Legal Topics for Canadian Criminal Investigators

2023.11.24 Searching Electronic Devices pursuant to a Warrant - Using the Right Words

When applying for search warrants, try to get the most recent precedents.

Way back in 2013, Ontario Police officers got information from American sources about a Canadian user of child pornography. Most recently, he accessed it using an IP address registered to Research in Motion (aka Blackberry).

They tracked Mr Neill, 2023 ONCA 765 down at a Tim Hortons. The officers feared that he noticed their surveillance. They seized his phone, in order to prevent him from erasing the incriminating data.

The appellate judges dwelt on whether exigent circumstances existed to justify the seizure. I found this odd, because s.489(2) of the Criminal Code seems to apply. It doesn't require exigent circumstances.

The investigators took 7 days to report their warrantless seizure of the Blackberry. The trial judge didn't like that. It should have been reported faster.

The investigators got a warrant to search their property bureau, and seize the Blackberry for the purposes of a forensic analysis. That warrant contained some outdated boilerplate about  the “suspected commission or intended commission of an offence”.

The defence counsel complained that police can't get a search warrant under s.487 based on suspicion. You need reasonable belief.  The judges agreed.

Fortunately, this ITO fully explained the reasonable beliefs, and the specific offences at issue. Because of that, the trial judge ignored that old language, and the appeal court agreed.

As set out in the decision, if you use out of date language, your mileage may vary. (See paras 11 and 15).

Defence counsel also complained that after the forensic analysis, the police should have made a report to the justice about the data that they found.

This is a big issue in British Columbia, because a judge here determined that police must report what data they find after such a forensic analysis.

The Ontario Court of Appeal decided not to answer that question for the police officers in that province.  They're going to wait a little longer before deciding that the answer is obvious, and all police officers should have been doing all along.

2023.11.10 Arresting Responsible Drug Users - Good Samaritans and Curious Gawkers

A drug user who overdoses becomes helpless. Only the people around them can save their lives. Usually, those people use drugs. They don't like calling for help, for fear of getting into trouble themselves.

Back in 2017, Parliament created an exception to make it safer for drug users to call for help. S.4.1 of the CDSA provides:

No one who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from an overdose is to be charged or convicted under subsection 4(1) [drug possession] if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.

Mr Wilson, 2023 SKCA 106 drove a pickup truck. One of his passengers overdosed. Someone called 911. Mr Wilson stayed at the scene. When police attended, they noticed some white powder on the ground near him. It looked like crystal meth. An officer arrested him for simple possession of a controlled substance. A search incidental to that arrest discovered lots of drugs, scales, needles, and handgun parts.

At his trial, Mr Wilson argued that s.4.1 made his possession of drugs lawful during the time that he stuck around to help someone overdosing.

Does it?

Read the words.

The court agreed with the Crown: it prohibits charges and convictions. It doesn't make possession lawful.

Regardless whether it made possession lawful, Mr Wilson argued that it prohibited police officers from arresting him for possession.

Does it?

Read the words.

This time, the court sided with Mr Wilson, but not because the words directly supported Mr Wilson's argument. They applied logic similar to s.495(2), but they applied it to s.495(1) as well:

1. In these situations, police have a choice (a "discretion"). They can arrest, but they don't have to.
2. Police must exercise this discretion responsibly.
3. The purpose of arrest is to prosecute.
4. If the officer knows that the suspect will never be charged, then there's no point in arresting.
5. Therefore, this arrest was arbitrary. It offended s.9 of the Charter.

Does this mean you can never arrest people that you find in the vicinity of an overdose? No. The limitation applies only to possession. You can arrest people for PPT or trafficking, if you have grounds.

But notice that the limitation applies to people who "remain at the scene" as well as the people who "sought assistance".

Therefore, everyone in the crowd that hangs around the overdose victim seems to enjoy the protection of this section.

BC's decriminalization experiment makes this decision largely academic. But the section brings the harm reduction ideas to other provinces.

2023.11.07 Arresting the Passenger for the Driver's Offence

When you arrest the driver, can you arrest the passenger too?

In the absence of context, don't answer that question!

Here's a little context: suppose that a court prohibited a driver from driving, and you caught her driving again. Can you arrest her passenger?

If that's all the evidence that you have, then obviously, you have no grounds to arrest the driver.

But suppose that while you're arresting the driver, she complains "It's his fault. He said he's too drunk to drive. I told him that the judge prohibited me. But he didn't care. He told me that he would pay me $100 to drive him home." If you believe her, then her passenger counselled the commission of an offence (and abetted her). You could arrest him for that offence.

My point is that there is no rule that says you can't arrest the passenger. You can always arrest someone if you have reasonable grounds to believe that they committed an indictable offence (and s.495(2) doesn't apply).

Let's consider a real case.

Police found Mr Cudney, 2023 ABCA 279 in the back seat of a car. The driver possessed lots of identification documents in other people's names. Could they arrest Mr Cudney?

What's that? You need more information? Of course you do!

Police pulled over a Land Rover because they had a warrant to arrest the owner. They knew the vehicle had frequented a drug house. When asked, the driver gave a name but did not produce a driver's licence. An officer asked her for the keys to the vehicle, and checked her name. That officer noticed Mr Cudney fidgeting in a surprisingly nervous manner, in the back seat. Other officers attended, and asked the passengers who they were. A female passenger refused to identify herself. Mr Cudney, however, gave his name. He was so "fidgety" that one officer directed another to stay with the car and keep an eye on him. He seemed to be touching or handling bags around him.

Another officer recognized the driver as Stacey Palumbo. That's not the name she gave the first officer. The first officer got her out of the car and arrested her for obstructing a peace officer. He saw a purse in the driver's door. He grabbed it and looked inside for her identity documents.

He found lots of identity documents. But not in her name. 20 or 30. Many female. At least one male. Based on the quantity and the genders, he directed the other officers to arrest everyone in the car for possessing identity documents. When explaining why he thought Mr Cudney should be arrested, this officer pointed out that Cudney's position behind the driver allowed him to reach into the pocket in the driver's door, if he wanted.

Because of Mr Cudney's interest in the bag at his feet, the lead officer looked into it for officer safety. (I think he could have searched it incidental to the driver's arrest.) He found handguns. They arrested Mr Cudney for those guns and searched the car more fully. They found drugs, cash, and, in the trunk, another handgun with a silencer.

A handgun and silencer?

Other investigators were investigating a murder that occurred several months earlier. An unsavoury witness said that Mr Cudney did it, using a handgun and silencer.  At Mr Cudney's murder trial, he didn't want this important corroboration admitted. He complained that the police lacked sufficent grounds to arrest him for the identity documents, and therefore the search was unlawful.

What do you think? Having found the identity documents in the driver's door, did the police have sufficient grounds to arrest her passenger for possessing them?

The trial judge found that the evidence did not suffice:

• Mr Cudney's nervousness might indicate that he was involved in criminality, but does not establish any specific offence. This is counterbalanced by his cooperation when he identified himself. This suggests that he had nothing to hide.
• The presence of a little bit of male identification in the purse did not link Mr Cudney to the collection.
  
• The id was in a purse close to the female driver. That tends to link it to her, not Mr Cudney.
• It's usually difficult to reach the front door pocket from the back seat of a vehicle.
• Mr Cudney neither operated nor owned the car. He was just a passenger. There wasn't enough to establish his control over the purse.

The Court of Appeal reached the opposite conclusion:

• Not only did the large quantity of identity documents justify an inference that the driver possessed them for criminal purposes, but the number also suggested "some degree of planning and execution".
• Mr Cudney's unusual behaviour reasonably justified the inference that he formed part of the group that collected or possessed them for criminal purposes.

The Appeal Court judges emphasized that police officers must make arrest decisions on the fly with incomplete information. They agreed that this was a good arrest.

The principles are simple:

• You can't arrest the passenger just because you think that the driver committed a crime.
• You can arrest the passenger if the evidence gives you reason to believe that the passenger participated in, counselled, aided or abetted the offence.

2023.10.31 Warrantless Entry into a Residence when Providing Security for Social Workers

Do you have authority to enter a home whenever a social worker asks you to provide security? I think you may wish to exercise some caution.

Someone complained that Ms Henry looked drunk when she picked up her 7-year-old girl from school. She took a taxi home.

Some police officers saw the taxi reach her home. She went in.

The officers rang the doorbell to inquire about the complaint. Ms Henry and her partner, Mr Land 2023 ONCA 207 answered the door. Henry and Land looked drunk. They refused to let the officers in, nor did they permit the officers to speak with the girl, who appeared "teary-eyed".

The officers left the home, and contacted social services and explained the situation. A social worker asked the police to help her with a welfare check on the child.

The social worker attended the home. Mr Land refused to let her in, and "began acting aggressively" toward her. She explained the purpose of her visit. Mr Land agreed that she could enter.

When the officers tried to follow her in, Mr Land tried to close the door on them. A strategically-placed boot kept the door open. The officers got into the house; there, they arrested Mr Land and Ms Henry for obstruction. Because the police took the parents away from the home, the social worker concluded that the child should not be left alone. It took 3 months for the parents to get their child back.

The criminal charges against the parents were later withdrawn.

Mr Land and Ms Henry sued the police for trespass, negligent investigation, assault and battery and various Charter breaches.

The trial judge threw out the claims. But the Court of Appeal took an interest in some of them.

Why?

Because of the specific wording of the child protection statute, and gaps in evidence from the social worker.

Section 40 of Ontario's Child and Family Services Act includes the following:

40(7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection;
(a.1) the child is less than 16 years old; and
(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),
may without a warrant bring the child to a place of safety.

(8) A child protection worker acting under this section may call for the assistance of a peace officer.

…

(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

The social worker gave evidence that before she went into the house, she believed that the child "may" have been in need of protection. The judges didn't like that. If you look carefully, you'll see that s.40(7)(a) requires a belief that the child actually required protection ("is in need").

The social worker didn't turn her mind to whether she had time to go get a warrant. The judges didn't like that either. Social workers should not take short-cuts with their power to barge into private homes, bringing an armed contingent. If possible, they should apply to court first.

