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

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

- Henry Waldock

Book

My publisher collected many of the more frequently-used chapters of my books into a single (cheaper) paperback edition: "Common Canadian Criminal Code Offences and Procedures 2016-2017".  Some of you may find it useful.

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New Law

2017.07.26 Deceived by the Obvious - Proof Beyond a Reasonable Doubt

Too much experience in the field can sometimes blind you to the burden of proof in the court room.

Over two days, some officers watched known drug addicts visit a hotel room for short periods of time. The officers got a warrant, kicked in the door, and found two beds. The officers arrested the three men lying on them. All three men had bundles of cash in their pockets. Two of the three men also possessed cocaine -- but not the third man, Mr Douglas, 2017 ONCA 609.

The room contained several bags of larger quantities of what looked like crack cocaine. The lead investigator had abundant experience busting cocaine dealers, and easily concluded that the other bags also contained drugs. I suspect for that reason, he did not send the other bags off for testing.

The trial judge relied on the investigator's experience and knowledge, and came to the conclusion that the other bags contained drugs. That helped lead him to believe that Mr Douglas participated in the drug transactions. Their locations, and the presence of scales probably added to the inference the trial judge could draw.

On appeal, Mr Douglas's lawyer complained: the officer was not a qualified expert. (I observe that even if he sufficiently qualified, he might be seen as biased by reason of his involvement in the investigation, and therefore disqualified from giving expert opinions.)

In the absence of admissible evidence that the other bags contained cocaine, the court only had proof that the other two men possessed cocaine in their pockets. All Mr Douglas did was occupy a room which contained two men with cocaine in their pockets. Even if the others were dealing cocaine, all this showed was that Mr Douglas might have been present, but not that he participated.

The appeal court upheld the trial judge's conviction because there was lots of other circumstantial evidence. But I draw this case to your attention because because it illustrates a trap that's easy to fall into.

At the time of arrest, the defendant's guilt often looks so obvious that investigators are tempted to take short-cuts investigating guilt. In this case, the other (larger) bags "obviously" contained drugs, and so nobody asked the lab to test their contents. In another case, it will be the defendant's obvious sobriety, or intoxication, or lack of injuries. At trial, judges need clear evidence of the obvious facts before they can rely on them.

Sometimes, it really is a waste of time proving the obvious. You don't need to ask the forensic lab to test the red stuff oozing out of a cut in the victim's hand to determine whether it's blood. On the other hand, when the drunk driver threatened to punch the breath technician, you really should preserve the security video in the police station from the time that he or she arrived to the time he or she departed. And you should get every eyewitness to write a statement.

How much time and money you should spend to investigate the obvious depends upon the seriousness of the case and the strength of the other evidence. Guilt usually appears more obvious to the investigators at the time of arrest than at trial. Slow down. When deciding what short-cuts to take, remember that in court everything gets challenged, and when challenged, most witnesses sound only half as impressive as they did at the time of the investigation. Many cops included.

2017.07.20 Undercover Officers on the Internet - Screenshots

A great way to catch internet predators is to pretend to be internet prey. Can you make screenshots of the communications a suspect sends you?

An officer created a fake profile of a 14-year-old girl. Mr Mills, 2017 NLCA 12, aged 32 started communicating with her about sex, and invited her to meet him in a park. He claimed to be 23.

To record the communications, police captured images of the screen using a program called "Snagit".

Defence complained that this constituted "interception" of private communications. It required a 1-party consent authorization under s.184.1 of the Criminal Code.

The trial judge agreed.

The appeal court didn't. Without mentioning the seminal case of Duarte, [1990] 1 SCR 30, they overturned the trial judge's finding that police breached Mr Mills rights.

Mr Mills didn't like the appeal court's conclusion, and applied for leave to appeal to the Supreme Court of Canada.

At present, it appears that you do not need authorization to capture screenshots of undercover internet chats. I think it's a logical conclusion.  But if the Supreme Court grants leave, I do not think the judges of that court will find this case as simple as the Newfoundland Court of Appeal did.


2017.07.17 Destruction of Exhibits - Live Long and Prosper

How long after the conviction should you keep the exhibits?

In 1983, part way through his first degree murder trial, Mr Tallio, 2017 BCCA 259, pleaded guilty to second degree murder. In 2016, he filed an appeal, based upon DNA testing of a few of the exhibits that remain. One contained DNA that doesn't match him, but there is evidence to suggest that it was contaminated by a hospital employee.

Most appeals start within 30 days of the final decision. 33 years is unusual. The decision makes it clear that finding those exhibits took considerable effort. Many exhibits are gone.

Your exhibit storage systems are expensive, and contain masses of stuff that nobody wants. You want to clear them out. Avoid destroying evidence without first checking with people who could be affected. Mr Tallio asserted his innocence ever after his conviction. He would have wanted that stuff kept. Other convicts might not care so much.

2017.07.17 Right to Counsel s.10(b) - Wait Long or Prosper

Section 10(b) of the Charter assures Canadians who are arrested or detained that they will be able to "retain and instruct counsel without delay". How long can the suspect spend contacting his or her lawyer? When can you override the suspect's delay?

At 1:30pm, police officers arrested Mr Fountain, 2017 ONCA 596 for a home-invasion robbery. They told him about his right to counsel. He told them he wanted legal advice. He asked that his girlfriend contact his lawyer for him. When he arrived at the police station, at 2:10pm, he gave the name and phone number of his lawyer. It wasn't until 2:35pm that the police first called the phone number he gave. Someone at the lawyer's office said he was out, but would call back. The lawyer didn't call back. Police called again at 6:15pm, and left a message. At 7:00pm, Mr Fountain's girlfriend told police that a lawyer would be at the lawyer's office in the morning. At 8:15pm, the arresting officer told Mr Fountain about the two calls, and what the girlfriend reported. The officer offered Mr Fountain a call to Legal Aid.

