2019-05-20 Reasonable Grounds - Relying on Databases
Most people don't like being arrested. Some of them tell you that you have no right to arrest them. To do your job, you must develop a thick skin, and a clear understanding of your powers.
That does not mean you can ignore every objection.
Mr Gerson-Foster, 2019 ONCA 405 got bail. He persuaded his sister to go surety for him. After several months, his sister no longer trusted him to behave lawfully. She asked the court to remove her obligation. That meant Mr Gerson-Foster no longer had bail. The court issued a warrant for his arrest.
Mr Gerson-Foster must be a persuasive guy. He persuaded his mother to go surety for him instead. He voluntarily attended the court house, and the judge changed his bail documents.
But someone forgot to remove the warrant from the CPIC database.
A month later, officers found Mr Gerson-Foster and arrested him because of the warrant. He told the officers that the warrant was cancelled. The officers didn't check any further than CPIC.
His sister was right. Mr Gerson-Foster was misbehaving. The officers found lots of drugs on his person, for which they laid new charges.
At trial for the drug charges, Mr Gerson-Foster challenged the lawfulness of the arrest: the warrant was no good, and because of that the police should never have arrested him, and they shouldn't have searched him. He asked that all the drug evidence be thrown out. He didn't persuade the trial judge, but he did convince the appeal court.
This doesn't mean you must release every prisoner that claims that your arrest is unlawful. Indeed, Paciocco J.A. specifically remarked:
an arresting officer is not required to believe what an accused person says, and I appreciate that an arresting officer may “disregard information which the officer has reason to believe may be unreliable”
But if the prisoner tells you information that could reasonably be true, you ought to look into it.
2019-05-13 Reasonable Grounds - Believing and Knowing
The difference between belief and proof is evidence.
An Ontario detective received a Crime-Stoppers tip that Mr Chioros, 2019 ONCA 388 dealt lots of cocaine. The tipster said that parked in his driveway were a Harley, a Mustang and an Audi.
Two weeks later, the detective went there and saw the Audi. but not the other cars. The officer watched Mr Chioros. Three weeks after the tip, he saw Mr Chioros driving with Mr Daniels. The detective remembered Daniels from high school. At high school, Daniels had a reputation as a drug dealer. Confidential sources also told the detective that Daniels was a drug dealer. The detective saw Chioros and Daniels go to an apartment building. A guy who recently had a problem with a drug dealer showed up there, stayed for a short time, and then left. The next day, when police watched Mr Chioros, he drove in a manner consistent with trying to shake people watching him. Later that day, he went to an apartment building which contained 150 units. An anonymous tipster had previously told police that another drug-dealer stashed his drugs there. Mr Chioros emerged an hour later carrying a bag full of something.
In early November, the officer saw Mr Chioros in the company of yet another known drug dealer.
A few days later, Mr Chioros went to the 150-unit building. An hour later, he emerged carrying another bag. They arrested him and found lots of cocaine and marijuana.
The defence complained that the police lacked reasonable grounds to believe that Mr Chioros possessed drugs. The appeal court agreed, and threw out the evidence.
What went wrong?
- The first tip (Chioros deals drugs) was uncorroborated, and partly wrong (no Harley, no Mustang).
- The information about Daniels was hearsay, and uncorroborated.
- The information about the drug stash in the 150-unit building was uncorroborated. Even if it was true, the the officer lacked any evidence that Mr Chioros went to the one apartment that contained drugs.
If you start with the assumption that the first tip was true, then all the remaining incidents look highly suspicious. But if you start with the assumption that the first tip was false, it's easy to explain away the remaining events as minor coincidences, and not strongly probative.
I observed the judges used the phrase a "known drug dealer".
Avoid using the phrase "X is known to be a ....".
It fails to answer the question "how do you know it?". Try instead, to complete the sentence "I believe X to be a ... because____". If you fill in the blank with "... an anonymous and uncorroborated tipster said so", then you haven't got very strong grounds for that belief.
2019-05-15 B.C. Only - Tele-Information for Provincial Offences
*** 2019.05.18 Edit: I'm sorry. I later corrected this post. It's not as interesting as I thought. I moved too quickly when I first wrote it. - HW ***
Today, section 13.1 of the B.C. Offence Act came into force:
13.1 (1) A peace officer may lay an information by any means of
telecommunication that produces a writing.
(2) A peace officer who uses a means of telecommunication for the purpose of laying an information must, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the peace officer's knowledge and belief, and such a statement is deemed to be a statement made under oath.
See s.7 of the 2018 Miscellaneous Statutes Amendment Act (No. 3) (Bill 36)
2019-05-04 Voluntariness - Interview Tactics
I'll bet it took police officers in Alberta considerable time to prepare their interview of Cory Lavallee, 2018 ABCA 328.
Somebody shot Donnie Brown in the face. Four people could have done it. Cory was one of them.
Investigators had to work carefully. Cory associated with criminal gangs. Interviewing him wouldn't be easy.
The officers recorded Lavallee's mother and his sisters urging him to confess. They hung pictures of his daughter on the walls. Mr A.M., one of the four, sought police protection and cooperated. They arranged for A.M. to talk to Lavallee during the interview. They arranged for Mr Lavallee's girlfriend to attend the interview room, and urge him to tell the police the truth.
Cory confessed: "[Y]eah, I shot Donnie. I'm sorry for shooting Donnie. Right. I am."
Defence urged the trial judge to exclude the evidence. All this pressure could have convinced Cory to confess falsely.
The judges disagreed. The police and their agents - A.M., the girlfriend, the recordings of his family - everyone used moral suasion. They told him to do the right thing. Tell the truth. None suggested that court or the judge or the prosecutor or the police would treat him better if he confessed.
As I reviewed the facts, I saw many ways this could have gone wrong. Indeed, A.M. made a remark which could possibly have meant "take the fall for this, or else gang members will come after you".
I presume that the rest of Mr A.M.'s remarks dispelled this concern. The judge's weren't worried about it.
- make or use statements which suggest that the suspect "must" confess, regardless of the truth.
- prepare for the interview
- appeal to moral reasons for confessing: "it's the right thing to do."
- control what the accused's friends and relatives say to your suspect - they are your agents, and are subject to the same rules as you.
2019-05-04 Voyeurism - Terms of Engagement between Intimate Partners
Mr Trinchi, 2019 ONCA 356 had a long-distance girlfriend. He lived in Toronto; she lived in Thunder Bay.
Rarely did they see each other in person, so they spent lots of time on Skype. Sometimes she posed nude for him in provocative poses. He didn't tell her that he was taking screenshots.
When their relationship broke down, someone sent those screenshots by email to her friends and colleagues.
Distressed and embarrassed, she complained to police.
Charges of voyeurism and transmitting intimate images followed.
He beat the charge of transmitting intimate images. His lawyer elicited evidence at trial that maybe a different (vindictive) girlfriend used his computer and sent the pictures.
But the voyeurism charge stuck.
This decision is interesting for a legal point. Voyeurism occurs when the victim has a reasonable expectation of privacy, and the defendant "surreptitiously" observes or records her.
This victim's expectation of privacy was limited. She knew that Mr Trinchi was watching; indeed, she wanted him to see her nakedness.
But once he started taking screen shots without her knowledge, he committed a crime. She didn't pose for the world, just him. She didn't intend him to take pictures, and he knew it. That's why the voyeurism charge stuck.
This decision is interesting for a practical point: people can do interesting things to each other with cell phones these days.
I wondered whether a more complete investigation could have determined whether he or the vindictive girlfriend actually sent those nasty emails. The story at trial was more interesting than the summary given at the appeal. It's a tale of infidelity, jealousy, and devious cellphone technology. This was probably a difficult investigation and a difficult prosecution. I can't tell from the trial decision if there were investigative steps the officers should have taken; but you might find it useful to know about the existence of "Mobile Spy".
2019-04-28 Road Rage - Intimidation
I rarely see charges under s.423 of the Criminal Code. It lives under the heading "Breach of Contract, Intimidation and Discrimination Against Trade Unionists", which hints at its coloured history as a tool used against organized labour.
But it applies to other conduct too.
Mr Orton, 2019 ONCA 334 didn't like how another driver nearly cut him off. Mr Orton yelled at the driver to pull over. When the other driver kept going, Mr Orton attempted to block his truck with his car. The other driver drove around him. To catch up with the other driver, Mr Orton overtook other vehicles by driving on the wrong side of the road. When he caught up with the other car, he tailgated the other driver's vehicle "for a considerable distance".
That section defines the offence of intimidation 7 different ways. The core of it involves doing bad things for the purpose of compelling someone else to stop doing something they have a lawful right to do.
