skin
and was dressed in baggy hip-hop style clothing.
The complainant was missing a shoe. An officer found the missing shoe
in the alley where he said the assault occurred. They officers had
good reason to believe he was assaulted.
As the officers spoke in the store with the complainant, two men and
a woman walked by outside. The complainant pointed through the window:
there they are now. Police stopped the group. The man that the victim
named was one of the three, but the other man did not wear baggy
hip-hop clothing. The other man did have dark skin, but he wore a
black pea coat, black jogging pants, brown boots and a black baseball
Police arrested all three people. When searching the "other man", Mr
2017 ONCA 629, police found drugs and a scale. He was charged with
Mr Aviles complained that the officers lacked grounds to arrest: he
wore different clothing than what the victim described.
The court found that his presence with the man and the woman shortly
after the incident, the victim's purported recognition, and the dark
skin sufficed to make this arrest reasonable.
The misdescription of the clothing did not make the arrest
unreasonable. People can make mistakes.
This case was about the drugs in Mr Aviles' possession, and
reasonable arrest. Would a court have convicted Mr Aviles of the
assault based on this evidence? No way.
A victim of an assault may make some mistakes when describing the
assailant. It was reasonable for the arresting officer to believe that
the victim mistook the second guy's clothing. But beware. Those same
frailties undermine proof of identification at trial. After an
eyewitness identifies a stranger as "that's the guy who attacked me",
look for other evidence linking your suspect to the crime.
2017.07.31 Entrapment - Reasonable Suspicion
Those of you undercover officers who ask people whether they would
like to commit a crime need to make sure you can explain to the judge
why you picked a particular target or location. All you need is
a "reasonable suspicion".
A tipster told police that Mr Seymour
2016 MBCA 118 trafficked illegally in firearms. Mr Seymour ran a
hunting supply business in Fort Alexander, Manitoba. The police
assessed the tip and concluded it was reliable. An officer pretended
to be a hunter who broke his rifle. The officer asked Mr Seymour if he
could borrow a firearm to finish his hunting. The officer claimed to
have no firearms licence. Mr Seymour obliged. The officer asked if he
could buy a firearm for parts to fix his broken gun. Mr Seymour
At trial, Mr Seymour complained of entrapment.
The trial judge and the court of appeal judges agreed.
The problem, they explained, was that the police assessed
the quality of the tip, but the evidence led at trial did not let the
judge assess the quality of the tip. The judge could not
determine whether the police had a "reasonable" suspicion that Mr
Seymour would commit the crime.
Therefore, when you get a tip that inspires you to test whether
someone wants to commit a crime, you should:
- assess the quality of the tip to make sure that it's reasonable to
think that the target mght commit a crime if given the opportunity;
- determine how much of that assessment you can disclose to the
defence and judge.
I didn't notice this decision when it first came out. Even 7 months
later, I think it may be useful to some of you even now.
2017.07.27 Holdback & Sympathy
When you don't know who did the crime, keep what you do know to
2017 ONCA 621 reported that his wife went missing. Four years later, a
land surveyor found her body in a wooded area. Police investigated:
- An autopsy showed that someone shot her in the head with a .22
- Someone wrapped her body in a carpet, and
- hid it at a specific location in the woods.
This is the kind of information that a bereaved husband might want to
know. Six years after the murder, an investigator told him all three
of these details.
Eight years after the murder, Mr Kelly told an undercover police
officer that he killed his wife. Mr Kelly told the officer those same
details he learned from the investigator.
The undercover operation made Mr Kelly believe that he would get
$400,000 if he could persuade the undercover officer that he did the
murder. That incentive meant that the jury would not convict Mr Kelly
if all he did was repeat the facts that the investigator told him two
But he mentioned other details which the investigators had carefully
kept back from public knowledge: three loops of yellow rope bound the
carpet around the body; the killer fired a single bullet to the back
of the victim's head; the carpet was blue (actually black and blue).
Those details convicted him.
There could have been more holdback to match against Mr Kelly's
confession. Mr Kelly mentioned other details which matched what the
police knew about the killing. Unfortunately, at trial, some of the
investigators contradicted each other about which of those details
were holdback, and which ones were disclosed.
Holdback ain't holdback if you tell family members, other witnesses,
or the press.
Bereaved family members often want to know exactly how their loved
one died. But they also want justice. If you tell them too much about
the investigation, you may prevent them from getting justice.
