2019.01.13 Drug Recognition Experts - Rolling Logs - Disclose your
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
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
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
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
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.
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
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:
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
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.
The application for the search warrant gave a falsely strong
impression of the evidence that the computer contained child
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:
you give the resident an alternative to inviting you in,
the resident invites you in anyway,
for the purpose only of talking to the resident or getting a
in a common area or an area private to the resident who invite you
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
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
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:
forgot to mention in the ITO the history of conflict between Mr
Reeves and Ms Gravelle and her sister. The women might have
exaggerated their information. (It turns out one did.)
said the women watched videos of concern. (They didn't)
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.
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
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
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
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?
Right you are!Surprise!
The judges thought differently from you.
The judges said:
"While the words used by the interviewing officer were not
particularly elegant, they conveyed the salient points to the
appellant. In particular, the interviewing officer told the
appellant that the police were investigating a murder and that, if
the appellant was charged with murder, anything he said could be
used against him. The appellant was, in our view, given the
requisite information to allow him to make a meaningful choice
whether to speak to the police. Nothing more was required."
"Further, the appellant’s effort to characterize the failure of the
police to tell the appellant that he was a suspect as 'trickery'
does not succeed."
You can use some mild tricks and deception when investigating
crime. What's permitted depends upon whether:
the suspect is detained
the deception diminishes the someone's legally-protected rights
- such as the right to counsel or the right to know what he's
the deception would create unreliable evidence - for example,
during the interview of an impressionable suspect, presenting fake
but convincing evidence of the suspect's guilt
Don't make a habit of lying. It diminishes public trust in police.
But if your suspect isn't detained, then you don't have to tell him
exactly how much you suspect about his guilt. On the other hand, it
was wise of this officer to say that Mr Campbell's remarks could
become evidence in a murder trial. That permitted Mr Campbell to
decide whether to talk.
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
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
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
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
As long as you read what you copy and paste, you can do this too.
As long as you 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
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?
To start off, it added a type of offence.
- the current "impaired driving" section - traditionally defined two
driving / care or control offences:
Impaired by alcohol or a drug or a combination.
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
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
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
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:
(alcohol) under s.254(3) breath samples for analyzing BAC
(alcohol) under s.254(3) blood samples for analyzing BAC, but only
if the suspect is incapable of providing breath, or it's impracticable
to get to a breath testing instrument.
(drugs) under s.254(3.1) an evaluation by an "Evaluating Officer"
(Drug Recognition Expert)
(drugs or drugs and blood) under s.254(3.1) blood samples for
analyzing drugs (including alcohol) (** new **)
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
Some changes will certainly generate constitutional litigation:
Ordinary police officers doing ordinary traffic enforcement will be
empowered to demand breath screens even without reasonable suspicion.
Where legislation compels drivers to report accidents, police can
use that information to form grounds for demands.
Because the drug screening equipment isn't perfect, and gives false
positives, defence will argue it's unconstitutional to use it.
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
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:
First officer on scene formed suspicion on reasonable grounds that
the driver had drugs in her body, and promptly demanded field sobriety
The officer promptly conducted those tests
The driver failed those field sobriety tests
The officer formed the reasonable belief that the driver was
impaired by drugs
The officer correctly and promptly demanded a Drug Evaluation
The suspect got sufficient access to legal advice
A DRE evaluated the driver promptly and correctly
A DRE formed reasonable grounds to believe that a drug impaired the
The DRE promptly demanded blood
The officers took the driver promptly to a medical doctor or
qualified technician, who took the blood promptly.
Analysis discovered too much drug in the suspect's blood.
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
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
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:
If you write many reports, the one that you do under the most
pressure with the least time and resources is the one that will face
the most scrutiny.
Proof-reading differs from peer review: proof-reading is about
getting the language right; peer review requires the second expert to
apply his or her own expertise to the facts, and determine whether the
first expert got to the right result. If a colleague asks you to
review a report, carefully distinguish between proof-reading and peer
review. The latter puts your credibility in issue.