The appeal court ordered a new trial at which the police may be found liable for entering without lawful authority and unlawfully arresting the parents. The police might pay, even though the social worker took responsibility for the questionable decision. (Read the decision to discover how the social worker escaped from the lawsuit unscathed.)

What does that mean for Canadian police officers?

1. Judges interpret legislation tightly when it permits government agents to enter residences. Therefore, when you're considering entering a residence without a warrant, you want to make sure that your situation falls within the words of the legislation which authorizes.
2. Child protection legislation varies between provinces. For example, Section 30 of British Columbia's Child, Family and Community Service Act similarly permits social workers to enter when they believe that a child needs protection and getting a court order would be inadequate to protect the child. But it gives police less discretion to decline a social worker's request for help. It says "At the request of a director, a police officer must accompany and assist the director in exercising the authority given by this section."
3. When a social worker calls you to assist in the warrantless apprehension of a child, you may want to double-check with the social worker whether their grounds fit the language of the legislation. Don't enter a residence without lawful authority. Obviously, if you learn reasons to suspect that a child's life is in immediate peril, then you can take action yourself. R. v. Godoy, [1999] 1 SCR 311.

If the social worker's reasons to enter the residence are flimsy, then as a law enforcement officer, do you feel comfortable in assisting an unlawful entry?

2023.10.11 The Midnight Call to Counsel - Providing Access to Legal Advice when Everyone's Asleep

As I plumbed the depths of a rabbithole today, I encountered a decision which tackles a problem that police officers often face.

You often arrest people after their lawyers close their offices and go home. Many of your prisoners want legal advice. Drugs and alcohol often cloud your prisoners' judgment. In those situations, judges require the sober cop in the room to do the right thing. What should the officer do if the suspect asks to speak to a lawyer who doesn't answer the phone?

Chief Judge Cozens of the Yukon Territorial Court tackled the problem head-on.

I don't usually cite trial judgments on this website. As a mere trial judge, he lacks the authority of an appeal court judge. He does not work in the biggest jurisdiction. Some might dismiss him as a big fish in a small pond.

That would be a mistake.

I worked for a time in remote northern courts. I found that separation from the "sophistication" of urban centres caused the justice system to apply more common sense than I found in the cities. When Cozens C.J. tackled this problem, he demonstrated some of that northern common sense.

The case was routine: in the dead of a December night, Mr Vaillancourt's, 2023 YKTC 17 truck lacked an operating tail-light, and it made an awkward turn. A cop pulled him over. The officer made Mr Vaillancourt blow into a screening device. It registered a fail. The officer arrested him for impaired driving.

The officer offered him an opportunity to get legal advice. Mr Vaillancourt liked that idea. Using his cell phone, the officer summoned a list of lawyers from the Yukon Law Society's website.

Probably at random, Mr Vaillancourt picked Sarah Bird. This probably wasn't a good choice. According to her website, Ms Bird specializes in corporate commercial law, with a big Vancouver law firm. When asked to give legal advice about criminal law, most sensible corporate lawyers duck.

Ms Bird's answering machine said that she was out of the office for a month.

The officer found two more phone numbers for Ms Bird, and made a total of 5 calls over 20 minutes, starting at 3:00am. She never answered. Perhaps Ms Bird's labours for big business rewarded her with a tropical vacation in Fiji, where, at 10:00pm, the loud music in the nightclub drowned the ringing her phone. Or perhaps she was sleeping soundly in a chalet at Whistler.

The officer audio-recorded his conversation with Mr Vaillancourt. The decision quotes extensively from the transcript. It looks to me like the officer made a real effort to help Mr Vaillancourt get legal advice. But the judge concluded that the officer made mistakes. The judge excluded the breath tests. Mr Vaillancourt beat the charge.

Where did the officer trip up? After failing to reach Ms Bird, the officer asked Mr Vaillancourt if he would like to call a different lawyer. Mr Vaillancourt stuck with Ms Bird. The officer should have told Mr Vaillancourt what Ms Bird's answering machine said: away for a month. Maybe Mr Vaillancourt might try calling someone else. (The same sort of thing happened in the case that started me down the rabbit hole.)

This sort of thing comes up often. The routine nature of this problem inspired Chief Judge Cozens to review the law and make suggestions for police. His decision hints that he that knew that Ms Bird didn't practice criminal law (see paras 34 and 35). He suggested that police in smaller jurisdictions could assemble lists of criminal lawyers for prisoners to consider. I noticed that the Yukon Law Society's website has a cool feature that can filter the list by area of practice. The full list contains over 700 lawyers. The criminal law filter cuts that list down to 29. Paragraphs 37-39 makes me think that maybe he knew about that feature.

This is a worthwhile decision for general duty officers to read and discuss. I'll summarize some high points, but I think you'll get more out of it by reading the case and perhaps the other case.

Judge Cozens didn't specifically discuss Prosper. But you should think about it. If the prisoner says that s/he wants legal advice, and then says that s/he doesn't want legal advice, then whip out that Charter card, read the supplementary Charter warning, and explain it. Preferably with an audio-recording device on. Make sure that the suspect understands.

PS: A prosecutor friend of mine in a smaller jurisdiction says that his local police force tried to create a list of local lawyers for prisoners to call. He says it failed, because the officers didn't update it when lawyers came and went. If you do create one, date-stamp it, and set up a system which reminds you to update it regularly.

2023.10.03 Warrants and Wiretap - Individualized v. Global Belief

The Ontario Court of Appeal delivered a decision last week which explains an important theoretical point underpinning applications for authority to search.

Back in 1984, the Supreme Court of Canada explained that to justify a significant intrusion into privacy, a police officer must show the judge that there are reasonable grounds to believe that there was a crime, and that the evidence that the officer wants is in the place that the officer proposes to search. It's a constitutional requirement of legislation that authorizes searches that there must be "reasonable grounds" that the place you search will turn up evidence. What you're looking for "will" be there. "Credibly-based probability". "Might be" isn't good enough. Hunter et al. v. Southam Inc., [1984] 2. S.C.R. 145.

Seems simple enough. So I'll screw around with it. Here's an artificial example constructed to wreck the principle:

Suppose a surveillance team watches Wicked Wanda at a jewellery fair. Knowing of her larcenous ways, they watch her carefully. She arrives carrying four small empty bags - all identical - slung around her neck. Shortly after she visits the booth of the diamond merchant, they see that one of the bags now bulges, as if it contains something heavy. They ask the diamond merchant if anything is missing. Yup. A diamond encrusted watch disappeared. Wicked Wanda wanders into the gold merchant's kiosk. When she emerges, the second bag looks like it contains something too. When asked, the gold merchant complains that a necklace went missing. She hits the sapphire place, and a bracelet disappears. Her third bag now looks heavy too. She stops briefly at the pearl merchant. A pricy pearl comb evaporates. The fourth bag looks heavy too.

Before the surveillance team can grab her, she slips out the back door. Security video at her apartment shows her enter with four full bags around her neck, and leave moments later with three full bags.

She must have dropped one in her residence.

Can you get a warrant to search her place?

Obviously, you have reasonable grounds to believe that one of the stolen items is there. But which one? You can not say that you have reasonable grounds to believe that the search "will" discover the watch in the apartment. The odds are - at best - one in four. Same with the necklace, or the bracelet or the comb.

A strict reading of Hunter v. Southam suggests that you can't get a search warrant for Wicked Wanda's place.

If that were the law, it would be outrageous!

Even though you do not have reasonable grounds to believe that any one specific item is in the residence, you do have reasonable grounds to believe that one of the looted four is there.

And that's good enough to justify the issuance of a warrant.

Don't believe me? Look at Form 1 of the Criminal Code. It specifically expresses this idea. The justice can issue the search warrant if satisfied that there are reasonable grounds to believe that things sought "or some part of them" are in the place to be searched.

That's the idea behind last week's decision.

Police believed Ahmed Hafizi murdered someone. During their investigation, they persuaded a judge to let them intercept his private communications, and the conversations of his father, Temorshah Hafizi, 2023 ONCA 639.

The investigators found good evidence. They busted Ahmed, the charges stuck, and Ahmed went to jail.

But Daddy's conversations revealed something more. Daddy dealt drugs and uttered death threats. The recordings were damning.

He got charged too.

At his trial, Daddy Hafizi complained to the judge that the police lacked sufficient evidence to establish that probably, listening to his conversations would reveal anything about the murder. And he was right. The application showed that there was a possibility that eavesdropping on Daddy would discover evidence about his son's homicidal activity, but not a probability.

Unfortunately for Daddy, section 185(1)(e) of the Criminal Code actually permits snooping on people whose conversations "may assist" the investigation. Not "will" assist. "May".

Mr Hafizi's lawyers complained to the court that this language failed to meet the standard required by Hunter. It shouldn't permit snooping unless doing so "will" assist. "The legislation is unconstitutional!"

The legislation is fine, said the court. Although it sets a lower standard for snooping on specific people, it permits snooping on the group only if snooping on that group "will" assist in the investigation of the offence. [But try to protect the privacy of the minor players as much as you can.]

As the decision explains, there are significant differences between wiretap and search warrants. But the big point applies to both. "Reasonable grounds to believe" applies globally, not individually: will the search strike gold? Maybe not all the gold, but at least some gold?

2023.09.25 Dealing with Foreigners - Language Complications during Arrest

Do you have a way to communicate with people who speak foreign languages? I reviewed R. v Polusmiak, 2022 PECA 8 this week. In 2017, a Ukranian immigrated to Canada. She got a job as a housekeeper. Although she spoke Ukranian and Russian, she wasn't very good at English. She got by at work with Google Translate, and the help of Russian-speaking colleagues.

In 2019, she crashed a car. She smelled of liquor. An officer demanded that she provide samples into a screening device. The officers managed to convey the basics - that she had to blow. She blew into the device, but never enough for a proper analysis. Communication with her required the officers to go to extraordinary lengths to explain themselves.

An officer arrested her, and told her she could call a lawyer. When asked if she understood, she said "yes". When asked what she wanted to do, she gave a reply that the officer understood to mean that she would speak to her husband on the following day, and contact a lawyer after that.

The investigating officers never learned what languages she spoke. They never attempted to communicate in any language other than English.

At trial, Ms Polusmiak told the court that she didn't understand the English word "lawyer". The trial judge figured that if she understood the breath demand, then she must have understood the right to counsel.