Junior officers, beware of your enthusiasm. Everyone likes to know a
secret. But holdback is dangerous. Avoid learning the holdback
information if you can. If you do learn it, disclose it to nobody
without first obtaining permission from a senior investigator tasked
with tracking the holdback. If you do accidentally leak holdback to
someone (your spouse, your brother, your secretary), report it, and
ask the person not to mention the details to anyone. You just turned
that person into a witness in the case.
Tracking holdback is hard. Senior officers: keep the circle small.
You want to avoid the problem which arose in the Kelly trial. You want
to be sure exactly what information was held back. Set rules: who
decides when to release holdback? what documentation do you want from
people in the circle about disclosure? Don't just track what your
people told he suspect. Make sure everyone in the circle knows the
rules. Make sure you know the name of everyone who knows the secret.
2017.07.27 Undercover - Some of Mr Big's Relatives have big Harts
v. Hart, 2014 SCC 52, the court set special rules for the
admissibility of evidence obtained in Mr Big operations. They said
those rules apply to operations in which officers pretend to be a
criminal organization which can and does use violence, they engage the
suspect in simulated crime, they demand loyalty and honesty, and a
powerful leader in the organization interrogates the target to
ascertain the truth, and dismissing his denials as untrue.
The new rules told investigators what many already knew - don't
intimidate or control your target too much.
The undercover operation in the case of Mr Kelly,
2017 ONCA 621 (see above) didn't look much like the traditional Mr Big
operation. An insurance agent contacted him about about life
insurance on his wife: a $3,000 payout. Did he want the money? Oh,
yes, Mr Kelly wanted the money. The agent alerted him to a weird
provision in the release form: it included a requirement that Mr Kelly
waive any claims he might have under any other insurance policies. The
agent thought that was weird, and he'd check into it. The agent got
back in touch with Mr Kelly: yes, there was more insurance on
his wife worth $570,000. But the insurance company wanted proof that
Mr Kelly didn't murder his wife.
Luckily for Mr Kelly, the agent had a dying friend who wanted money
for his daughter to go to university. If Mr Kelly told the dying
friend exactly how he killed his wife, then the agent and the friend
would take $150,000, and Mr Kelly could keep the rest. But the plan
would only work if Mr Kelly told them exactly what he did.
This was an innovative operation. Not Mr Big, but it got results like
Did the restrictive new rules for Mr Big operations apply to this
The judges said "yes". The officers offered a powerful inducement:
$400,000. And they involved Mr Kelly in a conspiracy to commit fraud,
which would make him look bad to a jury.
But applying those new rules, they found that this operation fit the
- No threats of violence.
- No pattern of simulated criminal acts.
- No control over Kelly's life.
And Mr Kelly's confession matched the holdback.
The jury convicted him, and Mr Kelly lost his appeal.
But because the court said Hart applies, you must test your
future operational plans against Hart even when you plan
something different from the traditional Mr Big.
2017.07.26 Deceived by the Obvious - Proof Beyond a Reasonable Doubt
Too much experience in the field can sometimes blind you to the
burden of proof in the court room.
Over two days, some officers watched known drug addicts visit a hotel
room for short periods of time. The officers got a warrant, kicked in
the door, and found two beds. The officers arrested the three men
lying on them. All three men had bundles of cash in their pockets. Two
of the three men also possessed cocaine -- but not the third man, Mr Douglas,
2017 ONCA 609.
The room contained several bags of larger quantities of what
looked like crack cocaine. The lead investigator had abundant
experience busting cocaine dealers, and easily concluded that the
other bags also contained drugs. I suspect for that reason, he did not
send the other bags off for testing.
The trial judge relied on the investigator's experience and
knowledge, and came to the conclusion that the other bags contained
drugs. That helped lead him to believe that Mr Douglas participated in
the drug transactions. Their locations, and the presence of scales
probably added to the inference the trial judge could draw.
On appeal, Mr Douglas's lawyer complained: the officer was not a
qualified expert. (I observe that even if he sufficiently qualified,
he might be seen as biased by reason of his involvement in the
investigation, and therefore disqualified from giving expert
In the absence of admissible evidence that the other bags contained
cocaine, the court only had proof that the other two men possessed
cocaine in their pockets. All Mr Douglas did was occupy a room which
contained two men with cocaine in their pockets. Even if the others
were dealing cocaine, all this showed was that Mr Douglas might have
been present, but not that he participated.
