More and more legal knowledge is expected of officers investigating crime.  I offer here some thoughts on criminal law.  I hope they help.

These are my opinions only, not those of any government agency.  Please do not view them as a substitute for legal advice. If you find errors or have suggestions, please email me.

- Henry Waldock


My publisher collected many of the more frequently-used chapters of my books into a single (cheaper) paperback edition: "Common Canadian Criminal Code Offences and Procedures 2017-2018".  Some of you may find it useful.

New Law

2019.01.13 Drug Recognition Experts - Rolling Logs - Disclose your Performance

With the legalization of marijuana came increased enthusiasm for drug recognition experts (DREs).

Are they any good at recognizing drug intoxication?

DREs keep logs of the evaluations they perform.

When a DRE concludes that someone's impaired by drugs or drugs and booze, section 320.28(4) of the Criminal Code requires the DRE to "identify the type or types of drugs in question". Testing of bodily samples thereafter may confirm or rebut their opinion.

Naturally, defence will want to learn how many times a DRE got it wrong. Crown wants to emphasize how many times they got it right.

So the lawyers want copies of the DRE's log. Not only at the time of the initial disclosure, but also updated close to trial. The Ontario Court of Appeal says that the defence is entitled to a copy of the DRE's log. Stipo, 2019 ONCA 3.

If you are a DRE with a good track record, defence will then challenge your record-keeping. Is there any way that you could doctor your log to cover errors revealed by testing of bodily samples? Your log better be something more permanent than a word processor file.

If you are a DRE with a bad track record, consider getting out of the business.

If you are a beginner DRE, to conserve your reputation and protect your log from an accumulation of mis-identifications, you might want to make your assessments carefully.

2018.12.31 Strip Search in the Field

Mr Pilon, 2018 ONCA 959 tended to carry drugs in his crotch. And police who knew him knew of this tendency.

Those officers executed a CDSA warrant to search for drugs in a room at a motel. In the room, they found Mr Pilon and two other guys. The officers arrested the three men - I gather they had grounds. The other two guys put up no resistance, but Mr Pilon struggled and resisted. He kept trying to put his hands down his shorts, even after the officers handcuffed him.

An officer pulled his waistband away from his body. To his surprise, he saw that Mr Pilon wore no underwear, but a rubber band was attached to his penis.

A pat-down search did not discover any weapons. To prevent Mr Pilon from concealing evidence, the officer decided to search him at the motel. He put on gloves, and in the bathroom, away from the observation of anyone else, he searched Mr Pilon, and recovered drugs.

At trial, Mr Pilon complained that the officer who searched him violated his s.8 rights by strip searching. The trial judge rejected this complaint, but the appeal court found a breach.

Even if Mr Pilon had been wearing underwear, pulling his waistband away from his torso to look into his groin area constituted a "strip search". Police must not do so except according to the strict limits of such searches (read the decision to remind yourself). That was a breach of Mr Pilon's rights.

You can pat someone down for weapons. At the scene, you can search under clothing if you have reasonable grounds to believe that there are weapons that pose you or others a risk. But you can't search for evidence unless there are strong reasons to expect it will be destroyed or hidden before you can get the suspect to the security of your police station.

This officer didn't believe Mr Pilon had weapons. He knew Mr Pilon carried drugs in his crotch, and Mr Pilon was acting like he had drugs in his crotch.

The judges felt that a handcuffed suspect would have great difficulty concealing or destroying drugs in his crotch. Therefore, there was no urgency to searching him. He should have been carefully watched until he arrived at the police station, and there, searched for the evidence he was carrying.

But the judges also agreed that the breach of rights was not outrageous. After the initial breach, the officer did take steps to limit the intrusion on Mr Pilon's privacy. They found that the drugs could be admitted into trial. Mr Pilon's conviction stuck.

I found this case interesting because many officers may think "strip search" means taking off clothing. But it includes less overtly embarrassing searches. It includes pulling away outer garments to look at underwear.

2018.12.13 How Sharing affects Privacy in Computers and Privacy in Houses; Oh yeah, also Form 5.2

Every so often, the Supreme Court of Canada delivers a decision which declares broad principles that affect police work. This is one. It expands upon the idea that nobody can waive the privacy rights of another person. That idea can complicate police work. I recommend that you read this decision and debate it.

Mr Reeves, 2018 SCC 56, and his common-law Ms Gravelle owned a house together. Ms Gravelle and her sister complained that he assaulted them. As a result of his charges, a "no-contact" order prevented him from entering the house without Ms Gravelle's permission. She revoked that permission, and she told a probation officer that a computer she shared with Mr Reeves contained child pornography.