Mr Fountain turned down Legal Aid because he wanted to talk to his lawyer in the morning.

The arresting officer then interviewed Mr Fountain. Twice, Mr Fountain objected to the questioning because he had not yet spoken with his lawyer. The arresting officer pointed out that he turned down Legal Aid. The second time, Mr Fountain spoke to Legal Aid. During the interview, Mr Fountain said the essential things necessary to get him convicted.

The trial judge admitted the confession. The appeal judges threw it out. They said that Mr Fountain did not waive his right to counsel. The officer should have:

Mr Fountain beat the charge.

What went wrong?

The arresting officer gave Mr Fountain the choice to wait until the next morning to talk to his own lawyer, and Fountain accepted that choice. That was fair. The officer then questioned Mr Fountain before he spoke with his lawyer. That approach prevented Fountain from getting the legal advice he wanted.

Why did the officer change the time-line?

Maybe the officer's shift ended that night. Maybe interviewing the suspect next morning would have required the officer to return to work on his day off.

How fast the suspect must get legal advice depends upon the urgency of the investigation. If other culprits are currently at large, posing a danger to the public or destroying evidence, then you may push the suspect to get legal advice quickly, so that you can question him sooner, and try to solve the evolving situation. If the situation is under control, then you should let the suspect wait until morning to speak to the lawyer of choice. An impaired driver doesn't get till the next morning to contact counsel because his body metabolizes the evidence with each passing minute. But a trafficker may be entitled to delay that long because no evidence will be lost in the interim, and no people are endangered.

Seriousness matters too. In a small fraud case, a judge might permit an officer to hurry things along to accommodate the officer's work schedule. For serious cases like home invasion or murder, judges won't care so much about conveniencing police officers.

Sometimes, when you call the suspect's chosen lawyer, you get no response. If you think waiting for a response will take too long, know that a judge will second-guess you. Before telling the suspect to get legal advice from some other lawyer, assess how urgent the situation is.

In Prosper, [1994] 3 SCR 236 the court set a high standard for "waiver". This case applies when a suspect first says he wants legal advice, but later decides to do without it. The judges decided that in those situations you must give a supplemental Charter warning, so that the suspect knows he is entitled to a reasonable opportunity to get legal advice.

If you decide you won't wait, you need to make the ground rules clear to the suspect, because you are setting him up to waive his right to counsel:

  1. You have a right to a reasonable opportunity to get legal advice.
  2. I have to hold off eliciting evidence from you until you get that opportunity.
  3. Waiting until tomorrow isn't reasonable because .... I'm not going to wait until tomorrow to interview you.
  4. We've done the following things to contact the lawyer you named: ...
  5. Is there anything you can think of that would put you in touch with your lawyer tonight?
  6. No? That leaves you with three choices:
    1. Choose a different lawyer to talk to tonight.
    2. Call Legal Aid - they're available 24 hour a day.
    3. Proceed without getting any legal advice.
  7. Just to be clear, I'm not going to ask you questions about the crime until you've had a reasonable opportunity to get legal advice. If you want legal advice, let's make it happen. But let's do that tonight.

Read my second paragraph, thinking about the suspect's experience of access to counsel. He may have got the impression that the police officer put a low priority on putting him in touch with counsel. There may be good reasons for the officer's delays - other matters may have occupied the officer. But judges assess infringements of rights from the point of view of the suspect, not the police officer.

2017.07.17 Reasonable grounds - Confirming Tipsters


How much confirmation of a tip do you need before you can act on it?

It depends. On the quality of the tip, and the amount of confirmation you already have.

An officer watched the house of a suspected cocaine dealer when a silver Honda Accord drove up. A tall slim black guy got out, and went into the house. The officer ran the plate, and then remembered that another officer told him of a tip relating to that plate and car: the tipster said it belonged to a high-level drug supplier. The tipster said the supplier was a tall slim black guy in his 30's. The other officer said that the tipster was reliable, and had first-hand knowledge.

About 20 minutes later, the officer saw the suspected cocaine dealer show the tall slim black guy out of the house. When the tall guy drove away, the officer arrested him for drug trafficking. Mr Dunkley, 2017 ONCA 600 had 6 cell phones in his clothing and in his car. Behind panels in the car were US$440,000, and 5.5Kg of cocaine. And a handgun.

At trial, the defence urged the judge to find that the officer's evidence failed to prove reasonable grounds to make the arrest. The arresting officer:

The trial judge and the judges of the Court of Appeal rejected this argument. The tip enjoyed some credibility because the tipster claimed to know from personal observation. The officer's observation coroborrated the tip because the car described by the tipster went to a drug dealer's house, and the driver the description given by the tipster. He stayed for a short time, consistent with a delivery of drugs to the dealer. The appeal judges said:

The high degree of suspicion attached to these non-criminal acts was sufficient to remove the possibility of innocent coincidence.

Note what the judges focussed on. If you observe only "non-criminal acts", then think twice before arresting anyone. On the other hand, if the information you have can "remove the possibility of innocent coincidence", then go ahead.

That analysis works whether you're considering whether to arrest the driver who emerged from the bar, or the street dealer that you're watching.


2017.07.09 Street checks - Identifying the Passengers in a Traffic Stop

When meeting shady people in shady places, diligent police officers try to identify all the people involved. The Charter limits what you can do and when.

Near a crack house house, a black Honda drove slowly by. A police officer watching the car noticed that one passenger was not wearing a seatbelt. The officer stopped the car. That passenger, Mr Mhlongo, 2017 ONCA 562 got out and tried to walk away. The officer stopped him, and asked for identification. Mr Mhlongo produced picture ID which satisfied the officer that he knew who he was dealing with.

The vehicle carried the wrong licence plates. Some investigation at the scene led to the driver's arrest.

