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

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

- Henry Waldock

Book

My publisher collected many of the more frequently-used chapters of my books into a single (cheaper) paperback edition: "Common Canadian Criminal Code Offences and Procedures 2015-2016".  Some of you may find it useful.

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New Law

2016.11.26 Photo Lineup Procedures & Lineups of Acquaintances to the Witness

Two men attacked Mr Pierre inflicting wounds that nearly killed him. At the scene he said "Carl" or "Carlton" did it. He sank into a coma for a month. When he first awoke, he wrote a name "Karl Atire" on a piece of paper. At trial, Mr Pierre said that was a mistake brought on by medications. He meant Carl Renous.

Police collected photographs of various people of interest, including Mr Pierre's friends. Each face was quite different from the others. The day after he awoke, police showed him these photographs. Mr Pierre picked out Mr Charles, 2016 ONCA 892 as one of his assailants. He later told police that Carl Renous was the other. Defence complained that this did not follow proper lineup procedure.

Bad news: the investigators misplaced the picture of Mr Charles that they used in this lineup. This made for some embarrassing testimony. Good news: the investigators video-recorded the process, showed each picture to the camera. and preserved that video-recording. Bad news: the officers did not give Mr Pierre the standard instructions for a photo lineup. Good news: Mr Pierre claimed to know his assailants.

Later, when less medication flowed through Mr Pierre's veins, the investigators did a fresh photo-lineup process with him, using pictures of people that resembled Mr Charles. He picked Mr Charles again.

Ordinarily, one uses a photo lineup to see whether a witness can distinguish between a suspect and similar-looking people unrelated to the offence. When the witness only met the suspect during the offence, this method discriminates between recognition, and mere similarity of the suspect to the felon.

When the witness knows the felon, this procedure packs less punch: of course the witness recognizes an acquaintance in the photopack.

Because Mr Pierre knew his attackers, the first photopack served a useful purpose - it identified the felon. If he had not known his attackers, it would have undermined any subsequent identification.

Because the officers video-recorded the procedure so well, that one could see in the video what picture Mr Pierre chose. That reduced the impact of the misplaced photo.

That's unusual. No video-recordings I've seen of photo-lineups captured clear images of each picture as the witness examined them. In a recent trial I ran, it would have helped. You might consider reviewing the video quality, camera angle, and presentation methods you use when showing a photopack to a witness.

Regardless how formally or informally you present pictures to witnesses, carefully preserve the pictures you showed. Mark or annotate the ones which the witnesses pick.  Keep the others as well. They are all exhibits. You'll need them at trial.

2016.11.26 Proving the Obvious

In the case of Mr Charles, 2016 ONCA 892, described above, police found cell tower records showing Mr Charles' cell phone travelled to the town where the attack occurred, and returned to Toronto just afterwards.

The decision doesn't explain how police learned Mr Charles' phone number. I suspect that an investigator relied upon hearsay from a police database, or information from an uncooperative or unavailable witness.

At trial, Mr Charles' probation officer testified that Mr Charles gave him that phone number about 2 weeks before the attack. Defence complained that the probation officer was a person in authority, and Mr Charles did not give his phone number voluntarily. The judges sided with the prosecution; but they won't always.

I suspect that the idea of proving Mr Charles' phone number through the probation officer was an afterthought, not a result of considered investigation. I think this because I encountered a similar problem this week, which I solved in a very similar way.

Investigators often work from what they "know" rather than what can be "proved". When the matter comes to trial, the prosecutor suddenly demands evidence to prove things that seemed obvious during the investigation. And at the last minute, sometimes you can't find witnesses to prove the obvious.

If the probation officer's evidence had been inadmissible, I'll bet that the prosecution would have had a hard time linking the phone number to Mr Charles.

If a fact like that underpins the whole case, take time to find admissible evidence to prove it. For example, how do you prove that a suspect used a particular cell phone number?

2016.11.25 Obstructing a police officer by resisting arrest

Some folks use words to tell you that they don't like being arrested. Some use body language. Words of unhappiness do not constitute resistance. At what point does the body language become a crime?

During Mr Kennedy's 2016 ONCA 879 arrest for armed robbery:

One officer also said that Mr. Kennedy tried to pull away.

Did any of this amount to resisting arrest?  The judges agreed: "the offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance." The pulling away would be resistance. But what about the other actions? Although Mr Kennedy's actions sat "at the very low end of the scale of acts of resistance", these actions constituted resistance. Anything less is not.

You often arrest or detain difficult and impolite people. From paragraphs 31 to 35 this decision reviews a variety of situations in which courts decided what constituted criminal resistance and what did not. Most officers will profit by reading them. I take from these paragraphs that "resistance" involves applying force to the officer, or doing something which requires force or energy which prevents or interferes with the officer's arrest.

2016.11.20 Joint Statements and Instructing Witnesses

Good investigators never take the statements of two witnesses in circumstances where one can hear the other's version of events. It's all too easy to interview several people at once, especially when eyewitnesses feel urgency to report to police what they saw. But it undermines the statement they give together because to the court looks like collusion - each witness learns what the other saw, and may deliberately or inadvertently start to describe the event the same way.

But that's just part of the problem.

Consider the unfortunate case of Ms Clause, 2016 ONCA 859. She invited Mr Martin to her house for a birthday party. It went badly. Other guests beat up Mr Martin. He left the party, but felt so angry, he returned to fight with his assailants. He lost that fight too. And then someone stabbed him in the eye. He and two eyewitnesses said Ms Clause was the stabber.

A jury convicted her, but for various reasons, the appeal court ordered a new trial. One of the reasons involved collusion.

The eyewitnesses were Mr Martin's roommates. Only Mr Martin gave a statement to police around the time of the attack. Their close relationship raised a real concern with the court that they might have deliberately agreed to name Ms Clause, or that by discussing the case, some may have affected the memories of others. The appeal court thought the jury should have been instructed to consider that possibility.

How do you stop eyewitnesses from comparing their recollections with each other? All you can do is ask:

"Before I turn off this recording device sir, I'd just like to ask you one more thing. It sounds like you and your roommate are important witnesses in this matter. Until this case finishes, could you please avoid discussing with her the details of what you saw?"

2016.11.20 Impaired Driving - Screening Devices - Reasonable Suspicion

Although Mr Schouten, 2016 ONCA 872 looked, an officer noticed an odour of liquor on his breath. It was the morning after "a local motorsports event". The officer was checking the sobriety of drivers emerging from the grounds.

Mr Schouten told the officer that he had not consumed any alcoholic beverages for 10 hours, but he could not remember how much, nor what he drank.

The officer believed that alcohol would be eliminated from the body in 10 hours, but because of the odour, the officer demanded that Mr Schouten blow into a screening device.

The screening device read a fail. Later, breath tests showed Mr Schouten still had too much booze  in his body to drive: 120 and 109mg%.

At trial, defence attacked the officers grounds: if the guy looked sober, and last drank so long ago that he would not have any booze left in his body, then it was unreasonable to suspect that he had any booze in his body.

He won at trial. And at the first appeal. But he lost the appeal that mattered.

All three judges in the Court of Appeal agreed: an odour of liquor on the breath of the driver justifies making a screening device demand.

But notice that judges at two levels of court thought otherwise. Some judges sympathized with the defence argument. Those are the sorts of judges who may find other arguments persuasive. Here are a couple of typical arguments, and ways you can investigate in order to answer them:

Argument
Investigative tactic
The officer mistook an odour emanting from the car or the clothes of the suspect for an odour coming from the breath.
Take more than one sniff. Distinguish between breath and body odours.
The odour of liquor is subjective - especially when the odour is faint.
Get a second opinion from another officer, especially if the suspect denies consuming alcohol.



2016.11.19 Truck Drivers who Cheat

Mr Bhangal, 2016 ONCA 857 fell asleep while driving a commercial vehicle. The truck drove into oncoming traffic and killed someone.

Was falling asleep a crime? No.

But driving for too many hours without rest is. He faked his driving logs, making it look as if he got enough rest. Investigation into those driving logs discovered that he kept himself awake and driving for way too long before the crash. And a jury considered it criminally negligent to keep driving in that state.

When a commercial truck driver crashes, you might want to examine his log book.

2016.11.15 Murder or Assisted Suicide

Mr Elton, 2016 BCCA 440 stabbed his wife with a bayonet and strangled her. At his murder trial, he said he did so because he honestly believed that she wanted to die, and that she had attempted to kill herself by consuming Valium. He asked the judge to acquit him because if he was guilty of anything, it was aiding a suicide, not murder.

The trial judge convicted him, and the appeal court upheld the conviction.

"Aiding" is merely helping another person to do something, not doing it yourself.

Intentional killing another person is murder. He intended that his actions kill her, and they did. He was guilty of murder.

People often confuse "intention" with "motive". Even if his motive was to help her, his intention was to kill.

2016.11.10 Conversation with Prisoners - Voluntariness

Most police officers turn on a recording device before interviewing a suspect about the alleged offence. That's good, because it provides a complete record of what you said to the suspect. The judge needs that recording to determine whether you put any unfair pressure on the suspect to talk.

If you do that, and you interview properly, then you can expect lawyers to focus on conversation which occurred before you started the recording device.

Mr Carr, 2016 ONCA 837 claimed that during the 2-minute walk from the cells to the interview room, the investigator implied that unless he talked about the offence, he would not get released from custody.  The investigator testified that he usually said nothing while walking a suspect from cells to the interview room, but could not recall if he talked with the prisoner on that occasion.

The trial judge didn't buy Mr Carr's claim, but another judge might. Those brief interactions matter.

Most investigators take care to record their interactions with their suspect. But in my experience, the less an officer participates in the investigation, the less care the officer takes to record his or her interactions with the suspect. For example, the officer who transports a suspect from the arrest to the police station will often turn on no recording device and take minimal notes. When that officer testifies, s/he has virtually no memory of the conversation.

And then the defendant says "that's when the officer told me that unless I explained what happened, I wouldn't get out of jail" or "the officer told me that judges and prosecutors go easy on guys who fess up".

Every officer who interacts with a suspect between arrest and interview is a witness, and must be able to account for their conversation and treatment of the suspect.

2016.11.05 Inspecting Mail


You can't inspect mail in the possession of Canada Post. You can't get a warrant to inspect mail. Canada Post Corporation Act s. 40(3)

What do you do if you think there's contraband in the mail?

Well, there are lots of things you can do. One of them is to involve the authorities at Canada Post. But you must do that carefully.

American law enforcement officials complained to Canadian police that Mr King, 2016 CanLII 11698 (NL SCTD) was selling ephedrine over the internet, and shipping it to the USA. Police investigated, and found some evidence to support this complaint.

In a letter, a Canadian officer asked Canada Post to inspect Mr King's outgoing mail.

That's a problem. You can't search mail. If you direct Canada Post to search someone's private mail, then Canada Post acts as your agent.

The officer realized this problem, and sent a second letter which explained why this exportation was unlawful, and suggested that Canada Post might examine these packages as "unmailable", and if they found ephedrine that they might turn it over to police.The judge still found that the officer turned Canada Post into a police agent, even with the second letter. To this judge, it still looked like the police were telling the postal inspector what to do, and turning him into their agent.

There was a better way to write the letter. In situations like this, your "request" should not read like a command but the humble submission of information.  It should state the grounds which might move the postal inspector into action. But it should leave the decision whether to inspect up to the postal inspector:

Dear postal inspector:

I received the following information, which suggests that Mr King is using your postal service to ship ephedrine to the USA:
 ....

I asked a lawyer at the Department of Justice, who told me that doing this is an offence because ... .

I have no authority to search mail in the course of post, nor can I request or require you to search mail on my behalf, and so I make no such request.

Only you have the authority to inspect mail. Only you can decide whether to inspect any of Mr King's mail.

Schedule 4 of the Non-mailable Matter Regulations defines any " item transmitted by post in contravention of an Act or a regulation of Canada." as "non-mailable". Section 4(d) of those regulations require you to deliver such mail to police. If you do encounter this kind of non-mailable matter in relation to Mr King, I would be the appropriate person to contact.

Please contact me if I can be of any assistance.

...

2016.11.05 Missing Persons Reports

Some "missing person" reports waste your time. And sometimes you meet a killer.