The Court of Appeal agreed that Mr Orton intimidated the other driver within the meaning of this section.
Don't lay that charge for every instance of road rage you encounter. Save it for the cases where one driver does scary or nasty stuff for the purpose of preventing the other person from doing something lawful. But if the charge fits, maybe we should use it a little more.
2019.04.22 Impaired Driving Regime - Applying the New Alcohol
A reader from Lethbridge emailed me a series of questions about investigating impaired drivers. They're sufficiently interesting that I thought I should post my thoughts here.
1. A driver appears grossly intoxicated by alcohol. Should I use the ASD?
There is no obligation to use a screening device, just because it's available. R. v. Beaudry, 2007 SCC 5 at para 45.
Heck, the legislation itself says that you shouldn't.
Section 320.28(1) governs breath analysis demands. It says:
"If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable..."
If you're gonna make a demand for breath analysis, you must make it "as soon as practicable". If you already know that this driver is too drunk to drive, then screening this driver's breath with an ASD will waste several minutes. All it will tell you is what you already know: this driver has too much alcohol in his/her body.
Using a screening device in these situations introduces doubt into what should be a clear situation. The defence will argue "the officer claimed that my client looked grossly drunk, but the officer wasn't sure enough of his/her opinion, and used the screening device to make certain. Therefore, my client didn't look as drunk as the officer suggests."
Please note that I phrased this question as "appears grossly intoxicated". That standard differs from the usual "reasonable and probable grounds". If you form your opinion from subtle indicia - a slurred word, some fumbling with a licence, an odour of liquor - then there's no harm confirming that opinion with an ASD. When the defence lawyer challenges your procedure, you can explain it this way.
Q: Officer, you told us that you formed the opinion that alcohol impaired my client's ability to operate a motor vehicle?
A: I did.
Q: But after you formed that opinion, you screened his breath with an ASD?
A: Yes, I did. But I'd like to explain why. The indicia of impairment that I observed weren't gross impairment. I was pretty sure your client had too much alcohol in him, but I used the ASD as a double-check, just in case I was wrong. Because if I was wrong, analyzing his breath was going to waste an hour of his day and mine.
2. After I form grounds to make a breath analysis demand, should I arrest or detain the driver?
The law says you should always detain, except if you should arrest. But if you turn your mind to it, in most cases, you will arrest. This apparently contradictory answer comes from careful consideration of the legislation.
If the driving caused no injury or death, then s.495(2) says you should never arrest ... except if you have a reason specific to this case.
In almost all cases - if you turn your mind to it - you will notice a reason to arrest.
You don't need to arrest the driver in order to get the breath demand. The demand itself lawfully requires the driver to accompany you.
But you might be concerned about identity, or the prospect that when you release this driver, he will drive, or assault someone. The computer might tell you that this guy is bad about attending court. Or perhaps you're concerned that there may be evidence relating to his impaired driving in the vehicle ... and you'll lose that evidence if you don't arrest the driver, and search the vehicle incidental to arrest.
Whatever your reason(s) for arrest, they must be specific to the case at hand.
3. I suspect the driver has alcohol in his/her body, but I don't have an ASD with me. Do I need the device in my hands before I read the screening demand?
You should read the demand without waiting for the device to arrive.
Before she was elevated to the Supreme Court of Canada, Madam Justice Arbour concluded that the former screening device section required police to make the demand "forthwith". R. v. Pierman, 1994 CanLII 1139 (ON CA) aff'd R. v. Dewald,  1 SCR 68. The new legislation is so similar that I expect judges will continue to hold that your screening device demands should be made immediately.
Which should you do first, read the demand or radio for the device?
In my opinion, the difference is not sufficiently important to amount to a legal requirement. However, I think you should make your radio call first, then make the screening demand. Here's why I think the call precede the demand:
- Roadside screening interferes with the liberty of the driver. You should strive to keep that interference as brief as possible. If you call for a device first, then it will be on the way while you make your screening device demand. But if you make the demand first, then the overall delay will be just slightly longer.
- If you call first, you will discover whether or not a device can be brought to you within a short time. If no device is coming, you won't waste time making ASD demands, and will choose some other technique, such as Standardized Field Sobriety Tests.
4. How long can I wait for an ASD to arrive? How long is "as soon as practicable"?
5-10 minutes is about the maximum that most judges permit for you to wait for an ASD to arrive. There are lots of cases. Here are a couple: R. v. Janzen, 2006 SKCA 111; R. v. Singh, 2005 CanLII 40877 (ON CA)
5. ASD or MAS (Mandatory Alcohol Screen)?
The reader wrote: "if you approach a vehicle with the intent to conduct a mandatory alcohol screening, but you then gain a reasonable suspicion that they have alcohol in their body (ie: odour), would you revert to the ASD demand, or continue with the MAS?"
As drafted, this question raises several different questions:
- When may an officer approach a vehicle 'with intent' to conduct a mandatory alcohol screening?
- Which demand should should the officer prefer: ASD or MAS?
- If the officer starts with a MAS demand, and then develops grounds for an ASD, what should the officer do?
I think you should use this legislation cautiously. Many prominent members of the defence bar assert with confidence that the courts will strike down this legislation. Don't expect that the judges will give you an easy ride. In these early days, I suggest that you read the section carefully, and apply it only to clear-cut situations.
Under s.320.27(2), you may make a MAS demand only when:
- you are in "possession" of a screening device;
- you are in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law; and
- the driver "is operating" the vehicle.
If you don't have an ASD in your pocket, you better have one in your police car. Use this power in the context of motor vehicle enforcement - such as speed traps or seatbelt or alcohol checkstops.
MAS is controversial. ASD is not. The controversy arises because MAS permits random virtue testing. But if you have reason to suspect that a driver has alcohol in his/her body, then an ASD demand is not random, but justified.
Therefore, I suggest that you choose ASD in preference to MAS whenever you have sufficient grounds.
In my opinion, if you made an MAS demand, and then, before the suspect blows, you detect an odour of liquor on the suspect's breath, you should make an ASD demand as well.
2019.04.19 Undercover Operations Online
- Police Catching Creeps
An officer created a fake online profile of a 14-year-old girl. Mr Mills, 2019 SCC 22, aged 32 started communicating with "her" about sex, even sending her a picture of his penis. He claimed to be 23. He invited her to meet him in a park. "She" agreed. When he arrived, the officers busted him.
At trial, he complained that the undercover officer used software to make permanent "recordings" of his online communications. He claimed this violated his rights under s.8 of the Charter. He had taken particular care to encourage the 14-year-old to delete his messages and pictures. He said that by saving screenshots of everything they violated his expectation of privacy.. He complained that the undercover operation as a whole violated his expectations of privacy.
The Newfoundland Court of Appeal didn't agree. He appealed to the Supreme Court of Canada.
Back in 2017, I wrote "I do not think the judges of that court will find this case as simple as the Newfoundland Court of Appeal did."
They didn't. The judges found three rather different ways to conclude that his conviction should be upheld. Because of that, this is a difficult decision to figure out.
In brief, this case says that you don't need judge to authorize you to go online and pretend to be a child for the purposes of catching adults who are luring kids they don't know. And you don't need a warrant or authorization to make a permanent record of the conversations you have with those people.
But there are some limitations and gotchas:
- The adult and the child must be strangers. Suppose a child's adult relative sends electronic communications to the child grooming her for sex. You might want to continue the conversation, collecting evidence. Four of the seven judges would seem to say you need a general warrant to do that.
- This does not necessarily bless all on-line undercover operations. If you're pretending to be an adult for the purposes of catching an adult - perhaps an adult pimping a child - some of the judges might say you need judicial pre-authorization.
I'm still working on my understanding of this case. My comments here may change as I review it.
2019.04.18 Unreliability of Accomplices - Corroboration
A masked man attempted to rob a liquor store. He carried a pick-axe and a gym bag. The clerk fled, leaving the robber with an empty safe to loot. Security video recorded him.
The robber left in a van that belonged to a Mr Buxton. Police arrested Mr Buxton and searched his house. They found a pick-axe and a similar gym bag that contained clothing resembling the robber's clothing. When interviewed, Mr Buxton told police that he drove the van. He claimed that the robber was Mr Newsham, 2019 BCCA 126.
That story became more believable when police found Mr Newsham's DNA on an item of clothing from the gym bag.
At trial, Mr Buxton testified that "forgot" everything he knew about the robbery. "I used too much meth" he claimed.
Unless the judge would accept his recorded statement, the prosecution had no case.
The officers who interviewed him took the steps recommended in R. v. B. (K.G.),  1 SCR 740. They
- recorded the entire statement
- asked him to give a solemn affirmation of its truth
- cautioned him that he would be criminally prosecuted if he lied.