The appeal court upheld the trial judge's conviction because there
was lots of other circumstantial evidence. But I draw this case to
your attention because because it illustrates a trap that's easy to
At the time of arrest, the defendant's guilt often looks so obvious
that investigators are tempted to take short-cuts investigating guilt.
In this case, the other (larger) bags "obviously" contained drugs, and
so nobody asked the lab to test their contents. In another case, it
will be the defendant's obvious sobriety, or intoxication, or lack of
injuries. At trial, judges need clear evidence of the obvious facts
before they can rely on them.
Sometimes, it really is a waste of time proving the obvious. You
don't need to ask the forensic lab to test the red stuff oozing out of
a cut in the victim's hand to determine whether it's blood. On the
other hand, when the drunk driver threatened to punch the breath
technician, you really should preserve the security video in the
police station from the time that he or she arrived to the time he or
she departed. And you should get every eyewitness to write a
How much time and money you should spend to investigate the obvious
depends upon the seriousness of the case and the strength of the other
evidence. Guilt usually appears more obvious to the investigators at
the time of arrest than at trial. Slow down. When deciding what
short-cuts to take, remember that in court everything gets challenged,
and when challenged, most witnesses sound only half as impressive as
they did at the time of the investigation. Many cops included.
2017.07.20 Undercover Officers on the Internet - Screenshots
A great way to catch internet predators is to pretend to be internet
prey. Can you make screenshots of the communications a suspect sends
An officer created a fake profile of a 14-year-old girl. Mr Mills,
2017 NLCA 12, aged 32 started communicating with her about sex, and
invited her to meet him in a park. He claimed to be 23.
To record the communications, police captured images of the screen
using a program called "Snagit".
Defence complained that this constituted "interception" of private
communications. It required a 1-party consent authorization under
s.184.1 of the Criminal Code.
The trial judge agreed.
The appeal court didn't. Without mentioning the seminal case of Duarte,
 1 SCR 30, they overturned the trial judge's finding that police
breached Mr Mills rights.
Mr Mills didn't like the appeal court's conclusion, and applied for
leave to appeal to the Supreme Court of Canada.
At present, it appears that you do not need authorization to capture
screenshots of undercover internet chats. I think it's a logical
conclusion. But if the Supreme Court grants leave, I do not
think the judges of that court will find this case as simple as the
Newfoundland Court of Appeal did.
2017.07.17 Destruction of Exhibits - Live Long and Prosper
How long after the conviction should you keep the exhibits?
In 1983, part way through his first degree murder trial, Mr Tallio,
2017 BCCA 259, pleaded guilty to second degree murder. In 2016, he
filed an appeal, based upon DNA testing of a few of the exhibits that
remain. One contained DNA that doesn't match him, but there is
evidence to suggest that it was contaminated by a hospital employee.
Most appeals start within 30 days of the final decision. 33 years is
unusual. The decision makes it clear that finding those exhibits took
considerable effort. Many exhibits are gone.
Your exhibit storage systems are expensive, and contain masses of
stuff that nobody wants. You want to clear them out. Avoid destroying
evidence without first checking with people who could be affected. Mr
Tallio asserted his innocence ever after his conviction. He would have
wanted that stuff kept. Other convicts might not care so much.
2017.07.17 Right to Counsel s.10(b) - Wait Long or Prosper
Section 10(b) of the Charter assures Canadians who are arrested or
detained that they will be able to "retain and instruct counsel without
delay". How long can the suspect spend contacting his or her
lawyer? When can you override the suspect's delay?
At 1:30pm, police officers arrested Mr Fountain,
2017 ONCA 596 for a home-invasion robbery. They told him about his
right to counsel. He told them he wanted legal advice. He asked that
his girlfriend contact his lawyer for him. When he arrived at the
police station, at 2:10pm, he gave the name and phone number of his
lawyer. It wasn't until 2:35pm that the police first called the phone
number he gave. Someone at the lawyer's office said he was out, but
would call back. The lawyer didn't call back. Police called again at
6:15pm, and left a message. At 7:00pm, Mr Fountain's girlfriend told
police that a lawyer would be at the lawyer's office in the morning.
At 8:15pm, the arresting officer told Mr Fountain about the two calls,
and what the girlfriend reported. The officer offered Mr Fountain a
call to Legal Aid.