The Court of Appeal disagreed. They found that the officers did not take sufficient steps under the circumstances to make sure that she understood. They suggested:

• Ask the person to explain their understanding of what you tell them.
• Use an electronic or a digital translation device or app. If you do, "keep a record".
• Contact a translator.

The court overturned Ms Polusmiak's conviction.

Because of the court's suggestions, I tried playing with Google Translate. I thought it was pretty nifty for simple conversation; but I see some risks where legal rights are implicated:

1. To "keep a record", you'd need to run an audio recorder, and take screenshots of what Google Translate shows on its screen. A little tricky. If you're on general duty, and you do get a translation app, I suggest that you play with it a bit. Figure out how to keep a record of its translations.
2. If you need a translation app to communicate, then you don't know the precision with which it translates your words to the suspect. Use it for short-term matters, but perhaps start again, once you have a qualified translator to work through.
   

2023.09.25 Expectation of privacy in a name and phone number

How much privacy is there in a name and phone number? Those things don't tell you much about the person's lifestyle. In this case, police asked two businesses for a customer's name and phone number. The target complained this violated his right to privacy under s.8.

A tipster told Winnipeg police to expect a drug courier to arrive in town, driving a red truck bearing Alberta licence plates. The tipster said that the man would arrive on October 1, and check into the Rockwood Inn, at Stonewall, just north of Winnipeg.

It was a good prediction.

The police watched that motel, and saw a man arrive in a red truck bearing Alberta plates. He then drove to a nearby gas station. He parked by a grey truck. The officers saw a quick hand-to-hand transfer of a brown satchel. The red truck returned to the motel. The driver took a duffle bag into his unit. The investigators also saw him a woman come to his motel, visit him for 9 minutes and then drive away.

Manitoba Release of Information

Rather that bust the guy, police asked the front desk for the name and telephone number of the guy in that unit. The clerk told him "Jacob Neumann", 2023 ABCA 200. The clerk gave the officer Mr Neumann's phone number. The investigators contacted Edmonton to ask whether they knew anyone by that name. Edmonton Police Service knew of someone by that name, and confirmed that he had the same phone number.

Winnipeg investigators applied for, and got, warrants to track the location of his cell phone and transmission data for its communications.

Mr Neumann travelled a lot. From Vancouver to Edmonton, Regina and Saskatoon. Lots of trips. Lots of short stays. Edmonton police watched him at the end of an alley. Someone visited him briefly, and walked away with a duffle bag. Calgary police tried to follow him, but he appeared to engage in "counter-surveillance". Calgary police got a fresh tracking warrant when the first one expired. This one tracked the truck.

At the end of December, the truck stopped moving. It was in a repair shop in Calgary. Calgary investigators asked the repair shop for the name and phone number of the person who left the truck with them. They gave the same name - Jacob Neumann - but a new phone number. Calgary police got a third tracking warrant. It showed that the truck travelled into the USA and returned to Canada in Ontario, and was heading back towards Alberta.

Figuring that Mr Neumann was delivering drugs, they got a warrant to search the truck. They stopped it. It contained drugs. Lots of drugs. 47kg of cocaine. 47.5kg of meth.

Judicial Reaction

At trial, Mr Neumann convinced the judge that the police violated his reasonable expectation of privacy when they asked the motel and the repair shop for his name and phone number. The defence lawyer pointed out that the name and phone number was the key that allowed police to track Mr Neumann everywhere he went. The trial judge threw out all of the evidence.

The appeal court disagreed. The name and the phone number provide no information about a person's private activities and lifestyle choices. The tracking information came only after the police sought judicial pre-authorization to track the phone. To determine whether the suspect has a reasonable expectation of privacy, one must consider what the police got without the assistance of warrants.

Does this mean you can ask any business for the name and phone number of a suspect?

No.

It depends on the local legislation and the contractual arrangements of the business with their customer. And perhaps other considerations besides.

Manitoba legislation governed privacy in Manitoba. But Manitoba didn't enact privacy legislation for private businesses. Therefore, the Federal Personal Information and Electronic Documents Act applied. The judges pointed out that PIPEDA provides a circular definition of privacy, which is difficult to work with. So they said names and numbers don't reveal private personal choices. It was okay for the police to receive the name and phone number without a warrant.

Lawful = "reasonable"?

In Alberta, the Personal Information Protection Act permits businesses to give information to police who are investigating an offence.  (BC's Personal Information Privacy Act, s.18(j) is similar). The judges said "Given the wording of the Alberta statute, there was nothing unlawful about the police asking for or Advantage Ford providing Mr Neumann’s name and cell phone number to the Calgary police." (para 45)

Hmm. Charter trumps statute. Even if the request and delivery of information was "lawful", the Supreme Court of Canada might say it's "unreasonable". (R. v. Spencer, 2014 SCC 43) Suppose Mr Neumann had attended a private photography studio, where he posed for nude photographs of himself. Just because Alberta legislation makes it lawful to exchange information, would he still have reasons to expect privacy in the nude photos?

That's where you might look for contractual language between the business and their customer. Or ask for less personal information.

But if your target is not a customer, there will be much less reason for the target to expect privacy. That's why you can feel comfortable obtaining security video from businesses of strangers on the street.

Must Police Dance the Two-Step?

Defence argued that the police should have got a warrant or production order to get the phone number from the motel. With that phone number, the police should then have been able to apply for a tracking warrant. Two steps are required by the constitution, they argued.

The court disagreed. At paragraph 73, the appeal court judge asserted: "Properly applied, the Charter does not require the police to get a warrant to get a warrant." Police shouldn't have to dance the two-step. If there are grounds to intrude on privacy, then a judge or justice should be able to grant that intrusion in one application, not multiple ones.

There's some appeal to this idea. Suppose that the motel's rental contract guaranteed anonymity: they'd never tell anyone who rented the room. In that case, Mr Neumann might have enjoyed an expectation of privacy over his phone number and name. If so, the investigators needed a production order. Perhaps the police could have applied for a production order for the name and phone number and a tracking order for the phone number that the motel provided. Drafting a two-step application will be trickier, but might get the tracking going faster.

2023.09.18 Identification by Comparison - Authenticating the "Known" Exemplar

Suppose I produce two different photographs of the same young woman. I point at one of them and say "That's Ashley Reybold-Trudeau, Justin Trudeau's love child with Jody Wilson-Raybould."

You say to me, "Ridiculous. Trudeau and Raybold-Wilson hate each other. I don't believe that they had a kid together. What makes you think this?"

I point at another photograph of the same person, and I tell you, "because that's a photo of Ashley Reybold-Trudeau, and it's obvious that the second photo shows the same person as the first photo."

Are you now satisfied?

I hope not. A sensible investigator would go on to ask: "How do you know who the person is in the second photograph?"

If I can't give you a compelling answer, then my claims should not convince you.

The same thing happens in court. It happens when police officers think that hearsay suffices for authentication. It doesn't.

Here's an example.

Some evidence - partly from unreliable witnesses - suggested that Mr Havyarimana, 2022 ABCA 235 participated in a home invasion.

But the police got some more evidence. Wiretap. They had recordings of a discussion about the home invasion.

A police officer testified that he recognized Mr Havyarimana's voice in the recordings.

Defence asked "How did you know Mr Havyarimana's voice?" The officer was ready for that question: "I listened to a recording of a police interview of Mr Havyarimana."

Defence counsel asked "How do you know that the defendant in the court room is the same guy as the person the police interviewed?"

The officer explained that he relied on annotations in a computer database when retrieving the recording.  No witness testified "I interviewed Mr Havyarimana. The man in the court room is the man whose voice was recorded in the interview that the previous witness relied on."

As you know, judges don't like hearsay.

What the computer told you is usually hearsay. The judge ignored the testimony about what the computer said.

That left the court with only "This voice sounds like a voice I've heard before." But nobody identified the previous voice. The voice identification evidence therefore fell apart.

This problem arises not only in voice identification, but also fingerprint identification. A fingerprint examiner can testify "Fingerprint A matches Fingerprint B". But unless the fingerprint examiner took one of the fingerprints from the person of interest, the fingerprint examiner's testimony does not prove who put the fingerprint there.

During the investigation, you can rely on hearsay. At trial, the prosecutor needs a live witness to authenticate the "known" fingerprint, voice or bodily sample, so that the judge can then conclude that the match means something.

I'll never forget a case in which an officer who took a bodily sample from the suspect for the purposes of DNA comparison. This officer didn't know the defendant, and had nothing to do with the investigation of the offence. He took a sample, but not a photograph. DNA in the sample that he took matched DNA from the crime scene. The officer forgot about the case until he received a notification to testify. By that time, he had no memory of the person from whom he took the DNA sample. He could not say whether the person in the court room was the person from whom he took the DNA sample. That made proving the case more difficult for me. (I found another officer who remembered arresting the suspect and putting him into the cell block where the DNA sample was taken.)

If evidence in the case you're investigating relies upon a comparison of a "known" to an "unknown", make sure that you provide the prosecutor with the evidence that proves the "known".

2023.09.18 Expectations of Privacy in Apartment Buildings

Where does the drug dealer stash his drugs?

All too often, surveillance leads police officers to an apartment building. Without resorting to warrants, what can an officer do to learn where the dealer stashes his drugs?

Investigation

Tips, tracking warrants and surveillance led police to believe that Mr Nguyen supplied drugs to mid-level dealers. Before meeting with suspected dealers, he stopped by an apartment complex. But which building did he enter?

A member of the surveillance team who who lost Mr Nguyen in the area visited the front desk for two buildings. He explained to the security supervisor that he was trying to identify someone who entered the buildings. He asked to see the security video for the public entrances for the two buildings. The security officer did not get approval from management, but he let the officer watch some recordings. In the video of Telegram Mews, the officer saw Mr Nguyen, 2023 ONCA 367 point an object at the security system, and then enter the building. From this, he inferred that Mr Nguyen had a key fob which unlocked the locks.

This supplied grounds for a production order, and then a general warrant to search the apartment associated to the key fob that opened the door. From the apartment, the police seized 11kg of fentanyl, 2.5kg of meth and 1kg of ketamine, along with lots of gear for packaging and diluting the pure product for sales on the street.