Drafts you submit for proof-reading probably don't need to be
preserved and disclosed. Drafts you submit for peer review do.
Bias or appearance of bias can harm your credibility. The emails you
receive may urge you to reach a particular conclusion. The emails you
send may use language that suggests you reached a conclusion before
receiving all the evidence.
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
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.
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
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
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
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
This evidence didn't work at trial, but the appeal court ordered a
retrial. Their decision relied in part upon the alternate suspect
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:
Data relating to child pornography [footnote omitted] as defined by
the Criminal Code.
Data relating to the Gnutella 2 Peer to Peer Network.
Data relating to use, ownership and access of the seized items.
Data relating to the configuration of the seized items.
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
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
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
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.
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.
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.
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
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
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
When summarizing a confidential source's tip, what's important
what the tip said about the suspect or target
whether the judge or justice can trust the tipster
Because of these difficult balances, Mr Szilagyi,
2018 ONCA 695 beat some drug charges.
A source told the police that Mr Szilagyi had a firearm and trafficked
drugs. The ITO explained that the source:
"had no convictions for perjury or lying to the police",
but did not spell out what the tipster's criminal record contained.
The judges didn't like that language. Maybe the source had convictions
for fraud or false pretences. Because the source provided the key
information to justify the warrant, the issuing judge needed more
information about the source in order to assess whether to rely on
Generally, the source's criminal record is important.
But if you describe every conviction in your ITO, won't that tend to
identify the source?
There's another way. If the record is important, then reveal it to the
issuing judge, and summarize the parts you can reveal:
Source A has a criminal record, which I attach and mark as
appendix B to this ITO. That document tends to identify Source A. In
order to honour the police agreement to withhold his/her identity, I ask
that it be sealed, and not disclosed to anyone.
At trial, nobody can suggest you withheld negative information from the
issuing judge or justice. Because you included the record, nobody can
say you mislead the issuing judge or justice in any way.
But don't just rely on CPIC. Here in BC, I find that CPIC rarely lists
all of the offender's criminal convictions. Look to other databases. In
BC, that means JUSTIN.
The judges had another complaint about the ITO. It did not explain how
the main source knew about the gun and the drugs. It recited the
source's fairly detailed description of the gun. It repeated the
source's assertion that the suspect dealt drugs. It did not say whether
the source claimed s/he saw this, or heard about it on the street.
Suppose he said:
"I saw the gun on Wednesday morning at 9:15 when I
asked him for an 8-ball from him. At that time Mr Szilagyi pointed a gun
at my head and said 'you better pay your debts by the end of the day or
else this gun spits the next ball into your head'. On the table he had
about half a kilo of cocaine he was cutting. He said it was fresh from
Colombia. I'd seen that gun before. It's a sawed-off shotgun with a
black stock and a silver barrel."
Leaving this quote in your ITO would identify your source. Redacting it
removes all information. Try creating a summary that the defence can
see, and providing the quote for the issuing justice. If it does not
endanger the source, something like this would make the judges happier:
"The tipster told me that he knew from personal observation
and/or remarks that Mr Szilagyi made in the tipster's hearing that Mr
Szilagyi possessed a sawed-off shotgun, and he had cocaine for sale. The
tipster explained the exact circumstances under which he obtained this
knowledge. S/he reported:'...'."
Of course, before disclosing to defence, you would redact the exact
quote. The issuing justice sees all the information. The defence lawyer
and the trial judge learn that the tipster claimed to have pretty good
information and the ITO makes it explicit that the issuing justice got
the full tip.
2018.08.25 Inventory Search - a Duty to Protect Property in Police
"Where a vehicle is lawfully taken into police custody (in this case,
pursuant to statutory authority) the police have the authority, if not
the duty, to conduct an inventory search of its contents."