Mr Shafia, 2016 ONCA 812 didn't like his daughters' boyfriends. By disobeying his commands about their love lives, they offended his sense of honour. Other members of his family shared his offence. The four offended ones murdered the girls, and those members of their family who supported them. The victims were bashed on the head, placed in an old car, and pushed into a canal.

Then the four killers went to the police station to file a missing persons report.

Subsequent investigation proved that their reports were false. Their statements became important evidence against them.

Most missing persons reports come from genuinely worried people. But if it turns out that you interviewed the killer, won't you be glad you recorded it?


2016.10.22 Undercover Operations - Police Tricks that Cross the Line

A police investigation into a 2011 murder stalled, and the prime suspect had fled the country. The lead investigator thought that police could intercept his friends discussing the murder with him if sufficient stimulus inspired the friends to call him. Undercover officers would talk to the friends. Because organized drug trade appeared to motivate the murder, the undercover officers pretended to be connected to Montreal drug suppliers, interested in "getting rid of" a "rat" - a witness who spoke to police regarding the murder.

The original plan would have caused no difficulty. The U/Cs would talk to each of the suspect's friends in public places where they could walk away.

Instead, they cornered Ms Derbyshire, 2016 NSCA 67 one morning, and pressed her for information about the murder. To everyone's surprise, she told them how she helped the suspect dispose of evidence and flee the jurisdiction. For the day, the officers controlled her movements: they took her cell phone, and they demanded and received answers.

She was charged with accessory to murder. The case depended upon her remarks to the police officers.

Through her lawyers, she complained to the trial judge that the U/Cs terrified her with implied threats of serious harm or death. In violation of her right to silence, they compelled her to give information against herself. And she complained that the officers' failure to record their conversations with her violated her right to a fair trial.

I find irony in that last complaint. In Duarte, [1990] 1 SCR 30, the court agreed with defence complaints that without prior judicial authorization, covert recording of a suspect's conversations violated his s.8 rights. Now a defendant complains that failure to make such a recording violates her s.7 rights. The judges rejected this complaint.  But the fact that defence argued it suggests that defence counsel value police accountability very highly. You can use transparency as a factor to support the issuance of 1-party authorizations.

The judge believed Ms Derbyshire's version of the events. The U/Cs were controlling and terrifying: the officers extorted a confession from the accused by threats of violence. The judges found that unacceptable, and excluded the confession.

The officers painted a less frightening picture of their interactions. Perhaps a recording of the interaction might have supported their version. But their testimony did not impress the judges. One of the U/Cs did most of the talking; the other seemed to recall very little of the conversation. The two U/Cs and their cover man each described the operation and its purposes in significantly different terms. The planning and execution differed greatly.

This case offers suggestions for all police:

  1. It illustrates a boundary police officers should not cross: don't use threats or violence to extort evidence from anyone - suspects or witnesses.
  2. In court, the testimony of the secondary officer matters as much as the primary officer. Even if you attend in a merely supporting role, pay attention and take notes.
  3. Innovation and flexibility during investigation can harvest good evidence. But know the limits under which you operate.
  4. If you do operate lawfully, transparency protects you. Whenever dealing with important witnesses, record what you (lawfully) can.

2016.10.22 Confessions - Voluntariness - What to Do with a Volunteer

Two cases this week show how judges like it when police treat suspects fairly. Here's the first.

Mr Fernandes, 2016 ONCA 772 walked into a police station and told the clerk he wanted to confess to burning down his mother's house. An officer came to speak to him. Mr Fernandes explained that he was homeless and wanted to go to jail. The officer explained that arson is serious, and punishable by imprisonment. The officer urged him many times to get legal advice, and reminded him several times that he was free to leave at any time. At first, Mr Fernandes refused, but after a while, he relented, and spoke with duty counsel. After that, he confessed.

Because police laid charges, I guess somebody did burn down Mr Fernandes' mother's house.

At trial, Mr Fernandes' lawyer argued that the confession was not "voluntary", for two reasons:

The trial judge agreed, and excluded the confession. Mr Fernandes beat the charge.

The Court of Appeal rejected these ideas. The concept of "voluntariness" protects the suspect from unfair pressures that the police put on the suspect to get him to confess. In this case, the officer didn't cause Mr Fernandes' homelessness. The officer did nothing to coerce or tempt a confession from the suspect. Quite the opposite. This officer put roadblocks in the way.

At first blush, I thought the officer went too far to persuade Mr Fernandes to get legal advice. Mr Fernandes was not detained, therefore section 10(b) of the Charter had not triggered. But Mr Fernandes explained that he wanted to go to jail.  By doing so, he alerted the officer that the usual incentive to remain silent did not apply. By urging Mr Fernandes to get legal advice first, the officer showed the judges that he was not going to take unfair advantage of Mr Fernandes' desperate situation.

The appeal court liked this fair treatment, and ordered a new trial.

2016.10.21 Right to Counsel v. Haste to Test Breath: Getting the Priorities Right

When you make a breath demand of a driver, several obligations trigger.

Which one comes first?

Mr Rowson, 2015 ABCA 354 caused a bad motor vehicle accident. At the scene, officers feared that victims might die. When an officer asked him to blow into a screening device, Mr Rowson wanted to call a lawyer. Knowing the seriousness of the matter, the officer let him talk to a lawyer for a short time before testing his breath. Mr Rowson failed. The officer demanded breath for analysis, and he later blew 117 and 105 mg%.

At trial, defence argued that the officer did not test Mr Rowson's breath "as soon as practicable". Because the officer "searched" Mr Rowson's body contrary to law, the officer therefore breached Mr Rowson's rights under s.8 of the Charter.  The officer should not be permitted to rely upon the "fail" result to justify the breath analysis demand. Defence asked the court to exclude the results from the breath analysis.

The appeal court agreed that the officer breached Mr Rowson's s.8 rights by allowing Mr Rowson to call a lawyer before blowing into the screening device. But they disagreed that the breath tests should be excluded. They sympathized with the officer, who plainly recognized the seriousness of the situation, and properly worried that Mr Rowson should get legal advice.

The Supreme Court of Canada agreed with the Alberta Court of Appeal.

To answer the question I posed, the correct priority of events is:

  1. Breath screen / SFST
  2. Legal advice
  3. Breath analysis / DRE

But judges like it when you really care that the suspect gets legal advice when he faces jeopardy.


2016.10.16 Helping Social Workers Search


Social workers received confidential tips that a child living at the residence of Mr Noftall, 2016 NLCA 48 faced danger because he grew and sold marijuana from that place.

The social workers decided to investigate. But they lacked equipment, skills and training to handle the potentially violent reactions of criminals who lived there. They asked a police officer to accompany them.

Without a warrant, two social workers and cop entered Mr Noftall's place, for the purpose of investigating a child safety complaint. But this cop had experience taking down grow operations. And the place smelled of growing marijuana.

The social workers told Mr Noftall they didn't need a warrant. Mr Noftall took a social worker and the officer to his (small) grow. An insecure rifle hung nearby, with ammunition at the ready.

Mr Noftall complained that the officer violated his rights under s.8 of the Charter. The trial judge figured that because the officer merely accompanied the social workers for their protection, the officer did not breach s.8. The appeal court disagreed: after the officer smelled growing marijuana, the officer should not have "searched" by going to the grow room. Instead, the officer should have compelled Mr Noftall to wait in the kitchen while the officer phoned for a warrant.

Hmm.

Telewarrant: Although the Criminal Code provides for oral telewarrants, you should be very cautious of using them. You get one chance to say everything perfectly. Nobody checks your work. And if your forget to mention something important, things will go badly at trial.

Search: I agree that when you enter a private residence without a warrant and without consent, you must act in accordance with the lawful authority that got you in there. If a situation arises where you have reasonable grounds to believe that evidence of a crime will be destroyed if you do not freeze the scene, or search the place, then s.487.11 applies. You don't need a warrant. But you should limit your warrantless searching to the least necessary. Get a warrant once you get the scene under control.

Despite the breach, the court admitted the evidence. Mr Noftall stayed convicted.

2016.10.16 Prisoners Talk

When police arrested Mr Day, 2016 NLCA 52 for drug trafficking, he shouted out to his girlfriend not to say anything to police. At trial, he testified that he had nothing to do with the pound of marijuana in the trunk of his car, and suggested that maybe his girlfriend put it there.

The judge didn't find his testimony persuasive. What Mr Day shouted to his girlfriend did not easily mesh with his innocent explanation.  And besides, his girlfriend had recently texted him "the bags you gave me are done" and Mr Day replied, “Don’t worry, I’ve got you”.

All too often, prisoners in police custody call out to each other with advice or instructions about what to say during the investigation. Those remarks can make a significant impression on the trial judge, if you take the trouble of writing them down.

2016.10.16 Employees Talk

Ms McCarthy, 2016 NLCA 33 worked in a Newfoundland police station. Posted on the wall in the drug section of her office, she noticed a picture of her cousin.

She warned her cousin that he was being watched. Indeed he was.  But investigators found out that she violated her oath of confidentiality.

She lost her job. She got charged with obstruction of justice. The trial judge sent her to jail. (The appeal court reduced the sentence to a conditional sentence, but only because she confessed, she apologized, and she pleaded guilty.)

Leaks do happen. Beware of conflicts of interest. Supervisors might want to tell this cautionary tale gently, not to threaten staff, but to remind them of the harm they can do to themselves when they feel the improper tugging of family ties.

2016.10.09 Security Video

Security video can prove independent events to a high degree of confidence.  I hope that you routinely look for security video in the area of offences you investigate. Here's a case from earlier this year which illustrates what to do.

Dean Saddleback, 2016 ABCA 204 drove a stolen truck. He took it to a 7-11, where he had the bad luck to be noticed by an off-duty police officer. The officer watched Mr Saddleback get gas, and pay for it inside the convenience store. Because Saddleback looked particularly suspicious, the officer called in other officers. Those officers pursued the truck. Mr Saddleback fled and escaped. The store security video was the only way to prove the driver's identity.

Security video evidence tends to suffer from some routine - and avoidable - flaws. Those problems arose in the trial:

Everything turned out okay. The clerk remembered Mr Saddleback from that day, and was able to testify that the video accurately depicted what occurred when Mr Saddleback attended. The court accepted the clerk's testimony that the video accurately showed what happened when Mr Saddleback attended.

You won't always be so lucky.


2016.10.04 Detaining a Suspicious Vehicle

Cst Vachon-Zee recognized a frequent offender sitting in the passenger seat of a Chrysler Cirrus. He didn't recognize the driver, Mr Mr Ali, 2016 ABCA 261. A computer search reported no concern that the car was stolen. But the officer was suspicious. In his experience, thieves often stole this model of car. He wanted to know what the passenger "was up to", and to check whether the car was stolen. He decided to check the ownership documents.

The car stopped when signalled to do so. An odour of fresh marijuana wafted from the driver's window. The officer arrested the driver, and on a search incidental to arrest, found crack.

At his trial, Mr Ali argued that an officer who stops a vehicle to investigate crime needs reasonable grounds to suspect that someone in the vehicle was involved in crime. The appeal court agreed. If you're going to stop a vehicle to investigate crime, you need more than mere suspicion.

But this officer also wanted to check vehicle ownership documents.  You don't need reasonable grounds to suspect that a traffic safety offence is being committed to stop a car.

Courts call this a "dual-purpose" stop. Defence counsel distrust you when, after the fact, you try to justify a stop as a stop for vehicle safety enforcement. If you find something interesting, they will cross-examine you for a long time.

Therefore, when your instincts tingle, and you want to pull over a suspicious vehicle, think about what you're investigating. If you have solid reasons to suspect crime, pull it over. If you don't have solid reasons, consider whether licencing and registration, sobriety and roadworthiness interest you.

If they do, actually investigate those issues. Make inquiries over the radio or the on-board computer (if you have one). Ask questions about that topic.

By the time you encounter drugs or stolen property, it's too late to come up with excuses for stopping the suspect.


2016.09.30 Disclosure - Confidential Sources - Debriefing Reports and Handler's Notes

Sometimes, confidential sources provide good information. Judges issue warrants and authorizations. Police bust bad guys.