A police officer came to the house to ask her about the child pornography. She welcomed the officer in. She signed a consent which permitted the officer to take the computer away, which he did. He did not report to a justice that he took the computer, but 4 months later, the officer persuaded a justice of the peace to issue a warrant to search the computer for child pornography. And it did, indeed, contain child pornography.

At the time that he took the computer, the officer did not believe he had sufficient grounds for a warrant.

The first judge decided that the police officer violated Mr Reeves' rights three ways:

  1. Although the officer entered the home with Ms Gravelle's permission, he did not have Mr Reeves' permission. Therefore, he violated Mr Reeves' reasonable expectation of privacy in the residence.
  2. The officer "seizure" of the computer, and failure to report it to a justice, as required by s.490, violated Mr Reeves' expectations of privacy in the computer.
  3. The application for the search warrant gave a falsely strong impression of the evidence that the computer contained child pornography.
1. Consent of a Resident isn't Enough?

The first finding should frighten you: if a resident invites you into a shared house and you accept, you may be violating the Charter rights of other residents.

Most of the judges of the Supreme Court of Canada realized that this idea was complicated. They'd worry about it some other time. This wasn't the right case for them to express an opinion.

Côté J. - all alone - suggested that consent of one resident lawfully permits you to enter the common areas of a residence.

Moldaver J. - also alone - said it might be okay to enter a residence to take a witness statement if:

  1. you give the resident an alternative to inviting you in,
  2. the resident invites you in anyway,
  3. for the purpose only of talking to the resident or getting a statement,
  4. in a common area or an area private to the resident who invite you in, and
  5. you stay only as long as you are welcome.

The judges may have the luxury of time to decide what's proper for a police officer. You don't have that luxury.

I can't accurately predict what rules the judges will ultimately set for you.

Even before this decision, you required clear authority to enter a residence without the permission of the residents. After this decision, you should be thinking twice about entering shared residences, even with the permission of one of the residents. Your obligation to save lives obviously overrides privacy concerns. But this decision gives greater force to the complaint of the other residents "I didn't let that cop into MY HOUSE. My rights are violated!!"

2(a) Taking the box without looking into it affects reasonable expectations of privacy

Because this officer did not believe, at the time of the seizure, that the computer contained child pornography, he could not seize it pursuant to s.489(2). His idea of asking the woman to sign a consent was a good one, but it turns out that step was not good enough.

Most of the judges agreed that one computer owner/user can't give you permission to take away a computer that contains the private data of another owner/user. Even if you don't look at it until later, with the authority of a warrant.

The officer didn't seize the computer from the woman. She gave it away freely. But by taking the computer away from her, he also took the computer and its data away from Mr Reeves without his permission. But for the officer's actions, maybe Mr Reeves could have made his peace with Ms Gravelle, and deleted the data.

2(b) Report to a justice and detention order

A seizure happens when you take something without consent. After you seize something, you must report it to a justice. This officer probably thought he received the computer from Ms Gravelle, and therefore, he "seized nothing". A reasonable thought. But the Supreme Court of Canada says there was a seizure -- from Mr Reeves. That's why the officer should have completed a Form 5.2.

So get used to filling out form 5.2. When in doubt, fill it out.

3. Warrant Drafting

It's really easy to exaggerate the strength of the evidence justifying a warrant. Any officer pursuing a lead should be enthusiastic, but enthusiasm generates confidence. Overconfidence can cause one to state inferences as facts.

The investigating officer learned that the women saw files that they believed were child pornography.

The officer who wrote the ITO:

To ensure that your application is correct, return to the source material, and check what it really says, instead of the conclusions you draw from it.

2018.11.26 Apologies

I posted no new material over the last month. I promise I will, but not for a couple more weeks. I've been busy. The new impaired driving legislation comes into force in 3 weeks. I worked up a presentation for lawyers. This week and next, I'm preoccupied with a lengthy trial.

I have lots to tell police on the topic. Here's a tidbit for today:

Police officers used to tell drivers that the penalties for failing the breath analysis are the same as the penalties for refusal. That's not true any more. After December 18, 2018, for first offenders, the fine for refusal is higher than the fine for impaired driving, and depending on whether the Blood-Alcohol Concentration is double the legal or lower, the fine is the same or lower if the suspect blows into the instrument. But the penalties for repeat offenders are the same.