After that, without releasing Mr Mhlongo, the officer consulted a database available in his police car to find out more about Mr Mhlongo and the other passenger. Under cross-examination, the officer agreed that the computer checks were investigation into possible criminal matters, but he didn't know of any crime at that moment. He wasn't letting go of Mr Mhlongo until he knew. Meanwhile, Mr Mhlongo tossed something under a nearby car. It turned out to be cocaine. Police detained and then arrested him for possession of cocaine. They found lots more cocaine in the car.

Mr Mhlongo complained at trial that the police arbitrarily detained him. He conceded that the initial detention was lawful. The passenger who should have been wearing a seatbelt tried to walk away: that gave the officer a reason to stop him. But after the officer arrested the driver, the seatbelt investigation was over. There was no further need to hold Mr Mhlongo. The continuing detention after the arrest was not for highway traffic matters, but to investigate Mr Mhlongo for possible criminality. Because the officer admitted he had no grounds, this was an arbitrary detention.

And furthermore, Mr Mhlongo complained that:

The appeal court judges agreed.

Of course you want to know who you're dealing with. But you can't detain people without reasons.

Sometimes, careful consideration of the evidence under your nose can justify a detention. But the rest of the time, you must release people when you have to reasonable suspicion that they did or are doing something illegal.

I'm troubled by the s.8 conclusion. A decade ago, in Harris, 2007 ONCA 574 the court first asserted this idea: collecting names from non-suspects for the purpose of looking them up in a database may breach their s.8 rights. Back then, I thought the dissenting judge made a good point: one doesn't enjoy much privacy in one's name. I also think that if police arrest one guy, they should attempt to identify all the others. I can conceive of situations in which failing to identify the other parties present may breach a defendant's s.7 rights. In any case, collecting intelligence on the inhabitants of crime-ridden areas seems to be a necessary technique for police to protect the life, liberty and property of innocent inhabitants.

Some day, some prosecutor will need to take this issue to the Supreme Court of Canada for clarification. Mr Mhlongo's case is not the right one. In the mean time, if they haven't already, Ontario police forces should develop policies about asking non-suspects for identification or investigating the non-suspects during detentions.

2017.07.09 Detention & Reasonable Suspicion

Here's a close call. Are these reasonable grounds to detain?

A residential neighborhood in Markham, Ontario suffered a spate of day-time B&Es. Some houses were under construction. A plainclothes officer drove there in an unmarked police car for the purpose of investigating the burglaries. He saw a brand-new rental van come from a dead-end area, drive an unnecessarily complicated route, and pull into 31 Hislop Drive. Two young men occupied the truck. Five days later, while patrolling again, he saw the same truck. The occupants stared at him as they drove slowly through an intersection. It drove by 31 Hislop, made a U-turn, and parked 4-5 houses down the street. The officer pulled in behind the van. The vehicle then drove a block away.

The officer felt suspicious, but had observed no driving infractions.

He pulled it over and asked the driver, Mr Gonzales, 2017 ONCA 543 for his licence and registration.

Mr Gonzales asked why the officer stopped him. The officer said he wanted to check his licence. The officer didn't mention the burglaries. Nor did he comment on the skunky smell of marijuana emanating from the truck.

The officer called for backup before arresting the men. In the van, they found 252 pounds of packaged marijuana and $105,000 in cash.

Was the initial stop an arbitrary detention? The investigating officer testified that he stopped the vehicle to investigate the burglaries. The trial judge very generously found that the officer also stopped the vehicle to investigate licencing and insurance. The appeal court rejected this finding. The officer went there to investigate burglaries, not drivers. For vehicle stops, of course, you don't need a reason - if the purpose is genuinely to investigate licencing and vehicle safety. For criminal offences, you need reasonable grounds.

The judges found that the officer's observations did not add up to reasonable grounds to suspect that the young men in the van participated in the burglaries.

I think it's a close call. I suspect that a highly observant and articulate officer might have been able to make sufficient inferences and deductions from the unusual behaviour of the van and its occupants to justify a detention.

But the facts left no uncertainty about the vehicle safety detention. This officer couldn't justify stopping the vehicle to check licencing and insurance. He was specifically investigating burglary. The van committed no driving infraction. To pretend otherwise is to lie (and to be clear, the officer did not try to use this justification for stopping the van).

To avoid telling this lie in court, don't use the traffic safety excuse to explain why you stopped a suspicious vehicle unless it's actually true.

2017.07.09 Detention - s.10(a) - Not Telling Why

In the previous article, did you notice that the officer never told the occupants of the vehicle what crime he suspected when he first detained them?

Section 10(a) of the Charter obliges you explain the reason for a detention. Mr Gonzales, 2017 ONCA 543 also complained that the officer failed to do so, and therefore he sought exclusion of the evidence.

The plainclothes officer explained that he delayed telling the suspects why he was stopping them until he could bring in back-up. The officer was not wearing his bullet-proof vest and various other gear. It took 7 minutes for backup to arrive. When they did, he arrested the suspects without further delay, explaining their jeopardy at that time.

The court accepted the "officer safety" explanation for delaying the explanation of the true reason for the detention.

If telling a suspect the real reason why you stopped him could get you hurt or killed, then you may delay the explanation. But take immediate steps to make yourself safe, and then get to the explanation right away.

2017.07.09 Strip Search - You need a Reason

After police arrested Mr Gonzales, 2017 ONCA 543 (see above), they took him to a police station and strip-searched him.

Problem was, the officers could not identify any evidence they expected to find by so doing. You can't strip search someone for evidence just because you lawfully arrested him or her. You need reasons to believe that a strip search will discover evidence, weapons or contraband.

There were no such reasons to justify this strip search. The judges didn't like that. Gonzales beat the charges.

I think the Gonzales decision is worth reading and discussing. It's well-written and clear. How might you have gone about this investigation differently?