Mr Fountain turned down Legal Aid because he wanted to talk to his
lawyer in the morning.
The arresting officer then interviewed Mr Fountain. Twice, Mr
Fountain objected to the questioning because he had not yet spoken
with his lawyer. The arresting officer pointed out that he turned down
Legal Aid. The second time, Mr Fountain spoke to Legal Aid. During the
interview, Mr Fountain said the essential things necessary to get him
The trial judge admitted the confession. The appeal judges threw it
out. They said that Mr Fountain did not waive his right to counsel.
The officer should have:
- waited until the morning before questioning Mr Fountain, or
- read him the Prosper warning (the Supplemental Charter
warning) before forging ahead with the interview.
Mr Fountain beat the charge.
What went wrong?
The arresting officer gave Mr Fountain the choice to wait until the
next morning to talk to his own lawyer, and Fountain accepted that
choice. That was fair. The officer then questioned Mr Fountain before
he spoke with his lawyer. That approach prevented Fountain from
getting the legal advice he wanted.
Why did the officer change the time-line?
Maybe the officer's shift ended that night. Maybe interviewing the
suspect next morning would have required the officer to return to work
on his day off.
How fast the suspect must get legal advice depends upon the urgency
of the investigation. If other culprits are currently at large, posing
a danger to the public or destroying evidence, then you may push the
suspect to get legal advice quickly, so that you can question him
sooner, and try to solve the evolving situation. If the situation is
under control, then you should let the suspect wait until morning to
speak to the lawyer of choice. An impaired driver doesn't get till the
next morning to contact counsel because his body metabolizes the
evidence with each passing minute. But a trafficker may be entitled to
delay that long because no evidence will be lost in the interim, and
no people are endangered.
Seriousness matters too. In a small fraud case, a judge might permit
an officer to hurry things along to accommodate the officer's work
schedule. For serious cases like home invasion or murder, judges won't
care so much about conveniencing police officers.
Sometimes, when you call the suspect's chosen lawyer, you get no
response. If you think waiting for a response will take too long, know
that a judge will second-guess you. Before telling the suspect to get
legal advice from some other lawyer, assess how urgent the situation
 3 SCR 236 the court set a high standard for "waiver". This case
applies when a suspect first says he wants legal advice, but later
decides to do without it. The judges decided that in those situations
you must give a supplemental Charter warning, so that the suspect
knows he is entitled to a reasonable opportunity to get legal advice.
If you decide you won't wait, you need to make the ground rules clear
to the suspect, because you are setting him up to waive his right to
- You have a right to a reasonable opportunity to get legal advice.
- I have to hold off eliciting evidence from you until you get that
- Waiting until tomorrow isn't reasonable because .... I'm not going
to wait until tomorrow to interview you.
- We've done the following things to contact the lawyer you named:
- Is there anything you can think of that would put you in touch
with your lawyer tonight?
- No? That leaves you with three choices:
- Choose a different lawyer to talk to tonight.
- Call Legal Aid - they're available 24 hour a day.
- Proceed without getting any legal advice.
- Just to be clear, I'm not going to ask you questions about the
crime until you've had a reasonable opportunity to get legal advice.
If you want legal advice, let's make it happen. But let's do that
Read my second paragraph, thinking about the suspect's experience of
access to counsel. He may have got the impression that the police
officer put a low priority on putting him in touch with counsel. There
may be good reasons for the officer's delays - other matters may have
occupied the officer. But judges assess infringements of rights from
the point of view of the suspect, not the police officer.
2017.07.17 Reasonable grounds - Confirming Tipsters
How much confirmation of a tip do you need before you can act on it?
It depends. On the quality of the tip, and the amount of confirmation
you already have.
An officer watched the house of a suspected cocaine dealer when a
silver Honda Accord drove up. A tall slim black guy got out, and went
into the house. The officer ran the plate, and then remembered that
another officer told him of a tip relating to that plate and car: the
tipster said it belonged to a high-level drug supplier. The tipster
said the supplier was a tall slim black guy in his 30's. The other
officer said that the tipster was reliable, and had first-hand
About 20 minutes later, the officer saw the suspected cocaine dealer
show the tall slim black guy out of the house. When the tall guy drove
away, the officer arrested him for drug trafficking. Mr Dunkley,
2017 ONCA 600 had 6 cell phones in his clothing and in his car. Behind
panels in the car were US$440,000, and 5.5Kg of cocaine. And a
At trial, the defence urged the judge to find that the officer's
evidence failed to prove reasonable grounds to make the arrest. The
- had no personal dealings with the tipster;
- did not know how the source handler came to the conclusion that
the tipster was "reliable", and therefore
- could not explain to the trial judge why it would be reasonable to
trust the tipster.