Defence counsel then attack the process by which police obtained the warrants and authorizations: did the officer who applied for the warrants and authorizations accurately describe the reliability of the sources, and the information they gave? Should the officer have mentioned other information which tended to undermine the source's credibility or suggested the warrant should not have issued?

To ask that question, defence counsel ask for documents relating to the information that the confidential sources gave: Source handler's notes, source debriefing reports, everything. "Full answer and defence", counsel cried.

Many judges agreed.  But that risks identifying the confidential source. Some judges assumed that redacting the documents would suffice to protect the identities of the informant.

Today, in R. v. McKay, 2016 BCCA 391, BC's top court responded.

No. Defence is not entitled to everything. Only what's relevant to what the officer knew (or should have known) when he or she applied for the warrant.

No. Redaction does not always protect confidential sources. Little bits of information can burn a source.

Defence is still entitled to disclosure when challenging an authorization or warrant, but they need to show why disclosure of the material may assist in showing that the authorization should not have been granted.

This decision solves some problems in BC, particularly for the RCMP's Human Source Unit.

2016.09.28 Wiretap - Who's a "known"?

When you apply for an authorization to listen to private communications, you must identify an offence, and all the persons you "know" whose communications you have reasonable grounds to believe may assist in the investigation of that offence.

Those people are "knowns". You need to identify them in order to intercept their conversations lawfully. And if you knew about them, and failed to identify them in the application, then even if you do intercept their conversations, the court may exclude the recordings from evidence.

So how much do you need to "know" to make a person "known"?

Two separate teams of police investigated what appeared to be two separate schemes to import cocaine from Argentina to Kelowna, BC. The two teams shared some information. There were enough similarities to raise suspicion that they may be related. It turned out that Mr Montgomery, 2016 BCCA 379 and an associate participated in both. The first operation identified them. Wiretap captured their conversations in the second investigation. They complained that the police should have identified them as "knowns" when applying for the authorization in the second investigation.

The court had no difficulty rejecting this argument. "Known" needs to be reasonable belief, not mere suspicion.

But the test remains slightly weird.  You must have reasonable grounds to believe that "probably", listening to this person's conversation "may" assist the investigation of the offence. The court noted at paragraph 92 the prospect of further litigation on this topic.


2016.09.26 Impaired Driving - Taking Breath Tests "As Soon as Practicable"

"On a dark desert highway, cool wind in his hair," Cst Ferguson stopped a car driven by Mr Prestupa, 2016 SKCA 118. Okay, it was prairie, not "desert". And "cool" understates the chill of Saskatchewan in January. A screening device registered a "fail" when Mr Prestupa blew into it. Cst Ferguson read him a breath demand.

That triggered an obligation to test Mr Prestupa's breath "as soon as practicable". Cst Ferguson's police station lay 75 or 80 km away; other police stations were a bit closer. Mr Prestupa asked the officer to let his parents pick up his car, rather than allow it to be towed. Cst Ferguson agreed. They called his parents. Meanwhile, Cst Ferguson called for a breath technician to attend his detachment to test Mr Prestupa's breath. It took a while for the parents to arrive. He left the scene 47 minutes after the initial stop.

Cst Ferguson drove rather quickly back to his detachment. 75 or 80 km in 33 minutes. Hmm.

Mr Prestupa blew 190 & 180mg%.

At trial, Mr Prestupa complained that the officer did not test his breath "as soon as practicable": there were closer police detachments to which they could have gone.

The trial judge agreed, but the appeal courts didn't buy it. The phrase is "as soon as practicable" not "as soon as possible".  And besides, there was no evidence that the other detachments had breath-testing equipment and breath technicians at the ready.

Several ideas emerge from this case:

  1. The phrase "as soon as practicable" means you need to account for how you spend your time after making a breath demand.
  2. The judges did not mind Cst Ferguson's decision to wait for Mr Prestupa's parents to take his car. But beware. If another officer could have watched the car, Cst Ferguson should have started driving.
  3. The judges liked how Cst Ferguson called for a breath technician before departing for the police detachment. "A stitch in time saves nine." A little forethought can save lots of time.
  4. "As soon as practicable" does not mean "as soon as possible". Although the judges noted Cst Ferguson's quick trip back to the police station, I would caution against high-speed driving. In B.C., I don't think s.254(2) of the Criminal Code authorizes police officers to drive at emergency speeds for the purposes of breath testing.  See s.122 of the Motor Vehicle Act, and the associated regulations.
  5. After demanding breath, ask yourself "what can I do to get the breath testing done promptly?" The defence argument in this case failed not because it was okay to take Mr Prestupa to a detachment far away, but because defence did not show that a closer detachment would have tested Mr Prestupa's breath sooner.

Many tasks will slow you down. Impaired driving prosecutions can fall apart if you:


2016.09.10 Jordan - Right to a Trial within a "Reasonable Time"

Some of you encouraged me to write about the Supreme Court of Canada's recent decision R. v. Jordan, 2016 SCC 27.

It discusses trial delay - the legal wrangling, adjournments and court scheduling conflicts that seem to have no relation to police work.

Why did these police officers care? Because all their hard work will go to waste if the court throws out a case that took too long.

What can police do about delay? Doesn't it all happen at the Crown office and the court house?

There are some things you can do little about. If the government won't pay for prosecutors, judges or courthouses, then delays may mount.

But the courts often blame police for delays. Usually for late disclosure.

Some officers find it difficult to sympathize with this criticism. Collecting, vetting and packaging every little bit of paper, digital information, photograph and video is a colossal chore. It's boring, and the little bits of information that you miss are usually unimportant in the big picture.

If you feel that way, try imagining that you were about to buy a house. An expensive one. You will commit all of your money, and you will sign up for a large mortgage. This purchase decides your finances for the next 20 years. On the day of the deal, the vendor hands you a folder containing 1,000 pages of documents including maintenance receipts and at least 30 reports from property inspectors who examined the house in the last 5 years. Would you sign on the dotted line without reading the folder? At least 30 purchasers paid for property inspections, and walked away without buying this house. Are you sure about this?

That's how defence counsel feels when "new disclosure" shows up just before trial. They don't want to start the trial until they know everything about the case. The diligent defence lawyer will ask for an adjournment. Judges sympathize. They grant the adjournment. And they blame police for failing to provide the disclosure in time for trial.

Clever defence counsel capitalize on this sympathy. I've seen cases where the late disclosure of a single page of trivial information resulted in an adjournment. And the court blamed the delay on the police.

Delays lead to stays of proceedings.

What can you do?

General duty officers

Plainclothes officers

Supervisors

Upper Management

Disclosure ain't the only problem you can fix.

When a warrant issues for an accused, when the charge is laid, or later, make real efforts to find him. And if your first efforts fail, make sure you follow up regularly. If the guy leaves Canada, even failure to pursue extradition promptly can count against the state.

This post is long, but I did not explain the Supreme Court of Canada's decision. I don't think that fine points matter much to police. In a 5:4 split decision, the majority concluded that a judge should generally kill a prosecution if the Crown or court delay it more than 18 months ... unless there's a good explanation.  Cases in superior courts get 30 months. The minority predicted problems with this one-size-fits-all approach. The judges all agreed that delay is a bad thing, and that the prosecution and its partners bear the burden of bringing accused people to trial promptly.

The court breathed new life into the right to a speedy trial. Defence counsel will look for reasons to blame you for delay.

2016.09.09 Impaired Driving - Oops, I forgot to Read the Breath Demand at the Scene

Section 254(3) requires you to make breath demands "as soon as practicable" after you realize that the suspect's ability to operate a motor vehicle is impaired by alcohol.  Some officers arrest the suspect but forget to read the breath demand at the scene. By the time they reach a police station, it's no longer "as soon as practicable".

This case suggests an interesting solution.

Mr Guenter, 2016 ONCA 572 crashed his car into another car, injuring the people in it. He had been drinking. The attending officer got distracted by the chaos of the accident scene. At the scene, he arrested Mr Guenter for impaired driving causing bodily harm, but he only got around to reading the demand at the police station.

Lucky for him, the breath technician had his own way of dealing with things. The breath tech always:

The court found that the investigator's breath demand was not made "as soon as practicable", but the breath technician's demand was. The breath tech learned from the investigator that the suspect drove while impaired, and then promptly demanded breath samples. That (new) demand lawfully required Mr Guenter to blow, even if the first one didn't.

About 2 hours after the crash, Mr Guenter blew 170mg%. The evidence was admitted, and Mr Guenter was convicted.

Does that mean every breath technician should now emulate this breath technician in every case?

I don't think so. Not only must the demand be made as soon as practicable, but you must test the suspect's breath as soon as practicable too. In ordinary cases, where the first breath demand was properly made, defence can argue that making another one wastes time.

If your colleague arrives at the police station, and then remembers to read the breath demand, you can save his or her investigation by asking your colleague for the evidence and information which suggests that this person - within the preceding 3 hours - operated or had the care or control of a motor vehicle while impaired by alcohol. If the answers satisfy you, you can make the demand "forthwith or as soon as practicable". After your demand, let the suspect speak to counsel again if desired.

Until I read this decision, I would have doubted the lawfulness of this procedure. If you use it, expect prosecutors and defence counsel to challenge your actions. Bring them copy of Guenter, 2016 ONCA 572 to explain yourself.

2016.09.09 Statements of Suspects - Compelled, Elicited or Volunteered?

In some provinces, including Ontario, when drivers crash their cars, legislation requires them to tell police what happened when police ask. But the right to silence means that suspects of crimes can't be compelled to explain their involvement. This case explored the interaction between right to silence, statutory compulsion, and a police officer's duty to hold off eliciting evidence before a detainee got his right to counsel.

Mr Guenter, 2016 ONCA 572 was drunk. His car crashed into another car injuring its occupants. But who drove his car?

The first police officer to attend asked Mr Guenter if he was hurt.  Mr Guenter replied "No. My heart hurts because I feel bad for hitting this vehicle with a family in it."  After an officer arrested him for impaired driving causing bodily harm, he banged his head on the hood of the cruiser. He later blurted out - of his own accord - things like "drank too much J.D.”; “I smoked weed”; “a couple of beers, it’s Christmas". " I made a mistake. I was at a Christmas party. He shouldn’t have turned in front of me."

He also said: "Shoot me in the back of the head.” “Shoot George too. He ran into the bush.” “I should have never let him drive.” At trial, Mr Guenter testified that another guy named George drove the car.

His earlier comments proved he drove. Were they admissible?

His lawyer argued that legislation compelled him to tell the officer about the accident. Therefore, admitting these remarks would violate his right to silence. But the prosecution pointed out that the officer asked about his health, not about the accident. The judges agreed.

His lawyer argued that after the arrest, everything that Mr Guenter said before he got to talk to a lawyer should be excluded. The prosecution responded that after detention or arrest, police must hold off eliciting evidence from the suspect. That's what these officers did. They asked no questions. They weren't trying to get evidence out of him before he spoke with a lawyer. Mr Guenter volunteered these remarks of his own accord. The judges agreed.

Mr Guenter was convicted.

In B.C., the legislation no longer compels drivers to give explanations for accidents to the officers who attend. Before detaining a BC driver at an accident scene, you can ask questions, knowing that the answers won't be excluded from trial.

In other jurisdictions, officers need to gather information from other sources than the driver.

At trial, defence will challenge your version of how these conversations went.

When a detained suspect blurts out information of his or her own accord, the investigating officer rarely has a notebook open and a pen in hand. A subsequent decision dwelt upon the value of contemporaneous audio and/or video recording during these dynamic interactions. I agree, but with caution. Making lots of audio or video recordings means storing, disclosing and transcribing lots of recordings too. It's the way of the future, but I suspect it costs more than most proponents realize.

2016.09.09

 Deals with Devils - Accomplices who Rat Each Other Out

Some drug dealers complained to police of a couple of home invasions committed by men with guns.

Whodunnit?

Police suspected two buddies Keenan and Kelman, both drug dealers and users. One day, when they were both in custody, police made them an offer: lead us to the gun used in the first robbery, and you'll get bail. They accepted the deal, produced a gun, and - with the consent of Crown - they got bail.