2018.10.27 Identification Evidence - Showing a Single Photo

Mr Ali was talking on his cell phone with his cousin, when someone shot him. At the hospital it looked like he might die, but Mr Ali survived.

Mr Ali told police that the shooter was "Gucci" from Jamestown, a guy he recognized from high school. Police looked up this nickname in their files, and found Mr Jimaleh, 2018 ONCA 841 used it. Fearing that Mr Ali would die, police sent a single photo of Mr Jimaleh to an officer at the hospital, and that officer showed it to Mr Ali. Mr Ali confirmed that this was "Gucci".

Mr Ali charged with attempted murder, and convicted.

Defence appealed: those dumb cops should have used a proper photo lineup procedure!

The judges rejected that argument.

When the victim does not know the culprit, then showing a single photograph can cause the victim to remember the face in the photograph instead of the face of the culprit.

But when the victim knows the culprit well, showing the victim a photograph of the wrong person won't change the victim's memory.

Only because Mr Ali knew Mr Jimaleh did the judges find no fault with this police procedure.

2018.10.25 Non-Custodial Interview of a Suspect - Do You Have to Say "you're a suspect"?

You don't always know who dunnit. When you have some strong suspicions, do you have to tell them?

Police interviewed Mr Campbell, 2018 ONCA 837 about a missing person. He told them the deceased did not come to his house. That was a lie. He told them he was concerned about people driving by his residence.

Then the officers found the victim's body. Dead in his car. Four bullet holes in his upper body.

They went back to interview Mr Campbell some more.

Like Mr Campbell, the officers didn't tell the whole truth. They suspected him of killing the deceased, but they didn't say "you're a suspect in a murder". They told him that they wanted to talk to him because they were having trouble reading the notes of the first officer who interviewed him. They said they wanted to ask more questions about the people driving by his place.

And then the officer gave this stumbling explanation:

Um, I am a police officer. Um, I am investigating a murder. Um, so anything that you say to me could be used. If your were gonna be charged ... for murder. .. what you'd tell me I could use. Um, and I can use that in court. Um, and then the other thing is, is that if you spoken to any police officer or anybody in authority that says you know, if the police come by you have to talk to them ... don't pay any attention to that, okay?

It was a horrible way to say something simple:

I'm investigating a murder. If you were charged with that murder, what you tell me now could be used as evidence in court. You don't have to talk to me.  And if any other officer told you that you have to talk to me, they're wrong. You don't."

The officer did not offer him an opportunity to get legal advice. The officer did not give him any document to sign explaining that he understood his rights.

The officer just asked him more about the victim. And Mr Campbell said some things that helped get him convicted.

Defence appealed. They pointed out that the police lied about their motives. And they never told Mr Campbell he was a suspect. The trial judge should have excluded the second statement.

How did the appeal court judges respond to these complaints?

2018.10.20 Warrantless Safety Search of a Residence

 - The 911 Call

Someone called police from a pay phone. He said something like this:

"My dad is alone in my house. He's 80, and he speaks only Romanian. He just called me, and said he's afraid because he thinks intruders are trying to break in."

The caller named his father as Pavel Serban. The caller gave the address to the operator. When 911 operator asked for the caller's name, he hung up.

On the way to the residence, officers learned that previous tips asserted that marijuana grew in the residence.

When they arrived, nothing seemed amiss, except for the strong smell of marijuana and the sound of fans. Romeo Serban, 2018 BCCA 382 emerged from the house, and asked what was going on. He denied making any 911 call. An officer asked him for identification. Mr Serban invited the officer in while he fetched some identification. When the officer stepped in, he smelled a much richer odour of growing marijuana. The officer arrested Mr Serban. Several old Romanian people occupied the upper floor of the house. None could speak English. Nobody appeared in distress. Two people produced identification; but the last one could not. Was he Romeo Serban?

Could they search downstairs, to be certain that nobody was in danger?

They went down and looked. Instead of finding victims to rescue, they found a large-scale grow operation.

At the trial, the defence argued that the officers had no authority to search the basement.

The officers themselves conceded that when they saw the old people upstairs, they realized that probably the 911 call was false. A ruse. But they went downstairs just in case.

Csts Prihar and Shaw explained their reasoning very well. Read the decision for a quotation.

The duty to preserve life triggers when you have "reasonable suspicion" that life or limb is in danger. This duty trumps privacy rights.