The police got a search warrant for Mr Nguyen's residence. There, they found a loaded handgun, more ammo, cash, a debt list, a price list for fentanyl, and key fobs for the unit at Telegram Mews.

Defence complained that by watching this video without a warrant, the officer violated Mr Nguyen's reasonable expectations of privacy.

Judicial Reaction

The trial judge agreed with defence: police need judicial pre-authorization to view security video of the common areas of apartment buildings.

The Court of Appeal disagreed. Sometimes police need warrants to view security video of the common areas of apartment buildings. It depends upon whether the defendant enjoys a reasonable expectation of privacy in the place that the video watches.

Factors which satisfied those judges that Mr Nguyen didn't enjoy an expectation of privacy in that place were:

1. The officer asked to see only the security video for the public entrances. And that's all he saw.
2. Glass walls surrounded the vestibule in question. The public inside and out could see what occurred there.
3. The security cameras there were "readily visible".
4. The apartment building that it served was large - many people would pass through that area.
5. The information that the officer sought and obtained did not reveal personal life choices of the defendant: which building did he enter? did he use a fob?
6. The officer did not seize the video, but just watched it.
7. Not only could the public see into the vestibule, but the general public could access it too.
   

What about the next case?

How will you determine whether there will be a problem in your next case?

The judges in this case dwelt on two prior Ontario cases, White and Yu.

In White, the court found that officers breached the suspect's rights by sneaking around in his 10-unit building, snooping into the storage locker and listening in on conversations in the hallways.

In Yu, the officers got access to the parking garages and hallways of a large apartment building. The garages were accessible to the general public. The hallways were not. The court found that the defendant didn't have a reasonable expectation of privacy in the garages, but even in a large apartment building, the area of the hallway at the furthest end from the elevator was a place that the defendant could expect few people would go.

In R. v. Pipping, 2020 BCCA 104, the court reached similar conclusions. At the risk of oversimplifying, the fewer people that you would expect to find in the place, and the more that the suspect is able to regulate or control who goes there, the greater the liklihood that a judge will find that the suspect enjoys an expectation of privacy in the building.

2023.09.18 General Warrant - "Best Interests of the Administration of Justice"

To get a regular search warrant, you need to satisfy the issuing justice that there are reasonable grounds to believe that an crime occurred, that evidence will be found in the place you want to search, and that evidence relates to the crime.

General warrants require two more elements: (2) no other kind of warrant will do, and  (3) issuing a general warrant is in the "best interests of the administration of justice".

What are the "best interests of the administration of justice"?

Some officers think of it only in terms of how much it might advance the investigation. Yeah, but that's only half of the story. The other half is how much a general warrant intrudes on privacy interests of the people affected by the search. Will the investigative technique intrude too much on the privacy of the people affected by it?

Investigation (see above) led police officers to believe that Mr Nguyen, 2023 ONCA 367 stashed large quantities of drugs in a specific apartment. He met regularly with mid-level drug dealers, often after visiting this apartment. A production order compelled the managers of the building to divulge rental documents and information. Mr Nguyen wasn't on the lease. There was conflicting information whether the named tenants received 1 or 3 key fobs for the apartment, but it did seem clear that nobody lived in the apartment.

Rather than seeking a search warrant to seize the drugs, the investigators asked for a general warrant to permit them to enter covertly on multiple occasions over a period of time.

How does one justify a general warrant instead of a regular search warrant?

The affiant who applied for the general warrant pointed out in the ITO that executing a regular search warrant would alert Mr Nguyen and anyone working with him. It would effectively bring the investigation to an end.

Does that fully address the additional requirements of a General Warrant? It snuck under the wire in this case, but you can do better.

Why would a general warrant produce a more complete investigation?

1) It would permit police to monitor how much product entered and left the suite. Combined with ongoing surveillance, this would reveal who was responsible for bringing it and taking it away. A regular search warrant would not necessarily produce this evidence of control. Execution of a general warrant would result not only in the ability to take the drugs out of circulation, but also the dealer(s).
2) If other people also used the suite, covert entry would permit the police to discover their identities. A regular search warrant would scare those people into hiding.

Great. But what about privacy? Would these covert entries adversely affect the privacy of Mr Nguyen or others?

This is where the evidence of occupancy came to the fore. Searching residences intrudes on privacy more than other places. This search wasn't going to intrude on anyone's home.

The ITO didn't discuss this part. But the judges sure did.

They concluded that there was enough evidence in the ITO to satisfy the issuing judge that the general warrant was necessary, and in the best interests of justice.

Your ITOs for General Warrants, will, of course, contain paragraphs which addresses all of these issues.

2023.09.11 Holding Off Eliciting Evidence Until the After Suspect Gets - or Declines - Legal Advice

I remain surprised by how often this fundamental concept gets overlooked.

A confidential source gave police information suggesting that they would find handguns and a shotgun at the residence of Mr Hamouth, 2023 ONCA 518. They got a warrant, searched the place and found the guns (unlocked and loaded) in his bedroom, and in other places in the house. Mr Hamouth had no right to possess such things.

Although their main target was Mr Hamouth's son, they also arrested Mr Hamouth. He told the arresting officer that he wanted to get legal advice from Alan Gold, a particularly famous defence lawyer.

Then, the officer said to him:

“…do you wish to say anything in answer to the charge, you are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence”.

Mr Hamouth made some incriminating remarks.

Until your prisoner declines to get legal advice, or gets legal advice, you must hold off eliciting information from him or her. During that time, don't ask questions like the underlined part of the quotation above.

Unsurprisingly, the famous defence lawyer complained at trial that the police officer should not have asked that question. Because the officer did, the lawyer asked the judge to throw out all of the evidence.

Maybe this investigator used out-of-date tools. In some provinces, the standard-issue "Charter card" used to contain this phrase. The Supreme Court of Canada rejected the underlined phrase in February 2018. R. v. G.T.D., 2018 SCC 7. This arrest occurred in June 2019. The officer should have used an updated card.

If you've been working as a police officer for 5 years or more, maybe you want to check your Charter card, to see if it contains this dangerous phrase.

And even if your card doesn't contain this dangerous phrase, make sure that you and your team understand this fundamental concept: you can't start asking the suspect about the offence until the suspect declines - or exercises - the right to counsel.

Are you wondering what happened in the case?

Okay. I'll tell you. But only if you make the following promise:

I promise that after I - or my colleagues - arrest or detain people, I will never question the prisoners about the offence until after they decline or exercise their right to counsel.

2023.09.11 Possession - Paupers and Valuable Contraband

Can someone be too poor to possess a million dollars?

Mr Daponte, 2023 ONCA 572 and his wife lived on a farm. She owned it. Police officers watched that farm because they suspected that it contained drugs.

They only saw the wife doing domestic tasks. They saw Mr Daponte stay in the house. They saw him enter and leave various buildings in the farm. They also saw Mr Colpaert, a farm labourer, stay in a shed on the farm on weeknights. That shed lacked electricity and running water. They never saw Mr Colpaert enter the house.

When the police executed a search warrant on the place, they found $800,000 worth of hard drugs cleverly hidden in a different shed. And $80,000 cash. Packaging for the drugs matched items in the house.

At trial, defence argued that Mr Colpaert could have hidden the drugs without Mr Daponte's knowledge. If that was a realistic possibility, then the court had to acquit Mr Daponte.

The trial judge rejected this argument, in part because it made no sense to live in such poverty while possessing such wealth. The Court of Appeal rejected Mr Daponte's appeal (but agreed that the evidence failed to prove that his wife possessed the drugs.)

I found the Crown's argument interesting. You may encounter other cases in which a henchman lives in poverty while a boss possesses contraband of great value. Proving the henchman's poverty may assist in showing who possesses the contraband.

But it might also prove motive. Many people willingly endure poverty and privation for a short time, in the hope of handsome rewards.

Therefore, your mileage may differ.

The appeal decision is short. Drug investigators might find it interesting. Unfortunately, as I write this, the trial decision is not yet available. It may become available after a few weeks - now that the appeal ended.

2023.08.23 "Good Defence Counsel - Bad Counsel" - a confidential source too well placed to be used

What do you call a defence lawyer who rats on her clients?

A disaster.

I read today the story of Nikki Gobbo on Wikipedia. It's already old news, but I hadn't noticed the story until now. She was a lawyer to Australian gangsters ... and a confidential source for Australian police for over 15 years. She sought out police officers to give them information.

Maybe her tips saved some lives. Certainly, her tips helped Australian police to seize drugs and bust people.

Many of the culprits were her own clients. This violated her professional obligations of loyalty and confidentiality. When she told police what her clients told her in confidence, then she revealed privileged communications too.

Things eventually turned sour between her and the police, and the truth bubbled out. A commission of inquiry examined the history, and concluded that her conduct shook the foundations of the justice system. Police officers who worked with her and kept her misconduct secret were complicit. Protection of the identity of a source is not the only goal of a human sources unit. The integrity of the justice system relies on defence counsel doing their job. The officers should have sought legal advice early. When they finally did get legal advice, they acted very slowly on it. Thousands of convictions were impugned. Murderers were set free.

The case illustrates the easy slide into "noble cause corruption". The job of police - to serve and protect - seems so simple: if you enforce the law energetically, society becomes a safer place. But sometimes, to catch big fish, you need to let some little fish go. You overlook minor misconduct in order to protect society from bigger threats. To catch murderers and drug lords, it seemed justifiable to ignore Ms Gobbo's lack of ethics. But by working with her, police participated in her subversion of the justice system.

In your professional life, defence counsel are often your adversary, but they should never be your enemy. You should definitely try to maintain a respectful - and even cordial - working relationship. On the flip side, don't get too close. Defence counsel can sometimes even assist you to do your job; but beware of letting them become your partner or agent in your investigations.

If the next Nikki Gobbo comes to you offering tempting tips about her clients, run, don't walk to the senior people in your source handling unit. Seek out legal advice.

2023.08.22 "Good Cop - Bad Cop" - How Bad is Okay?

I missed this decision when it first came out. I think it's an interesting read because it explores the limits of how aggressive you can be when interviewing a suspect, or investigating generally.

Mr Z (MJ), 2022 MBCA 61 sexually assaulted his partner's nephews, when those nephews were kids. After many years, the nephews complained to police, who investigated.

