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
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 That warrant contained some outdated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As set out in the decision, if you use out of date language,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.
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
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
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:
- In these situations, police have a choice (a "discretion"). They can arrest, but they don't have to.
- Police must exercise this discretion responsibly.
- The purpose of arrest is to prosecute.
- If the officer knows that the suspect will never be charged, then there's no point in arresting.
- 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
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
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
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?
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
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
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
Mr Land and Ms Henry sued the police for trespass, negligent
investigation, assault and battery and various Charter
The trial judge threw out the claims. But the Court of Appeal
took an interest in some of them.
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?
- 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.
- 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."
- 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,  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
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
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
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
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
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
||Before police elicit evidence from a
prisoner, section 10(b) of the Charter gives the
prisoner the right to get legal advice from the lawyer
of their choice. But they must exercise that right
within a reasonable period of time. If their first
choice of lawyer isn't available, then they need to make
||How long to wait for a lawyer to call
back depends upon the circumstances. [In my opinion,
urgency is the most important. Investigations into
alcohol and drug need to move quite promptly. Humans
eliminate alcohol and drugs from the body as time
||When the prisoner names a lawyer, and the
police control the phone and access to the internet,
police need to take reasonable steps to contact the
lawyer. One after hours call to a business phone number
doesn't necessarily suffice. Try searching for the
lawyer's home number or after-hours number, or asking
the prisoner if s/he knows of another number, or another
person who can reach the lawyer.
||Helping intoxicated prisoner to contact
counsel is the right thing to do. But don't choose their
lawyer for them.
||Police must tell the prisoner about the
availability of Legal Aid; but police must not steer or
coerce the prisoner to call Legal Aid.
||Late night phone calls to random lawyers'
offices aren't usually going to succeed. "The right to
legal counsel means the right to get legal advice, from
counsel who are able to provide it, at the time that you
||If you get an answering machine, leave a
message explaining what the time is, who the client is,
what the trouble is and what number to call in order to
give the legal advice. Some answering machines are
monitored. You can't assume that the lawyer won't hear
the message in time.
||If you get an answering machine, tell the
prisoner what the message said. Don't just say that the
lawyer is unavailable.
||Police should not express opinions about
the suitability or the skill of the lawyer that the
prisoner chooses, but it might be a good idea to have a
list of criminal lawyers available for
||In the context of urgency, like taking
breath samples reasonably promptly, a prisoner who
persists unreasonably in contacting a lawyer who isn't
responding isn't exercising their right diligently; if
so, you can press ahead with your investigation. If you
see there's a risk of this happening, give the suspect
notice. "Okay sir. 10 minutes have passed, and the
lawyer hasn't called back. We're going to wait 30
minutes more, and then we'll test your breath. Is there
anyone else you'd like to call in the mean time for
legal advice? You can call anyone you like, and I'll do
what I can to help you reach them. Of course, Legal
Aid's available too. And if your chosen lawyer calls
back while you're talking to Legal Aid, I'll make sure
you can talk to him or her."
||There is no fixed time-line that the law
imposes on the taking of breath samples. [I observe that
in impaired driving cases like this one, judges seem to
permit the prisoner around 30-45 minutes of floundering
around to find a lawyer. But expect judges to permit
more time if the prisoner makes diligent and sensible
efforts which, for no fault of his own, bear no fruit.
In cases where there is no urgency, expect the judges to
permit the defendant to wait hours for counsel to call
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
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.,  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
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
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
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
Unfortunately for Daddy, section 185(1)(e)
of the Criminal Code actually permits snooping on people whose
conversations "may assist" the investigation. Not "will"
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
- 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.
- 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
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
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
Winnipeg investigators applied for, and got, warrants to
track the location of his cell phone and transmission data for
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
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
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.
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?
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
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
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
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
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
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
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
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?
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
Defence complained that by watching this video without a
warrant, the officer violated Mr Nguyen's reasonable
expectations of privacy.
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:
- The officer asked to see only the security video for the public entrances. And that's all he saw.
- Glass walls surrounded the vestibule in question. The public inside and out could see what occurred there.
- The security cameras there were "readily visible".
- The apartment building that it served was large - many people would pass through that area.
- 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?
- The officer did not seize the video, but just watched it.