2017.07.08 Who Gets the Goods?

 - Disposition of Exhibits

Mr Colyer may have stolen a $40,000 diamond. Police received information that he pawned it at Floward Enterprises Ltd., 2017 ONCA 448. The investigators found a diamond at the pawn shop. Believing it to belong to the victim, they seized it.

I gather Mr Colyer beat the charge. Perhaps the victim's death deprived the prosecution of an essential witness.

When the trial was done, the pawn shop owner asked for the diamond back.

The police told the pawn shop owner that they would not decide who gets the diamond. There's a procedure for that, set out in s.490 of the Criminal Code. The police also tried to inform the victim's family about s.490: the people who want the diamond back should ask a provincial court judge to decide who gets the property.

The pawn shop owner applied for return of the diamond. He didn't formally notify the victim's family about the hearing. The provincial court judge gave him the diamond. Then the victim's family found out, and they appealed.

The technicalities of this decision don't matter to police. The big point is that you can and should duck property disputes over seized property. The Criminal Code provides a procedure. Tell the competing claimants about the procedure. Heck, you can apply to the court yourself asking for a decision. Try to make sure everyone interested in the property knows when the hearing will be. Give notice in writing too.

2017.07.08 Timely Photographs


Two prisoners occupied the same cell during a lockdown. One died of head injuries. Did he just fall, or did the other prisoner attack him? Four days after the death, someone photographed an injury pattern on his head. It looked like tread marks from the other prisoner's shoe. But the photographs weren't clear enough for the expert to give a definitive opinion.

The jury convicted Mr Bye, 2017 ONCA 528 of murder anyway. And the appeal court upheld the conviction. I think the shoe pattern on the victim's head helped the jury to their conclusion. A clearer picture might have helped.

Photographing injuries solves lots of problems, when done correctly. But lots of officers take lousy pictures.

Some people say "the camera never lies". It's not true. Here's a list of common problems:

If it's worth photographing, it's probably also worth making a note of what you saw. If the camera lies, then after checking you notebook, you can set the record straight.

2017.07.04 Parallel Investigations

 create Disclosure Problems

I'm seven months late commenting on this case. Better late than never. This case matters to investigations big and small.

The drug squad figured Mr Chu, 2016 SKCA 156 conspired to traffick cocaine. They investigated and put together a case. A separate team investigated him for his dealings with the proceeds of crime. The drug squad finished first. They laid charges and gave Crown the fruits of their investigation. Crown disclosed to defence. Nobody told the prosecutor about the proceeds of crime investigation until a few days before trial.

Two days before trial, the prosecutor told the defence lawyer that the other police investigation produced 1,900 documents, some of which might be relevant to the trial.

This rather upset the defence lawyer, who asked for an adjournment.

The trial judge felt no sympathy. He ordered the case to proceed, and convicted Mr Chu. The judges of the Appeal Court ordered a new trial. They felt sympathetic. Here's why.

Imagine you were about to buy a beautiful old house. It will cost you your life savings, and a commitment to pay most of your disposable income for 20 years. Minutes before you complete the transaction, you learn that 20 different building inspectors examined the house over the last 10 years. Each one wrote a report. All the reports are collected in a folder for you to read. Only a fool would sign on the dotted line before reading the contents of that folder.

The defence lawyer was in a similar position. Maybe those documents contained nothing of importance. But he didn't want to proceed with the trial until he knew.

Parallel investigations of the same suspect for related offences automatically create this disclosure problem. Heck, even if the offences are unrelated, there's a distinct risk that two separate investigations will discover information relevant to the other case.

For those of you involved in big investigations, you may easily overlook the possibility that the evidence you gathered may relate to the defence of the other case. If you know of a parallel investigation to your own, think big picture: do these two investigations overlap at all? What disclosure obligations will trigger when we lay charges on the first one?

For those of you involved in little investigations, don't wait until the day of trial to disclose evidence or information to the prosecutor. When the prosecutor discloses it to the defence lawyer, that lawyer will get an adjournment. Adjournments derail good cases.

In Mr Chu's case, I suspect that the delay caused by the late disclosure prevented further prosecution. The busts occurred in 2011. Will that delay survive a Jordan application?

2017.06.17 Warrant Drafting - Offence, Place, Items Sought ... and When

Mr Saint, 2017 ONCA 491 was no saint. He kept drugs. Police officers learned about this, and applied for a search warrant under the CDSA. The warrant they got said the officers could execute the warrant "at any time", but didn't mention any expiry date.

After police collected Mr Saint's drugs and charged him, he complained about the warrant. He was right. Judges can't grant permanent authority to search a residence. There needs to be a deadline.

The judges agreed with his argument, but he lost. The judges found that this warrant implicitly authorized the search on the day it was granted. Mr Saint was convicted and lost his appeal.

Don't play with fire. Make sure your warrant specifies an expiry date. If you need an expiry date weeks or months into the future, then explain why in the Information to Obtain.

Language like in the ITO that helped save this warrant. The ITO specifically asked for authority to search the residence on the same day as the officers applied for it.


2017.06.17 Investigative Techniques - Dirty Tricks

Innovative investigative techniques can bear much fruit. But stay on the right side of the law.

Durham Regional police sought to bust a drug ring. They knew who they wanted to bust, but they did not know where gangsters stashed their drugs. They obtained lawful authorities: wiretap to intercept the targets talking; tracking devices to find out where they went; and general warrants authorizing staged break-ins to inspect those places. No luck. One of their targets even found a tracking device.

Surveillance noticed Mr Dunstan, 2017 ONCA 432 engaged in a short transaction with one of the targets. Later, surveillance noticed Mr Dunstan's vehicle parked at a particular residence in York Region.

"Somebody" called 911 to report a break-in at that. That caller wouldn't identify himself. York Regional police officers responded. They found the door was kicked in, but large quantities of drugs and cash remained in the place.  Durham Regional police got involved, and claimed credit for the bust.