The night when Mr Russell,
2018 BCCA 330 drove his car back to Summerland, BC, his tail-lights
weren't working. That caught the attention of a police officer. Mr
Russell wasn't supposed to be in Summerland. Indeed this officer
previously released him on his undertaking not to return.
When the officer pulled him over, Mr Russel stopped his car so that it
straddled the fogline of the highway. Not a safe spot.
After arresting Mr Russell for breaching his undertaking, the officer
considered the car. Because it posed a hazard to other drivers, the
motor vehicle legislation empowered the officer to move the car or take
it into his custody by having it towed. He chose the latter.
The officer then searched the car for property. He found a wallet and a
laptop bag. Mr Russell told the officer to put them back. The officer
didn't. Instead, he looked inside for valuables. He found drugs in the
At Mr Russell's trial for the drugs, he complained that the law did not
empower the officer to search his laptop bag:
The officer agreed that he did not search incidental to arrest.
Mr Russell told him not to search it.
The office had no warrant.
An inventory search should not permit an officer to look inside bags
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
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
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.)
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
Police found traces of her blood in the passenger side of his car.
The Crown presented a circumstantial case of motive and opportunity.
The jury convicted Mr Thomas of murder. He appealed on technical
grounds. The court of appeal upheld the conviction.
When I first read the decision, I noticed that the evidence pointed
towards guilt. Then I noticed alternative explanations for major parts
of the evidence:
The blood stains could have come from some previous incident of
violence, rather than a killing.
The victim often left the defendant to go drinking. Maybe she met
The accused's odd conduct and contradictory explanations could have
been because he was ashamed of his own non-lethal violence, and feared
that police suspected him of killing her.
Then I noticed that the judges' decision did not discuss alternative
theories and what evidence set those alternative theories to rest.
Perhaps the officers did try to find anyone else in the woman's life
who had a reason to harm her. Perhaps the prosecutor presented evidence
to the jury that those efforts failed. Perhaps the officers did try to
find evidence that the woman expressed suicidal thoughts, and but found
instead evidence that she had much to live for. Perhaps that part of the
evidence was so boring that the Court of Appeal never mentioned it.
But the absence of discussion of these things made me think of echo
chambers and tunnel vision.
Investigating alternate suspects and alternate explanations may be
boring, but it matters. Failing to do so sometimes leads to disaster.
Just ask Thomas
Sophonow. But usually, the extra investigation makes the case
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
How do you avoid tunnel vision? Here are some ideas:
See if you can think of ways that the main suspect could be
innocent, and still leave behind the evidence that you gathered.
Try assigning a contrarian to find all the weakest parts of the
2018.08.23 Jurisdiction - Crossing Borders - Transporting Children for
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.
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
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
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
I fell down a rabbit hole.
Ordinarily, I write about recent decisions. A paragraph in a recent
decision caught my attention, and led me to Restaurant
Le Clémenceau Inc. v. Drouin,  1 SCR 706. Judges sometimes
refer to that case when rejecting "conclusory statements" in ITOs.
Here's a loose translation of the ITO in question. Can you spot the
As an official of the Ministère du Revenu du Québec, I conducted
an investigation in the "Restaurant le Clémenceau Inc." concerning
evasion of a meals and hotels business tax of Québec.
As a result of certain facts revealed by this investigation, I
have reasonable grounds to believe and believe that "Restaurant le
Clemenceau Inc." made false or misleading statements in a PR4 report
for the month of August 1977 by failing to include in the said
report an amount of $ 299.20 of tax collected, thus committing an
offense under section 62 (a) of the Act respecting the Ministry of
Revenue, RSQ, chapter M-31.
I also have reasonable grounds to believe that documents, books,
records, papers or other things that may be used as evidence of an
offense under a tax law or regulation made by the Government under
such a law, are kept in the premises and outbuildings of "Restaurant
le Clémenceau Inc." located at 649, boul, Laure, Sept-Iles, province
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
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
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
2018.08.01 "Plain view" and s.489(2) of the Criminal Code
"He's in the house, drunk. There are lots of guns laying about in
there. I'm scared for my safety, and the safety of the children."