A little while later, police told Keenan that he would soon face charges over the first home invasion. Keenan gave a statement. He told police he was the getaway driver. He named Kelman and his friend, Mr McGown, 2016 ONCA 575 as the robbers who entered the house.

All three got charged. Keenan, the rat, pleaded guilty, and made arrangements be sentenced on the basis of his police statement. Kelman also pleaded guilty and got sentenced.  McGown wanted a trial.

At the preliminary inquiry, Keenan testified for the Crown. He gave a new version.  He wasn't the driver, his good buddy Kelman was.  He went into the house with McGown.

Keenan got sentenced as the driver. He even got a reduced sentence because he "cooperated" with the state.

At trial, Keenan testified for the Crown. He was the only witness who could establish that McGown participated. He gave much the same story as he told at the preliminary inquiry. Defence pointed out that his "cooperation" with the Crown involved admitting that he didn't take full responsibility at sentencing for what he did. He was a liar that manipulated the system. That undermined his credibility.

His good buddy Kelman testified for the defence. Kelman agreed that he, Kelman drove the car. Indeed, much of his story matched Keenan's version. But Kelman said that his good buddy McGown wasn't even there. Oh, no. Some other dude he didn't know participated in this crime. A stranger. Some friend of Keenan's.

The judges believed Keenan the rat, not Kelman. McGown went down. But only because other evidence confirmed that Keenan told some truth, and there was no evidence to suggest that Keenan was protecting some third party.

Beware of rats. Their statements sound great. Confirm everything that you can. When these folks reach the court room, their testimony often changes. Sometimes dramatically. Don't offer them special deals, immunity or reduced sentences without Crown's blessing ... and lots of documentation. Because at trial, you will look like a fool if it appears that the rat duped you.

2016.09.08 Limits of General Warrants - Complying with Legislation

Can a judge authorize a police officer to disobey legislation? In Whipple, 2016 ABCA 232, the Alberta Court of Appeal seemed to suggest that a judge may issue a General Warrant which authorizes a police officer to disobey s.10(a) of the Charter. I expressed some discomfort with that notion. Just a few days earlier, the Ontario Court of Appeal held that a General Warrant can not authorize a police officer to disobey s.503 of the Criminal Code. This decision makes more sense to me.

Even though the court held that the officers breached Mr Poirier's, 2016 ONCA 582 rights, you gotta give them some credit for trying to do this one correctly.

Reliable confidential sources told police that Mr Poirier sold drugs. Whenever he wasn't selling, he stored them in his rectum. The investigating officers obtained a general warrant which authorized the officers arrest Mr Poirier and to hold hold him for as long as it took him to defecate all the drugs out, and to watch him and control him so that he did not conceal or destroy the drugs during this vigil.

It took 43 hours.  In stages separated by many hours, Mr Poirier eliminated crystal methamphetamine, heroin, cocaine and Dilaudid.  Each time something came out, he told the officers that was everything. And then later, more came out.

Defence complained that this was not a search, but a detention. Section 487.01 - the General Warrant section - empowers a judge to authorize police to "...use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property".  The court disagreed: it's a search that takes time because of the passive nature of the searching: the police just watch till nature takes its course.

After an arrest, s.503 requires you to bring your prisoner before a justice "without unreasonable delay" and within 24 hours (unless no justice is available).

Defence complained that s.487.01 does not empower a judge to authorize police to disobey the Criminal Code. The court agreed. Reasonably promptly after the arrest (not at the 24-hour mark), the officers should have brought the prisoner to a justice of the peace, and asked the justice to order that Mr Poirier be detained in their custody to complete their execution of the General Warrant.

But the officers made some other mistakes, which resulted in Mr Poirier's acquittal.  See below...

2016.09.08 Reasonable Search of a Prisoner - Privacy, Comfort and Health

As described above, a judge authorized police to perform a "bedpan vigil" on Mr Poirier, 2016 ONCA 582. Mr Poirier excreted lots of drugs. But there were some problems.

The officers in this case used the General Warrant legislation in a creative way. The court approved. But the officers got distracted by the complications of executing it. Perhaps Mr Poirier was not a congenial guest. It looks like the officers lost track of some basic principles of handling prisoners. We can learn much from this investigation.

2016.09.03 Knocking on the door of the Suspect - the "Implied Invitation"

Will Duval wrote me: "Here's a good suggestion for your website..."

He's right, damn him. I spent many hours thinking about what to write about this difficult case.

In their homes, people enjoy a right of privacy from the government. As a police officer, you can't enter or search people's houses except with lawful authority, such as a warrant, exigent circumstances, or permission from a person who lives there.

But can you knock on the front door?

Long ago, some officers received a tip that Mr Evans, [1996] 1 SCR 8 grew marijuana in his home. Because other investigative approaches failed, they knocked on his door and explained that they were there to investigate a grow at the residence. Oddly enough, when Mr Evans opened the door, they smelled green marijuana, so they arrested him, and took down his grow-op.

All the Supreme Court judges agreed that in the absence of contrary indications, an officer may assume that every resident of a home offers an invitation to people to come and knock on the front door (or ring the doorbell) to communicate with the residents.  But four of the seven judges added a limitation: this "implied invitation" invites only communication, not searches for evidence against the residents. Although these officers wanted to talk to the occupants, they also wanted to sniff the air when the residents opened the door. That intention turned the door-knock into an unconstitutional search.

So, if you suspect someone committed a criminal offence, and you approach his home with the intention of gathering evidence of the criminal offence from a resident there, then you breach his s.8 rights when you knock on the door (and may breach his rights even when you set foot on his front walk).  But you may lawfully knock on the door if all you intend to do is communicate with the resident. You can knock and talk even if you suspect that the resident committed the offence you're there to investigate. You can even talk about the offence.  And if you discover evidence during this conversation, it's all good.  But only if your initial intention was just to talk.

Mr Rogers 2016 SKCA 105 backed his car into another vehicle, causing negligible damage. A witness thought he was drunk, and called the licence plate in to police. An officer went to Mr Rogers' apartment to investigate. When the officer knocked on the door, Mr Rogers opened it.  He looked, sounded and smelled intoxicated. The officer arrested him, and demanded breath samples. Mr Rogers blew 270mg%.

Depending how you look at it, the legal trouble began when the officer knocked on Mr Rogers' door, or it began in court, when the officer answered questions about what he intended to do when the door opened:

Q
So your purpose in attending at Mr. Rogers’ home was to determine whether he had been the person driving, correct?
A
Yes.
Q
And more importantly, whether his ability to operate a motor vehicle was impaired.
A
Yes.
Q
And you would agree that the observation made of a suspected impaired driver’s appearance, demeanour, speech, and actions are critical pieces of investigation in an impaired driving investigation?
A
Yes. They are what form my grounds.
...
Q
But going back to my question, you knew that the minute you opened the door you would be able to gather evidence regarding Mr. Rogers.
A
Not necessarily. The minute he opened the door is when I would start observing to determine whether or not I had ... any grounds.

If the officer's only purpose in knocking had been to speak with the occupant to find out who drove the car, then the knock wasn't a search.  But the Court of Appeal judges agreed that this officer's knock was a search because he intended to secure evidence. And because no judge granted a warrant to the officer permitting him to do that, this was an unlawful search. Evidence excluded. Drunk driver acquitted. The judges explained that they simply followed the law set out by the Supreme Court of Canada in Evans.

If you think the legal trouble started with the officer's admission that he was looking for evidence, then your solution to this conundrum would be to lie in court when answering questions about your motives when you knocked on the door. I disapprove. Not only would this be perjury, but any good cross-examiner will reveal it to be perjury. Goodbye career.

I think the legal trouble started at the door, not in the court room.

The court itself noted that in similar circumstances, courts reached the opposite conclusion, for example: Petri, 2003 MBCA 1; Grotheim, 2001 SKCA 116.

After reviewing many similar cases, they commented:

"There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive..."

Where's the line? Talking with the residents is okay -- even about the offence.  Knocking on the door in the hope of seeing evidence like symptoms of impairment isn't.

You have a general duty to investigate, but the courts chastise the officer who does try to gather evidence at the door. How do you avoid this problem?

By respecting the privacy of the home. If all you're allowed to do is talk, then you might deliberately limit your ability to see evidence in the residence and smell the breath coming from the suspect.  You might knock, and then move as far back as possible while still being able to talk.  Fully explain why you came, and invite the suspect outside, or ask for permission to enter.

This approach raises two problems:

  1. Tactical disadvantage: an officer who blinds himself to dangers in the residence will one day be blind-sided.
  2. The suspect has control: a cagey drunk will slam the door in your face. Unless you have other leads or lawful authority, your investigation may stop there.

I don't think the law requires police to render themselves vulnerable to attack. At the door of the suspect's residence, keep watching for dangers, and routinely position yourself for safety.

I do think that the law limits your investigation. In some cases, exigent circumstances may justify entering the residence to preserve evidence.

But not in this case. No doubt, with every minute, Mr Rogers' liver was busy removing alcohol from his bloodstream. Definitely, evidence was disappearing. But you can't rely on "exigent circumstances" to enter unless you know that an offence probably occurred. This officer had only reasonable suspicion.

In s.487.11, the Criminal Code permits you, in exigent circumstances, to search for whatever a search warrant will let you find, "if the conditions for obtaining a warrant exist". Search warrants require probable grounds. You can't use this power if you have only a reasonable suspicion. And besides, a search warrant won't authorize you to sniff a suspect's breath nor watch his "appearance, demeanour, speech, and actions".

I do not expect the Supreme Court to clear this up any time soon. In Evans, the court divided 4:3. In the similar case of Feeney, [1997] 2 SCR 13, they divided 5:4. In MacDonald, [2014] 1 SCR 37, 2014 SCC 3, they divided 4:3. In each of these cases, the court considered how a police officer should behave at a suspect's door. In each case, their conclusion conflicted with previous case law.

Thank you, Will Duval, for pointing this case out.


2016.09.03 Evidence offered by Hysterical Witnesses

What evidence could have helped determine whether Mr M.T.L. 2016 YKCA 11 raped his friend's fiancee?

The complainant spent an evening drinking with her friend, Mr M.T.L.. Through the evening, she sent text messages to her fiancee to join them. At the end of the evening she slept at Mr M.T.L.'s place. That's where the sex happened. But did she consent? Afterwards, she sent a text message to her fiancee about the encounter. She went to a hospital, where a doctor found redness and soreness in her genitals. She declined a formal sexual assault exam. After she complained to the police, Mr M.T.L. allegedly sent her a message threatening to commit suicide unless she told everyone that she lied.

The investigating officer never examined her cell phone. According to her, she offered her cell phone, but the police weren't interested. According to the officer, the complainant told him that she was using a "loaner" cell phone which was now wiped and returned to the phone company. No messages remained.

The trial judge convicted Mr M.T.L..  The appeal court ordered a new trial, worrying that perhaps the complainant wasn't reliable.

Cell phones pack a great deal of information these days. In a case such as this, the content of the text messages before and after the incident could probe the complainant's feelings toward her fiancee: if they showed that she loved him that night and wanted him to join them, then she wouldn't likely cheat on him. The timestamps could help determine when the important events occurred.

I can't say from reading the decision what really happened with the cell phone. If the complainant was right, then the cop missed some important evidence. If the cop was right, then the complainant destroyed important evidence.

Lots of complainants have told me over the years that they offered additional evidence to the investigating officer, but the officer wasn't interested. When I asked officers to follow up, I receive mixed results. Sometimes the cop missed key evidence. Sometimes, it's useless information.

It's easy to understand why an officer might discount their ideas. Distressed people often don't think straight, and often express themselves badly. Some are crazy, and some just sound crazy. It takes time and patience to distinguish between the two.

In this case, the completeness of the investigation mattered to the appeal judges. You may be called upon to explain why you didn't follow a specific investigative lead. This case illustrates how important that explanation may become to the final result.

I think of it this way:

  1. Your investigation isn't complete until you have canvassed every reasonably available source of information.
  2. Your report isn't complete until you have documented the whole of the investigation (including the dead ends).

If you ignore a potential source of evidence, someone may ask you why.

2016.08.22 Detention, Arrest, and Inventory Search of a Vehicle

When can you search the contents of a vehicle?