Defence counsel suspected that the Durham cops took a short cut. They figured that Durham officers staged a break-in and called 911, knowing that this would justify a warrantless entry by York Regional officers. Defence counsel listened to the voice of a Staff Sargent Gillis as he testified about the case, and noticed similarity to the voice in the short 911 call.

Defence applied for permission to use a high-quality microphone to record S.Sgt. Gillis' voice while he testified, so that their voice comparison expert could compare it to the 911 recording. The trial judge said "no". The defence could not gather enough evidence to prove that S.Sgt. Gillis cheated. The court admitted evidence from the search of Dunstan's, and the jury convicted Dunstan. The appeal court said "yes", the trial judge should have permitted defence to record S.Sgt. Gillis's testimony. Dunstan got a new trial.

All the judges agreed that the short-cut - if taken - was unlawful, and would likely result in exclusion of evidence. It circumvents the judicial pre-authorization process for searches. If you don't have enough evidence to justify searching a place lawfully, then you are not permitted to convert your suspicions into adequate grounds by making an anonymous 911 call and tricking other officers into making the search for you.

There's a temptation to try it anyway. How is anyone going to find out?

Don't kid yourself. Justifying illegal activity in the name of law enforcement is called "noble cause corruption". It's a slippery slope which leads to an ugly place. If you get away with it the first time, you might want to give it another go. But you work in a zone of transparency. Police disclosure obligations are very broad. Your electronic systems track you. It's easy to get caught.

I'm not saying S.Sgt Gillis broke the law. But read the decision, and you'll see how much information defence counsel did obtain, and how much more they'll get next time.

Back in April, I lauded innovative police investigative techniques. ("Mr Big's cousin"). But the public pays you to obey the law. Don't go breaking it instead.

2017.06.16 Child Pornography - Possessing or Accessing?

When Mr M.N., 2017 ONCA 434 and his spouse reported finding child pornography on their computer, police examined it. They reached the conclusion that he used his browser to look at child pornography. They charged him with possession of child pornography.

The trial judge convicted him, but the Court of Appeal acquitted him.

The computer contained temporary files in the browser's cache. This indicated that he used his browser to look at child pornography, but he did not deliberately download images so that he could look at them later. The evidence proved he accessed child pornography.

The appeal court found that they are different offences. Mr M.N. did not commit the offence charged, and therefore must be acquitted.

There is a concept in criminal law of "included" offences. At the conclusion of a trial of a serious offence, the judge can convict the defendant of a less serious but "included" offence. For example, the offence of assault causing bodily harm necessarily includes an assault. If the evidence at trial proves that the defendant assaulted the victim, but the victim's injuries arose from some unrelated incident, then the judge will convict the defendant of the less serious offence of common assault.

The court held that accessing child pornography (s.163.1(4.1)) is not "included" in the offence of possessing child pornography (s.163.1(4)).

When drafting search warrants or laying charges, consider carefully: does the evidence show that he stored the illicit images, or just looked at them?


2017.06.11 Abuse of Police Powers and Resources

Cst Heron, 2017 ONCA 441 smuggled cheese.

He and another officer bought it cheap just across the border. Using their credentials as police officers, they brought it across the border. They sold it to local pizzarias. No import duties. Lots of profit. Hundreds of thousands of dollars. When he feared that authorities were closing in, Cst Heron searched CPIC to see whether other police officers had recently searched his partner's vehicle.

Both officers got busted for smuggling. Cst Heron also got convicted for using the same database that you use every day. The only difference was, he put it to personal use. In this context, that CPIC search was a criminal breach of trust.

Heron went to jail. His buddy got busted too.

I don't know why these guys went bad. The judge's decision offers hints: alcohol, substance abuse, relationship trouble. I suspect those were merely symptoms of deeper losses of purpose and integrity.

Police work ain't easy. The public demands high standards. Courts demand high standards. The clientele delivers constant abuse. Labour disputes undermine morale. It's easy to feel entitled to extra compensation. Extra perks seem easily plucked. The badge gives you access where others cannot go.

Don't do it. CPIC tracks every search. Just use police databases for work.

The badge gives power and access. And lots and lots of accountability.

If you feel tempted to reward yourself on the sly, pull back before it's too late. Ex-constable Heron will now tell you it's not worth it. Too late for him. Not too late for others. If you feel trapped or embittered in your work or life, there is lots of help, if you just look.

Most officers who read this website don't feel tempted. From the emails I receive, I think you are keen to do the right things. You're the ones that the embittered officer ridicules for too having much enthusiasm. As I read the sad case of Cst Heron, I hope that you, your co-workers and your managers can save the next one before he or she falls. It takes effort to rescue a sour comrade, but it takes less work than repairing the damage after a colleague turns to crime.

2017.06.11 Police Expert Evidence - Independence of the Expert

Police officers develop unusual areas of expertise. For example, when you investigate enough drug cases, you learn the language and methods of drug dealers. Few people other than police officers and drug dealers know these things. And DREs learn know little-known facts about drug intoxication.

Courts accept as experts those people who have specialized knowledge that other folks don't have. Therefore, courts do often accept expert evidence from police officers about drug dealers' coded language, and methods of handling drugs and money.

By reason of such experience, an Ontario officer got to know these things, and could give expert opinions about them.

But not in the case of Mr McManus, 2017 ONCA 188.

For four years, that officer received information that McManus was dealing in drugs. The officer participated in surveillance of Mr McManus, and in the search that led to Mr McManus' arrest. The officer testified at Mr McManus' bail hearing that he believed Mr McManus was involved in organized crime.

All of the officer's opinions are likely accurate and true, but does he look independent and unbiased? The court thought not.

The Supreme Court of Canada recently insisted that all experts be fair, objective, and non-partisan. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The prosecution should have found an expert who had not participated in the investigation.

Taken too simplistically, the McManus decision could cause mayhem:

Of course not. And that's not what the judges said.