That's what she told police when they responded to her 911 call
regarding domestic violence. The attending police couldn't help but
notice that Mr Warren,
2017 MBCA 106, the man she complained about, came out of the house a
couple of times, agitated and belligerent.
The officers arrested him outside the house because they feared he
would assault her.
One of the officers went into the house, with the complainant's sister,
to check on the children. As soon as he went in the front door, he saw
four unsecured firearms and ammunition in plain view. He seized them,
and Mr Warren was charged with firearms offences.
At trial, Mr Warren convinced the trial judge that the officer should
have secured the residence and got a search warrant. The judge agreed
with the officer that he was entitled to enter the residence for the
purpose of ensuring the safety of the children. But when the officer's
purpose changed from protecting life to gathering evidence, he lost his
authority to remain in the house. The trial judge felt that the common
law "plain view" doctrine didn't apply, because it requires that you
encounter the evidence "inadvertently". This officer knew, going in,
that he would find guns.
The Court of Appeal disagreed. Section 489(2)
of the Criminal Code authorized the search. It works similarly to the
common law power of "plain view", but does not require "inadvertent"
discovery of the evidence.
The officer lawfully seized the guns.
This scenario of domestic violence and guns in a residence arises
often. But the details bedevil any effort to create a standard operating
procedure. I see lots of mistakes, because general duty officers often
work under too much pressure to assess all the principles which apply.
Here is a list of the main ones:
A police officer can not enter a private residence without one of:
lawful authority or
consent of a person who as authority to give it
Reasonable suspicion that a person inside my in in danger of serious
physical harm ("exigent circumstances") provides lawful authority to
enter and put those fears to rest. However, you may not search for
evidence when doing so.
Reasonable belief that evidence inside the residence may be lost or
destroyed if you don't enter also provides authority to enter and
search. However, you should minimize the intrusiveness of this entry.
Generally, the best procedure is to freeze the scene, and get a
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
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
2018.07.29 Impaired Drivers who crash - Right to Counsel
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
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
The officer asked the less-injured women "who drove the boat?" Ms
Culotta said "I was the driver".
The officer saw some ambiguous indicia of alcohol consumption: Ms
Culotta slurred her words - but her face was injured. She had watery
eyes - but she had been out in the rain, and crying. The officer
arrested her for impaired operation of the boat. The judges found that
his grounds were insufficient.
The officer did not tell her about her right to counsel because he did
not want to interfere with the medical treatment that the ambulance
attendants were giving her. Only after arriving at the hospital did he
tell her she could get legal advice. When asked if she wanted to consult
a lawyer, she answered:
“No, my parents should be here soon. We have a family lawyer.”
The hospital staff took extra samples of her blood, because they
expected police would need them. The officer sealed the extra vials.
At 5:30 am, after Ms Culotta received treatment, the officer released
her unconditionally, but explained she was still under investigation. He
explained her legal rights to her. She declined another offer to get
legal advice, and gave a statement. The officer did not have recording
equipment, and so he simply wrote down questions, asked them, and wrote
down her answers. When it was done, he asked her to review it, and sign
it. She did.
The officer investigated further. He developed good grounds for a
search warrant, and with it, he obtained medical records and blood
samples from the hospital.
The hospital's tests showed that Ms Culotta's blood contained more than
80mg% of alcohol. So did the police analyses.
At trial, Ms Culotta's lawyer's arguments included:
The arrest breached her right not to be arbitrarily detained - s.9
of the Charter - because the officer lacked reasonable grounds.
Failing to tell Ms Culotta about her right to counsel before the
hospital staff took blood samples violated her rights under s.10(b) of
The investigating officer persuaded the hospital staff to take extra
blood samples. That was a seizure. Sealing the extra vials of blood
constituted a seizure of her private bodily fluids. Because the
officer lacked grounds to believe that Ms Culotta committed an
offence, this violated s.8 of the Charter.