Those steps helped the trial judge conclude that he should admit Mr Buxton's statement at trial. The appeal court judges ordered a new trial, because the trial judge didn't follow the analysis that the Supreme Court of Canada described in the subsequent case of R. v. Bradshaw, 2017 SCC 35. The appeal court judges wanted corroboration.
Judges don't like the testimony of accomplices: maybe Mr Buxton was the robber; maybe he named Mr Newsham as the robber so as to escape prosecution for the robbery himself.
Corroboration of Mr Buxton's story made this case stronger. Someone saw a man that looked like Newsham near Mr Buxton's place just after the robbery. (Too bad nobody showed that witness a photo lineup.)
Lessons to learn from this investigation include:
- Getting a statement from a key witness is the start of the investigation, not the end.
- Don't expect the word of an accomplice or career criminal to prove the case
I observe that the police in this case made a real effort to find corroborative evidence, and they did go to the trouble of a KGB statement. Had they not taken these steps, there would have been no case.
2019.04.14 Traffic Stop - Detention of Passengers
When you pull over a vehicle for a traffic offence, do you "detain" the driver for the purposes of s.10(a) of the Charter? Of course. You need to tell the driver the reason of the stop, but if it's only a brief traffic stop, you don't need to offer access to counsel. Schrenk, 2010 MBCA 38.
Does a traffic stop detain the passenger? Nope. Mooiman 2016 SKCA 43
But what if you take the passenger's identification away from him and spend half an hour doing research on it? That's what a police officer did to Mr Loewen, 2018 SKCA 69.
Unsurprisingly, the court came to the conclusion that in those circumstances, Mr Loewen would not have felt free to go. And the length of this interference with his liberty was not brief. The officer triggered a detention, and during the detention, discovered the drugs that Mr Loewen carried for the purposes of selling.
There were extenuating circumstances that dragged this detention out. Parole authorities first told the officer that Mr Loewen was breaching his parole -- but they were incorrect.
Although the trial judge admitted the evidence, the appeal court disagreed, and Mr Loewen beat the charge.
2019.04.14 Arresting Parolees breaching their Conditions
The Parole board told Mr Loewen, 2018 SKCA 69 not to associate with known criminals.
A police officer pulled over a speeding car. He recognized the driver as a known criminal. The officer didn't know Mr Loewen, nor that Mr Loewen had drugs hidden in his pants.
The officer took Mr Loewen's identification, and did some investigation to find out who he was. Corrections Canada’s National Monitoring Centre told him - incorrectly - that Mr Loewen's condition was still live. It wasn't. It came to an end two days before. Mr Loewen explained this to the officer, but the officer arrested him anyway, believing that he was breaching his conditions.
I was surprised to learn that even if Mr Loewen's condition had been valid, the officer did not necessarily have the power to arrest him.
137 (2) A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody.
But there was no warrant. The officer believed that he found Mr Loewen violating a parole condition. Section 137.1 sets out the power to arrest in these terms:
137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer
(a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to
(i) establish the identity of the person, or
(ii) prevent the continuation or repetition of the breach; and
(b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person.
The "gotcha" was (b). The officer didn't have reason to believe that Mr Loewen would stop reporting to his bail supervisor. And therefore, this arrest was unlawful.
I didn't know about this limitation on the police power to arrest disobedient Federal parolees. Now I do, and if you didn't know about it before, now you do.
2019.04.12 Executing Search Warrants - Knock and Announce - Interviewing Suspects
Mr Robertson, 2019 BCCA 116 installed security cameras on his house. He had a good reason. He wanted to protect his illegal gun collection, which he probably acquired in his drug-dealing business.
Police knew about the drug dealing. They obtained a search warrant for his house. Not knowing of the main entrance to his house, they knocked on the door to his garage.
The video system recorded them. They didn't wait long enough before forcing their way in. The judges didn't like that. The officers were pretty sure that the house was empty. The judges used that as a reason to believe that waiting was a safe option.
When Mrs Robertson attended the house, police detained or arrested her. She asked to speak with a lawyer, but the officers asked her questions about the guns and drugs that they found instead of acceding to her request. The judges didn't like that either.
Knock-and-announce rule requires you to exercise patience at a time when your adrenaline is running. It's hard to measure time in your head. Law requires patience and the prevalence of cameras may provide hard evidence when you act precipitously.
2019.04.12 Warrants to Search and Analyze Electronic Devices - When does the Sun Rise and Set? *
* I re-posted this story because I received an interesting email from a smart guy in Ontario. He agreed with me on some things and disagreed on others. He might change my mind, but he hasn't yet succeeded. I added asterisks to the debatable points.
After a judge or justice authorizes you to search a cell phone, when does the authority to analyze its contents cease? If your warrant authorizes you to search a phone for data today, can you re-analyze the data a year from now?
I repeat from another story (see "Life and Limb, Lies and Evidence"), Mr Nurse, 2019 ONCA 260 owed rent. But Mr Nurse was broke. He owed lots of people.
Mr Nurse's landlord suddenly died. On a busy road. In a pool of his own blood. Someone had stabbed him 29 times. Mr Nurse was at the crime scene. He told police conflicting stories about who killed his landlord.
Police arrested Mr Nurse. They seized his cell phone. They got a warrant which authorized them to enter their own exhibit vault, and search his phone for evidence of the offence. The warrant specifically authorized them "between the hours of 6:00 a.m. to 9:00 p.m. to enter into the premises" and search for the evidence.
Police did enter the vault that day and fetched the phones, but they didn't even give the phones to forensic analysts until 5 days later. Those folks extracted a digital copy ("image") of the data from the phone. However, the phone used password protection which mostly defeated analysis. From the image, the experts got only a little bit of of the contents of the phone. A year later, their software improved. They analyzed the data again, and discovered text conversations in which Mr Nurse plotted with another guy to kill the landlord.
Defence complained: The justice authorized only a 15-hour search. To re-analyze the data a whole year later, police needed a new warrant. Police didn't get an open-ended authority to search cell phones. They had 15 hours. The sun set on this search at 9:00pm. Even if the sun set later than that, it didn't continue to shine a year later.
The judges rejected this idea. The words used in the warrant authorized a 15-hour window to fetch the phones. But the ITO made it clear that the purpose of fetching the phones was to extract data from them. Even if the warrant didn't specifically say that the police could search the data later, that's what the justice implicitly authorized.
Ug. Warrants and ITOs are separate documents. They serve different purposes. In my opinion, even if an ITO explains everything, a warrant should clearly state what search the justice authorizes.
It appears to me that the problems in this case arose from:
- the antiquated drafting of s.487(1) - which mostly contemplates the searching of "places";
- the antiquated drafting of police precedents - which amplify the problems in the legislation.
At para 133, the judges accepted that digital devices aren't really "places". For residences, it makes sense to put time limits on police interference. When police are done searching, police should vacate the residence and let the people who live there move back in. If police want to search some more, they should get new permission from a justice.
But digital evidence is different. A phone or hard drive can be "imaged" (copied), but it may take a long time to analyze the data in the image.
The judges overlooked the badly-drafted warrant. They held that after lawfully obtaining the data, police may continue to analyze it even after the warrant expires.
In my view, section 487 needs redrafting to reflect how we use it today to search digital devices.
- A phone in your exhibit locker isn't like a house on private property. A police officer doesn't need judicial permission to enter his or her own exhibit vault. You need judicial permission to examine the private information of the person whose phone you seized.*
- A phone in your exhibit locker isn't like a house. People don't use phones to shelter them from the cold and rain. Section 488 of the Criminal Code properly protects people from unnecessary night-time searches of their residences. But that section applies to searches of cell phones too, which I think is ludicrous. Even guilty people shouldn't be subjected to night raids unnecessarily. But nobody cares what time of night your expert starts analyzing the data in the phone.
Similarly, in my view, your precedents for searching electronic devices should differ from your precedents for searching houses. Review them now. When you're in the middle of a murder investigation, you won't have time to fix the forms you use.
- Rely blindly on police precedents and forms.
- Forget to report your exhibits to a justice.
- In your ITO, tell the justice what kind of data you think the cell phone contains, and why you think it's there.
- In your ITO, tell the justice how you're going to find that data. For example: "I intend to deliver the cell phone to a forensic analyst, who will copy the data in it, and in the weeks or months following that, will analyze that copy for the evidence I described above."
- Make sure the warrant specifically describes the electronic evidence you seek, and specifically authorizes you to search the contents of the electronic device for that evidence.