Ontario's courts developed rules around inventory searches, based upon their legislation. The rules in other provinces differs, according to the applicable legislation available to them.

In two decisions, the Ontario Court of Appeal recently reviewed this area of the law.

Late at night, police officers driving an unmarked car watched Mr Dunkley, 2016 ONCA 597 visit a couple of gas stations. He went into the kiosk several times, he bought nothing, he came out. He drove away fast, through a MacDonald's parking lot, as if to shake someone following him. He drove to another gas station, and went into the kiosk. The officers told him to stop and tried to talk to him, but he fled, discarding his keys. He left the car unlocked. (He explained that he thought these plainclothes officers intended him harm; he did not know they were police.) An officer searched it for identification. When he found a firearm, he applied for a search warrant before searching further. The trial judge found that the search for identification was lawful, and even if it wasn't, the officers had authority to do an inventory search when they impounded this abandoned car; they would have found the gun anyway.

The court of appeal disagreed. The officers reasonably suspected that Mr Dunkley was up to no good, but did not have sufficient grounds to arrest him. Reasonable suspicion authorizes you to stop someone, and search for officer safety. But this empty car posed no risk to them. Reasonable belief - that the suspect probably committed crime - permits you to search the suspect and his vicinity for evidence. The court found that the officers' observations did not meet this higher standard.

Finally, the court considered whether the officers could do an inventory search. Section 221 of Ontario's Highway Traffic Act permits officers to impound "abandoned" vehicles. But the court observed that nothing about the way this guy parked his car indicated an intention to abandon it. The officers made him run away. This was not an "abandoned" car. Lacking any justification for the search, the court excluded the evidence.

A police officer saw two cars racing. He pursued one of them - an Acura - into a dead-end street. He found it parked in a driveway at a different address than the registered owner. A guy in an oversize white shirt walked away from the vehicle. Another officer found Mr Ellis, 2016 ONCA 598 nearby, wearing an oversize white shirt. Mr Ellis lived at the same address as the registered owner of the vehicle.

Because the computer system flagged Ellis as a gang member, an officer patted him down for weapons. Something in his pocket felt hard. The officer asked him to empty his pockets. Ellis had a cell phone and keys for an Acura. The officer returned them. After discussing these details with the first officer, the second officer arrested Ellis.

Police then searched the car for identification of the driver, and found a handgun.

The court approved of the pat-down search of Mr Ellis. There were grounds to detain, and reason to fear that he might harm a police officer.

The court held that the police lacked authority to search his car as part of the arrest. Although the officers had reasonable grounds to arrest him for "careless driving", the other preconditions for search incidental to arrest did not apply. Mr Ellis had put 50m between himself and the car - it wasn't close enough to be in his vicinity at the moment they arrested him. And there was no reason to believe that searching the car would discover evidence of careless driving.

On the other hand, the court found that this car was "abandoned", because Mr Ellis parked it in a stranger's driveway, in a position likely to block access to vehicles. An inventory search was inevitable, and the police would have found the gun. The court upheld Mr Ellis's conviction.

For Ontario officers who discover a recently-driven vehicle, this pair of decisions sheds a little light on whether it is "abandoned": if the car will be a nuisance to other drivers, then it may be abandoned. If it's parked normally, it may not. But other factors may lead judges to other conclusions.

For all officers, these decisions illustrate the limitations of search incidental to detention and search incidental to arrest. But I would add some cautions. The Ellis case does not establish a 50m limit for the "vicinity" of the arrest. Time also matters. Suppose you pull over a vehicle for an offence, and the suspect flees. If you chase him and catch him 100m from the car and arrest him, I think you can search his car incidental to arrest. But if you find him 30 minutes later, only 25m from the car, you can not.

Both cases emphasized the narrow scope of a search for officer safety. In the Ellis case, the suspect's gang associations justified police fears. The judges liked knowing that the officer who searched for officer safety returned the items immediately. This proved that the officer was not snooping for evidence. In the Dunkley case, they rejected the idea that the officer searched the empty car for officer safety: it posed the police no danger.

2016.08.09 Evading s.10(a) - Lying about why you stopped a target

Even though s.8 of the Charter guarantees everyone's privacy, judges can authorize you to intrude into the privacy of the targets of your criminal investigations.

But can you stop someone without telling them the truth about why? Section 10(a) of the Charter requires you to tell people why you detained or arrested them. But sometimes, you need to withhold the truth. Is there a provision of the Criminal Code which permits this?

Albertan police were investigating Mr Whipple, 2016 ABCA 232 and others for drug transactions. They didn't want their targets to know that a judge granted a wiretap authorization in respect of their communications. From intercepted communications, the officers knew that Mr Whipple would transport methamphetamine. They obtained a General Warrant under s.487.01 to search Mr Whipple's car. That order authorized the police to mislead Mr Whipple - if necessary - as to the reason for stopping him.

The officers actually found Mr Whipple committing a traffic infraction. They didn't need to mislead him about the reason for the traffic stop.  And they did, quite quickly, inform Mr Whipple of the drug search too.

Defence complained anyway.  They pointed out that s.487.01 creates exceptions to s.8 of the Charter, but not to s.10(a). The trial judge agreed, and ruled that the general warrant was invalid.

The Court of Appeal disagreed.

They observed that the general warrant authorized police to search Mr Whipple's car, which is a matter under s.8 of the Charter.  The fact that it authorized police do the search in an unusual way did not invalidate the general warrant.

The way they saw it, the interference with Mr Whipple's s.10(a) rights was necessary to the execution of a justified general warrant.

I dunno.  My gut urges caution. Because s.487.01 only permits police to do what would otherwise be an "unreasonable search or seizure in respect of a person or a person’s property", I still don't think that s.487.01 can be used - by itself - to authorize police to lie to detainees about why they were stopped.

In this case, if there was any authority to permit police to lie about the reason for a detention, I think it came from s.186 - the wiretap provision. If the wiretap operation required ongoing secrecy to achieve its purpose, then a judge exercising the wiretap powers could make a specific order pursuant to s.186(4)(d) ("... such terms and conditions as the judge considers advisable in the public interest") which would protect the secrecy of the authorization.

But I can think of situations in which no existing legislation could help.  Suppose a confidential source tells you that right now, a terrorist is driving to a daycare to blow up children. The source begs you to lie to the suspect about your reason for stopping him. She tells you that his colleagues know what he's going to do today, but only she knew which daycare he decided to hit. You find the suspect's vehicle on the road one block away from the daycare. It commits no traffic violations. Of course you stop the van. What do you tell the driver?

I think you should lie. The suspect has a right, protected by s.10(a) of the Charter, to know why you stopped him. You would violated that right. But the source has a right, protected by s.7 of the Charter, to life.

I think that Parliament should pass legislation by which a judge may authorize a police officer to lie about the reason for a detention. This case illustrates why such legislation makes sense. I also think that there should be an exigent circumstances exception.

I thank Cst. S.D. Smith for bringing this decision to my attention.

2016.08.05 Possession of Data in a Computer - Breadth of Search

Last year, I wrote about this case.  Last week, the Supreme Court of Canada weighed in. Although the court overturned the Alberta Court of Appeal's rulings, my suggestions for police remain the same. I repeat them here, so that you can see why.

Mr Villaroman 2016 SCC 33 brought a Macintosh computer to a computer store for repairs.  Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net.  Links in the file system suggested that someone viewed the files too.  The two people who lived with Mr Villaroman did not put the files there.  But was it Mr Villaroman?  The trial judge thought so, and convicted him.  The appeal judges weren't so sure.  The one account had no password. They said.

"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."

The Supreme Court of Canada found that the Court of Appeal erred in their re-assessment of the case by speculating about innocent explanations for the evidence in the computer. But the court also commented that a different trial judge could have acquitted Mr Villaroman based on the same evidence.

Even after reading the trial decisions (2012 ABQB 630, 2013 ABQB 279), I can't be sure I know just how much evidence the investigators actually discovered which linked the accused to the pornography.

It's clear that they sought judicial authority to search the computer for child pornography.

With the benefit of hindsight, I see that searching for probative non-criminal data might have helped.  For example, I don't think they looked for emails with similar date stamps as the pornography.  If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.

Can you snoop through the emails?  Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search.  Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant.  And the warrant should explicitly grant you that authority.

Playing armchair quarterback, I suggest that the investigator in this case could have sought authority "to search emails, stored communications and documents in the computer bearing date stamps close in time to the date stamps associated to the child pornography for evidence of who operated the computer at the times when the child pornography was downloaded, viewed or accessed."

2016.07.19 Search & Seizure - Reasonable Expectation of Privacy - Text messages in Other People's Phones

Mr Winchester bought guns. Legally. 45 guns over 6 months. Police received information that he sold them on the black market, and got search warrants for several places, and got Mr Winchester's cell phone. In it, they found text messages that proved Mr Marakah, 2016 ONCA 542 committed firearms offences. The trial court found that the police violated Mr Winchester's s.8 Charter rights during their search. Mr Marakah asked the trial judge to exclude the text messages from his trial because he still enjoyed an expectation of privacy over them. Even though the police found them in someone else's phone.

The trial judge found that Mr Marakah had no expectation of privacy in the text messages in Mr Winchester's phone. Even though police searched Winchester's phone unlawfully, the court admitted the text messages from the phone into Mr Marakah's trial.

Two out of three appeal court judges agreed with the trial judge. They rejected the reasoning of the BC Court of Appeal in Pelucco, 2015 BCCA 370, which reached the opposite conclusion in a similar situation.

But those Ontario judges didn't say what you wanted them to say: "A person who sends text messages to another person always loses any expectation of privacy in those messages." See para 78. An explicit arrangement or guarantee of confidentiality between sender and recipient may create an enforceable expectation of privacy. But that's the exception in most cases, not the norm.

Therefore, in Ontario, most of the time, the sender of text messages doesn't enjoy an expectation of privacy in them after they arrive in the recipient's phone.

When courts of appeal disagree with each other, the law becomes confused.

Because people use text messaging so much, on phones and other communication technologies, you want clarity.

Because one Ontario judge disagreed, Mr Marakah can, if he wants, require the Supreme Court of Canada to hear his appeal.


2016.07.16 Executing DNA warrants

Take a picture

Why would an officer take DNA samples from a suspect? The answer is easy: to identify the suspect. I suggest that if you do not know the suspect very well, you will want to take a photo of the suspect's face at the same time as you take the samples, so that you can remember whose DNA you got.

In a recent case of mine, a police officer in one city assisted another officer in another city by executing a DNA warrant on the prime suspect. The officer who executed the DNA warrant had no other involvement in the case, and met the suspect for only a few minutes.

Two years later, at trial, the officer couldn't remember the face of the defendant. Considering the purpose of DNA comparison, this tended to defeat the work he did taking the sample. Fortunately, he did take care record information from suspect's driver's licence, and compare the photo on it with the face of the suspect.

Can you take a picture of the person from whom you take the bodily samples? Defence counsel might argue that doing so violates s.8 of the Charter. "If it ain't in the warrant, you can't do it." I observe that the Criminal Code makes no provision for photographing he suspect at the time you take bodily samples. Instead, s.487.07(3) requires you to ensure that the suspect's "privacy is respected in a manner that is reasonable in the circumstances".

I think you can. In B.C., the case of Multani, 2002 BCSC 68, the court approved of officers taking photos of drivers they detain for traffic offences, for the purposes of identifying the driver afterwards. I think the same logic applies to the execution of a DNA warrant.

Indeed, I would go further, and suggest that you can video-record the execution of a DNA warrant for the purpose of proving compliance with the terms and conditions of the warrant. Police did this in an old case Kanuma, 2002 BCSC 355

Read the warrant

I learned recently that RCMP recruits learn at Depot how to take bodily samples for DNA analysis. The RCMP here in BC use a kit, which contains a checklist to follow. I suspect that someone trains them to follow the checklist.

Danger!

Checklists can make junior officers complacent.

When you execute a DNA warrant, your authority comes from the warrant, not the checklist. Read the warrant. If the warrant tells you to something different from the checklist, then obey the warrant.