They contrasted this case with other cases in which a police expert's opinion was properly admitted. In the other cases, the expert received only the information necessary for the opinion, and the expert did not participate in the rest of the investigation.

Don't involve your police experts in more of the investigation than is necessary for them to provide an opinion. The more information they receive about your theory of the case, the greater the appearance that they might suffer from confirmation bias. The more they participate in busting the suspect, the greater the appearance that they want to see the suspect convicted.


2017.06.10 Continuity of the Suspect - Voluntariness and Charter Rights

Just after a crime, when you find a suspect, an almost impossible conflict of duties arises.

  1. You swore to keep the peace: you should not let culprits walk away from crimes.
  2. Section 9 of the Charter prohibits you from detaining anyone without reasonable suspicion.
  3. You must ask questions, so ensure you stopped the right person.
  4. At common law, you must not compel anyone to confess.
  5. If you detain anyone, s.10(b) of the Charter requires you to offer them access to counsel without delay.
  6. If you detain anyone, judges interpreted s.7 of the Charter to require you to tell them about their right to silence.
  7. At common law, when you have reasonable grounds to believe you found the right person, you must warn them about their right to silence.
  8. Courts interpreted s.10(b) to require you to hold off questioning detained or arrested suspects until they get the legal advice they request.

Every officer who deals with the suspect must obey these duties. Breaching one can taint what happens next.

Three men robbed a Rogers Wireless store in Vaughan, Ontario. A police officer found Mr Hamilton, 2017 ONCA 179 nearby. Because Mr Hamilton resembled the broadcast description of one of them, the officer detained him, and asked where he was coming from (breach #1). "Tim Horton's" replied Mr Hamilton. 20 minutes later a second officer arrived and arrested Mr Hamilton for robbery. Mr Hamilton wanted legal advice. Never-the-less, that second officer asked him about where he had come from (breach #2). Mr Hamilton gave a more complete account which omitted any visit to Tim Horton's.

Police took Mr Hamilton to a police station, where he got 4 minutes of advice with duty counsel.

After that, a third officer questioned him. That officer told Mr Hamilton about his right to silence. Nobody told the third officer about the conversations with the two preceding officers. Unsurprisingly, the third officer did not tell Mr Hamilton that nothing he and the previous officers discussed should cause him to think that he must speak again.

Mr Hamilton told the third officer that he already explained it all to a previous officer. Instead of giving the secondary warning at that moment and making a fresh start, the third officer asked Mr Hamilton to tell him what he told the previous officer.

When you first find a suspect, you want answers. When your adrenaline runs, you may forget your other duties.

To solve problems that result, add more duties. When you catch a suspect, tell all the subsequent officers what you have done with him or her.

In this case, the breaches led to problems, and a retrial. Every officer who deals with the suspect is a link in the chain. The excited officers at the beginning caused troubles all the down the chain.

When you catch someone interesting, keep calm, and carry on doing your duties - all of them. Tell the next officer(s) what you have done. And report the whole chain to the prosecutor.


2017.06.10 Bail Hearings - Undertaking or Recognizance - Cash or Surety

Last week, the Supreme Court of Canada instructed us about bail hearings. R. v. Antic, 2017 SCC 27.

First, surety is as good as cash. If a defendant can post security, but not cash, then the security suffices.

Second, in a bail hearing, the defendant is entitled to the most lenient form of release available on the facts.

Section 515(2) creates a ladder of forms of release:

  1. Undertaking
  2. Recognizance without deposit or surety
  3. Recognizance with surety
  4. Recognizance with cash deposit (with consent of prosecutor)
  5. Recognizance for people from out of province, or who live 200km away.
  6. Detention

The court directed justices and judges that they must consider and reject each rung of the ladder before moving on to the next one up the list.  (Note that number 5 is a special case)

This may change how bail hearings proceed. When you seek a recognizance or a detention, you may need to spell out why other forms of release are insufficient.

2017.05.28 Arrest and Transport - Talking with Another Officer's Prisoner

Another officer arrests a suspect and turns him over to you. It's not your investigation. Notes don't matter, right?

Wrong.

If the suspect later gives a statement, you will testify about the conversation between you and him. All of it.

When one officer arrested Mr Richards, 2017 ONCA 424 for trafficking, he needed to execute a search warrant on Mr Richard's house. The officer entrusted Mr Richards to another officer. That officer spent 30 minutes with Mr Richards, but took minimal notes. Probably, they discussed nothing of importance. A year or more later, that officer could recall nothing of the conversation.

That was a problem. After those 30 minutes, Mr Richards confessed to the lead investigator. The prosecution needed to prove he did so voluntary. Mr Richards testified that the secondary officer improperly persuaded him to confess. That officer couldn't really say what was discussed, because there was no record.

After arrest, handling a prisoner is something like handling an exhibit. With exhibits that might contain DNA, you must prevent physical contamination. With prisoners, "contamination" can arise through conversation. When you seize the murder weapon, you don fresh gloves, so as to avoid putting DNA on it. You place it in a bag to minimize the number of people who could accidentally transfer DNA onto it. You investigate who touched it besides the murderer. You take these steps so that, at trial, the court can conclude that no DNA got onto it except the murderer's. You document what you did so that you can assure the court afterwards that you did not accidentally contaminate the exhibit with DNA from some other source.

Handling prisoners is similar.

When someone arrests a prisoner who later confesses, the prosecution must prove that no police officer said or did anything to the suspect which undermined the voluntariness of his confession. No "contamination" by threats or promises. The only way to prove that is by asking all of the officers who had the suspect in their custody. "What did you discuss with the prisoner?"  Like DNA, you should minimize the number of people uniforms who speak to the subject. Like DNA, you should document what you did or discussed.