An officer may hold still a reasonable suspicion of danger even when presented with more persuasive evidence that everyone is safe. Although peace reigned upstairs, and nothing appeared amiss, there was still a real possibility of harm downstairs. The 911 call raised a concern of violence. Grow operations make attractive targets for violence. Even though probably nobody was in danger, there remained a reasonable possibility that downstairs, an 80-year-old man was struggling to survive.

The judges all agreed with these officers: the possibility that an old guy was downstairs in terrible danger justified the search. It wasn't likely, but it was reasonably possible.

But good articulation in the court room only works if you turn your mind to the correct issues at the scene, and act on them.

These officers determined that their concern was life and safety. That was the only justification for searching the residence without a warrant. Even though they knew they had a grow operation to bust, they searched the basement only for people, not evidence. They did not stop along the way to photograph or seize exhibits.

Don't mess with this warrantless search power. Use it for its purpose - saving people. Don't invoke it as an excuse to search for evidence, because you'll look like a liar. On the other hand, if you have reason to suspect that someone needs saving, exercise that power. It's your duty.

Don't use this power to search a house if you have alternatives by which to determine that everyone is safe. The judges would have agreed if there were a practical alternative. But in this case, there wasn't one. The defence suggested that the officers could have questioned the occupants that they found. That was silly. Only one of the residents spoke English. And if the one who did speak English was an accomplice, questioning him would not assure the safety of the potential victim.

2018.10.17 Search & Seizure - Drafting ITOs in a team - Writing in the Third Person for the Affiant

Cst Dyck and Cst Chetwynd worked as a team investigating a grow operation at a residence belonging to Mr Beaumont, 2018 BCCA 342. Cst Chetwynd drafted the Information To Obtain the search warrant. Cst Dyck drafted summaries of his part of the investigation for Cst Chetwynd to include in the ITO.

To save re-drafting, Cst Dyck wrote his summaries in the third person, in paragraphs designed for Cst Chetwynd to copy and paste into the ITO. For example, Cst Dyck wrote his report using this language:

On February 22, 2013, I was advised by Cst. DYCK of the Royal Canadian Mounted Police, Kelowna Municipal Drug section, that he is a trained thermographer and utilized a thermal imaging device, also known as Forward Looking Infa Red (“FLIR”) while conducting an examination of [the appellant’s residence].

Defence were outraged. Cst Dyck's report was misleading!

"No it wasn't," the judges replied. Cst Chetwynd received Cst Dyck's paragraphs, read them, and included them in the ITO. The fact that Cst Dyck had drafted them for Cst Chetwynd to copy and paste was just fine.

As long as you read what you copy and paste, you can do this too.

As long as you read it.

Read it.

Really, I mean that. Read it.

In this case, Cst Dyck wrote a line of his own opinion:

"In my experience, a hot hydro box is typical with a higher than normal hydro consumption, causing the box to heat up."

Cst Chetwynd copied and pasted that part into the warrant, and failed to modify it so that it said "Cst Dyck informed me that in his experience, a hot hydro box..."

That was embarrassing. More than one of such errors could be embarrassing.

Read what you write, and make sure that it's true. Ask someone else to read it too.

If you write in the third person for the purpose of copying and pasting into an ITO, then you might make an annotation for the purposes of disclosure of what you did:

I, Cst Subaffiant, took the steps described below. I described my work in the third person so as to assist another officer in preparing a Information To Obtain.

2018.10.17 Welcome to Weed - Changes to Impaired Driving Investigation

As part of the Liberalization of marijuana, Parliament passed "Bill C-46" and associated regulations which changed the investigation and prosecution of driving offences. It comes into force in stages June 21, July 11 and December 18, 2018.

How does it change investigation of impaired driving?

New Offence

To start off, it added a type of offence.

Section 253 - the current "impaired driving" section - traditionally defined two driving / care or control offences:

  1. Impaired by alcohol or a drug or a combination.
  2. Exceed a specified concentration of alcohol in the blood (80mg%).

They're different. A judge can convict someone of driving while over 80mg% even if there's no evidence that the alcohol impairs their ability to drive. Likewise, a judge can convict someone of impaired driving even if they have less than 80mg% in their blood.

In June, Parliament created an offence of having too much drug in your blood. The judge doesn't have to find that it impaired the you, only that the concentration of the drug exceeded the legal limit. Except Parliament didn't publish the legal limits until July.

But marijuana is special. If the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it's a crime, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it's punishable by the same penalty as impaired driving or over 80mg% of alcohol.

And driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving.