- If your warrant authorizes you to obtain an image (copy) of the data in the device for later analysis, then report that image/copy to a justice*, and get continuing detention orders (until charges are laid), to ensure that retain lawful possession of it. (Reeves, 2018 SCC 56)
* My correspondent and I disagree over the ideal form of the warrant, and whether you need to file a second report to a justice for the data you dredge out of a device. In Ontario, for examination of digital devices, they teach police to search the locker for the device, rather than to search the device for the data. They feel that if the exhibit has already been reported to a justice, there is no need to file another "Form 5.2" regarding the data obtained from it. Beware, though. Section 487.1(9) requires officers who execute telewarrants to report to a justice about the execution of the warrant - WHETHER THE WARRANT IS EXECUTED OR NOT.
We agree that the warrant itself should describe what kinds of data you intend to look for in the device. We agree that the legislation needs updating.
2019.04.08 Detention - All for one and one for all
Can you conduct a non-custodial interview with someone who is another police force's custody?
Generally, no. When one lawful authority arrests or detains someone in Canada, other officers from other law enforcement agencies can't evade the obligations of s.10(b) by telling the prisoner that he's free to leave the interview room. Police and prosecutors have tried several times with this argument, and failed. They tried again in the case of Mr Heppner, 2019 BCCA 108. It still didn't work.
Ms J.W. went partying, drinking and using cocaine. She woke up in a hotel room, in bad shape: fractures in her mouth, evidence of strangulation. Someone had beaten and raped her, but she had no memory of the events.
In August, shortly after the event, police interviewed him over the telephone as a possible witness. He denied involvement.
In September, before the DNA results tied him to the rape, West Vancouver police arrested him on a Wildlife Act charge. They gave him access to counsel, to get advice about that matter. They were going to release him, but noticed information that Vancouver police wanted to talk to him some more. Although the two cities have different police forces, the West Van officer called the Vancouver officer, who hurried across the bridge to chat with Mr Heppner.
Mr Heppner was the only suspect in the hotel assault case, but the officer still lacked sufficient evidence to arrest him.
The officer told Mr Heppner - who was still in West Vancouver Police's custody - that:
- they were investigating an assault in the hotel room;
- he was a suspect;
- he did not have to answer their questions;
- he was free to leave the interview room at any time, and he was not detained in relation to the investigation.
The officer didn't tell him he could call a lawyer about the hotel room case.
Mr Heppner wanted to talk. He told more lies, again asserting that he had never set foot in the hotel. Video surveillance established that he had.
At trial, Mr Heppner admitted having sex with J.W. at the hotel. But he claimed it was consensual, and she was uninjured when he left her. Crown Counsel used his lies in the August and September interviews to discredit him. The trial judge disbelieved Mr Heppner's innocent explanations, and convicted him.
Mr Heppner appealed. The September statement was inadmissible, because the Vancouver officer interviewed him about a different crime than the Wildlife Act matter. If the officer had waited until after the West Van police released Mr Heppner, the interview would have been okay. But while a suspect is detained for investigation for one matter, he is detained for all investigations.
The judges agreed. When police detain or arrest a person for one matter, he is detained or arrested for all matters for which police then interview him as a suspect. He needs to be offered legal advice about all the offences that police will investigate.
Some exceptions may apply to sentenced offenders, who you interview at the prison while they are doing their time.
Mr Heppner's counsel won the battle, but lost the war. Overall, the judges found that the case against Mr Heppner was so strong, that they upheld his conviction.
2019.04.07 Privacy of Medical Information - Investigating a Drunk Driver
Somebody drove a car in the wrong direction, and crashed into a car driven by Ms Campbell, 2019 ONCA 258. The other driver died. Ms Campbell suffered serious injuries. When police attended, they noticed evidence that Ms Campbell consumed alcohol. How much? Was she too drunk to drive?
At the hospital, someone analyzed Ms Campbell's bodily fluids. A nurse caring for Ms Campbell noticed a high level of alcohol in Ms Campbell's urine.
The trial judge found that a police officer asked the nurse for this information, and that's how he learned about it.
The judges didn't like that. There are legal ways for police officers to gather information. But informal requests for the information that goes into medical records isn't one of them. It's a breach of confidentiality.
At the hospital, don't ask the medical staff for the kinds of information that goes into medical records. If you do get medical test results "informally", do not rely on that information in an application for a search warrant.
Suppose you're writing an application for a search warrant, to get those medical tests and records legally. Suppose one of your colleagues proudly tells you that he persuaded a nurse to tell him the results.
Your ITO, must provide give full, fair and frank disclosure of the information you obtained in your investigation. But you can not rely on the illegally obtained information to support the application for the warrant. What do you do?
I suggest that you write a paragraph which discloses and discards the information: "Cst Ignorant told me that he obtained from a nurse the results of medical testing of Ms Campbell's urine. Because I fear that this information may have been unconstitutionally obtained, I the issuing justice not to rely on it in support of this application."
2019.04.06 Life and Limb, Lies and Evidence - Keeping your Head in
Mr Nurse, 2019 ONCA 260 owed rent. But Mr Nurse was broke. He owed lots of people.
When Mr Nurse's landlord came to collect rent, someone had stabbed him 29 times. The landlord fell onto a busy road, where he lay bleeding to death.
Police officers attended quickly, and started tending to him. One officer asked "who did this to you?" The dying man could not speak, because of injuries to his throat.
Mr Nurse approached. He said he knew the dying man, and that they were friends. He told one officer that he saw three guys dump the man from a van. He told another officer that the landlord came to his house to collect rent, and afterwards Mr Nurse saw a black man chasing him.
Although the dying man could not speak, he used his hands. He pointed at the stab wounds and then he pointed at Mr Nurse.
Because Mr Nurse claimed to be a friend, the officers interpreted these hand motions as reaching out to a friend. They were wrong. As explained in the next story, Mr Nurse was the killer, and that's what the victim tried to tell them.
Nobody can blame the officers for misinterpreting the hand gestures.
The judges understood that the officers - quite properly - focussed on saving the dying man's life. At the time that the dying man tried to tell them who the murderer was, the officers were distracted by the horror of the scene, and fooled by Mr Nurse's lies. The judges noticed that the two officers remembered parts of the same story differently. The judges forgave these inaccuracies: this was a traumatic scene.
The case does not mention officer safety. As armchair quarterback, I could not help but notice that the officer who bent over the dying man had a murderer at his back.
I mean no criticism of any mistakes they may have made. In this situation, I would have performed much worse than these officers.
You folks signed up to respond to emergencies. Your priorities are first to protect life and limb; but also to protect property, to uphold the law and to gather evidence. I can't teach you how to keep your head in a crisis like this one. You have other experts for that. Take their training, so that you can save lives - including your own. Repeat your training, so that you can think clearly when others lose their heads. Maybe, if you stay calm, you'll interpret crisis situations better too. Maybe, if you stay calm, you can avoid PTSD.
And here's the selfish side of the prosecutor: if you can keep your head, you'll probably remember the evidence better too. After the crisis, your notes will be more useful to me and my peers.
Thank you for taking on a job I could not do. Take care out there!
"building, receptacle or place"?
Opinions differ whether you should draft the warrant to authorize you to enter a "place" (your exhibit locker) or to search a "receptacle" (the electronic device). Section 487 empowers a justice to authorize entries into "a building, receptacle or place". Because you don't need authority to enter your own exhibit locker, I don't think you need a warrant to search a "building" or a "place". Because you do need authority to intrude on the privacy of the information in the device, I think "receptacle" comes closest.
Sunrise and Sunset - the period within which to execute the warrant
Naming the "receptacle" as the target of the search causes problems with drafting the sunrise and sunset on the face of the warrant. When should the search of the receptacle start? It's not when you take the cell phone out of the locker, but when the technician first starts getting into the phone. When will the technician first start imaging or downloading the data from the receptacle?
This case suggests that you need a warrant that authorizes the time frame when the technicians start getting into the phone, but you don't need to spell out when they should finish their analysis. The analysis of the data may continue after the warrant expires.
If you draft it like the precedent for a warrant in the Criminal Code (Form 5), the warrant need not set a deadline for the technicians to finish their task. Beware. Because of the absurdity of s.488, the technician can't start that search at night without specific judicial authorization. I copied and pasted from Form 5, and, in italics, inserted some language which might work:
This is, therefore, to authorize and require you between <start date> and <end date>, between the hours of 6:00am and 9:00pm to enter into the said receptacles and start searching for the said data or evidence and when you find it, to bring it before me or some other justice.
Give your technicians a wide window between "sunrise" and "sunset".
But don't blindly copy and paste what I wrote. When drafting warrants, you take responsibility for the words in them. Make sure what you write actually means what you intend.