2016.07.16 "'Ello, 'ello, 'ello. What's all this then?" - Detention at the earliest stage of the investigation


Angel Daley, 2016 ONCA 564 tried to pawn jewellery at Money Mart. Her friend Sharon Stockton, waited outside in Angel's car. The clerk the store noticed that Angel's jewellery resembled stolen jewellery depicted in a recent police flyer, so she called police.

The police who attended tried to figure out whether Angel's jewellery was the stolen jewellery depicted in the flyer. Meanwhile, they wouldn't let her go. Therefore, they "detained" her. For approximately 40 minutes.  Without telling her of her right to counsel.

From her, they learned about her car, waiting outside. An officer spoke with the friend, and saw more jewellery in Ms Stockton's possession that looked like stolen jewellery. He arrested her, searched the car, and found Angel's fentanyl, and a rather nasty knife.

At trial, Ms Daley's lawyer asked the judge to throw out the evidence: 40 minutes of waiting demands an explanation; and detentions trigger rights to counsel. They complained as well of an unlawful search.

The trial judge admitted the evidence, but the appeal court threw it out. Nobody explained why looking at some jewellery took 40 minutes. In the absence of an explanation, the detention was arbitrary. The officer should have given Ms Daley her right to counsel. (The judges agreed that the search was lawful.)

 We all know that you can overlook important evidence when you move too fast. This case suggests that you can also cause trouble by going too slowly while a detained suspect waits. I suspect that the officer stopped Ms Daley from leaving the store, and then slowly and methodically figured out what the problem was. If it looks like a detention will take a significant time, then you should talk to the suspect about lawyers. If it does take a long time, you may need to explain why.

2016.07.13

Production Orders for Stored Text Messages

Over the last several years, judges reached different conclusions on whether you need a production order or wiretap to compel a telephone company to disclose text messages stored in their servers. Last week, the Ontario Court of Appeal weighed in. Here's the current list, by province:

I think this issue is now pretty much decided: production order, not wiretap.

Similarly, a search warrant is an appropriate tool to search cell phones for text messages. Desjardins, 2014 QCCS 6790

2016.07.05 Agents - Lawful Justification

 - Role of Police

Last week, the British Columbia Court of Appeal published a decision it made 6 years ago. R. v. Lising, 2010 BCCA 390. I don't know why it took so long. It remains interesting reading for officers who deal with confidential sources and agents.

For 10 years, Michael Plante collected debts for the Hells Angels. In 2003, after an arrest for extortion, Plante decided to work for the RCMP by infiltrating the Hells Angels. The RCMP paid him handsomely: over $1M over several years. All he had to do was help the police bust the gangsters ... while committing enough crime that the gangsters would continue to trust him.

A cop named Bob Paulson oversaw the project. He saw a problem. The public pays police to prevent crime, but this project involved paying a guy to commit crime. That participation would make the police parties to Plante's crimes. Canadian law requires police to obey the law, not break it. Police officers don't get a mulligan just because they're trying to catch bad guys.

Fortunately, a couple of years earlier, Parliament passed legislation enabling specially-designated officers to authorize a person to do things that would otherwise be crimes. s.25.1.

If you use the legislation, then these acts aren't crimes, so I'll refer to them as "acts".

How does that work?

Investigative plans take time to develop. While working with police, Mr Plante intimidated witnesses, ripped grows, and trafficked in large quantities of drugs and firearms. It took many months for police to prepare a Letter Of Agreement (LOA) which set the ground rules for Mr Plante's immunity from criminal prosecution. (There were several LOAs after that.)

Although s.25.1 and similar provisions in the CDSA justified some of Mr Plante's "acts", others were crimes.

The investigating police were parties to the crimes. Defence applied for a stay of proceedings.

But Bob Paulson did some things the court liked.

The handlers did some things the court liked.

Mr Plante did some things the court liked.

These things resulted in:

Even though the police and Mr Plante did not comply immediately nor completely with s.25.1, the court denied the defence application, and the Hells Angels who were convicted at trial lost their appeal.

And Bob Paulson got a promotion.

Despite its age, I think this decision remains worthwhile reading for police officers. It reminds officers of highest principles: police enforce the law, but are not above the law. This applies as much to traffic cops as organized crime investigators. And it demonstrates practical steps you can take when working with nasty people.

 

2016.07.04 Search and Seizure - Warrant drafting - Avoiding "Step 6

"

A confidential source told police that Mr Reid, 2016 ONCA 524 kept firearms in a specific storage locker. Relying almost entirely on what the source said, police applied for, and obtained, a warrant to search that locker. They found guns. Lots of them. Stolen only a few days earlier.

What the police found suggests that this source enjoyed a position very close to the criminals. Obviously, this source would not want to be identified.

At trial, defence applied to quash the warrant.

As required by the case of R. v. Garofoli, [1990] 2 SCR 1421, the prosecution had to disclose a copy of the original application. Before doing that, the prosecution redacted (deleted) from the application everything that tended to identify the source.

This source was too good - almost everything s/he told the police tended to identify him/her. After redaction, what remained could not justify the issuance of the warrant. Mr Reid would win the application, and beat the charges.

The prosecution moved to Garofoli's "Step 6": the prosecution prepared a summary of the confidential source's information. The summary contained too little detail to identify the source, but just enough to explain why a warrant could issue. The prosecution gave that summary and the original unredacted application to the trial judge, and asked the judge to determine whether the summary fairly explained what the confidential source told police. The judge compared them, and found the summary accurate. The prosecution gave the summary to defence.

Working from the summary, defence complained that the original application failed to spell out what criminal record the source had, whether the source faced outstanding charges, and whether the source had previously given information to a police force. Defence complained this was essential information which the first justice needed in order to decide whether to trust the source and issue the warrant.

These are fair complaints, but they didn't succeed because of the very detailed information this source gave. In other cases these issues may make or break the case. When relying on confidential informants, search for this information, and include it as an appendix. Here's what you can write to achieve this:

I searched for source A's criminal convictions in CPIC [and any other database available to you], and I attach as Appendix A1 the complete list of what I found.

I searched for source A's outstanding charges in [whatever database is available to you], and I attach as Appendix A2 the complete list of what I found.

I investigated source A's past performance in giving information to police. I understand that 7 times in the past 5 years, source A gave police information about criminal activity. Further investigation confirmed the source's information 3 times. The other times, the source's information could neither be confirmed nor contradicted. I attach as Appendix A3 more detailed explanations of the information this source provided, and how further investigation confirmed it.

Naturally, the prosecution will redact the appendices. A1 and A2 tend to identify the source. But what remains in your application shows the trial judge that you disclosed the information which the first judge needed to assess the credibility of your source.

Similarly, you can summarize the source's information in your application, and include the details for the prosecution to redact. Suppose your source says "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns." That information identifies your source. You may summarize it, and include the detail for redaction:

Source A reported that Mr Reid possessed firearms in locker 13 at the premises of Vigilant Custodian Storage within the last 14 days. Source A claimed s/he obtained this information not by gossip, but from her/her own observation or by hearing or overhearing the words of a person who claimed direct knowledge. Specifically, Source A said: "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns."

Plainly, the emphasized portion must be redacted. What remains is true, but does not point so directly to the identity of the source. It leaves open the possibility that the staff at Vigilant Custodian Storage saw the guns, or that they or someone else overheard Mr Reid and the source talking. And the remaining information explains why a warrant should issue to search the locker.

Why should you bother preparing the "step 6" summary when applying for a warrant? After all, the prosecution can do it at trial.

Step 6 is controversial. In Mr Reid's appeal, he tried to argue that it's unconstitutional. Step 6 is tricky to do. If you lay the groundwork when you apply for the warrant, then the prosecution stands a better chance of success at trial.


2016.07.02 Exigent Circumstances Search


A woman called 911. She said she heard her neighbours arguing.  The male threatened to kill the female. The female cried and pleaded, “please don’t kill me.” She heard loud banging and crashing coming from their apartment.

Officers attended, and knocked at the door. No answer. After they knocked more, a woman answered. She refused to open the door. She spoke to someone behind the door, but she told police she was alone.

What would you do?

These officers feared that a man posed the woman serious risk of harm which they felt obliged to prevent.  They sought permission from superiors to break in. Before that occurred, the woman stepped out of the apartment, unharmed. Without her permission, the officers entered and searched. They found Mr Lowes, 2016 ONCA 519 hiding under a bed. They found drugs.

The trial judge excluded all the evidence. He reasoned that the officers could have assured themselves of the woman's safety by questioning her, by questioning the neighbor who made the 911 call or by getting a warrant.

The appeal court ordered a new trial.

The neighbor's information gave reason to fear for the woman's safety.  The woman's apparent lies at the door about who was home gave the officers reason to fear that the man was controlling and directing her.

In my opinion, the trial judge correctly identified an important principle: even in exigent circumstances, where life and limb are at risk, you should not search private places if there are reasonable alternatives by which you can ensure people are safe. But the trial judge's proposed alternatives in this case weren't reasonable. The woman already told lies; questioning her wasn't a good way to ensure her safety. The neighbor was in a poor position to assess the woman's safety. And the officers lacked sufficient grounds to justify any warrant. The appeal court found that entry and search was the reasonable response to the situation.

Therefore, this case provides some guidance for first responders who encounter similar situations all too often.

I particularly liked how these officers sought a second opinion from a senior officer before entering. In the excitement of the first response, it's easy to act without second thoughts.

2016.06.23 Search and Seizure Incidental to Arrest - Genital Swabs & Fingernail Clippings

Courts across Canada disagreed whether police could swab the penis of a man arrested for a recent rape.  This morning, the Supreme Court of Canada swept away the confusion. R. v. Saeed, 2016 SCC 24.

Yes. You can. If:

BUT, the court set guidelines:

  1. Do it at the police station if at all possible;
  2. Protect the health and safety of all involved - gloves and sterile equipment;
  3. Don't act alone - ask a superior officer for authorization;
  4. Tell the suspect what you are going to do, why, and what your authority is;
  5. Let the suspect remove his own clothing and swab his penis himself; or, "if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary";
  6. Officers of the same gender as the suspect do the swab "unless the circumstances compel otherwise";
  7. Minimize the number of officers involved;
  8. Do it in a private place where others can't watch;
  9. Don't strip the guy completely naked; expose only what you need to get the job done, and minimize the time during which he is exposed;
  10. Keep a complete record of what you did and why.

These are not rules. I suspect that number 5 may cause difficulty with some suspects. If your suspect won't strip or swab his penis properly, you can help him.

Mistakes other officers have made in other cases include:

Feel squeamish? From my experience prosecuting cases like this, I can see reasons to train officers to do this kind of forensic work:

2016.06.17 Arrest and Detention - Explaining Why - s.10(a)


Dennis Guthrie, 2016 ONCA 466 assaulted someone at the Shepherds of Good Hope shelter in Toronto. He hurt the guy badly. Police arrested him that night for "assault causing bodily harm". He didn't seem drunk or high. Police let him speak with a lawyer. Next morning, 11 hours later, an officer interviewed him.  He told the officer that he had no memory of the events of the night before.

At that point the officer said some important things:

This decision is very short and to the point.  An easy read.

Lessons to draw from it:

2016.06.11 Disclosure - Liability


"Those who cannot remember the past are condemned to repeat it." George Santayana 1906.

Ivan Henry 2016 BCSC 1038 recently received an award of $8M. He spent 27 years in jail for rapes he probably didn't commit. This decision explores what went wrong.

In 1980-1982, police investigated around 20 similar sexual assaults. Mr Henry's ex-wife told police that she suspected Mr Henry. Police assembled a live line-up to which a group of complainants attended.  One of them gave a qualified identification of Mr Henry.

Mr Henry, who suffered mental disorder, fired the lawyers he retained. He represented himself - poorly - at trial, and the jury convicted him.

Years later, prosecutors noticed a striking similarity between his charges and and other offences committed around the same time by a guy named McRae. A review led to the conclusion that the evidence suggested Mr Henry didn't commit the crimes for which he was convicted.

Although there were problems with the police investigations too, the bulk of the blame for this wrongful conviction fell on the prosecutor, who failed to disclose investigative materials to defence.

What relevance do prosecutorial mistakes made 35 years ago have to current police practice?  More than you might first expect.