The trial judge and the judges of the Court of Appeal rejected this
argument. The tip enjoyed some credibility because the tipster claimed
to know from personal observation. The officer's observation
coroborrated the tip because the car described by the tipster went to
a drug dealer's house, and the driver the description given by the
tipster. He stayed for a short time, consistent with a delivery of
drugs to the dealer. The appeal judges said:
The high degree of suspicion attached to these non-criminal
acts was sufficient to remove the possibility of innocent coincidence.
Note what the judges focussed on. If you observe only
"non-criminal acts", then think twice before arresting anyone. On the
other hand, if the information you have can "remove the possibility of
innocent coincidence", then go ahead.
That analysis works whether you're considering whether to arrest the
driver who emerged from the bar, or the street dealer that you're
2017.07.09 Street checks - Identifying the Passengers in a Traffic
When meeting shady people in shady places, diligent police officers
try to identify all the people involved. The Charter limits what you
can do and when.
Near a crack house house, a black Honda drove slowly by. A police
officer watching the car noticed that one passenger was not wearing a
seatbelt. The officer stopped the car. That passenger, Mr Mhlongo,
2017 ONCA 562 got out and tried to walk away. The officer stopped him,
and asked for identification. Mr Mhlongo produced picture ID which
satisfied the officer that he knew who he was dealing with.
The vehicle carried the wrong licence plates. Some investigation at
the scene led to the driver's arrest.
After that, without releasing Mr Mhlongo, the officer consulted a
database available in his police car to find out more about Mr Mhlongo
and the other passenger. Under cross-examination, the officer agreed
that the computer checks were investigation into possible criminal
matters, but he didn't know of any crime at that moment. He wasn't
letting go of Mr Mhlongo until he knew. Meanwhile, Mr Mhlongo tossed
something under a nearby car. It turned out to be cocaine. Police
detained and then arrested him for possession of cocaine. They found
lots more cocaine in the car.
Mr Mhlongo complained at trial that the police arbitrarily detained
him. He conceded that the initial detention was lawful. The passenger
who should have been wearing a seatbelt tried to walk away: that gave
the officer a reason to stop him. But after the officer arrested the
driver, the seatbelt investigation was over. There was no further need
to hold Mr Mhlongo. The continuing detention after the arrest was not
for highway traffic matters, but to investigate Mr Mhlongo for
possible criminality. Because the officer admitted he had no grounds,
this was an arbitrary detention.
And furthermore, Mr Mhlongo complained that:
- just by asking Mr Mhlongo to identify himself the police breached
his s.8 right to be free from unreasonable search and seizure.
- when they continued the detention, the officers failed to offer Mr
Mhlongo legal advice. They breached his rights under s.10 of the
The appeal court judges agreed.
Of course you want to know who you're dealing with. But you can't
detain people without reasons.
Sometimes, careful consideration of the evidence under your nose can
justify a detention. But the rest of the time, you must release people
when you have to reasonable suspicion that they did or are doing
I'm troubled by the s.8 conclusion. A decade ago, in ,
Harris, 2007 ONCA 574 the court first asserted this idea:
collecting names from non-suspects for the purpose of looking them up
in a database may breach their s.8 rights. Back then, I thought the
dissenting judge made a good point: one doesn't enjoy much privacy in
one's name. I also think that if police arrest one guy, they should
attempt to identify all the others. I can conceive of situations in
which failing to identify the other parties present may
breach a defendant's s.7 rights. In any case, collecting intelligence
on the inhabitants of crime-ridden areas seems to be a necessary
technique for police to protect the life, liberty and property of
Some day, some prosecutor will need to take this issue to the Supreme
Court of Canada for clarification. Mr Mhlongo's case is not the right
one. In the mean time, if they haven't already, Ontario police forces
should develop policies about asking non-suspects for identification
or investigating the non-suspects during detentions.
2017.07.09 Detention & Reasonable Suspicion
Here's a close call. Are these reasonable grounds to detain?