The jury convicted Mr Nurse, and the other guy with whom he
conspired. The Court of Appeal upheld the convictions.
2019.04.03 Right to Counsel - Facilitating Access
Mr Ector, 2018 SKCA 46 wanted to call his mother.
He said so after the police arrested him for impaired driving. Mr Ector explained that he wanted legal advice, but didn't know which lawyer to call. But his mother knew lawyers because she involved them in her land transactions.
"No," the officer said. "You can't call your mother, but I'll call her for you."
At trial, the officer said that the mother gave him the name of a law firm. He told Mr Ector, and Mr Ector wanted to call the law firm. It was after 10:00pm, when the officer called the law firm. An answering machine listed the names of the lawyers, and offered the option of leaving a message for any one of them.
Mr Ector wanted to call his mother again. The officer directed him to choose one of the lawyers. The officer dialed the number again, and Mr Ector chose a name at random. He left a message. No lawyer called back.
Mr Ector spoke with Legal Aid Duty Counsel for 30 minutes, after which he wanted a second opinion. The officer said "no", and took him for breath testing.
At trial, the mother testified. She claimed that she told the police officers the names of specific lawyers at the law firm. Mr Ector complained that if that's what happened, then the officer breached Mr Ector's rights by failing to tell him the names that his mother recommended.
The trial judge didn't think this was a problem, but the appeal court did, and ordered a new trial.
The right to retain and instruct counsel includes the right to get advice from someone about who to call. To the extent that you control the process of finding the lawyer, you are accountable for facilitating access. If mom named a lawyer, the officer had to pass that information along, correctly, to the prisoner.
The court did not say you must give the prisoner free use of the telephone to call anyone he wants. But if you become intermediary between the prisoner and the people who will help him choose and contact a lawyer, then beware. Someone, such as a loving and doting mother may contradict you about the information you received and conveyed to the prisoner.
2019.03.24 Child Luring - "Reasonable steps" to ascertain the age of a child on the internet
Mr Morrison, 2019 SCC 15 posted an ad on ad on the “Casual Encounters” section of Craigslist:
Daddy looking for his little girl – m4w – 45
"Mia" responded, telling him that she was 14. Mr Morrison soon turned the conversation to sex. He invited her to watch pornography and touch herself. He asked her for photos of herself. Eventually he suggested that they meet.
They never did. "Mia" didn't exist. A police officer played the role, carefully typing mistakes and expressing herself as a 14-year-old girl would.
Mr Morrison told the police officer who arrested him: “I was only talking to one girl.” But Mr Morrison also commented that he didn't know for sure how old the girl was. On the Internet, “you don’t really know” whether you are speaking to a child or an adult.
The prosecutor wasn't worried. Section 172.1(3) required the court to presume that Mr Morrison believed that "Mia" was under 14 just because "Mia" said so.
The judges found that section to be unconstitutional.
From now on, in such cases, we can expect every such defendant to make the same assertion: "on the internet, you never really know who you're communicating with."
Therefore, officers doing these investigations will need to provide much more convincing evidence that they are underage. Mr Morrison asked "Mia" to provide a photograph. Of course, the officer never did. In future, you may need photographs or live video feeds of what appears to be children.
Should you use real children to investigate people engaged in luring?
I don't recommend it.
But it might be worth investigating artificial images to use in these investigations. Recent AI developments are showcased at https://thispersondoesnotexist.com/. Refresh your browser a few times: it will generate children
I note that obtaining convictions without the presumption is not
v. Harris, 2019 ONCA 193
2019.03.16 "Retain and instruct counsel without delay"
- Section 10(b)
of the Charter
When police officers executed a search warrant they didn't expect to arrest anyone. But Mr Nguyen, 2019 ONCA 178 turned up, so they arrested him. Mr Nguyen said he wanted to talk to a lawyer.
They kept him on scene for 50 minutes because they didn't have anyone to take him to the police station. When they got him there, they forgot to tell him that they had no luck reaching his lawyer. Instead, the officers released him.
The judges didn't like the delay in providing Mr Nguyen with access to a lawyer. After a prisoner says he wants to get legal advice, there need to be good reasons why you delay it. Section 10(b) says that your prisoner has the right to retain and instruct counsel "without delay".
In this case, the police obtained no evidence during the time that the prisoner was prevented from calling a lawyer. Furthermore, the judges didn't think it was a common police practice to delay access to counsel. The appeal court judges upheld his conviction.
Don't let it become a common police practice. Bad guys will find sympathy from the judges if you routinely ignore this right.
2019.03.09 Murder by Multiple assailants - Who "Causes" Death?
Mr Hong, 2019 ONCA 170 and his henchmen planned to rob a drug dealer at his residence. When they got there, one of his henchmen hit a guy twice in the head, using a baseball bat. The victim fell to the ground, and made noises which a pathologist identified as the noises of a dying man.
Mr Hong didn't like the noises. He told someone to stop the noises. Another henchman hit the dying man on the head with the butt-end of a pellet gun. That didn't stop the dying man's noises. Mr Hong said he would show them how to silence him. He took the pellet gun by the barrel, and swing it like a golf club at the dying man's head. The impact broke his jaw, and he stopped making noises.
The pathologist didn't think that the last impact inflicted the injuries that killed the victim.
At trial, the jury found his henchmen guilty of manslaughter. Although the jurors were convinced that the henchman caused death, they must have doubted that the henchman intended to kill or inflict mortal wounds.
But they convicted Mr Hong of murder.
Considering that the henchman inflicted the injuries that killed the victim, was this a legal route to follow? Mr Hong didn't "cause" the death.
Yes. Even though the golf swing did not inflict the fatal injuries, it did accelerate death. And if Mr Hong intended that the victim die or suffer injuries that could kill, then that's enough causation for liability for murder.
2019.03.08 Impaired Driving - Breath Testing - Belches, Burps and Regurgitation
After you demand breath analysis, you must take your suspect without delay to the breath tests. And you must offer access to legal advice, and provide that access without delay.
And in the last 15 minutes before the subject blows into the instrument, you should watch in case the subject belches, burps or regurgitates.
When investigating Mr Ruest, 2019 QCCA 335, the investigating officers didn't watch for that. The breath-testing instrument recorded concentrations of 111 and 103mg% of alcohol in his blood. At trial, Mr Ruest testified that he consumed only a little alcohol. Based on his claims of alcohol consumption, an expert calculated that his blood-alcohol concentration should have been 18mg%.
Defence asked the court to find that the police failed to operate the instrument correctly because they did not watch for belches, burps or regurgitations. The judges rejected this argument - but only because it involved speculation.
If Mr Ruest had also testified that he regurgitated just before the breath tests, he might have been acquitted. According to an expert, such mouth-alcohol could really affect the accuracy of the breath testing.
Interestingly, the expert said that burps are not a big deal. If the stomach contains undigested alcohol, then a burp may bring concentrated vapours of alcohol into the mouth, but this dissipate quickly. But regurgitation can bring the alcohol itself into the mouth, and that's a problem.
I'm not an expert in these things. Don't take my word for it. For reliable science, talk to a toxicologist.
But after a breath demand, your duties include:
- giving the subject reasonable access to legal advice without delay;
- testing the subject's breath without delay;
- watching the subject to ensure s/he does not consume any alcohol nor belch or burp before the breath testing.
2019.02.16 Sexual assault - intoxicated victim
Ten thousand years after people started making it, humans still like alcohol. As we all know, it:
- Anaesthetises - people feel less pain;
- Disinhibits - people dare to break out of their usual behaviours; and
- Obliviates - after enough, people don't remember the things they chose to do;
- Incapacitates - after too much, people can't think for themselves at all.
We can laugh about it, but these properties cause lots of trouble in sexual assault cases.
A 14-year-old girl went to the beach with a 15-year-old boy. They were friends, but not close. His initials were C.P., 2019 ONCA 85. They stopped a liquor store and persuaded an adult to buy them vodka. The girl drank heavily. At the beach, the boy and the girl kissed for a while. They also had sex. She could not recall the sex and didn't think she consented. Was she too drunk to consent, or just too drunk to remember things she now regrets?
Another friend of the girl, E.G., testified that after the sex, the girl was intoxicated to the point of incoherence. Too drunk to consent.
Did the girl get that way before or after the sex? Did E.G. arrive immediately after the sex or a substantial time later?
If E.G. arrived much later, then perhaps the girl's intoxication increased by reason of vodka she drank just before or just after the sex.
The trial judge convicted Mr C.P. of sexual assault. He appealed. The majority upheld the conviction. What's interesting in this case is the dissent.
One judge would have acquitted him because in his view, the evidence wasn't strong enough to be sure that E.G. didn't just recklessly say "yes" to the sex, before she got too drunk to decide anything.