Within 2 hours instead of time of driving

With drug concentrations, Parliament defined drugged driving differently than alcoholic driving. The alcohol offence is driving while having a blood-alcohol concentration (BAC) of 80mg%. The driver commits the drug offence if their blood contains the prohibited concentration of drug anytime in the 2 hours after driving.

There's a reason for that. Even if it takes more than 2 hours to test a driver's blood-alcohol concentration, there are simple calculations we can do to figure out how much alcohol was in the driver's blood at the time of driving.

Although the legislation always did require you to test for alcohol "as soon as practicable", if unavoidable events - like legal consultation - delay you past two hours, it's not a disaster. Even if we test the driver's BAC 4 hours after driving, we can calculate the blood-alcohol concentration at the time of driving.

Drugs don't work that way.

Calculating a person's blood-drug concentration at the time of driving isn't simple.

Therefore Parliament defined the offence in terms of the blood-drug concentration in the 2 hours after driving. (They added a defence for the innocent consumption after driving.)

That means if you're going to test blood for drugs, there is greater urgency to get it done no later than 2 hours after driving. It sounds simple, but it ain't.

The only people who can draw blood are medical doctors and qualified technicians.

That means after a blood demand you need to take the suspect to someone qualified to draw blood. And if the suspect wants legal advice you need to give the suspect access to counsel in private before anyone takes blood. It seems to me that you'll be arranging access to counsel by cell phone while the suspect sits in the back of your cruiser.

New Drug Screen Demand

How does an officer get that blood? By demands similar to breath demands.

As of July, at roadside you can, on reasonable suspicion that the driver has drugs or alcohol in their blood, demand pursuant to s.254:

Even if you have no special Drug Recognition training, if you have reasonable grounds to believe that a driver is impaired by alcohol or drugs, or has more than 80mg%, or an illegal concentration of drug in their blood, then you can demand:

If nobody did an alcohol screen, DREs can, after forming reasonable suspicion that a driver has alcohol in their body, demand the driver to blow into a screening device

DREs can, after forming reasonable grounds to believe that drugs or drugs and alcohol impair the driver, demand saliva, urine or blood.

Probably blood gives the most precise results, but DREs must consider how long it will take to get blood tested.

More changes on December 18, 2018

On December 18, 2018, all the section numbers will change. You need to update your cards.

On that day, the over 80mg% offence changes to match the drug offences. It will be a crime to have too much alcohol in your blood in the 2 hours after driving - unless you drank after driving, not expecting that a police officer would want to test your BAC.

Because of changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you're a breath technician, and you haven't seen the new certificates, start asking for them. In my view, you should be using them now.

Some changes will certainly generate constitutional litigation:


How will all this change police work?

Demands and testing are more complicated, and for drug testing require more steps. Complication leads to error and litigation. Multiple steps take a long time to complete, and that may result in blood testing more than two hours after driving.

How does a practical officer respond to those complications?

It's good to know the technical steps. But don't forget to investigate impairment!

As a prosecutor handling one of these cases, I'd much rather present a video of a driver who can't walk or talk straight than get the following witnesses to say:

2018.10.14 Expert Reports - Drafting & Peer Review

Judges and lawyers worry about experts. When discussing their topic of expertise, they know more than everyone else in the court room. It's hard to for the rest of us to know when they're slanting their evidence for one side or the other. But if a lawyer can show that an expert is biased, then the court may reject or distrust the expert's opinion. One way lawyers search for bias is by examining earlier drafts of the expert's final report.

When Ms Natsis, 2018 ONCA 425 drove away from the bar, her car collided head-on with an oncoming vehicle. The other driver died. Police attended. Ms Natsis told them that the other car crossed the centre-line and came into her lane. It turned out to be a high-profile case.

An officer trained in reconstructing accidents noticed that marks on the road and certain damage to the vehicles suggested that Ms Natsis was to blame: her vehicle crossed into the oncoming lane before the collision.

That officer prepared a preliminary report, but wanted some technical data downloaded from one of the vehicles. He submitted his draft report to another expert, who noticed some errors but not others.  For example, the body of the report said that Ms Natsis' vehicle was on the wrong side of the road, but the conclusion said that she was in her own lane. They both missed that.

After making some changes, the expert destroyed the preliminary report.

The final report still contained the erroneous final opinion. It omitted key information, for example there were other marks on the road that the expert thought other vehicles placed before the accident. But if they occurred during the accident, then his opinion would be wrong.

Defence attacked from several angles: disclosure, bias and competence.