The statement should not be admitted because it was not audio- and
Vehicle crashes complicate the task of determining whether you have
reasonable grounds to believe that alcohol or a drug impaired the
suspect's ability to control the craft. Did booze, injury, or shock
cause the suspect to slur their speech or stagger? Sometimes, you can
examine the crash scene for clues that suggest that bad driving caused
the crash. This officer couldn't. Sometimes passengers or rescuers can
tell you about bad driving or other symptoms. The decision indicates
none of that.
Serious vehicle crashes arise sufficiently infrequently that many
officers don't know what to do. If you're not sure, I suggest that you
read the demand quietly to yourself before reading it to the suspect.
The demand language contains a checklist which covers most of what you
need to know:
identity - the suspect
operation - drove a car or boat or flew a plane;
impairment - at the time she drove, something so affected
the suspect that she wasn't safe to drive. Despite the injuries after
the crash, you need to figure out how drunk the driver was before the
byalcohol/drug - impairment from other causes
when - To make a breath or blood demand, under the current
legislation, you need to know that the driving occurred within the
preceding 3 hours. After December 18, 2018, the legislation will drop
those time limits. I think that you shouldn't make a demand if you
don't think you'll get any evidence.
confidence - To arrest or make a demand, you need evidence
which leads you to think that probably a crime occurred.
(The evidence does not need to convince you beyond a reasonable doubt
of guilt, but mere suspicion that the driver was drunk doesn't cut
Right to Counsel
All the judges agreed that the officer disobeyed s.10 of the Charter by
failing to tell Ms Culotta about her right to counsel right away after
the arrest. The judges (and the prosecutor) agreed that the police
analysis of the extra blood samples should not be evidence in the trial.
One judge felt that this breach of Ms Culotta's rights was so serious
that the court should exclude all blood-analysis results.
The judges disagreed whether Ms Culotta's comment about her family's
lawyer was a request for legal advice.
You can draw two things from this:
After a detention or arrest, you want to move quickly to telling the
suspect about legal rights, if at all possible.
Some judges will find that quite ambiguous remarks are actually
requests for legal advice. It doesn't matter what you think the
prisoner meant, but what the judge thinks. Therefore, when you get an
ambiguous remark, you would do well to clarify.
I noticed that the officer put Ms Culotta's health ahead of his
investigation of her crime. I think he got those priorities correct. I
suspect that the judges felt unsympathetic because he didn't get around
to telling her about her rights for 45 minutes. The judges probably felt
that the officer could have found the 20 seconds necessary to mention
lawyers earlier than he did.
Extra blood samples
Don't ask medical people to gather evidence for you while they treat
your prisoner, unless you have lawful authority to gather it yourself.
This officer testified that he did not ask the technician to take extra
samples. Nor should you.
Putting bits of tape over the hospital's vials and marking them with
your initials for the purposes of continuity is not a seizure - if you
give control over the vials back to the hospital. I don't know why this
argument had any traction. R. v. LaChappelle,
2007 ONCA 655 at para 41.
None of the judges found that the investigating officer erred by
handwriting Ms Culotta's statement - because the circumstances
prevented him from recording it any other way.
But if you can video-record a suspect's statement, then do so.
If you can't, follow this officer's procedure. Write the questions.
Write the answers. Ask the person to review the written statement to
ensure that it is correct.
But hey! Don't you carry a smart phone on duty? Most phones - even the
dumb ones - can record audio. Learn how to make your phone record audio
- or even video.
2018.07.27 Informer Privilege
When someone offers you information on the condition that you not
reveal their identity, it seems simple: you get information that will
help you bust bad guys. It's not simple. Your obligation to protect
their secret is a heavy burden, which you must carry even to your
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
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.