The weakest link is always the officer least involved in the investigation. They rarely think that their involvement matters, and so they take no notes of their innocuous conversation with the suspect. I've seen this problem over and over for decades. I saw it in a trial last week. And the Ontario Court of Appeal saw it in this case.

Don't be the weak link. If you conversed with the prisoner before his interview, make a note. Even if you only discussed the weather.


2017.05.19 Impaired Driving - Search Incidental to Arrest

The day after a murder, a police officer driving an unmarked police car noticed Mr Pearson, 2011 ONSC 1913 drive a vehicle with excessively tinted windows. The officer pulled him over to discuss the unlawful tinting. When Mr Pearson opened his window, an odour of marijuana wafted out. Mr Pearson's slow movements and red eyes led the officer to require him to perform sobriety tests. Mr Pearson failed. The officer arrested him for driving while impaired by a drug.

Could the officer search Mr Pearson's trunk for drugs?

A knapsack there contained shotgun shells which linked Mr Pearson to the murder.

Defence argued that an arrest allows an officer to search only to arm's length. When arresting for impaired driving, the officer can not look in the trunk.

The trial judge said that an officer who arrests a driver impaired by drugs may search the trunk for the drugs that impaired him. This week, the Ontario Court of Appeal agreed. Pearson, 2017 ONCA 389.

Caution.

This decision does not say that every time you arrest someone in a car, you can search the trunk. There must be a reasonable prospect that you will find evidence of the offence in the trunk at the time that you search.

Mr Pearson was charged with murder and with impaired driving. A jury convicted him of murder. He lost his appeal. I don't know what happened to the driving charge.

2017.05.19 Unprompted Admissions while awaiting Legal Advice

A month later, another officer stopped Mr Pearson, 2017 ONCA 389, again because of the excessively tinted windows. This officer saw a shotgun shell lying on the back seat. The officer arrested Mr Pearson and his passenger for unsafe transportation. Mr Pearson wanted to talk to a lawyer. Before giving him that opportunity, the officer asked questions about the shell. He answered.

Later, on the drive to the police station, Mr Pearson asked the officer what charges his passenger faced. The officer told him his passenger faced the same charge. Mr Pearson then asserted the he was responsible for the shotgun shell, not his passenger.

That proved to be an important remark in the murder trial. The trial judge denounced the officer's initial questions, but admitted the remarks in the police car, because the officer did not elicit them. Talking about them was entirely Mr Pearson's idea.  The appeal court agreed.

This case demonstrates several lessons:

  1. Don't ask questions about the offence after detention or arrest, but before the suspect gets the legal advice he requested.
  2. Don't deliberately set up the suspect to make remarks about the case before the suspect gets legal advice.
  3. Document carefully all unprompted remarks that the suspect makes during this period. Heck, keep a recording device going during all your interactions with him.  (But tell him you're recording.)

2017.05.06 Consent Seizure - Warrant drafting

Mr Reeves, 2017 ONCA 365, was on parole. He and his common-law spouse owned a house together, but because he have been violent to her in the past, he could visit only with her express permission.

His common-law spouse looked into the computer they shared, and found evidence of child pornography. She told his parole officer, and she told the parole officer she didn't want to see him any more.

Mr Reeves got into more trouble, and was arrested.

Word reached police. An officer visited the common-law, and asked for her consent to seize the computer. He did a smart thing. He got her written consent.

He got the computer, but he did not report it to a justice for 4 months. No "5.2". The judges didn't like that.

Another officer applied for a warrant to search the computer. That officer also did wise and unwise things.

The officer included lengthy quotes from the statements of the common-law spouse and her daughter, to explain why the officers thought that the computer contained child pornography. That balanced out his exaggerated and inaccurate summary about what they saw. Seeing a filename in a computer suggestive of child pornography is one thing. Seeing child pornography is another. Don't pretend one is the other. Judges don't like it when you exaggerate the strength of the information you have to support your application.

This exaggeration results from a natural human tendency to draw inferences from information, and to recite the inferences instead of the information. We all do it. One can limit this tendency by returning to the raw evidence and comparing it to your summary.

The officer also forgot to mention the years of strife between the common-law spouse and Mr Reeves. The justice should have been told of them, in case bitterness inspired her to make false allegations against him. You have an obligation of full and frank disclosure. When applying for a warrant, include the information you know about that makes your witnesses look less reliable.

I liked this judge's analysis of what consent of one party means when you seize property that belongs to two people. Give paragraphs 54-71 a read.

I was somewhat troubled by the judges' finding that the officer's failure to report the computer to a justice violated s.489.1. A "seizure" occurs when the state takes something without consent. This officer plainly received the computer with consent. Perhaps the judges got it right. I doubt the officer would have returned the computer to the common-law spouse if she had asked for it back. The officer did understand it to contain child pornography, and had the right to seize it under s.489(2).

Remember to write your report to a justice. If in doubt, complete your Form 5.2.

2017.04.30 Big Investigations - Pre-Charge Delay in Big and Little Investigations

When Hickman Equipment Ltd went bust in Newfoundland, investigators found reasons to suspect corporate fraud. The investigation took 10 years. At trial, Mr Hunt, 2017 SCC 25 and other senior managers of the corporation persuaded the judge to throw the case out because it took too long to get started. Two of three judges in the Court of Appeal agreed. But one appeal court judge said the trial should proceed. Most of the judges of the Supreme Court of Canada agreed with her. These charges should proceed.

The Supreme Court of Canada recently changed the rules for post-charge delay. The clock starts ticking loud and clear when charges are laid. But this case involved pre-charge delay. There are some lessons to learn here.

Mr Hunt complained that the collapse of the company and the loss of his job caused him harm. But the police didn't cause any of those problems. These complaints did not provide reasons to drop the charges.

Mr Hunt complained of the injury to his reputation by reason of the publicity and gossip around the collapse of the company. He couldn't get another job. And he feared for many years that he was under investigation.