Cross-referencing similar files might have discovered Mr McRae earlier, and taken suspicion away from Mr Henry. Collecting, organizing and assessing relevant information was a problem then. It's still a problem today.

The methods of conducting lineups described in the decision may seem antique to you, but complacency about our methods today will lead you astray. Even today, some officers still tell eyewitnesses after the photo-lineup whether they got the identification "right".  Even today, we see photopacks containing images of the suspect which differ markedly from the other faces.

2016.06.01 Warrants - Night Search - Arresting the Occupants

A junior officer made a common mistake. A senior officer's experience saved the day. Understanding the principles involved could help your next case.

A storage locker facility renovated, and discovered that one of their lockers contained a bunch of firearms. So they called police. Police got a search warrant and found 4,000 rounds of ammunition and 1.5 kg of ecstasy in the locker along with a machine gun, an assault rifle, and sawed-off shotgun and 7 other pieces.

The junior officer drafted an application to search the residence of the person who rented the locker. He didn't think he had grounds to believe that the residence contained firearms, so the warrant asked only for authority to search for keys and documents of ownership. He got started in the morning, but didn't finish until shortly before 9:00pm.

He forgot to ask the justice for permission to search the residence "at night".

The justice signed the warrant at 9:02pm, but it did not specifically permit police to search by night.

The junior officer radioed the rest of the team, which was watching the residence.  The senior officer watched the woman who rented the storage locker leave her apartment with a man. The officer knew little about the woman, but he knew a great deal about Mr Robinson, 2016 ONCA 402, the man with her.  Mr Robinson embraced and kissed her.  The officer knew Mr Robinson to be a "player" in the local criminal underworld, a man who dealt with guns and violence. The senior officer knew who dealt in guns often kept some in their residences.

The senior officer ordered the arrest of Mr Robinson for possessing firearms. On his person, they found keys to the storage locker and the apartment. That night, they found guns and drugs in the apartment.

Defence complained that the police had no authority to search at night. The judge agreed. Night starts at 9:00pm. Police officers shouldn't execute regular search warrants at night without specific judicial authority. s.488.

Defence complained that police had no authority to arrest Mr Robinson: If the junior officer didn't have grounds to believe that there were guns in the apartment, then the senior officer had no grounds to arrest him for possessing firearms.

The judges disagreed. The logic here matters:

  1. A search warrant does NOT authorize any arrests.  A search warrant authorizes searching. If you want to arrest someone associated to the place you search, you must know for yourself why you think the person probably committed an offence.
  2. The junior officer didn't believe the apartment contained firearms. He didn't have enough information to reach that conclusion. But the senior officer had more information than the junior officer. He saw the association between the renter of the locker and the known gun dealer. From that he could infer that the gun dealer controlled the guns, and was in actual or constructive possession of the firearms.  He could arrest Robinson.

The senior officer testified that he thought the warrant authorized a search for firearms. He was very surprised that the junior officer did not ask the justice for authority to search for guns. The senior officer would have identified firearms as the first thing to look for in the apartment.

I don't think this reflects badly on the junior officer. Although he suspected guns would be in the apartment, he didn't think he could say that it probably contained them. When applying for a warrant, you shouldn't ask for authority to search for things you hope to find unless you think it probable that you will find them.

The senior officer made a quick decision to arrest Mr Robinson. It was the right decision because he knew the underlying investigative facts.

At the time of the arrest, the senior officer didn't know what the warrant authorized. From the judgment, it appears that defence counsel suggested this fact mattered. I disagree. The practicalities of getting the warrant from the justice to the scene prevented the senior officer from reviewing the warrant at the time of arrest. That didn't matter ... as long as the senior officer knew the underlying investigative facts, he would actually have reasonable grounds to arrest.

But communicating the contents of the search warrant to the scene does matter. Members of the search team needed to know what searching the warrant authorizes. Bringing a copy of the warrant to the scene does matter. Section 29 requires you to do so "where feasible", and to show it to people who want to see it.

The judge forgave the night search as an inadvertent error. The judge convicted Mr Robinson of possession of firearms and drugs in the apartment. The judge acquitted him of the guns at the storage locker because the evidence wasn't clear which locker the guns and drugs came from.

In conclusion:

  1. Never arrest someone just because you have a warrant to search their place.
  2. Arrest if you have grounds.
  3. Night starts at 9:00pm. Warrants under s.487 require separate justification.
  4. Officers on teams that execute search warrants should know what the ITO says.
  5. Bring the warrant to the scene.
  6. Officers who search should read it.

2016.05.27 Hard Arrest & Isolating the Prisoner

Police received a tip that marijuana grew inside a house at 24 St. Claire Avenue. Hydro records tended to confirm it, but those records identified the house at 21 St. Claire Avenue as equally suspicious. Both houses smelled of weed. FLIR showed strange heat patterns coming from both.

Just before executing search warrants for the two residences, officers saw Ms Pino, 2016 ONCA 389 carry a box from number 21 St Claire Avenue. She put it in the trunk of her car and drove away. They followed her. She drove to Value Village, where she got into the passenger seat, and a man took the wheel.

Two officers arrested Ms Pino and her companion. One officer drove an unmarked car. He wore black clothes and a black mask over his face. Only a police vest identified him.

The box contained 50 clones.

To prevent Ms Pino from tipping off her neighbors or others who might destroy evidence, the officers did not permit her to call a lawyer until after the search. It uncovered a large grow operation in her house.

At trial Ms Pino complained of excessive force used during the arrest. She and her friend testified that the masked officer drew his gun and pointed it at her. He terrified them unnecessarily.

The masked officer denied drawing his gun. The other officer "couldn't remember" whether or not his partner drew a gun.

The judge believed the defendants over the officers.

Ms Pino complained that police did not properly advise her of her right to counsel. The arresting officer recited the s.10(b) warning for memory at the scene because he didn't bring his duty book, which contained the standard card. At court he could not remember the wording.

Ms Pino complained of unnecessary delay after the search in permitting her to speak with a lawyer. The search started at about 3:30pm, but she didn't get to talk to a lawyer until 6:40pm (when most lawyers have left their offices). Once the police arrived at St Claire Avenue with all the vehicles and people necessary for the searches, there was no longer any point in keeping the investigation secret.

Although the trial judge admitted the evidence, the court of appeal found there were too many serious breaches of Charter rights, and excluded it. Guilty as she was, Ms Pino beat all the charges.

The full truth about this investigation can not be determined from reading the decision. Maybe the defendant lied to beat the charges. Maybe the officer never drew his gun. If so:

Maybe the officer did draw his gun. If so, then:

Aside from use of force, the arresting officer garbled his recitation of Charter rights in the court room. If you're gonna explain the rights by memory, then make sure you can always recite them accurately.

And finally, giving your prisoner prompt access to counsel always matters. You can suspend access to counsel if you fear that the prisoner will foil a police investigation.  But after you enter the property, it's time to let prisoners call their lawyers.

 

2016.05.17 Investigative Detention

 - How Long can you Hold a Suspect in Investigative Detention?

Doherty J.A. didn't like what the police did after they stopped Mr McGuffie, 2016 ONCA 365. Doherty is a respected judge whose words will inspire defence lawyers to criticize lengthy investigative detentions. This decision is worth reading.

Someone told police that a group of men down at the bar were passing a handgun around. When officers attended to investigate, bouncers pointed out Mr McGuffie, who was walking away in a hurry as one of the group.

An officer stopped him. And handcuffed him. And patted him down. The officer found nothing at that stage, but put him in a police car with another police officer, pending further investigation. The officer said nothing about access to lawyers.

It wasn't a very good pat-down search. Half an hour later, the officer searched him again. This time, he found a package of cocaine, for which the officer arrested him. Mr McGuffie said he wanted to speak to a lawyer. Half an hour later, the officer took him to the police station - several blocks away, where he arranged for a strip-search. By this time, other officers had already found the gun they were looking for. They found more drugs in his clothes and between his buttocks. After the strip-search, Mr McGuffie finally got to talk to a lawyer.

The judges agreed that the officer had sufficient reason to detain Mr McGuffie, but criticized him for not advising Mr McGuffie that he could talk to a lawyer. The judges agreed that the concerns about firearms justified the initial pat-down search.

But they didn't like what followed.

They didn't like the half-hour of sitting around. They didn't like the hour that passed before Mr McGuffie got access to counsel. They didn't like the second search. If it was really for officer safety, why was it okay to leave him in the police car with an officer for half an hour?

It's easy to see how events distracted the main officer in this case. When he first arrived on scene, he probably felt pressed for time. He wanted to secure one suspect, and then make sure others did not escape the area. He likely gave the initial safety search short shrift, figuring he could return to Mr McGuffie later. And then he got busy with other matters.

But constitutional rights are assessed from the perspective of the claimant. When the handcuffs clicked around Mr McGuffie's wrists, he couldn't go anywhere. He was detained, and he knew it. Section 10(b) says that on detention, he has the right to counsel "without delay". But he didn't get to speak to a lawyer for over an hour.

Police may search a detainee for officer safety. The first search was okay. But the second one looked an awful lot like a search for evidence. And until you have grounds to arrest, you can't a detainee search for evidence of crime.

It's easy for first-responders to fall into the traps that caught this officer. For that reason, it's worth discussing. How would you avoid the pitfalls?

2016.05.08 Group Attacks

 - Who Done the Damage?

The bouncers didn't like Mr Ukwu. After they threw him out of the bar, one bouncer, Mr Taing knocked him down with a punch. Mr Ukwu got up, and then the other bouncer, Mr Brouillard, 2016 ONCA 342 knocked him down again. He stayed down, because this time his head hit a curb. He suffered life-changing head injuries.

Sure, Mr Brouillard could be convicted of aggravated assault.

What about Mr Taing? His punch didn't cause the head injury.

Yup: Mr Taing was also guilty of aggravated assault. But only because he acted in concert with Mr Brouillard.

When a mob attacks, the evidence often fails to identify who caused the injury or death. If you can't find that evidence, look for evidence which determines whether they acted together.

2016.05.02 Reasonable Grounds and Confidential Sources


Was the information three confidential sources gave police sufficient to justify arresting Mr Dhillon, 2016 ONCA 308? Judging whether you have reasonable grounds for an arrest based on confidential source information requires a gut feeling for what judges will do. This case helps.

All three confidential sources told police officers that Mr Dhillon dealt drugs. Two told police that they bought drugs from him. None had given information to police before; but none were anonymous.

Police watched Mr Dhillon, and saw him meet several people for short periods of time. When they attempted to arrest one of his visitors, that person fled. That guy carried $3,000 when they caught him.

Fearing that word of that arrest would get back to Mr Dhillon, police arrested Mr Dhillon.

Did they jump the gun?

Defence attacked the independence of the confidential sources: did police know that the sources were all different people?

Sorta.

The officer who decided to arrest Mr Dhillon knew that two sources were different people, but couldn't be sure that the last one was not the same person speaking to two different officers.

Defence suggested a conspiracy: at the time of deciding to arrest Mr Dhillon, could the officer be sure that the sources did not make up a story together just to get Mr Dhillon into trouble?

Officers handling these sources told them that giving false or exaggerated information would result in non-payment, or even criminal charges. They dealt with these sources personally.

The defence arguments persuaded the trial judge, but not the appeal court.

This decision highlights communications between source handlers and the officers who rely on source information. Independence of sources, and their personal knowledge took the appeal court half of the way to the point of finding that there were reasonable grounds for the arrest. Confirmation by way of observing suspicious transactions carried them the rest of the way.

2016.04.27 Voluntariness and Confessions - What the Judge may Think


Police arrested Mr Donard, 2015 SKCA 83, and told him they were investigating him for an aggravated assault. But the officers also asked him about some rumours going around that Mr Donard murdered someone named Yooya.

The officer who interviewed him suggested that a judge would want him to be truthful and if Mr. Donard told the truth, he might not have to sit in jail as long.

That's a problem. Judges don't like it if you link the idea of confessing to the hope that the justice system will give the suspect a break. It puts unfair pressure on the suspect. Don't raise that idea yourself. If the suspect asks, avoid it. "I can't tell you how a judge is going to feel, or what a judge is going to do."