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
The superior court agreed with the police argument because the
is used by police in their law enforcement functions,
is not publicly known, and
if disclosed may assist offenders to interfere with or defeat police
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,
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
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
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
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
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.
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
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
That persuaded the court beyond a reasonable doubt that Mr Field
committed the robbery.
Mr Field's appeal failed.
The court noted the three ways to prove identity:
Eyewitness identification of a stranger.
Judge's comparison of the defendant to images of the offender.
Recognition by people who know the defendant.
The eyewitness identification would have been much stronger if the
eyewitnesses picked Mr Field from a photo pack shortly after the
offence. Showing a witness one person and asking "is this the man?" can
have the effect of telling the eyewitness "this is the man." This kind
of eyewitness identification formed part of many wrongful convictions.
Judges don't trust it. As an investigator, you want to show eyewitnesses
lots of faces to choose from, not one suspicious one.
If security cameras capture really clear pictures of the felon, then
the judge can compare the defendant to the culprit. Beware. Some
defendants change their appearance while in jail. To prevent that
problem, take good pictures of your suspect, and supply them to Crown as
part of your report.
As this case demonstrates, recognition evidence can prove the case, if
you do it correctly. When you send images to the person who knows your
suspect, don't supply the suspect's name. And ask that witness not to
name the culprit to any other potential recognition witnesses.
As Steve Jobs used to say: and one more thing....
In some police reports, when describing video of the offence, officers
will write a summary of what the video captured "the accused" or "the
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
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".
of the Criminal Code prohibits the court from accepting such a
certificate "unless the party intending to produce it has, before the
trial, given to the other party reasonable notice of his intention and a
copy of the certificate."
The trial judge refused to accept the certificate because the officer
didn't give sufficiently persuasive evidence that Mr Fitzpatrick
received a copy. The appeal court agreed.
Routine events are easily forgotten. Some officers routinely swear an
affidavit of service of the certificate. Doing so - or at least making
notes of the event - may help you when such a case comes to trial.
2018.06.16 Youth Statements
After consuming ecstasy, 16-year-old N.B.,
2018 ONCA 556 went for a walk with his cousin to a convenience store. He
returned without his cousin, and got changed. He went to a friend's
residence where he told everyone that his cousin was in trouble and
needed help. Someone "told" him that his cousin had been attacked and
dragged into "Lackie's Bush". He took some friends and relatives there,
and found his cousin, dead. He freaked out, and hugged the body.
Police were called, and they attended.
N.B. pestered one of the officers for information, interfering with his
efforts to investigate. The officer punched him and arrested him for
causing a disturbance. A different officer took N.B. back to the police
station for questioning about the death of his cousin. They put him in a
locked interview room.
When they started a witness statement, N.B. asked if he was arrested.
The officers told him he was arrested for breach of the peace, and he
would be released. They knew that the cousin died, but they did not tell
N.B., for fear of upsetting him.
N.B. gave conflicting statements about what happened. At first, he told
police that he and his cousin split up at the convenience store. When
the officers told him (falsely) that there was security video, N.B.
changed his story. He said he went to Lackey's Bush with his cousin to
smoke pot, and a group of guys attacked his cousin, and N.B. ran away.
The change of story led the officers to arrest him for murder. The
trial judge convicted him, but on appeal he got a new trial.
he did not have to make a statement to the police as a witness;
he was free to leave at any time;
he could consult with a parent, adult, or counsel, and have any of
these people present for the interview.
The appeal court found that N.B.'s conflicting explanations of the
evenings events were inadmissible.
The appeal court made several main points.
For such a statement to become evidence, the Crown must prove beyond
a reasonable doubt that police did what that section requires.
Three things trigger s.146: arrest, detention, or the investigating
officer has reasonable grounds to believe that the young person
committed an offence.
"Detention" includes psychological detention. Even when the officer
thinks the kid is free to go, the kid reasonably believes he isn't
free by reason of what the police officers said and did.