Mr Z was gay - his partner was male. The partner took exception to the police investigation. He reported the investigator to disciplinary authorities. He called the investigator a Nazi, and published his name on social media. The partner posted comments on social media which could be viewed as threatening or harassing to two of the victims and their families. The investigator formed an impression that the partner was aggressive in his communication style.

The officer interviewed Mr Z twice. For the second interview, the officer decided to mimic the communication style of this aggressive partner.

While doing so, the officer disparaged the accused and his partner. The officer made remarks suggesting that he was prejudiced against the accused by reason of his sexual orientation. See para 26 for a list of the remarks of concern.

In that second interview, Mr Z made no confession.

At trial, defence used the officer's tactics against the prosecution. They complained that the discriminatory language constituted an abuse of process; they asked the judge to stay the charges.

Although the trial judge did not like the officer's language, the trial judge did not think that the discriminatory language amounted to an abuse of process.

The court of appeal disliked the discriminatory language even more than the trial judge:

"The jurisprudence undoubtedly allows a police interrogation to be tough and aggressive.  Nonetheless, in my view, the approach taken here exceeded permissible boundaries.  Applying the correct legal test to the interview, I would find that it was conducted in such a manner as to be an abuse of process constituting a section 7 breach." (para 64)

Those judges agreed with the Crown that the case was too serious to be stayed by reason of this display of prejudice against gay people. Mr Z's conviction stuck.

Notice the first sentence of the quotation. The Court of Appeal judges recognized that interrogations aren't always nice, cozy, comfortable conversations. And this investigator had some reasons to criticize Mr Z's partner.

The danger zone highlighted by this case is expressing discriminatory language - whether you actually believe it or not - while wearing (or carrying) your badge. Mimicking the partner's communication style might have been a good idea: it might have made Z feel "at home". But lacing it with anti-gay comments put the officer in a bind at trial. Civil servants like you will have a hard time justifying the use of discriminatory language. As an undercover officer, you could pretend to be a bigot for the purpose of infiltrating a criminal organization of bigots. I expect judges would accept that as an ugly necessity. But was such language necessary or even desirable in the case of Mr Z?

To be fair to the investigator, he attempted to separate his display of aggression from issues of sexual orientation. He said: "...it has nothing to do with your sexual preference as adults, so don’t get that in your mind." Unfortunately, he ended the interview saying: “You fucking sicken me, I’m done with this.  Don’t even have the balls to apologize.  Classic.  I would say enjoy jail, but you probably will.” This resonated with negative connotations. The defence complained. The judges agreed.

I doubt these remarks reflect the investigator's actual thoughts. He was playing a role, and ad-libbing as he went.

Those of you who will role-play in future investigations may wish to set mental guards against bigoted language. Use it if you must; avoid it if it's unnecessary.

2023.08.19 The Liberty of Witnesses

Witnesses have Charter rights too. This case explores how investigators should treat witnesses in the course of serious investigations. I thank an investigator for bringing it to my attention.

Keenan Corner, 2023 ONCA 509 called police. He reported that several men came to his house to rob him and his friend Shabir of their marijuana. One of the strangers shot Shabir in the head, killing him.

Police attended very quickly; and there was a reason. Police already suspected that Mr Corner dealt drugs. One officer had just set up to watch Mr Corner's house when the call came in. He responded very quickly to the scene. Sure enough, Shabir's body lay on the floor of the garage.

Would you take precautions for your safety when entering the scene of a recent shooting? These officers did. Even though Mr Corner was speaking on his phone to the 911 dispatcher, the two officers who first dealt with him approached with guns drawn, patted him down and directed his movements. Once they had relieved him of a knife, they invited him to sit in a police car to explain what had occurred.

He repeated his story about the robbery, adding more detail.

Police took him to the police station, and questioned him extensively. But at the police station, was he a prisoner or a witness? The investigators neither confirmed his liberty to leave nor suggested that he could get legal advice.

Other evidence led police to believe that Mr Corner's story was false, and that actually, Mr Corner shot Shabir. Indeed, they discovered that Mr Corner himself called in a false CrimeStopper's tip about the group of assailants. The Crown wanted to use that information to prove his story was false.  That triggered a question that only the Supreme Court of Canada could answer. R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45.

At Mr Corner's trial, his lawyers complained to the trial judge that the police detained him without giving him his legal rights. All of his false stories about the attackers should be excluded from evidence.

The trial judge agreed that when the police first took charge of the scene, they did detain Mr Corner without giving him his legal rights. But the trial judge found that the initial detention (when police first took control over the scene) lasted only seconds. It ended too quickly to justify offering legal counsel. No evidence should be excluded because of that.

The conversation in the police car couldn't be a detention. It was, after all, Mr Corner who called police and asked them for help. The officer did no more than what Mr Corner asked: they took his statement about an attack in his residence.

But after that initial statement, the officers took Mr Corner to the police station for further interviewing. There, he continued to talk about the three (or four) assailants.

The defence lawyers argued that even though the police considered Mr Corner to be a witness, they "detained" him. Because of that, they should have told him about his right to counsel.

The trial judge found that the first couple of hours at the police station did involve a detention. The appeal judges disagreed. The facts that they identified which turned this witness interview into a detention included:

• When police arrived at the police station, they took Mr Corner directly to an interview room, instead of leaving him in the lobby with the general public. (I don't see this as particularly significant. A fresh murder deserves more prompt attention than criminal record checks or complaints about vandalism.)
• The interview room was in a secure area. Officers would not let Mr Corner walk in that area unsupervised. (Judges have accepted this factor as significant in past cases. It shouldn't be significant. You can diminish this factor if you explain to the people you interview why they can't walk around in the secure area; but make sure you tell them that they are free to go if they want.)
• Police wouldn't let him wash his hands because they wanted to swab his hands for gunshot residue. (With the luxury of hindsight, it occurs to me that the officers could have secured his cooperation by saying "I'm worried that someone will say that you shot your friend. You just told me that you didn't. I want to preserve the evidence of your innocence by proving that you have no gunshot residue on your hands. Are you willing to protect that evidence by putting these bags on your hands?")
• For some reason, before going to the interview room, Mr Corner relinquished his wallet and cell phone to the police. Why? The officers couldn't clearly remember why. (The judges inferred that this was coercion.)
• The officers offered to get Mr Corner food, but did not suggest that he could go get his own food.
• The officers never told Mr Corner that he was free to go. They kept him for almost 2 hours. Then, they kept him for another 5 hours.
  

The appeal court ordered a new trial.

I had some trouble with the appeal court's conclusion:

1. Mr Corner's deliberate and serious deception contributed to the confusion about his custodial status. Why should the court reward Mr Corner for deceiving police officers?
2. In  R. v. Grant, 2009 SCC 32, the Supreme Court of Canada identified factors that distinguished between mere delays of citizens, and detentions that triggered the right to counsel. One of the key factors was focus: a suspicion that the individual a committed a crime. But in Mr Corner's case, the initial questioning at the police station was focussed on the guilt of other people, not Mr Corner.

My quibbles don't count for much. The judge who authored the appeal decision is one of Canada's foremost authorities on criminal law.

I can find no fault with the broad-stroke take-away from this case. When you deal extensively with a witness - particularly a suspicious one - you can avoid this kind of trouble if you communicate clearly with them whether they are free to go.

Ordinarily, you have no power to detain a witness. I can imagine situations in which arguments can be made that police can lawfully detain a witness, but they would occur only in extreme situations such as imminent loss of life or evidence. If you must deprive an innocent person of liberty for any significant period of time, then s.10 of the Charter compels you to explain why and to give them access to counsel.

In most situations, you must rely upon the cooperation of the public in your investigations, obtained by persuasion, not coerced. Remember the Peelian Principles of Policing.

PS: something similar occurred in R. v. Beaver, 2022 SCC 54. First responders detained witnesses at a suspicious death scene. That caused trouble.

2023.07.08 Executing Warrants to Search Cell Phones

A warrant issued under s.487 authorizes an officer to enter a place or open a receptacle, and search for something inside.

The justice says: "I authorize you to open it up, go in, and search."

In R. v. Vu, 2013 SCC 60, the Supreme Court decided that a police officer who wants to search an electronic device needs specific authority to do so. As a result, after seizing cell phones during a warranted search, police officers often apply for a second warrant authorizing them to search the phone for specific relevant data.

As I discussed back in April 2019, many officers have been trained to draft the warrant to allow them to search their exhibit locker for the device, rather than to search the device for the data. They were also trained that if they reported the seizure of the device to a justice ("Form 5.2"), they didn't need to report what data they found after the search of the device.

Some judges here in BC take the view that you must report both the seizure of the device, and the seizure of the data. Two different reports, (or two different lines in one report). R. v Bottomley, 2022 BCSC 2192; R. v Bottomley, 2023 BCSC 603.

In the Bottomley case, the investigator got a warrant to search the contents of a phone. Actually, the officer drafted it to authorize police to search an exhibit locker between 7:00pm and 9:00pm on a particular day for a cell phone. On that day, he never went to the locker. That evening, he merely signed the back of the warrant, and issued directions to other officers to deliver the phone to the tech crimes unit. Delivery occurred on a later date.

The judge didn't like that because the officer did not do what the warrant authorized. The search of the phone for the data it contained actually started at a later date and time than what the warrant authorized.

I don't like it either, but for different reasons:

• With great respect for contrary opinions, I think that the drafting was silly. The officer did not need permission from a justice to open the exhibit locker and fetch the phone. The officer needed judicial authority to examine (or arrange for others to examine) the contents of the phone. That's what the face of the warrant should have specified.
• With great respect for justice Devlin, I do not see that the breach of s.8 of the Charter was serious. The officer violated the letter of the warrant, but not its intention. Nobody expected the search to complete in 2 hours. It was always going to take weeks or months. The officer didn't need the authority of the warrant to open the locker. The justice plainly intended that the police search the phone, and to take the time they needed to do so.
  