After that conversation, Mr Donard admitted killing Yooya. The officer immediately arrested him for murder, and told him his Charter rights. But the officer did not tell him the secondary warning.

Mr Donard made several more statements about killing Yooya.  The trial judge found most of them inadmissible.

If you arrest someone for an offence, and you want to investigate him for another offence as well, you should mention both offences when offering him access to counsel. "Jimmie: I'm arresting you for aggravated assault, but I'm also investigating the disappearance of Mr Yooya, and I suspect you might be involved. You have the right to retain and instruct counsel without delay..."

If an interviewing officer does stray into linking confession with lenience in the court room (or maintaining silence will aggravate the judge), then as soon as possible, someone needs to give the suspect the secondary warning.

The big problem for you is how to start afresh without tainting the second statement with anything discussed in the first statement.  If you identify the improper inducement, you may re-emphasize it. It's better if a different officer takes over, and starts afresh. Read the secondary warning, but discuss it too. "Jimmie: Cst Mistake made a mistake in his interview.  Everything you told him before is off the table. I'm starting fresh. I don't know what you told Cst Smith, but anything he told you, anything you guys talked about, it's off the table. If he said anything that made you think you should tell police officers about what happened to Mr Yooya, just ignore what he said."

Really start afresh. Do not refer to admissions obtained in the earlier statement (unless they arose before any improper inducement).

In Mr Donard's case, the police arrested Mr Donard a month later for the murder. They gave him an extensive opportunity to consult with counsel. He gave a further confession. The court admitted the last statement into evidence, but not the earlier ones.

2016.04.23 Search & Seizure - Exposing your Sneaking and Peeking


Informants and tipsters told police that Mr Coderre, 2016 ONCA 276 dealt drugs from his residence. But when would the drugs be there? Instead of simply knocking on the door and searching the place, the officers got a general warrant which permitted them to sneak in and snoop about, without telling him. The case doesn't say why they needed such permission, but I suspect that they wanted to arrest him when he actually possessed drugs.

Section 487.01(5.1) requires "sneak and peek" warrants to include a notice requirement. The judge must order the officers to return later, and inform the person whose privacy they violated about what they did.

This sneek-and-peek order properly included a notice provision.  It required the officers to tell Mr Coderre about their covert entry into his house. They had 6 months.

The officers didn't find drugs when they snuck in. But their source information made them pretty sure they would catch him some time soon.

Around 6 months later, they got more information.

What should you do? If they told Mr Coderre about the first search, then he'd make sure they never caught him.

Days after the 6-month mark, these officers applied for a new search warrant. In the ITO they explained that they had failed to comply with the notice requirement. And they asked for permission to search his place again.

They got it. They searched. They found drugs. They busted him.

At trial, he complained that they breached his Charter rights by failing to comply with the notice requirement.

The court agreed.  But the judges liked how honest the police were about this. The evidence went in anyway.

Don't expect they'll always forgive this breach.

If you have a deadline, diarize it, and make sure get the notice done before the deadline.

What if you find yourself in the same position position as these officers? Giving notice would wreck your ongoing investigation. One thing these officers did right was to confess their mistake right away. That honesty paid. There's another solution: apply to court for an extension on the deadline for notice.

And that's where a little planning could save you some grief. If you're drafting a "sneak-and-peek" warrant, you might want to slip a little extra language into the terms and conditions:

Subject to further order of this court, the peace officers who execute this warrant shall, no later than (date), notify (names of persons whose privacy will be affected) of the warrant and its execution.

Those magic words turn an application for an extension into something the original judge contemplated and permitted.

2016.04.13 Search & Seizure - How to "Fix" Broken Warrants

Officers investigating internet luring needed a warrant to get Mr Craig's 2016 BCCA 154 information from Nexopia's servers in Alberta. Although the ITO properly identified the username of the account of interest, the draft warrant misspelled it. The judge granted the warrant.

A police officer learned of the problem and asked Nexopia to produce information using the correct username. Another officer added words to the warrant, so that Nexopia would search not only their servers but also "compact discs or digital video discs (DVD) containing" the interesting data.

That was a problem.

As a peace officer, you have no authority to change a judicial order. If judge orders the wrong search, then get a judge to fix the order.

The officers' "little" corrections led to problems.

2016.04.13 Search & Seizure - Reasonable Expectation of Privacy - Private electronic communications


Mr Craig 2016 BCCA 154 sent Nexopia messages to a 13-year old girl. She said they met once. Then his messages became more sexual. The second time they met, he had sex with her knowing she was underage. Eventually, word of this reached police, who sought warrants to get data from his Nexopia account ... and her account, as well as the Nexopia accounts of two of her girlfriends.

As set out above, there was a problem with the warrant.

After charges were laid, the prosecutor tried to circumvent the problem. Rather than relying on the messages from Mr Craig's account, the prosecution relied only on the messages from the girls' accounts. The prosecutor argued that Mr Craig could complain about unlawful searches of his data, but he can't complain about the unlawful searches of other people's data.

It worked at trial, but the Court of Appeal disagreed.

In a fully considered judgment which I expect will re-appear in the future, the court concluded that Mr Craig enjoyed an "expectation of privacy" in the messages he sent to the three girls, even if the police got that data by searching the girls' accounts.

How can this be?

The court explained that Mr Craig knew that only the girls would receive the messages he sent. He knew that everyone on Nexopia had password-secured accounts. Therefore, he reasonably expected that he enjoyed privacy in the messages, even after they arrived at their destination accounts. He could expect that the government would require warrants (or other lawful authority) to get at the messages he sent.

The court gave a preview of these conclusions in a case I mentioned last year: Pelucco, 2015 BCCA 370. In that case, the police searched a drug dealer named Guray pursuant to an illegal arrest. They found text messages from Pelucco on Guray's phone which suggested that Mr Pelucco was selling him large quantities of drugs. Using Guray's phone, police communicated with Pelucco, and used the messages they received to bust him. At that trial, defence complained of the illegal search of Mr Guray's phone. The prosecution argued that Mr Pelucco enjoyed no expectation of privacy in text messages he sent to another person's phone therefore he had no standing to complain of the police search of that phone. The court found otherwise.

What does this mean for police in B.C.? If some witness or victim received messages by some private communication system (text message, email, private Facebook conversation) from the target of your investigation, then you need lawful authority to get those messages from the victim's account

In my opinion, "lawful authority" may come from the informed and voluntary consent of the account holder. Or a warrant.  Or even a search pursuant to exigent circumstances. Others disagree.

In murder cases, unless you obtain consent from the victim's lawful heirs, this suggests that you need a warrant to search the deceased's computer or cell phone for messages from the suspect.

What about police in other provinces? I can't predict what your courts will do. I can say that getting consents and warrants for this kind of information will protect your investigations against arguments of this sort.

2016.04.13 Search & Seizure - Report to A Justice

The officers who investigated Mr Craig 2016 BCCA 154 used a warrant to get data about him from Nexopia. They forgot entirely to report to a justice what they got.

The court concluded that this breached Mr Craig's rights.

Unfortunately for Mr Craig, despite finding all these breaches of his rights, the court concluded that the evidence against him should be admitted into trial anyway.

Don't gamble on your investigations. Report what you seize to a justice. Get into the habit of completing Form 5.2.

The new production order section could have saved them some embarrassment. See 487.0192(4).

2016.04.09 Inventory Searches


Under some motor vehicle legislation, when you impound a vehicle, you have the authority to conduct an inventory. The law permits police to do this to protect officers and police forces from civil liability.

An officer found Mr Harflett, 2016 ONCA 248 driving without a valid licence. He needed to pay some fines, and he could drive again. The traffic stop occurred on a busy highway. The officer arranged to tow Mr Harflett's vehicle to a hotel. Mr Harflett would pay his fines, and then be free to drive away. But before the tow-truck driver hauled the car away, the officer did an inventory search.

That's how he found the "large quantity" of marijuana.

The officer testified that he "always" did "an inventory", and claimed this was not a "search".

The trial judge bought this explanation, but the court of appeal did not. The officer did not impound the vehicle. Mr Harflett was going to stay with it all the way to the hotel. The officer had no need to make an inventory of its contents.

"... the power to detain an individual under the HTA does not inevitably include the power to detain or impound a vehicle, nor does it include the power to conduct an inventory search in every situation."

Calling a search an "inventory" won't make it legal unless it's really an inventory search.  You need:

Using "inventory search" as an excuse to snoop through a suspect's vehicle violates the suspect's s.8 Charter rights.

2016.04.05 Arson Investigation - Circumstantial Cases

Most arsons are hard to prove. Often, the arsonist hopes to recover money from insurance policies, and therefore plans and executes the crime.

Ms Nguyen, 2016 BCCA 133 ran a nail salon in rented premises. The trial judge found her guilty of setting it on fire. The appeal court found no error. Let's see what the investigators did right:

I suspect that these investigators did a good deal more work than the points identified in the decision.

Arson investigation takes imagination, luck and diligence. Arson arises rarely enough that most investigators don't get to learn on the job; but arson occurs often enough to defeat investigators who lack training or experience. Therefore, it may be worth investing some time preparing for the next arson investigation.

2016.04.01 Too Much Evidence

, or Not Enough?

Somebody stabbed Ricardo Kelly to death in an apartment building hallway.

Whodunnit?

Security video recorded who went where in many parts of the building. Investigators obtained lots of it.

Kelly's girlfriend saw the assailant, but didn't get a very good look. She gave several statements which described the assailant. Months after the killing, investigators showed her security video recordings of the four most likely suspects. She rejected two of them because she knew them. She picked one of the other two, Mr McCracken, 2016 ONCA 228 as the assailant. 

Some might think that her identification solved the case. But it was fraught with problems. Her initial descriptions of the assailant differed from the man she picked. One wore a hat, the other didn't. Watching the video did not put her in a position of identifying a person she recognized. Instead, she identified the most suspicious person. And furthermore, before seeing the video people in the apartment told her things which might have caused her to choose McCracken, whether he was guilty or not.

However, careful analysis of the video and phone records led to strong circumstantial evidence which independently supported this identification. Mr McCracken's conviction withstood review on appeal.

The victim, Mr Kelly, sold marijuana in the building. Someone in apartment 1610 called him for a dime bag. A Mr Stevens, who frequented that suite, agreed that he made the call. But when Mr Kelly failed to turn up, Mr Stevens never called back.  Why not?  Perhaps because he knew what happened.

Phone records established a close relationship between McCracken and the people in apartment 1610. The security video put Mr McCracken in or near apartment 1610, along with the other suspect. And the other suspect had a beef with the victim.

The other suspect didn't look at all like the assailant.  That left only McCracken.

Courts do not trust eyewitness identification of strangers, particularly from events as frightening as this one. Therefore, these investigators wisely searched for other ways to identify the assailant. The security video established more than who was in the hallway at the key moment. Because the officers secured more video than the just the killing, it told them what the relationships were between the various people in the apartment building.

Telephone records established more than who called for the drugs. Mr Stevens, for example, denied knowing Mr McCracken. But his telephone records showed that Mr McCracken called him 4 times that day.

When you apply for a production order or search warrant you must collect only information relevant to an offence. However, the relationships between key players in an offence may prove important. And evidence of relationship may occur long before, and even after the incident you investigate.

A warrant which seeks unnecessary information is overbroad. A warrant which seeks too little may leave you without the background evidence.  How do you balance this?

As the next case suggests, you can sometimes focus your requests.  Do you want all phone calls made by the suspect's phone in the month prior? Perhaps that's too broad.  Maybe you want all phone calls between the suspect, and people who live in the apartment over that time frame.

If you need a warrant to obtain security video, how much of it can you say is probably relevant?  If you ask for video which shows only the short time around the attack, you will miss video which shows relationships between the parties in the days or weeks prior to the attack. Do you have reason to believe that identifying relationships will solve the case? If so, you can ask for more video.

One other thing emerged from this decision: the police audio-recorded the eyewitness as she reviewed the hallway video. But they did not video-record her. That hampered review of what occurred. If court can't see the security video at the moment that the witness exclaims "that's him", then the court doesn't see who the witness identified. If you're going to show security videos to an important witness for the purposes of identification, try to set it up as much like a photo lineup as possible. Videorecord the process if possible.


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