The judges agreed with defence that the draft report which the expert sent for peer review should have been preserved. Because the draft report was no longer available, Crown disclosed the expert's emails which showed what discussions the expert had with other experts. Those emails contained language that made the expert look biased against the defendant.

The judges agreed that there were reasons to suspect that the expert was biased. His emails contained, for example the following remark: "NATSIS may claim that [the deceased] was in her w.b. lane", and then discussed ways to rebut this claim.

On the question of bias, the judges agreed that the evidence exhibited indications of bias.

Defence attacked the quality of the expert evidence. The expert testified that Ms Natsis' vehicle was in the wrong lane, but the conclusion of his report said it wasn't. Worse still, the second expert who reviewed the report failed to notice this contradictory conclusion. If peer review never noticed that the report came to the wrong conclusion, then how good was the peer reviewer anyway?

Despite these mistakes, the trial judge admitted the expert report and convicted Ms Natsis of dangerous driving causing death and impaired driving causing death. The appeal judges upheld these conclusions.

Although this case discusses accident reconstruction, the principles apply generally. For experts of any kind, the trial decision and the appeal decision provide cautionary tales about what can go wrong:

2018.10.10 General Warrant - Limits

Section 487.01 confers on a judge the power to authorize a wide variety of intrusions into privacy. But it's not a blanket authority.

Officers in Cornerbrook, Newfoundland applied for a creative new use for s.487.01. It didn't work. Let's look at why.

Someone committed an aggravated assault. For some reason (the decision doesn't say), this suspect wound up in a hospital. The officers believed he posed a great public danger. They wanted the hospital to alert them if it appeared that the suspect would be discharged.

They sought a general warrant which compelled the hospital staff to alert the officers in advance of the patient's release, and to update police about changes in his medical condition.

The judge refused to grant the warrant. In the matter of an application for a General Warrant pursuant to section 487.01 of the Criminal Code of Canada, R.S.C. 1985., 2018 CanLII 39387 (NL PC).

What seemed like a great idea falls apart when you actually read the section of the Criminal Code that defines general warrants. I added some relevant emphasis:

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

A general warrant authorizes peace officers to do things. But these officers asked the judge to command the hospital staff to do things. It was really a kind of ongoing production order. Maybe the officers should have added an assistance order. Even so, the warrant needed to identify things that it empowered the officers to do.

A general warrant can only be granted for the purpose of gathering information about a specific crime - even a crime that hasn't yet been committed. The decision does not recite what the officers said about future crimes. But this application was based upon a past crime. The proposed warrant would not gather information about that past crime. It would only help prevent a future crime.

The judge commented that there was no explanation why the police had not arrested the suspect. I speculated why not: Maybe his medical condition complicated the process of arresting him. Maybe Cornerbrook police lacked sufficient officers to post an officer at the hospital to guard the prisoner for however long it would take him to recover. If so, this was a creative solution to a practical problem. It failed because it didn't fit within the legislation.

Creativity is good. Sometimes, you can solve problems in new and efficient ways. But when being creative with legislation, read the legislation carefully first.

2018.10.08 Eyewitness identification - Photo Lineup for an Alternate Suspect

When a drug rip-off goes bad, and someone gets killed, police officers must work with unsavoury witnesses.

Someone shot Husam Degheim dead in the course of a marijuana sale. Did Shawn Vassel, 2018 ONCA 721 or David Grant pull the trigger?

Two of Degheim's associates who were with him believed they could identify the shooter. Police showed those guys photo lineups containing Mr Vassel's image. Neither picked him out. When shown a lineup which contained an image of one of the guys with the shooter, both picked out a guy named Agba, and said he was not the shooter, but was present. Mr Agba admitted being present, but denied pulling the trigger.

At trial, Mr Vassel testified that David Grant went on the drug rip-off expedition, not himself. His lawyers pointed out that  David Grant resembled Mr Vassel. The features of the shooter which the victim's associates described matched Mr Grant as much as Mr Vassel.  Defence argued that Degheim's associates had good memories for faces. They didn't pick out Mr Vassel's picture because the real shooter was Mr Grant.

This evidence didn't work at trial, but the appeal court ordered a retrial. Their decision relied in part upon the alternate suspect theory.

The judgment doesn't indicate whether the police considered Mr Grant as an alternate suspect during the course of the investigation. But I'll bet they now wish they had showed photo lineups containing Mr Grant to the victim's associates.

In identity cases, always investigate the alternate suspects.