• The officer asked for a very tight time window to commence the search - only 2 hours. Why? It does make sense to specify tight windows for the execution of warrants to search residences and other private buildings. An ITO for a residence should persuade a justice that there are reasonable grounds to believe that a place contains evidence of a crime. For fear of loss of evidence, the justice should want the search to commence promptly; but for fear of disturbing the peaceful occupants, the justice should specify the time of day or night that the search may commence. Neither of those considerations apply to a phone in an exhibit locker. The evidence isn't going to be lost if police delay. Nobody will be frightened when officers arrive to start the search. I think that no tight window is required for a Vu warrant (warrant to search for data from a device in police possession). I observe that s.487 does not explicitly require any window at all. The section does refer to Form 1. Form 1 suggests a window, but s.849 says that the form can be "varied to suit the case". A search of a cell phone should be started - and completed - during a period of lawful detention pursuant to s.490. But beyond that, the concerns of the justice - securing evidence while respecting property and privacy rights - are not affected by what time of day or even which day of the week an officer starts looking into it.

Therefore, I suggest that you draft Vu warrants to authorize you to search receptacles for data. I suggest as well that you ask for wide windows for the search. Because justices are accustomed to tight windows for residential searches, your ITO may need to explain something like this: "I ask for a wide window for this search because (1) unlike a residential search, the time of day when the search commences will not affect anyone's property or privacy rights; (2) unlike physical exhibits in private places, the data in the cell phone is not at risk of loss or degradation; (3) the process of searching electronic devices is slow meticulous work, which sometimes requires re-examining the device, as discussed in R. v. Nurse, 2019 ONCA 260. I also ask for an endorsement pursuant to s.488 permitting this device to be searched at night. I ask for that because the interests protected by that section are not engaged by the proposed search and because the limitation in that section should not prevent technicians from working on that phone at night."

I suggest that you draft your Vu warrant to authorize you to do what you will actually do. If you're going to arrange for the delivery of the device to technicians who will copy its contents and search them for the data of interest, then perhaps that's what the warrant should say.

2023.07.08 Breath Screening and Legal Advice - "Immediately" and "Without Delay"

Section 10(b) of the Charter requires a police officer who detains or arrests someone to offer them legal advice "without delay".

Section 320.27 of the Criminal Code permits an officer to screen a driver's breath "immediately", or to perform field sobriety tests "immediately".

When both are at play, which one takes priority?

Police Constable Lawrie solved this problem. He stopped a speeder on a busy highway in Hamilton. Dispatch told him that the car was stolen. He arrested the driver, Ms Haist, 2023 ONCA 465. He noticed an odour of liquor on her breath, and so he demanded that she blow into a screening device.

She refused. Three times.

He arrested her for refusal as well. Because he didn't have a suitable vehicle for transporting prisoners, he called for another officer.

He searched Ms Haist, but he didn't explain her right to counsel until after placing her into the other officer's vehicle.

Ms Haist wanted legal advice, but it took a while to deliver that advice. When they arrived at the police station, they had to wait in line for other officers to deliver their prisoners to the secure bay. I guess it was a busy night.

At her trial, Defence complained that the police took too long to explain the right to counsel. 12 minutes passed between arrest and the offer for legal advice.

Back in April, I wrote about Mr Davis. In his case, the Ontario Court of Appeal said that 8 minutes was too long. In June, the same court concluded that 12 minutes was okay. How did Cst Laurie get more sympathy from the court than the officer who investigated Mr Davis?

P.C. Laurie gave good reasons for the delay:

• The requirements to make a screening demand "immediately" and to execute on that demand "immediately" took priority to explaining the right to counsel.
• The busy highway made it dangerous for the officer to read out the right to counsel at roadside. Cst Laurie wanted to wait until he safely placed Ms Haist into a police vehicle.

The court agreed. In the ordinary course of investigations, getting a breath screening done takes priority over explaining rights to counsel. Safety comes first.

Defence had more complaints: they said it took too long to deliver on that promise of legal advice "without delay". It took almost 3 hours to start calling for legal advice.

P.C. Laurie had answers for that too:

• He could not immediately leave the scene immediately after placing Ms Laurie in the other police car, because he needed to look over the stolen car.
• The busy police station delayed him further.

The judges accepted these explanations.

How did P.C. Laurie have so many good answers for the judges? I suspect that he put answers in his notebook at the time of the investigation because he knew that promptness was an issue.

When you arrest people, do you worry about getting them legal advice "without delay"? When things move slowly, do you take notes about why? When you plan to arrest people, do you try to plan ahead to solve that problem?

2023.07.08 Processing Exhibits

Every day, young officers learn procedures that solve problems they never knew existed. Processing seized property is one of them. A tedious task that doesn't matter ... until it does.

When police searched Mr Rocha's 2023 ONSC 1573 house, they found drugs and cash.

At trial, Mr Rocha accused the police of stealing his money. The officers denied it. Despite Mr Rocha's history of crime and dishonesty, the judge trusted him more than the officers who handled the exhibits. The judge concluded that a police officer stole money from exhibits. The judge disliked the idea of a crooked police officer so much that he stayed the serious drug charges that Mr Rocha faced.

I don't know whether the bad apple was an officer or Mr Rocha. Whether or not an officer stole money from the exhibits, I do think that police can learn from this case.

What are the procedures for? Accounting. So that after the fact, everyone can know exactly what the officers found, where they found it, what it looked like, and how much of it they found.

Why does it matter? Convictions stand on evidence. If the court doesn't trust the evidence, then the prosecution fails. Proper handling and documentation proves that the exhibit in the court room really did come from the crime scene, and explains whether anyone changed the exhibit in any way between the time it was seized and the court room. And every so often, someone (or some rodent, or flood or fire) does steal from exhibits. When that happens, good procedures and documentation make it easier to identify the felon, and know what the exhibit looked like when it was first found.

Good exhibit handling takes time and diligence. But it rarely wins anyone any accolades. Bad exhibit handling often goes unnoticed ... until disaster strikes. 4 years passed between this search and the judge's decision. Lots of time for other problems to accumulate.

Junior officers should learn not only how their exhibit procedures work, but also why, so that they can fully account for exhibits, and prove their own honesty when challenged.

Supervisors might consider checking how their junior officers are doing. If you praise the diligent ones, exhibit handling won't be a "thankless task".

2023.06.12 Interviewing the Suspect - A Standard Practice

Here's another example that illustrates why a police officer should ask the suspect what happened.

Four men told police that Ms Guillemette, 2022 ONCA 436 drove from the bar drunk. One of those men tried to stop her by reaching into the car and taking her keys. While his body was partly in the car, she drove the car in reverse, which caused his body to collide with a post. He suffered a broken pelvis.

Another man called 911 to report her intoxicated driving.

A police officer drove to her residence, and caught her as she arrived. The officer investigated her driving. Breath tests recorded 180mg% of alcohol in her blood.

At trial, she explained that one of the men was harassing her, touching her thigh and her breasts, and demanding that she spend the night at his place. She intended to take a cab, but faced with this unwanted sexually aggressive conduct, she felt that she had no choice but to drive in order to escape.

The trial judge didn't believe her. But the trial had not proceeded well. The prosecutor made the mistake of demanding that she explain why she didn't run to the officer and complain about the aggressive man. That's a legal error. The right to silence means that she has no obligation to complain to police, and furthermore, judges are not permitted to draw the rather obvious inference "if she really had been scared, she would have run to the cop".

When I read the judicial summary of her testimony, I didn't believe her story. But I'm in a poor position to judge.

But her story reminded me of many other cases I've seen in which people committed criminal acts by reason of worse threats that they faced. Battered spouses, low-end drug dealers and victims of familial sexual abuse often take desperate measures. The cop who investigates only their offence sometimes traps a rabbit, but leaves the wolf.

The cop who encourages a felon to talk sometimes receives a tall tale.

Assuming Ms Guillemette told lies about her misadventures, would it have been a waste of an investigator's time to attempt to interview her that night?

I say "no", because there would be little risk of harm, and opportunity for important discovery:

• Most probably, she would have maintained her silence. The investigator would be no further ahead, and no further behind.
  
• Possibly, the recorded interview would have demonstrated that she was too drunk to to understand her rights. That's good evidence that she was too drunk to drive.
  
• Possibly, she might have complained about a sexual assault, from which she had to flee. That's an investigation worth pursuing.
  
• Possibly, she might have given a guilty explanation for her driving, which included no complaint of abuse. A statement like this tends to prevent defendants from inventing false stories between arrest and trial.
  

2023.06.12 Impaired Drivers - Mandatory Alcohol Screening ("MAS") - Constitutional

Back in 2019,  I urged officers to use the new Mandatory Alcohol Screening power ( s. 320.27(2) of the Criminal Code) cautiously, because I anticipated controversy. I expected that defence counsel would challenge this warrantless search provision.

They did. McLeod v British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325; R. v. Day, 2022 MBPC 2; R. v. Blysniuk, 2020 ONCJ 603, R. v. Brown, 2021 NSPC 32, R. v. Kortmeyer, 2021 SKPC 10, R. v. Labillois, 2020 ABQB 200, R. v. Morrison, 2020 SKPC 28, R. v. Switenky, 2020 SKPC 46

To my surprise, I have found no decision in which defence persuaded a judge that the section is unconstitutional.

That suggests that you could start using this power more often. The BC decision of McLeod provides compelling reasons to do so. The court heard evidence that Canada still has one of the worst rates of impaired driving fatalities and injuries in the developed world.

If you'd like to help reduce that carnage, then you need to use this power properly. The section says:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

That tells you:

1. You gotta have a screening device with you. But if you're thinking of using a screening device, the Supreme Court of Canada already decided that you must have one with you. R. v. Breault, 2023 SCC 9
2. You gotta know how to use it. Don't look here for instructions. I'm just a lawyer. I might know some law, but I've never operated one of these things. Reread your manual. Get the details right.
   
3. You gotta be "in the course of the lawful exercise of powers..." Generaly, that means a traffic stop for some reason or another. Can you stop a car just to do a MAS demand? One judge said "yes". (R v Labillois, 2020 ABQB 200) I think legally, you're on more solid ground if you pull the vehicle pursuant to the vehicle legislation of your province or territory, for the purposes of ensuring driver safety, licencing and insurance.
   