A residential neighborhood in Markham, Ontario suffered a spate of
day-time B&Es. Some houses were under construction. A plainclothes
officer drove there in an unmarked police car for the purpose of
investigating the burglaries. He saw a brand-new rental van come from
a dead-end area, drive an unnecessarily complicated route, and pull
into 31 Hislop Drive. Two young men occupied the truck. Five days
later, while patrolling again, he saw the same truck. The occupants
stared at him as they drove slowly through an intersection. It drove
by 31 Hislop, made a U-turn, and parked 4-5 houses down the street.
The officer pulled in behind the van. The vehicle then drove a block
The officer felt suspicious, but had observed no driving infractions.
He pulled it over and asked the driver, Mr Gonzales,
2017 ONCA 543 for his licence and registration.
Mr Gonzales asked why the officer stopped him. The officer said he
wanted to check his licence. The officer didn't mention the
burglaries. Nor did he comment on the skunky smell of marijuana
emanating from the truck.
The officer called for backup before arresting the men. In the van,
they found 252 pounds of packaged marijuana and $105,000 in cash.
Was the initial stop an arbitrary detention? The investigating
officer testified that he stopped the vehicle to investigate the
burglaries. The trial judge very generously found that the officer
also stopped the vehicle to investigate licencing and insurance. The
appeal court rejected this finding. The officer went there to
investigate burglaries, not drivers. For vehicle stops, of course, you
don't need a reason - if the purpose is genuinely to investigate
licencing and vehicle safety. For criminal offences, you need
The judges found that the officer's observations did not add up to
reasonable grounds to suspect that the young men in the van
participated in the burglaries.
I think it's a close call. I suspect that a highly observant and
articulate officer might have been able to make sufficient inferences
and deductions from the unusual behaviour of the van and its occupants
to justify a detention.
But the facts left no uncertainty about the vehicle safety detention.
This officer couldn't justify stopping the vehicle to check licencing
and insurance. He was specifically investigating burglary. The van
committed no driving infraction. To pretend otherwise is to lie (and
to be clear, the officer did not try to use this justification for
stopping the van).
To avoid telling this lie in court, don't use the traffic safety
excuse to explain why you stopped a suspicious vehicle unless it's
2017.07.09 Detention - s.10(a) - Not Telling Why
In the previous article, did you notice that the officer never told
the occupants of the vehicle what crime he suspected when he first
Section 10(a) of the Charter obliges you explain the reason for a
detention. Mr Gonzales,
2017 ONCA 543 also complained that the officer failed to do so, and
therefore he sought exclusion of the evidence.
The plainclothes officer explained that he delayed telling the
suspects why he was stopping them until he could bring in back-up. The
officer was not wearing his bullet-proof vest and various other gear.
It took 7 minutes for backup to arrive. When they did, he arrested the
suspects without further delay, explaining their jeopardy at that
The court accepted the "officer safety" explanation for delaying the
explanation of the true reason for the detention.
If telling a suspect the real reason why you stopped him could get
you hurt or killed, then you may delay the explanation. But take
immediate steps to make yourself safe, and then get to the explanation
2017.07.09 Strip Search - You need a Reason
After police arrested Mr Gonzales,
2017 ONCA 543 (see above), they took him to a police station and
Problem was, the officers could not identify any evidence they
expected to find by so doing. You can't strip search someone for
evidence just because you lawfully arrested him or her. You need
reasons to believe that a strip search will discover evidence, weapons
There were no such reasons to justify this strip search. The judges
didn't like that. Gonzales beat the charges.
I think the Gonzales
decision is worth reading and discussing. It's well-written and clear.
How might you have gone about this investigation differently?
2017.07.08 Who Gets the Goods? Disposition of Exhibits
Mr Colyer may have stolen a $40,000 diamond. Police received
information that he pawned it at Floward
Enterprises Ltd., 2017 ONCA 448. The investigators found a
diamond at the pawn shop. Believing it to belong to the victim, they
I gather Mr Colyer beat the charge. Perhaps the victim's death
deprived the prosecution of an essential witness.
When the trial was done, the pawn shop owner asked for the diamond
The police told the pawn shop owner that they would not decide who
gets the diamond. There's a procedure for that, set out in s.490
of the Criminal Code. The police also tried to inform the victim's
family about s.490:
the people who want the diamond back should ask a provincial court
judge to decide who gets the property.
The pawn shop owner applied for return of the diamond. He didn't
formally notify the victim's family about the hearing. The provincial
court judge gave him the diamond. Then the victim's family found out,
and they appealed.