When you investigate cases of sexual assault where the complainant doesn't recall the sex, the prosecutor wants more from the complainant than her assertion "I wouldn't have consented to sex with that guy". It's too easy for the judge to reason "maybe not when you are sober, but what about when you were drunk?"
This case demonstrates one way to get there - gather evidence of the complainant's condition just before or just after the sex. That judge complained that there were lots of people at the beach. Why didn't they testify too? Was this a failure of the investigators to locate all witnesses, reluctance of witnesses to talk, or failure to recall because they were too drunk to remember? I don't know because the decision doesn't explain. But I do know that a good investigator would try to get the evidence of the other witnesses, and anything else that would tell how much liquor (or other drugs) the girl consumed.
2019.02.12 Voyeurism - Reasonable Expectation of Privacy
Back in 2017, I wrote about Mr Jarvis, 2019 SCC 10, a teacher who used a camera hidden in a pen. He aimed it down the cleavage of his female students, and recorded video of their breasts.
Was it voyeurism?
The trial judge felt this violated the expectations of privacy of the students, but the evidence didn't prove that he did it for a sexual purpose. Mr Jarvis bet the charge. The Court of Appeal disagreed. Of course it was done for a sexual purpose, but the teacher only recorded what the girls displayed to everyone around them -- even the security cameras. Mr Jarvis beat the appeal.
Mr Jarvis lost in the Supreme Court of Canada. They concluded that the recordings did violate the expectations of privacy of these students. They might expect that the people around them might glance down their shirts, but they didn't expect someone to walk away with video recordings of their breasts.
This decision matters for two reasons.
It expands the interpretation of the luring offence to capture surreptitious recording of people in mostly-public places. Video-recording differs from just looking at people because it makes a permanent record.
But it also shifts lawfully-protected expectations of privacy.
Last week, if you were considering setting up a video-recording system in a mostly-public place for the purposes of investigating a suspect, you had less to worry about. This week, think some more. This decision does not say that you need judicial pre-authorization for every video camera you deploy in public. But trial judges are more likely to find that lawfully-protected expectations of privacy even in semi-public places. We can expect more debate about whether you need judicial authority to install video-recorders that observe places like underground parking lots of apartment buildings or residential back yards.
2019.02.13 Preserving Evidence during Investigation
Who wants to be a terrorist? Mr Hersi, 2019 ONCA 94 did. He quit his job and bought plane tickets to Somalia. But police arrested him at the airport.
He'd been talking about his radical and violent ideas for a while, including with his new friend at work.
That guy was an undercover police officer, who started working there after Mr Hersi's employer alerted authorities to Mr Hersi's scary ideas.
Mr Hersi even encouraged the officer to join the Jihad. The officer took careful notes.
Mr Hersi sent him text messages. The officer deleted the uninteresting ones.
At trial, defence complained that the missing text messages contained the key evidence that showed that Mr Hersi wasn't serious about terrorism. Because the police officer destroyed them, Mr Hersi wasn't getting a fair trial. Defence asked the judges to stay the proceedings.
The argument did not succeed. Mr Hersi got 10 years. But the judges agreed that the undercover officer should have preserved all the text messages.
Preserving innocuous text messages seems like a waste of time and effort.
Not if it's evidence.
Is this case relevant to you? Most of you aren't working in undercover operations. But minor communications are often relevant. For example, many of you arrange to meet defendants for non-custodial interviews. Your communications arranging such interviews can become central evidence in a voir dire to determine voluntariness of the accused's remarks. Those text messages should be preserved because they will tend to show what wasn't said.
Just like in Mr Hersi's case.
2019.02.10 Evidence of Intoxication - Video-recordings
"How drunk was he at the time of the offence?"
The question arises often. In an impaired driving case, was she too drunk to drive? In a murder case, was he so drunk that she did not realize that by stabbing someone, he would probably kill them?
Mr Williams, 2019 BCCA 49 stabbed someone, and the victim died. At his murder trial, he said he could not remember the night: he was too drunk.
Homicide detectives obtained his bar bill, which showed he drank heavily up until 9:30pm. The stabbing occurred at around 11:00pm.
Nobody knew whether he kept drinking. Was he too drunk to form the specific intention to kill the deceased?
The officers that arrested him shortly after the stabbing took him to the police station. Security video showed him walking fairly normally. But security video doesn't capture everything.
A jury convicted Mr Williams of murder. The appeal court found errors with the judge's instructions to the jury, and ordered a new trial.
You can bet that at the second trial, the prosecution will play the security video again. But they'll wish they had something more. And the defence will wish they had more evidence to prove that Mr Williams drank lots more booze after leaving the bar.
In cases like this, first responders have too much to think about: "Who did what to who? Is everyone safe? Does the suspect need medical attention? Legal advice? Is the scene secure? Is there other evidence that needs capturing or preserving right now?"
In a case like this, the lawyers want reliable evidence of the accused's sobriety. Video-recordings of the suspect walking and talking can help.
Even the judges wanted more. The court observed "Unfortunately, no post-arrest investigative steps were taken to obtain a breath or blood sample from the appellant."
The court made it sound as if that was an investigative failure. If the accused is uninjured, getting those breath or blood samples is pretty tricky: if he's really drunk, he's in no position to consent; if he's sober enough to understand what's going on, he'll likely follow legal advice, and refuse to permit you to take them. Except in drunk driving investigations, the law does not permit you to compel him to produce breath or blood samples.
That doesn't mean you shouldn't try. But you'll need to step very carefully to get bodily samples by consent.
But you don't need consent to video-record your prisoner. For the purposes of documenting sobriety or drunkenness, can you video-record the suspect's conversation before access to counsel?
You can certainly do so for the purposes of documenting how you treated the suspect, how you explained the right to counsel, and the right to silence. During the period before the suspect gets access to counsel, you must be scrupulously careful not to ask the suspect for evidence about the offence. Even asking how much he drank is out of bounds until he has had access to a lawyer. But it's clear that even the judges appreciate good evidence which measures intoxication.
Do you whip out your video camera only when the suspect looks drunk or stoned? No. Immediately after a killing, evidence of the accused's intellectual functioning matters to all parties. The Crown wants to prove that the accused was sane and sober. The defence may hope that it shows him to be intoxicated or insane. Immediately after the suspect blows a "fail" on the screening device, the respective lawyers will hope for the opposite. Your job, as neutral investigators, is to capture the evidence, whatever it may be.
Whether you investigate an ordinary impaired driver, or a murder suspect, if you catch the suspect immediately after the offence, consider making a video-recording which documents the suspect's symptoms of alcohol or drug intoxication. Or at least preserve the security video from your police station.
2019.02.07 "Did you Detain my Client?" - Testifying about an
The defence lawyer asked Officer Stratton whether he "detained" the defendant. It was a dangerous question. Officer Stratton said "yes". It was a dangerous answer.
A police officer who "detains" a person triggers duties under the Charter. But the courts give a different meaning to the word than people in ordinary conversation. R. v. Mann, 2004 SCC 52 at para 19:
‘Detention’ has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
The question was dangerous because the answer would determine whether Mr Reid 2019 ONCA 32 went to jail.
Was Officer Stratton correct? Was it a detention?
Officer Stratton went to public housing complex with other officers. The management of the complex invited them there because the crime problem in the area. Strangers would come and cause trouble.
Officer Stratton and another officer were talking with some children when two men approached them. The officers engaged the two men in conversation. One was Mr Reid. Officer Stratton talked with him.
The officer asked Mr Reid whether he lived at the property, his name, whether he had been in trouble in the past, and his purpose for being there. Mr Reid gave his name and volunteered his date of birth and home address. He said that he did not live on the TCHC property, but that he had family in the “area”. He also said that he had been arrested a long time ago and that he was at the property to produce music and help children to not go down the “same path” as he once had.
"Officer Stratton used his portable radio to run a record check on the appellant’s name. The appellant could hear Officer Stratton speak into the radio, and the replies he received. Officer Stratton thinks that he told the appellant that he would be “on his way” once the record check was complete. Officer Stratton said that the purpose of the check was to determine whether the appellant was subject to any court-imposed conditions forbidding him from being on the TCHC property. As the check was being done, Officer Stratton recorded the appellant’s name, date of birth, and address on what was referred to as a 208 card."
Then the radio blurted out that Mr Reid had a weapons prohibition. Mr Reid turned, tapped an object on his hip and ran. He threw away a loaded handgun. The entire encounter lasted 5-7 minutes.
The trial judge found that that the interaction wasn't a "detention" within the meaning of the Charter.