2018.10.08 Computer Searches - Focus and Documentation

A police officer applied for a warrant to search a computer belonging to Mr John, 2018 ONCA 702 for child pornography. The officer promised that the technicians who searched it would "focus and minimize the scope" of the search, but warned that to do it properly, the technicians would "mirror" the computer's hard drive, and search all types of files. Child pornography can be hidden in innocent-looking documents.

The warrant asked to search for:

Smart work. The warrant targeted not just child pornography in the computer, but also evidence of who put it there.

The technicians found child pornography and evidence that linked Mr John to the computer at the times that the child pornography was sought or accessed.

Defence complained that the technicians snooped into too much data on the computer. Defence asserted that the application should have specified exactly what kind of searches the technicians were permitted to undertake.

The court rejected these arguments. The witnesses satisfied the judge that it's impossible to know before looking at the computer what searches will be needed to locate the data. But more importantly, the witnesses were able to recount for the judge the exact steps they took to locate the data, and why those steps were appropriate.

When applying for a warrant, consider carefully what to look for, like these folks did.

When executing the warrant, make sure you look only for the data you got permission to look for. Document each step, so that you can explain to the trial judge why that step was necessary.

2018.10.07 Suspending Access to Counsel pending Execution of a Warrant

Drug raids need planning.

When police arrested Mr Rover, 2018 ONCA 745, they prevented him from calling counsel until they executed a search warrant on his house. At trial, the officers explained that this was routine in cases like his. The Court of Appeal rejected their explanation, and Mr Rover beat the charges.

It started, as many drug investigations do, when an anonymous tipster described a black man dealing drugs from a particular residence. Police watched the residence for 5 hours, and saw a pattern of traffic come and go, consistent with drug dealing. Police arrested two women who came and went. The women admitted buying drugs from the house.

The officers arrested Mr Rover when he left the building at 10:41pm. They told he he could talk to a lawyer, but they gave him no access to a lawyer until after they got a search warrant and finished searching the building.

The trial judge said that the officers could have given Mr Rover access to counsel at 3:01am, when they first entered the building. There was no reason to delay his access until 4:20am, when the search completed.

Not only did the officers prevent Mr Rover from talking to a lawyer, they also prevented the two women from talking to a lawyer until after the search of the residence. And they didn't even tell Mr Rover why he couldn't talk to a lawyer.

The police explained at trial that they routinely delayed access to counsel in investigations of this sort.

Doherty J.A. roundly rejected this idea. Police may delay access to counsel only for reasons specific to the particular case, and not for a general possibility that in some cases, someone might destroy evidence before police arrive with the warrant. It bothered him that police did not choose to execute the search warrant before arresting the suspect. And he didn't like how the officers kept Mr Rover in the dark about his access to counsel.

If you're planning a raid, try to organize it so that key events - searching the place and granting access to counsel - occur in parallel, rather that one after the other.

If you fear destruction of evidence, identify the reasons, specific to this case, which underpin that fear. The person with the most information should make decisions about warrantless entry to preserve evidence or suspending access to counsel. That person will need to justify those decisions at trial. That person must identify reasons specific to the particular case.

If you suspend access to counsel, then your search team needs to assign a person to inform the officer holding the prisoner when to permit access to counsel.

PS: see also La, 2018 ONCA 830

2018.10.04 Arrest - Explaining why - Too many cooks spoil the broth - A s.10 trap

When you arrest someone, s.10(a) requires you to explain why. Once the prisoner knows why they lost their liberty, they can get advice from a lawyer about what to do.

In a rural community, Mr Lance, 2018 BCSC 1695 attacked a police officer. He and another officer pepper-sprayed him and hit him with a police baton, and eventually subdued him. The victim officer told him he was under arrest for assaulting a peace officer, but did not tell him that he caused bodily harm to the officer, nor that he was arrested for uttering threats.

Arranging access to a lawyer took some time because Mr Lance was drunk, the officers needed to get him medical treatment, and they had to move him to a larger centre. But he did get legal advice.

A different officer took over the investigation next morning. I think that was very wise. When someone assaults a peace officer, a different officer should investigate, so as to preserve the independence and objectivity of the investigation.

But introducing someone new to an arrest can create a problem.

The next morning, that officer told him he was under arrest for assaulting a peace officer and threatening, and tried to interview him. Mr Lance balked. He wanted more legal advice. The officer - thinking that Mr Lance had already got legal advice for this incident - did not let him. Then the officer got a confession from him.

The defence complained that the police had not told Mr Lance of his specific jeopardy - assaulting an officer causing bodily harm, and threats. Therefore, when Mr Lance first got legal advice, he lacked some of the information he needed. The interviewing officer should have given him a second opportunity to get legal advice.