4. You require the person who "is operating" the vehicle. This part makes car MAS demands at car crashes troublesome. You usually arrive after the driver stops driving. There are some old cases based on a prior version of the legislation which might justify a shortly-after-the-fact demand (R. v. Lacovic (1988), 1988 CanLII 7075 (ON CA), 45 C.C.C. 3d 80 and R. v. Campbell (1988), 1988 CanLII 4932 (SK KB), 44 C.C.C. 3d 52) If your find reason to suspect that the driver has alcohol in their body, use the reasonable suspicion demand instead.
5. You gotta move fast. The section says "immediately provide samples of breath". In the context of a trraffic stop, the reason that the MAS demand survives constitutional attack is that using it should delay the driver for only a very short time. If you delay the driver for 5 minutes to figure out whether to make the demand, and then another 5 minutes to test the driver's breath, a judge may find that you did not comply with the section.

On screening devices generally, I would add:


6. Demands are not requests. Don't ask the driver whether they will blow. That suggests that they have a choice. They don't. Failure to comply is a crime. Tell them to blow. If they equivocate, proceed. Produce the device and tell them to blow.
7. Failure to blow is a criminal offence. Preventing crime is your job. When someone resists your demand, it is right and proper to urge them not to commit a crime.
8. Don't give bad legal advice. Police officers sometimes tell drivers "the penalty for refusal is the same as the penalty for impaired driving." Before 2018, that was true. Not any more. In some cases, the penalty for refusal is worse.
9. Give the reluctant driver many opportunitites to blow. Because they can't get legal advice, a screening device demand puts them in a tough position. Judges are sympathetic.
10. Document the breath testing process in notes or on video. Judges won't convict drivers for refusal unless except when satisfied by compelling evidence. The question isn't whether you're satisfied that the driver has now refused, but whether you have enough evidence that a judge will be convinced beyond a reasonable doubt.
    

2023.06.05 Identification - When to Show Photo Lineups to Officers

Officers in Saskatoon responded to a call of domestic violence. When they attended the house, Cst Willard checked out the back yard. Cst Willard saw someone on a back deck pointing a gun at him. He heard the racking of a firearm, and a man said "Get the fuck out of here." The officer retreated fast and called for backup.

As officers arrived, they took positions around the house. An hour after the incident, two people came out of the house: Mr Lachance, 2023 SKCA 48, and his girlfriend, who told police that he had assaulted her. Inside the house, police found nobody else, but they did find a sawed-off .22 rifle.

Mr Lachance faced charges of assault and firearm possession.  He beat all of them.

Don't blame Cst Willard for Mr Lachance's aqcuittal. The decision suggests to me that he is a man of integrity. He told the truth, even when it hurt.

At trial, the girlfriend got cold feet, and left the court house before testifying. The Crown tried to work around that problem. But the follow-up that they attempted did not satisfy the trial judge.

And even though Cst Willard testified that the man in the court room - Mr Lachance - pointed the gun, the judge harboured a doubt that perhaps someone else could have been the culprit.

Why did the judge doubt? It seems so obvious that Mr Lachance did it. He was the only man in the house. Cst Willard heard a man's voice when the gun was pointed at him.

Because reasonable doubt rests upon innocent possibilities:

1. The police did not surround the house immediately. In the first few minutes before other officers arrived, it was possible that a different man with a gun could have left without the house without being seen.
2. The officer that saw the gun said he saw a shotgun. Nobody found a shotgun in the house. They found a .22. This gave weight to that possibility. If the officer actually saw a shotgun, then some other person must have taken it away from the house.
3. Alternatively, it was possible that the woman pointed the gun, and the man said the words. Cst Willard didn't see who said the words.
   

It was only in the court room that Cst Willard identified Mr Lachance as the person who pointed the gun. Cst Willard had never seen Mr Lachance before.

Judges hate that kind of identification evidence. It's called "stranger eyewitness identification evidence".

Under stressful situations like this one, where a witness gets only a brief opportunity to see a face, people often make mistakes. Especially when they don't know the felon.

One can understand why the investigators thought that identification was solid. The first clue should have been the contrast between Willard saying it was a shotgun, and only a .22 showing up in the house. Probably, stress and danger made the gun look bigger than it was. Understandable. But the prosecutor needed a stronger answer.

A photo-lineup might have solved the problem. But only if someone presented it to Cst Willard before Cst Willard saw Mr Lachance arrested or in custody.

Cst Willard's notes might have saved the day. They would be most compelling if Cst Willard could record unique features of the gunman before seeing those features on Mr Lachance.

The decision makes for interesting reading. Mr Lachance was a gangster. Between the incident and his arrest, he sent a Facebook message to his gangster friends to "hit up" his girlfriend. This suggests that there were reasons to make extra efforts to investigate the case and to support the witness.

2023.06.01 Safety Search - Searching a Vehicle

The power to search in order to assure your safety - or the safety of the public - is not strictly limited to frisking the person that makes you nervous. When you have sufficient reason, you can search their immediate vicinity. Whether you can, and how widely you can search, depends heavily on the circumstances.

Mr Buakasa, 2023 ONCA 383 caught the attention of Cst Sinclair by driving at 140km/h on the 401 Highway in Ontario.

Cst Sinclair pulled him over. Mr Buakasa produced invalid insurance. His car contained two children. One of them was not properly seatbelted.

Cst Sinclair decided to impound the vehicle, and arranged for it to be towed.

Simple, so far.

But it got more complicated. A computer database alerted Cst Sinclair that police were surveilling Mr Buakasa, and that officers who arrested him should contact an officer in Waterloo.  Although Cst Sinclair did not arrest Mr Buakasa at that point, he called the Waterloo officer for more information. That officer told him that Mr Buakasa had "deep gang involvement", and there was a "good probability" that Mr Buakasa possessed a handgun.

Cst Sinclair called for backup.

When another officer arrived, Cst Sinclair searched the car for firearms. He noticed a loose panel on the passenger side console. When he touched it, it fell off.

This exposed a handgun.

It was loaded, and with it was a sock containing more ammunition.

At Mr Buakasa's trial, his lawyer argued that the officer had no lawful authority to search the car.

The prosecutor argued three reasons for the search:

• Because the officer smelled marijuana in the car and saw marijuana debris, the officer could search under Ontario's Cannabis Control Act (I presume s.12).
• Inventory search; and
• Safety search

The trial judge rejected the first two reasons, but agreed with the last one. The Court of Appeal judges declined to reconsider the first two questions; but they agreed that Cst Nickerson could search the interior of the car, for his own safety, and for the safety of the public.

Only because the circumstances of this case justified it. Here's how the appeal court analyzed it:

[47]      The trial judge noted the following constellation of circumstances:

1. once the ticket was issued, the appellant would no longer be under police control;
2. the appellant and the children were presumably going to travel with the tow truck operator;
3. a gun is a valuable commodity, giving rise to a real concern that the appellant might take steps to retrieve it;
4. it would be reasonable to expect that the tow truck operator would need to access the interior of the car as part of the towing process, and that the tow operator would reasonably expect that police “would not expose him to a known risk of travelling with a person who had a gun that he might try to retrieve from the car”;
5. the Waterloo officer, an officer involved in intelligence, had told Cst. Sinclair that the appellant had “deep gang involvement” and details of two prior incidents in which the appellant had been involved in or present at shootings in the past several months;
6. Cst. Sinclair was able to form a “high level of suspicion” that the appellant had a firearm; and
7. Cst. Sinclair came to a consensus with the Waterloo police officer that there was “a good probability” that the appellant had a gun in the car.

[48]      While Cst. Sinclair testified that he did not have reasonable grounds to believe that the appellant was in possession of a firearm, he did have, on the totality of the circumstances, a reasonable belief that the safety of the tow truck driver, the children present and the public was at stake, because he believed that there was “a good probability” there was a gun was in the car. That threat to safety was imminent because that “present danger of harm” had not been dispelled at the road side: see Lee, at para. 59. I adopt the observations of the trial judge:

If Mr. Buakasa did have a gun in the car, the public safety concerns were immediate and serious. Cst. Sinclair was faced with making a choice between Mr. Buakasa’s expectation of privacy and the safety of the tow operator and anyone else whom Mr. Buakasa might encounter in a quest to regain control of a gun. I have concluded that Cst. Sinclair was correct to give priority to the safety concerns.

The trial judge considered the danger to the tow truck driver to be so acute that the officer would be negligent if he failed to make the car safe to tow away. The appeal court judges agreed that a search was lawful.

Travelling to that destination took the judges over a rough trail through the jurisprudence of officer safety searches.

In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the judges found that for the purposes of staying safe, police officers could frisk detained suspects for weapons, if there were reasons to suspect that the detainee possessed weapons and posed the officer some danger.

In R. v. MacDonald, 2014 SCC 3, the judges considered whether police could - for the purposes of safety - search someone who wasn't detained. They agreed that you can, but most of the judges said that you needed reasonable grounds to believe that your safety is at stake.

That kicked off a judicial and academic debate which hasn't yet settled. Reasonable suspicion is a lower standard than reasonable belief. Just how much evidence of danger do police need before they can intrude into people's privacy? For you police officers, this can raise a life-and-death question. Even the Supreme Court's subsequent decisions in the area of safety searches failed to clear up the confusion. Read the decision to follow the debate.

In this case the court ducked answering the question. They said that whatever the test is - reasonable belief or reasonable suspicion - Cst Sinclair had sufficient grounds.

I don't blame them for ducking. They lack jurisdiction correct the Supreme Court of Canada.

For you, on the street, this case provides an example of common sense:

• You can frisk a risky person if you have reasons to fear that they might have a weapon and they will hurt you (or others).
• You can search a place associated to the risky person if you have compelling reasons to think that failing to do so will put you or other people in danger.

In expressing it this way, I avoided the language of the legal debate. You need good reasons for this kind of search. They must be grounded on real risks that you can't avoid. Alternatives to searching didn't exist in this case.

Don't play games with this power to search. Safety searches are for keeping police officers safe. They're not for discovering evidence. Judges worry that making the power too broad will unnecesarily intrude on civil liberties. If the judges get the idea that police officers abuse this power, they will restrict it. That will put cops in more danger.

2023.05.30 Reasonable Grounds - Sgt Mortenson's Rule of Three

Here's a short decision which teaches the importance of understanding the whole judicial process, including how building grounds for an arrest sometimes requires some patience.