The defence appealed: "Hey! It must have been a detention. Even Officer Stratton called it a detention!"
The Court of Appeal responded:
I agree with the trial judge that little weight can be placed on Officer Stratton’s use of the term “detention”, particularly in light of the officer’s qualification about what he meant by detention: “I was talking to him. If that’s ‘detain’, then, yes, then I was”. Clearly the officer was not using the legal definition of detention.
Officer Stratton was wise to qualify his words like that.
Because the legal meaning of "detention" differs from the everyday meaning of the word, you want to be careful answering the legal question with everyday language.
2019.02.01 Facebook Fact or Fiction - Authenticating Digital Evidence
Who set fire to Mark's house and garage? A girl named Carmen showed police some Facebook communications from Jonathon Ball, 2019 BCCA 32, in which Jonathon claimed responsibility.
Did she fake them?
Mark's rock band practiced there. Jonathon - a member of the band - had a complicated love life. He had an on-and-off again relationship with Carmen. Without telling Carmen, he was also seeing a young woman named Brooklyn. But Brooklyn was Mark's ex-girlfriend. Jonathon's dalliance with Brooklyn broke up the band.
Jonathon got most of his equipment back from Mark's place, except an amplifier.
And then someone set fire to the place.
Two weeks after the fire, Carmen - the deceived girlfriend - told police that Jonathon admitted setting it. She showed them some Facebook messages:
"I was at Marks. There’s nothing left of the garage. I broke in the basement of the house and looked for anything of value, couldn’t find anything so I lit the basement on fire."
The timestamp was 2 hours after the fire - at a time when only the police, the firefighters and the arsonist could have known those details.
She showed the police those messages by signing onto her account from a computer at the police station. A police officer photographed the messages.
At trial, the prosecutor asked Carmen to explain how she received the messages. Carmen was no expert. She looked at the photographs of the computer screen. She remembered the messages, but could not confirm the timestamps. Nobody explained how the Facebook worked. Nobody checked Carmen's computer, to see if she had signed on as Jonathon, and faked the messages. Nobody got records from Facebook to discover what device signed into Facebook on the date and time the messages were made.
The Court of Appeal ordered a new trial. They the prosecutor, the defence lawyer, the police and the trial judge all made errors.
The primary mistake everyone made was to assume that an exhibit speaks for itself. A photograph of a computer screen showing Facebook messages proves nothing. People establish exhibits by testifying about them. Testimony proves that the exhibit is "authentic". Testimony explains what the exhibit means.
The photographer can testify "this is what the screen looked like on the day I took that photograph". But that doesn't prove how the timestamps came into existence, or who put the messages there.
Someone familiar with Facebook needed to testify "Facebook creates the timestamps you see beside each message. They specify when the messages were posted onto Facebook." But that doesn't prove who typed the messages.
Carmen's testimony in this case was central ... and suspicious. She had reason to hate Mr Ball. She might have had access to his Facebook account - particularly if he ever used her electronic devices to sign onto it. She could have typed the messages, and framed him.
The appeal court said that the investigation needed to go a bit deeper - to confirm her allegation about who typed the messages. (I understand that the defence counsel made admissions, so the prosecutor told the investigators not to worry about that sort of investigation.)
This idea applies to all exhibits. If you have data, or a picture or an exhibit, don't just send it to the prosecutor. The prosecution needs witnesses who can explain the continuity and meaning of the thing.
2019.01.29 Ion Scanner - Unjustifiable Snooping or Electronic Dog?
If you swab a surface, an ion scanner will report whether it detects specific drugs. Is it lawful for a police officer to swab the door handle of a suspected drug-dealer's car, and submit the swab to an ion scanner? Two judges recently disagreed.
In both cases, the cars were in public places. In both cases the police had reasonable grounds to suspect that the drivers dealt with drugs.
Both judges agreed that testing a car for traces of drugs violated the driver's expectations of privacy. But the Ontario judge went one more step. She found the technique analogous to deploying a drug dog.
The Supreme Court of Canada held that deploying a drug dog to sniff for drugs intrudes on privacy, but when the officer has a reasonable suspicion that there are drugs to be found, the search is lawful. R. v. Kang-Brown, 2008 SCC 18; R. v. Chehil, 2013 SCC 49.
She felt that swabbing the exterior and using the ion scan violated Mr Wawrykeiwycz's privacy less than deploying a drug dog. Because the officers had reasonable grounds to suspect Mr Wawrykeiwycz of dealing in drugs, this search was lawful.
With respect to both judges, I prefer the reasoning of the Ontario judge. The B.C. judge did not consider the drug-dog case law.
I am aware of no decision in BC which overrules Wong. It states the law for the time being. Until this decision is overruled or clarified, police officers in BC who want to use ion scanners in this manner should seek legal advice.
I thank Jason Anstey for drawing these two decisions to my attention. Usually, I don't comment on trial decisions. But the Wong case has some impact on police investigations, not only on this topic, but also the deploying of cameras in public places.
2019.01.13 Drug Recognition Experts - Rolling Logs - Disclose your
With the legalization of marijuana came increased enthusiasm for drug recognition experts (DREs).
Are they any good at recognizing drug intoxication?
DREs keep logs of the evaluations they perform.
When a DRE concludes that someone's impaired by drugs or drugs and booze, section 320.28(4) of the Criminal Code requires the DRE to "identify the type or types of drugs in question". Testing of bodily samples thereafter may confirm or rebut their opinion.
Naturally, defence will want to learn how many times a DRE got it wrong. Crown wants to emphasize how many times they got it right.
So the lawyers want copies of the DRE's log. Not only at the time of the initial disclosure, but also updated close to trial. The Ontario Court of Appeal says that the defence is entitled to a copy of the DRE's log. Stipo, 2019 ONCA 3.
If you are a DRE with a good track record, defence will then challenge your record-keeping. Is there any way that you could doctor your log to cover errors revealed by testing of bodily samples? Your log better be something more permanent than a word processor file.
If you are a DRE with a bad track record, consider getting out of the business.
If you are a beginner DRE, to conserve your reputation and protect your log from an accumulation of mis-identifications, you might want to make your assessments carefully.
2018.12.31 Strip Search in the Field
Mr Pilon, 2018 ONCA 959 tended to carry drugs in his crotch. And police who knew him knew of this tendency.
Those officers executed a CDSA warrant to search for drugs in a room at a motel. In the room, they found Mr Pilon and two other guys. The officers arrested the three men - I gather they had grounds. The other two guys put up no resistance, but Mr Pilon struggled and resisted. He kept trying to put his hands down his shorts, even after the officers handcuffed him.
An officer pulled his waistband away from his body. To his surprise, he saw that Mr Pilon wore no underwear, but a rubber band was attached to his penis.
A pat-down search did not discover any weapons. To prevent Mr Pilon from concealing evidence, the officer decided to search him at the motel. He put on gloves, and in the bathroom, away from the observation of anyone else, he searched Mr Pilon, and recovered drugs.
At trial, Mr Pilon complained that the officer who searched him violated his s.8 rights by strip searching. The trial judge rejected this complaint, but the appeal court found a breach.
Even if Mr Pilon had been wearing underwear, pulling his waistband away from his torso to look into his groin area constituted a "strip search". Police must not do so except according to the strict limits of such searches (read the decision to remind yourself). That was a breach of Mr Pilon's rights.
You can pat someone down for weapons. At the scene, you can search under clothing if you have reasonable grounds to believe that there are weapons that pose you or others a risk. But you can't search for evidence unless there are strong reasons to expect it will be destroyed or hidden before you can get the suspect to the security of your police station.
This officer didn't believe Mr Pilon had weapons. He knew Mr Pilon carried drugs in his crotch, and Mr Pilon was acting like he had drugs in his crotch.
The judges felt that a handcuffed suspect would have great difficulty concealing or destroying drugs in his crotch. Therefore, there was no urgency to searching him. He should have been carefully watched until he arrived at the police station, and there, searched for the evidence he was carrying.
But the judges also agreed that the breach of rights was not outrageous. After the initial breach, the officer did take steps to limit the intrusion on Mr Pilon's privacy. They found that the drugs could be admitted into trial. Mr Pilon's conviction stuck.
I found this case interesting because many officers may think "strip search" means taking off clothing. But it includes less overtly embarrassing searches. It includes pulling away outer garments to look at underwear.
2018.12.13 How Sharing affects Privacy in Computers and Privacy in
Houses; Oh yeah, also Form 5.2
Every so often, the Supreme Court of Canada delivers a decision which declares broad principles that affect police work. This is one. It expands upon the idea that nobody can waive the privacy rights of another person. That idea can complicate police work. I recommend that you read this decision and debate it.