- 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
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
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
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
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
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
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
A confidential source gave police information suggesting that
they would find handguns and a shotgun at the residence of Mr
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
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
Are you wondering what happened in the case?
Okay. I'll tell you. But only if you make the following
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.
Alan Gold is the famous defence lawyer. He said that
the officer's misconduct in asking that question was so
awful that the judge should exclude not only the
incriminatory remarks, but also the guns that the police
found in the residence.
At trial, the prosecutor agreed with the defence lawyer
that the officer should not have asked Mr Hamouth about the
guns until Mr Hamouth got legal advice. The prosecutor made
sure that the judge learned about the incriminatory answer,
but also assured the judge that the prosecution was never
planning to tender that evidence in the trial.
The prosecutor said that this trial should proceed on
exactly the same evidence that the police would have
gathered if they never asked the question. The prosecutor
argued that excluding even more evidence - such as the guns
- would go further than necessary.
The trial judge agreed with the prosecutor. So did the
Court of Appeal.
Mr Gold remains so outraged by the police misconduct that
he launched a
further appeal to the Supreme Court of Canada. If they
agree to hear his appeal, the high court's decision will
affect many other other prosecutions.
2023.09.11 Possession - Paupers and Valuable Contraband
Can someone be too poor to possess a million dollars?
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
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
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?
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
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
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
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
(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
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
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.
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,
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
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:
- 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?
- 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
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
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".
of the Criminal Code permits an officer to screen a driver's
breath "immediately", or to perform field sobriety tests
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
He searched Ms Haist, but he didn't explain her right to
counsel until after placing her into the other officer's
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
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
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
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.
||One of the searchers made no notes at
scene. By the time he got back to the police station, he
could no longer remember the time at which he found the
drugs. This turned out to be important.
Another officer found bundles of money. At the scene, that officer put the money down somewhere, but made no notes about where he put it. If one of the other officers stole the money, a note would have helped determine who had access to it.
|Make notes on scene. What, when and
where. And continuity.
||Photography can sometimes fill the gaps
in an officer's notes.
Not this time.
Someone gathered the exhibits together on a table, and photographed them as a group. This mixed exhibits before the officers bagged them.
|Photographs can supplement notes, if you
take enough of them, and at the right moments.
If possible, photograph the exhibits In the spots where you find them. You may need to take several photos, showing the process of removing the item from its hiding place.
Photograph the exhibits again when processing them.
||The officers who found interesting
exhibits put them in bags. They did not close or seal
those bags before transporting the exhibits to the
police station for processing.
Premature sealing of exhibit bags can complicate processing later, but failing to seal exhibit bags risks contamination and a loss of continuity.
|If you're going to lose personal
possession of the exhibit bag, maybe you should seal it.
If the bag contains items of great value, maybe you should seal it.
If the exhibit is sensitive, for example, the thing might bear fingerprints or DNA or gun shot residue, then seal it to protect the contents.
||Police seized several bundles of money.
The officer who counted them mixed up the money from
separate bundles. This caused confusion. Mr Rocha's
claims about the money became difficult to contradict.
||Handle exhibits separately and one at a
||The officer who counted the money used a
system which required him to create a "property report",
a "property receipt", a "property bag" and an exhibit
tag. Naturally, the receipt, the bag and the tag each
had a different serial number. Unfortunately, the
officer recorded the wrong property bag number into the
report. Because of the theft allegation, this flaw in
the documentation made the officer look less
||Exhibit handling produces a bewildering
variety of identifiers. Understand what they mean, and
record them carefully.
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
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
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
- 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
- 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 (
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:
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
On screening devices generally, I would add:
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
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
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:
- 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.
- 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.
- 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
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.
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
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
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:
 The trial judge noted the following constellation of circumstances:
- once the ticket was issued, the appellant would no longer be under police control;
- the appellant and the children were presumably going to travel with the tow truck operator;
- a gun is a valuable commodity, giving rise to a real concern that the appellant might take steps to retrieve it;
- 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”;
- 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;
- Cst. Sinclair was able to form a “high level of suspicion” that the appellant had a firearm; and
- 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.
 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.
R. v. Mann, 2004
SCC 52,  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
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
- 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
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
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
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
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
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
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
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
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
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
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
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.