The technicalities of this decision don't matter to police. The big
point is that you can and should duck property disputes over
seized property. The Criminal Code provides a procedure. Tell the
competing claimants about the procedure. Heck, you can apply to the
court yourself asking for a decision. Try to make sure everyone
interested in the property knows when the hearing will be. Give notice
in writing too.
2017.07.08 Timely Photographs
Two prisoners occupied the same cell during a lockdown. One died of
head injuries. Did he just fall, or did the other prisoner attack him?
Four days after the death, someone photographed an injury pattern on
his head. It looked like tread marks from the other prisoner's shoe.
But the photographs weren't clear enough for the expert to give a
The jury convicted Mr Bye,
2017 ONCA 528 of murder anyway. And the appeal court upheld the
conviction. I think the shoe pattern on the victim's head helped the
jury to their conclusion. A clearer picture might have helped.
Photographing injuries solves lots of problems, when done correctly.
But lots of officers take lousy pictures.
Some people say "the camera never lies". It's not true. Here's a list
of common problems:
- Too new - Bruises take time to develop. If you take photos minutes
after a violent event you may miss many marks. If you arrive minutes
after the incident and photograph the victim before taking a
statement, try taking some more photos an hour later. I have one
case of a recanting spouse who blamed her injuries on an incident
days before. However, the investigating officer noticed that the
bruises on the victim's face swelled over the several hours they
were together. This turned out to be important evidence in the case.
- Too old - Scratches heal; swelling subsides; bruises fade. Get
those photographs before the injuries dissipate.
- Too bright - Flash cameras can hide the injury you seek to
capture. If you orient a flat surface (like a bruised arm) directly
at the camera, the flash can reflect off the skin, and conceal what
you hoped to preserve. Try oblique angles, and natural lighting.
- Too dark - Night photography is difficult. In the dark, the flash
captures only nearby objects. If you photograph at night, plan to
return in the morning.
If it's worth photographing, it's probably also worth making a note
of what you saw. If the camera lies, then after checking you notebook,
you can set the record straight.
2017.07.04 Parallel Investigations create Disclosure Problems
I'm seven months late commenting on this case. Better late than
never. This case matters to investigations big and small.
The drug squad figured Mr Chu,
2016 SKCA 156 conspired to traffick cocaine. They investigated and put
together a case. A separate team investigated him for his dealings
with the proceeds of crime. The drug squad finished first. They laid
charges and gave Crown the fruits of their investigation. Crown
disclosed to defence. Nobody told the prosecutor about the proceeds of
crime investigation until a few days before trial.
Two days before trial, the prosecutor told the defence lawyer that
the other police investigation produced 1,900 documents, some of which
might be relevant to the trial.
This rather upset the defence lawyer, who asked for an adjournment.
The trial judge felt no sympathy. He ordered the case to proceed, and
convicted Mr Chu. The judges of the Appeal Court ordered a new trial.
They felt sympathetic. Here's why.
Imagine you were about to buy a beautiful old house. It will cost you
your life savings, and a commitment to pay most of your disposable
income for 20 years. Minutes before you complete the transaction, you
learn that 20 different building inspectors examined the house over
the last 10 years. Each one wrote a report. All the reports are
collected in a folder for you to read. Only a fool would sign on the
dotted line before reading the contents of that folder.
The defence lawyer was in a similar position. Maybe those documents
contained nothing of importance. But he didn't want to proceed with
the trial until he knew.
Parallel investigations of the same suspect for related offences
automatically create this disclosure problem. Heck, even if the
offences are unrelated, there's a distinct risk that two separate
investigations will discover information relevant to the other case.
For those of you involved in big investigations, you may easily
overlook the possibility that the evidence you gathered may relate to
the defence of the other case. If you know of a parallel
investigation to your own, think big picture: do these two
investigations overlap at all? What disclosure obligations will
trigger when we lay charges on the first one?
For those of you involved in little investigations, don't wait until
the day of trial to disclose evidence or information to the
prosecutor. When the prosecutor discloses it to the defence lawyer,
that lawyer will get an adjournment. Adjournments derail good cases.
In Mr Chu's case, I suspect that the delay caused by the late
disclosure prevented further prosecution. The busts occurred in 2011.
Will that delay survive a Jordan application?
You can find more summaries of legal decisions at the News