This complaint cuts closer to you as investigators. If you leak details of your investigation improperly, you might cause harm to your suspects.  But these investigators didn't. Too bad for Mr Hunt.

The trial judge thought charges could have been laid earlier. It turns out that doesn't matter.

The highest court agreed that haste in laying charges is a bad idea.

Except for s.505 of the Criminal Code, the law does not require you to lay charges at the earliest opportunity. Indeed, if further investigation might make the case clearer, perhaps you investigate before swearing charges. Before deciding  to turn someone's life upside-down, you should generally gather all available information.

The post-charge delay clock starts when you lay charges. Prosecutors in BC like - whenever possible - to wait until the investigation completes before starting that clock. (Offenders who pose ongoing risks to society often force our hand.)

There is no pre-charge delay clock. But if your investigation will take a long time, then take care not to conduct it in a manner which inflicts lengthy harm on the suspects.

Those are the big investigations.

Now let's talk about s.505, and the little cases. When you release someone on an appearance notice or PTA, that section requires you to lay an information "as soon as practicable thereafter".

I think it's foolish legislation because it rushes police officers into laying charges even before they finish their investigations. What a formula for injustice!

Don't ignore this legal obligation. But try not to let it prevent you from investigating properly. Don't let it force you to lay unjustified charges.


2017.04.13 Undercover Operations - Mr Big's Cousin Works at a Furniture Store

Mr Big's fame undermines his effectiveness. His relatives can sometimes help.

When Mr Cyr had an affair, 'someone' murdered his wife. Mr Cyr stood to collect lots of life insurance money.

Who?

Mr Cyr worked at a law firm as a paralegal. His wife's dad's law firm. He had an affair with a secretary there. When the affair came to light, dad must have been unhappy. Cyr got fired.

Naturally, Mr Cyr told uniformed investigators he knew nothing about who killed his wife.

Mr Cyr knew all about Mr Big. Investigators needed some other way to win his trust.

When he got fired, Mr Cyr needed a job. He signed up to become a salesman at a furniture company called "Bad Boy". (Seriously. I am not making this up.)

Shortly after he got that job, another guy signed up with "Bad Boy". That guy already had a job. As a cop. A UCO.

They became friends. Mr Cyr talked about his dream of buying a canoe business. The UCO thought that was a great idea. He wanted in on this opportunity. Somehow, the UCO managed to persuade the owner to sell, and got lots of documents to prove it. Cyr agreed to be partners with the UCO, along with Cyr's good friend Zvolensky, 2017 ONCA 273.

But the UCO had a problem. His evil ex-wife. If only she were dead.

She even called the UCO when he was with Cyr and Zvolensky. She was toxic. Zvolensky suggested he'd kill her. The group started making plans. During those discussions, they revealed how Zvolensky and his buddy Qahwash at Cyr's request killed Cyr's wife in a manner to make sure that it couldn't be linked to Cyr.

Good buddies indeed.

The UCO operation led to discovery of the murder weapon, bearing fingerprints of Qahwash and DNA of Zvolensky. All this evidence came out at trial. The prosecution called evidence at trial that the canoe company and "Bad Boy" cooperated with the undercover operation. "Bad Boy" ain't so bad after all.

All three good buddies got convicted of first degree murder.

At trial defence complained that the UCO's evidence was unfair:

This operation involved no interrogation like the Mr Big interview. No threats. No inducements. The judges liked that.

This operation did involve making the targets look like bad guys. That makes judges skittish. But the probative value of the evidence obtained, particularly the murder weapon, made the judges comfortable with its admission.

If you plan UCO operations, this case is mandatory reading.

While I'm impressed by Mr Big's work-ethic, I've long felt that other members of his family should earn their keep. I'm glad to see that his cousin finally got a job. Even if it was just at a furniture store.

Inventive work pays off, but keep the principles of Hart in the back of your minds when you plan your scenarios.

2017.04.01 Warrantless Search of a Residence - Exigent Circumstances or Social Work?

Someone noticed a 4-year-old boy standing alone near a busy intersection, wearing only a diaper. The passer-by called 911. When police arrived, they found the boy in his mother's arms, wrapped in a blanket. The dad arrived minutes later.

The dad, Mr Davidson, 2017 ONCA 257 explained that the boy suffered autism, and tended to wander from their home, which was 50m away.

The attending officer wanted to look inside to see if the house was safe for the child.

He didn't get a written consent, but basically invited himself in.

While looking around to see if the kitchen contained food for the boy, the officer noticed a smell of marijuana. Down in the basement, where the smell became particularly strong, he found a locked door. When the officer asked for a key, Mr Davidson kicked the door open, and behind it police found a grow operation.

The trial judge thought that a police officer's powers of search in cases of imminent harm justified this intrusion into Davidson's home. He relied on the well-known case of 911 calls, Godoy.

The appeal court disagreed. When discussing the power to enter a residence to preserve life, they said:

The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a residentís privacy or property.

...Godoy does not give the police sweeping authority to enter a home without a warrant to investigate whether a childís mother and father are good parents.

The boy was safe. The police had no reason to believe that anyone else was in danger. Although the search was to prevent harm to a child, the officer lacked reason to suspect that there was any imminent danger. This was a social work investigation, not an imminent harm investigation.

There's one phrase in this decision which raises a red flag: "reasonably believe". In MacDonald, 2014 SCC 3, the court split 5:4 whether you needed "belief" or "suspicion" that violating privacy was necessary in order to protect life. The majority chose "belief" in the existence of an "imminent threat" before police can violate the privacy of a residence. I've always thought that a reasonable "suspicion" that someone will suffer serious injury or death suffices.

Perhaps it's just semantic games. Is there really any difference between believing that someone may get hurt, or suspecting that someone will get hurt?

To enter someone's residence without consent, you need reasonably reliable information suggesting imminent danger to someone. When you go in, limit your search to its purpose: resolve the danger and get out.


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