Sgt Mortenson supervised a drug enforcement team that busted Mr Fong, 2023 BCCA 196. He did something smart that you can learn from, but he articulated it in a way that you might want to avoid.

Members of his team saw Mr Fong engage in three brief interactions that looked like a dial-a-doper in action.

After the second transaction, Sgt Mortenson was sure his team found a trafficker. But he waited for a third transaction before authorizing an arrest.

And sure enough, his team found drugs.

At trial, defence counsel asked Sgt Mortenson why he waited for the third transaction before authorizing the arrest. Sgt Mortenson explained that three transactions was his "rule of thumb". It was a practice he followed because “the Crown is [generally] satisfied after three … decent observed short-duration meets that [this] fits the criteria for reasonable and probable grounds with some other criteria involved”.

At trial and at the appeal, defence counsel pointed out that Sgt Mortenson's team members did not see anything change hands. Defence proposed innocent alternative explanations for the short meetings. Maybe Mr Fong was just picking up a friend. If one of the incidents could be explained away, then there weren't enough brief transactions to amount to reasonable grounds.

The judges rejected those arguments, and rightly so.

If you read the decision, you will see that Sgt Mortenson had more than three brief transactions: file information suggested that Mr Fong's car was involved in drug-related incidents; and the transactions started in a drug-infested neighbourhood.

What I liked about Sgt Mortenson's approach was the care and patience he took to build a solid case for arrest. He was right to testify that he didn't need three transactions. What he needed was enough information to satisfy himself, and enough information to satisfy the court that his belief was reasonable. Generally, in the kinds of investigations he does, three brief transactions - along with some supporting background information - suffices.

Although I liked Sgt Mortenson's candour about his "rule of thumb", I think that he could have expressed a longer view of the file. Your job when gathering grounds is not to satisfy the prosecutor, but to satisfy the court that you are obeying the law. When assessing such cases, some prosecutors require police to show very strong grounds for their arrests. Those hard-nosed Crown Counsel do so only from painful experiences in the court room. If I were the prosecutor at Mr Fong's trial, I would have preferred Sgt Mortenson to explain that two transactions convinced him that his team found a trafficker, but he asked his team to keep watching, "so that the evidence would satisfy the judge that my belief was well-founded".

2023.05.30 Using Force - Adrenaline, Training and Safety

Police arrived - en masse - to the scene of a gunfight. By the time they arrived, the shooting had stopped and the shooters scattered. About 40 minutes after the shooting, an officer in a helicopter spotted someone suspicious on the ground, and alerted other officers.

That guy was Mr Brar, 2023 ABCA 63.

Mr Brar hid under a deck. A police officer shone a flashlight under the deck, but could not see Mr Brar. The officer stood in the vicinity of the deck for 7 minutes, waiting for a police dog to arrive.

The dog arrived. At the moment that the handler released the dog to search for people under the deck, Mr Brar said “All right, I’m coming out now."

The dog bit him and dragged him out from under the deck, face down. His hands were empty, and up around his head.

Four officers received him.  One stood over him pointing a rifle at him. One knelt at his right shoulder, grabbing his hand. The dog handler stood by. And one more officer kicked and punched Mr Brar repeatedly in the head - as a distraction.

The punching broke Mr Brar's nose and orbital bone. (That's the bone that supports the eye.) He required surgery, and suffers lasting eye problems. That's common with orbital bone injuries.

After arresting him, police found a handgun in a bucket under the deck. The trial judge convicted him of possessing it unlawfully, but reduced his sentence by reason of the injuries he received during his arrest.

Mr Brar appealed his conviction. He complained that the arrest involved unreasonable force.

At trial, the officers explained that Mr Brar's actions justified the force that they used: one of Mr Brar's hands moved as if to reach for a weapon.

The trial judge felt that the fast moving event gave the officers no time to choose less violent means. The appeal court judges didn't like that explanation.

Considering that a dog was biting Mr Brar's leg, was the punching necessary? With the luxury of hindsight, the judges identified less-injurious alternatives. Instead of punching him, an officer could have stood on his shoulder.

I see irreconcilable conflicts between the law, human psychology and risk management.

The law seems straightforward. Even the guilty felon enjoys a right to be arrested with no more force than is reasonably necessary. The police officer arresting him also has rights.  After each shift, every officer should go home alive and uninjured. The officer should be permitted to use reasonable force to protect himself or herself from harm. Canadian law permits the officer to use "reasonable force" - force which is objectively justified by things that the police officer knows about.

Risk management operates by identifying possible harms, and taking steps to prevent them. When facing Mr Brar, an officer who does not know whether he possessed a gun should assume that he does. Good risk management requires us to assume the worst, and take steps to prevent it. When approaching potential gunfighters, prudent officers will assume that the subject has a gun and may use it.

That's fine ... until you start to use force. You can approach with caution. You can choose tactical positions which defend you. But when it comes to applying force, the law permits you no luxury of assumptions. Unless you have positive information that someone poses you danger, you can't use force.

When testifying why you used force, do not use risk management language ("I didn't know whether he had a gun, therefore I believed it was necessary to take immediate control of Mr Brar..") Instead, you must use the language of reasonable grounds ("The dispatch information and the information from the helicopter made me think that he likely possessed a gun and was desperate enough to use it. That made me think I needed to take immediate control of Mr Brar.")

These officers had some evidence. They attended the scene of a gunfight, and located a potential gunfighter, hiding. Wasn't that enough to justify the force that they used?

When determining whether force was "objectively reasonable", judges must consider all of the information available to the officers at the time. When the dog dragged Mr Brar from under the deck, his hands held no firearms. The appeal court judges suggested that the officers should have modified their response based on that new information.

I take the view that police officers on the ground can not consider all of the evidence in real time.

Our human brains respond to acute danger by narrowing our focus to the threat. These officers knew that they were responding to a gunfight in a public place. They had reason to believe that they found one of the shooters. When he emerged from under the deck, the officers had little time to assess what dangers he posed to them. But they had reason to think he was a killer.

Research suggests that greater training tends to create officers who adapt better to changing circumstances. Top-flight members of tactical squads might have been able to re-assess Mr Brar's risk so quickly that they might have determined that beating him wasn't necessary. But not every officer who attends such a scene gets advanced training in the use of force. Not every officer can act so coolly in the face of possible death.

Some would suggest that the law should adapt, to account for human frailties of police officers. Don't hold your breath. Part of the job of the courts is to hold police to high standards of conduct, even when arresting bad guys.

The lessons to draw from Brar include:

• Tactical training does matter. It's not just for jocks, but for all officers on the street. It improves your chances of survival in sticky situations. Measured use of force deprives defendants like Mr Brar of arguments like this one.
  
• Articulating the use of force depends upon what you knew, rather than what you didn't know.
  

2023.05.09 Confirmation Bias - Traps Everywhere

Confirmation bias affects all humans. If you're not sure what it is, you can read a formal explanation in Wikipedia. Or you can listen to the profane and irreligious Tim Minchin. I find the latter more amusing.

I don't know whether either of those links inspired the lawyer who represented Mr Ogden, 2023 ONCA 324. But s/he made an argument based upon that concept.

During a home invasion, one of the felons ripped a phone off the wall. Police found a fingerprint on that phone. Did it belong to Mr Ogden?

The first expert, Sgt Cuff, compared the print from the phone to fingerprints on file. Sgt Cuff found a match with one of Mr Ogden's fingers.

A supervising officer arranged for a "blind verification". The supervising officer found another fingerprint expert, D.C. Young. D.C. Young received the telephone print, three unrelated sets of fingerprints and a copy of the fingerprints of Mr Ogden that Sgt Cuff saw.  D.C. Young also concluded that Mr Ogden's finger matched the print on the phone.

As a result, Mr Ogden was charged with the home invasion.

Unfortunately, the first expert, Sgt Cuff, left the forensic identification unit.  His qualifications lapsed. But the prosecutor would need a qualified expert to testify at trial.

D.C. Young got a new set of fingerprints that had been taken from Mr Ogden after the charges were laid. D.C. Young compared the new prints to the print from the phone, and again concluded that there was a match. This, of course, was not a blind identification. This time, D.C. Young knew who was charged, and who he identified during the "blind verification".

The supervising officer "verified" D.C. Young's results. That is to say that the supervising officer himself compared the print from the phone to the new prints, and agreed that there was a match.

At trial, the prosecutor presented the testimony of D.C. Young's second fingerprint comparison, but not the earlier comparisons.

Defence cried foul.

At the time that D.C. Young did the second comparison, D.C. Young expected to find a match because of the earlier work on the file. That pre-existing belief could blind him to differences between the print on the phone and Mr Ogden's fingerprints on file.

The judges didn't buy the defence argument.

D.C. Young showed the court some compelling similarities between the print at issue and Mr Ogden's file fingerprints. A good chart of comparison points can be very persuasive.

I feel no sorrow for Mr Ogden. As I understand the state of fingerprint science, good quality fingerprints provide compelling and reliable evidence of identity. The 14 points of correspondence in this case provided compelling evidence of his guilt.

I feel some sympathy for Mr Ogden's lawyer. The forensic procedure was messy. If D.C. Young already believed that he knew the "right" answer, it may well have been harder to view the second fingerprints objectively. The lawyer made a smart argument which might succeed in other cases.

This problem arises everywhere in police work. If the first three witnesses tell you that they saw Jimmy assault Mary, you will likely have reasonable grounds to arrest Jimmy. Suppose you meet Mary, injured and bleeding.  Suppose she begs you for help to get away from Jimmy. Only people with hearts of stone would feel unmoved by Mary's plea. When a fourth witness - perhaps Jimmy's sister - tells you that Jimmy did not assault Mary, you may not trust the witness. Some officers may even disregard what the witness. Beware. Confirmation bias is already creeping into this investigation. The last witness should be interviewed at least as carefully as the first.

The officer who denies that s/he suffers from confirmation bias is an officer who denies his or her own humanity. We all suffer from it. We can control it only when we know it's there.

The procedure of fingerprint comparison causes problems. Unless one is careful, it's difficult to prove that confirmation bias did not affect an identification. Wise fingerprint examiners try to use "blind" identifications and verifications; they usually avoid following the messy procedures like the one followed in this case.