The judge disagreed that the bodily harm part was a problem. You must give your prisoner a general idea of what he's under arrest for, but you don't need to identify the specific charges. But the judge agreed with defence that Mr Lance needed to know about the death threat allegation before he got legal advice.

Considering that the threats were part of the assault, I'm not sure I agree with the judge on the specifics of this case. But I do agree with her about the overall principle.

It's not enough that a prisoner speaks to a lawyer after an arrest. Someone needs to tell the prisoner all about the trouble he faces.

When one officer arrests a prisoner, and a different officer interviews him, the second one needs to be sure that the first one fully explained the prisoner's jeopardy before the prisoner exercised his right to counsel. If the jeopardy differs, then the second officer must explain it, and give the prisoner further access to counsel.

2018.09.30 Dial-a-Dope - Orders for Drugs after the Arrest

When you bust a dial-a-doper, his phone may ring. If you answer it, someone may order some drugs.

In R. v. Baldree, 2013 SCC 35, the court found that a single such call should not be admitted into evidence because it was hearsay. Why didn't the police investigate the caller, and have that person testify at the trial about how he or she knew that the defendant sold drugs?

A police officer answered that question when he testified in the trial of Mr Omar, 2018 ONCA 787.

The background was simple. Following up on a tip, police had followed Mr Omar drive to a bunch of drug hotspots. He stayed at each location for a short time. When they arrested him, he had four cellphones, $1,175 in cash, and crack cocaine in his underwear. And his phone kept ringing. Three or four people ordered drugs. No officer tried to interview the three or four customers.

Why not?

An officer explained that they tried in other cases, but none of the customers would cooperate. The trial judge said it was a "common sense reality" that such customers would not help police.

Where does that leave you?

Baldree suggests that if the phone rings once, and someone orders drugs, the court will pay no attention to that piece of evidence. Omar suggests that if it rings several times, then a court may pay attention to that evidence ... but but the judge may still require you to try to contact the callers for statements, or at least be able to explain why attempts to interview them would not likely produce evidence.

Baldree changed the law because it determined admissibility of those calls by recourse to the hearsay rules instead of treating it as circumstantial evidence. I've always had trouble with that decision. Omar nibbles at its edges.

2018.09.29 Arrest and Bail - Maximum of 24 hours to bring a prisoner to a Justice

At 7:30am, police officers arrested Mr Burroughs, 2018 ONCA 704 for a serious robbery. He wanted to talk to his lawyer, but it took till 10:30am to arrange access to counsel. In that jurisdiction, bail hearings could only be done at 1:00pm. Police started interviewing Mr Burroughs at 12:33pm, and didn't finish until 4:34pm. By then it was too late to get him before a justice. They had to wait until the next day - long after the 24-hour deadline required by s.503 of the Criminal Code.

At trial, Mr Burroughs asked the judge to stay proceedings. It didn't work, but it could have.

Beware of that deadline.

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:

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 Custody

"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 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:

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:

2018.08.23 Jurisdiction - Crossing Borders - Transporting Children for Sex

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, [1987] 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"?

  1. 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.
  2. 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.
  3. 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:

  1. A police officer can not enter a private residence without one of:
    1. lawful authority or
    2. consent of a person who as authority to give it
  2. 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.
  3. 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.
  4. 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.
  5. 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 aff'd 2018 SCC 57 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:

  1. The arrest breached her right not to be arbitrarily detained - s.9 of the Charter - because the officer lacked reasonable grounds.
  2. 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.
  3. 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.
  4. The statement should not be admitted because it was not audio- and video-recorded.

Reasonable grounds

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:

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:

  1. After a detention or arrest, you want to move quickly to telling the suspect about legal rights, if at all possible.
  2. 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.

Handwritten statement

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:

  1. is used by police in their law enforcement functions,
  2. is not publicly known, and
  3. 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 Building

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:

  1. Eyewitness identification of a stranger.
  2. Judge's comparison of the defendant to images of the offender.
  3. 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.

Sloppy thinking!

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.

Why? The officers didn't follow the requirements of s.146(2) of the Youth Criminal Justice Act. At no time prior to the interview did the police tell N.B.:

The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.

The appeal court made several main points.

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?

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?"

Corroboration matters.

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:

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:

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!

You can find more summaries of legal decisions at the News Archive.

Follow this link for a single (large) page which contains the Complete News Archive.

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.