Mr Reeves, 2018 SCC 56, and his common-law Ms Gravelle owned a house together. Ms Gravelle and her sister complained that he assaulted them. As a result of his charges, a "no-contact" order prevented him from entering the house without Ms Gravelle's permission. She revoked that permission, and she told a probation officer that a computer she shared with Mr Reeves contained child pornography.
A police officer came to the house to ask her about the child pornography. She welcomed the officer in. She signed a consent which permitted the officer to take the computer away, which he did. He did not report to a justice that he took the computer, but 4 months later, the officer persuaded a justice of the peace to issue a warrant to search the computer for child pornography. And it did, indeed, contain child pornography.
At the time that he took the computer, the officer did not believe he had sufficient grounds for a warrant.
The first judge decided that the police officer violated Mr Reeves' rights three ways:
- Although the officer entered the home with Ms Gravelle's permission, he did not have Mr Reeves' permission. Therefore, he violated Mr Reeves' reasonable expectation of privacy in the residence.
- The officer "seizure" of the computer, and failure to report it to a justice, as required by s.490, violated Mr Reeves' expectations of privacy in the computer.
- The application for the search warrant gave a falsely strong impression of the evidence that the computer contained child pornography.
1. Consent of a Resident isn't Enough?
The first finding should frighten you: if a resident invites you into a shared house and you accept, you may be violating the Charter rights of other residents.
Most of the judges of the Supreme Court of Canada realized that this idea was complicated. They'd worry about it some other time. This wasn't the right case for them to express an opinion.
Côté J. - all alone - suggested that consent of one resident lawfully permits you to enter the common areas of a residence.
Moldaver J. - also alone - said it might be okay to enter a residence to take a witness statement if:
- you give the resident an alternative to inviting you in,
- the resident invites you in anyway,
- for the purpose only of talking to the resident or getting a statement,
- in a common area or an area private to the resident who invite you in, and
- you stay only as long as you are welcome.
The judges may have the luxury of time to decide what's proper for a police officer. You don't have that luxury.
I can't accurately predict what rules the judges will ultimately set for you.
Even before this decision, you required clear authority to enter a residence without the permission of the residents. After this decision, you should be thinking twice about entering shared residences, even with the permission of one of the residents. Your obligation to save lives obviously overrides privacy concerns. But this decision gives greater force to the complaint of the other residents "I didn't let that cop into MY HOUSE. My rights are violated!!"
2(a) Taking the box without looking into it affects reasonable expectations of privacy
Because this officer did not believe, at the time of the seizure, that the computer contained child pornography, he could not seize it pursuant to s.489(2). His idea of asking the woman to sign a consent was a good one, but it turns out that step was not good enough.
Most of the judges agreed that one computer owner/user can't give you permission to take away a computer that contains the private data of another owner/user. Even if you don't look at it until later, with the authority of a warrant.
The officer didn't seize the computer from the woman. She gave it away freely. But by taking the computer away from her, he also took the computer and its data away from Mr Reeves without his permission. But for the officer's actions, maybe Mr Reeves could have made his peace with Ms Gravelle, and deleted the data.
2(b) Report to a justice and detention order
A seizure happens when you take something without consent. After you seize something, you must report it to a justice. This officer probably thought he received the computer from Ms Gravelle, and therefore, he "seized nothing". A reasonable thought. But the Supreme Court of Canada says there was a seizure -- from Mr Reeves. That's why the officer should have completed a Form 5.2.
So get used to filling out form 5.2. When in doubt, fill it out.
3. Warrant Drafting
It's really easy to exaggerate the strength of the evidence justifying a warrant. Any officer pursuing a lead should be enthusiastic, but enthusiasm generates confidence. Overconfidence can cause one to state inferences as facts.
The investigating officer learned that the women saw files that they believed were child pornography.
The officer who wrote the ITO:
- forgot to mention in the ITO the history of conflict between Mr Reeves and Ms Gravelle and her sister. The women might have exaggerated their information. (It turns out one did.)
- said the women watched videos of concern. (They didn't)
To ensure that your application is correct, return to the source material, and check what it really says, instead of the conclusions you draw from it.
I posted no new material over the last month. I promise I will, but not for a couple more weeks. I've been busy. The new impaired driving legislation comes into force in 3 weeks. I worked up a presentation for lawyers. This week and next, I'm preoccupied with a lengthy trial.
I have lots to tell police on the topic. Here's a tidbit for today:
Police officers used to tell drivers that the penalties for failing the breath analysis are the same as the penalties for refusal. That's not true any more. After December 18, 2018, for first offenders, the fine for refusal is higher than the fine for impaired driving, and depending on whether the Blood-Alcohol Concentration is double the legal or lower, the fine is the same or lower if the suspect blows into the instrument. But the penalties for repeat offenders are the same.
2018.10.27 Identification Evidence - Showing a Single Photo
Mr Ali was talking on his cell phone with his cousin, when someone shot him. At the hospital it looked like he might die, but Mr Ali survived.
Mr Ali told police that the shooter was "Gucci" from Jamestown, a guy he recognized from high school. Police looked up this nickname in their files, and found Mr Jimaleh, 2018 ONCA 841 used it. Fearing that Mr Ali would die, police sent a single photo of Mr Jimaleh to an officer at the hospital, and that officer showed it to Mr Ali. Mr Ali confirmed that this was "Gucci".
Mr Jimaleh was charged with attempted murder, and convicted.
Defence appealed: those dumb cops should have used a proper photo lineup procedure!
The judges rejected that argument.
When the victim does not know the culprit, then showing a single photograph can cause the victim to remember the face in the photograph instead of the face of the culprit.
But when the victim knows the culprit well, showing the victim a photograph of the wrong person won't change the victim's memory.
Only because Mr Ali knew Mr Jimaleh did the judges find no fault with this police procedure.
2018.10.25 Non-Custodial Interview of a Suspect - Do You Have to Say "you're a suspect"?
You don't always know who dunnit. When you have some strong suspicions, do you have to tell them?
Police interviewed Mr Campbell, 2018 ONCA 837 about a missing person. He told them the deceased did not come to his house. That was a lie. He told them he was concerned about people driving by his residence.
Then the officers found the victim's body. Dead in his car. Four bullet holes in his upper body.
They went back to interview Mr Campbell some more.
Like Mr Campbell, the officers didn't tell the whole truth. They suspected him of killing the deceased, but they didn't say "you're a suspect in a murder". They told him that they wanted to talk to him because they were having trouble reading the notes of the first officer who interviewed him. They said they wanted to ask more questions about the people driving by his place.
And then the officer gave this stumbling explanation:
Um, I am a police officer. Um, I am investigating a murder. Um, so anything that you say to me could be used. If your were gonna be charged ... for murder. .. what you'd tell me I could use. Um, and I can use that in court. Um, and then the other thing is, is that if you spoken to any police officer or anybody in authority that says you know, if the police come by you have to talk to them ... don't pay any attention to that, okay?
It was a horrible way to say something simple:
I'm investigating a murder. If you were charged with that murder, what you tell me now could be used as evidence in court. You don't have to talk to me. And if any other officer told you that you have to talk to me, they're wrong. You don't."
The officer did not offer him an opportunity to get legal advice. The officer did not give him any document to sign explaining that he understood his rights.
The officer just asked him more about the victim. And Mr Campbell said some things that helped get him convicted.
Defence appealed. They pointed out that the police lied about their motives. And they never told Mr Campbell he was a suspect. The trial judge should have excluded the second statement.
How did the appeal court judges respond to these complaints?
Right you are! Surprise! The judges thought differently from you.
The judges said:
"While the words used by the interviewing officer were not particularly elegant, they conveyed the salient points to the appellant. In particular, the interviewing officer told the appellant that the police were investigating a murder and that, if the appellant was charged with murder, anything he said could be used against him. The appellant was, in our view, given the requisite information to allow him to make a meaningful choice whether to speak to the police. Nothing more was required."
"Further, the appellant’s effort to characterize the failure of the police to tell the appellant that he was a suspect as 'trickery' does not succeed."
You can use some mild tricks and deception when investigating crime. What's permitted depends upon whether:
- the suspect is detained
- the deception diminishes the someone's legally-protected rights - such as the right to counsel or the right to know what he's detained for
- the deception would create unreliable evidence - for example, during the interview of an impressionable suspect, presenting fake but convincing evidence of the suspect's guilt
Don't make a habit of lying. It diminishes public trust in police. But if your suspect isn't detained, then you don't have to tell him exactly how much you suspect about his guilt. On the other hand, it was wise of this officer to say that Mr Campbell's remarks could become evidence in a murder trial. That permitted Mr Campbell to decide whether to talk.