The officer who punched N.B. was later convicted of assault causing
bodily harm and obstruction of justice. Those events occurred in the
execution of his duties on some other occasion, but his explanation of
that event resembled his description of events with N.B.
What lessons emerge?
Police officers need to keep calm when others aren't. I know that's
easier said than done.
In the chaos when you first arrive, everyone's a witness, and
everyone could be the culprit.
As suspects, young people get special treatment, whether you detain
them or not.
2018.06.16 Statements & Corroboration - Exception to the Rule
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?"
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
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
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
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
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
Doesn't the tip give you real reason to suspect a phone line?
It depends a bit on the quality of the tip, and the conversation you
have with the person who answers when you make your call.
Separately, police got tips about Mr Williams and Mr Ahmad
2018 ONCA 534. Investigators did minimal investigation of the Williams
tip, and no investigation of the Ahmad tip. The trial judge in Williams
case found that the police entrapped him, and stayed the trafficking
charge. The trial judge in Ahmad's case relied upon the conversation
during the call to find that the police used the phone call to
investigate the tip, found no entrapment, and convicted.
The loser in both cases appealed.
The Ontario Court of appeal analyzed what makes for entrapment in
dial-a-dope cases. They found no entrapment in either case. But the
judges disagreed on the analysis.
If you engage in such operations, you need to read this decision,
because it highlights the ground rules.
After you get a tip, and before you make the call, consider
investigating the tip:
How recent is it?
How credible is the informant?
Do your information systems contain any information about the phone
number or the suspect?
If, after that effort, all you have is a bare suspicion, you can still
make the call, but you need to let the person who answers establish that
there are drugs for sale.
Read the decision to see how that's done.
2018.06.14 Cupid's arrow in the Workplace - Stinchcombe and the Secret
Affairs of the Heart
Police suspected Mr Biddle,
2018 ONCA 520 of three rapes committed in 1986. By 1987, he was
convicted of all three. He successfully appealed two convictions: the
Supreme Court of Canada ordered new trials. That process took so long
that by the time the court ordered the new trials, one complainant
didn't want to proceed again, and the other case was too weak to go on
its own. The prosecution gave up.
Mr Biddle's third conviction depended upon the complainant's
identification of Mr Biddle. That wasn't done very well. A police
officer took her to a courthouse where he was appearing on his other
matters, and asking her if she recognized him.
Not exactly a great lineup.
He lost the appeal on that conviction in 1993, but he never gave up
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
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
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
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
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
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
Several lessons for officers flow from this case:
Avoid telling witnesses what other evidence you have before - or
after - you take a statement.
Keep a complete record of the conversations with important
Applying pressure on a witness to get a statement may backfire in
the long run.
2018.05.26 "Person of Interest" - What does it mean?
At the morning briefing, four officers learned of a homicide that
occurred the night before. They saw images from security video of people
of interest. Although one officer thought he recognized someone, he did
not identify that person at the briefing.
The four officers went to the crime scene to pick up more security
video. On their way back they talked with two guys who looked like the
people in the video.
Those two guys were later charged with murder. They asked the judge to
exclude the evidence that those officers obtained during their
conversation. They said that they were "detained", and did not receive
information about access to counsel.
The four officers testified poorly. They did not make notes at the
time. They reconstructed events. They contradicted each other.
All of them tried to assure the court that this was not a "detention"
because the defendants were only "persons of interest", not suspects.
It didn't work.
The judgment is pretty clear: "Person of interest" isn't a magic phrase
that turns a detention into an innocent encounter. (R. v. Jama,
2017 ONSC 470 at para 47).
These officers were investigating a homicide. The judge found that these
four officers stopped these two guys and talked to them for quite a
while. The officers did not tell them why, nor did they offer an
opportunity to get legal advice.
I think this case provides a good example how routine work can go wrong
quickly, when done in a "routine" fashion. General duty officers, read
You can find more summaries of legal decisions at the News
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.