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


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 2014".  Some of you may find it useful.


New Law

2015.11.23 Note-taking

 and Record-Keeping

Daylight savings time creates confusion. The clocks change. Sleeping patterns change. It's easy to get sloppy.

Around daylight savings time, the officers involved in the investigation of Mr Thompson, 2015 ONCA 800 screwed up their record-keeping.

A tipster said Mr Thompson dealt drugs from a fast food restaurant. Police arrested Mr Thompson's cousin, who emerged from the restaurant, and found drugs. They got a warrant and busted Mr Thompson. At trial, two stories emerged.

On the police version, the cousin had drugs on his person when he emerged from the restaurant.  That information justified the issuance of a search warrant.  But the ITO went on to say that the cousin told the police that he got the drugs from Thompson.

The cousin said that there were no drugs on his person. Heck, the police didn't arrest him when he emerged from the restaurant but after he went home.

Defence got really excited about failings in the officers' documentation.

Although Mr Thompson's conviction stood, this case reminds us that you can avoid embarassment by:

2015.11.23 "Statutory Rape" - s.150.1 survives constitutional scrutiny

Mr A.B., 2015 ONCA 803 met Miss MB at a dance studio when he was 17 and she was 11. They danced well together for 4 years. After they left the studio, they started dating.  He was 21 and she was 15.  She asked him for sex; at first, he resisted, then he relented. Her mom died.  Her dad started seeing someone new.  She moved out.  Mr A.B. impregnated her. She had an abortion, which caused her an emotional breakdown.  Authorities investigated, and he was charged with sexual assault.

Obviously, she consented: sex was her idea.  Section 150.1 of the Criminal Code removed consent as a defence because of the age difference between them.

The trial judge acquitted him, because he felt that s.150.1 went too far in criminalizing this relationship. The prosecutor appealed, and got a conviction.  He appealed.  The Ontario Court of Appeal upheld the conviction.  Even if the child wanted the sex, the adult must not engage. Children are too vulnerable. The legislation is constitutional.

Did Mr AB go to jail? No. The trial judge discharged him after conviction.

But this reminds us that adults having consensual sex with kids under 16 are - if the age difference exceeds 5 years - committing a crime in Canada.  For kids under 14, an age difference of 2 years of more renders the sex a crime.

2015.11.13 Detention or Conversation - Formally Describing Casual Encounters

At 3:00am, a police officer in a cruiser rolled down the window and addressed a pedestrian on the street.  The officer asked him his name, and his date of birth. Adrian Poole, 2015 BCCA 464 told them who he was.

The computer system told the officers that a judge or justice had issued a warrant for Mr Poole. The officer and his partner arrested him. That's when they found the loaded handgun concealed in his waistband.

It was cocked and ready to fire.

At his trial, Mr Poole complained that the police officers detained him, and they should have told him about his rights to counsel.  The two police officers had to account very precisely for a conversation which started in the most casual way.  Unsurprisingly, everyone remembered the conversation a bit differently. Especially Mr Poole. He assured the trial judge that the officers told him "stop".

The trial judge didn't believe Mr Poole.  It would have been easier if the two officers had recounted the conversation more precisely.

Because you may be called upon to provide precise accounts of banal conversations, your record-keeping matters. Finding a loaded handgun in someone's pants provides you a big clue that it's time to take out your notebook, and write what occurred before you discovered it. Recording devices in cruisers can record enormous quantities of banal material ... and some crucial stuff.

Mr Poole's arguments didn't impress the appeal judges either. If you address a suspicious person in a public place, you can trigger a detention - or not - depending upon what you say and how you behave. A fellow might reasonably believe that he's detained if you say "Stop right there. Keep your hands where I can see them." But he may well feel quite differently if you address him: "Hey buddy, I don't think I've met you here before.  What's your name?"

2015.11.07 Informants - Reliability

Someone told police that Ms Nguyen, 2015 ONCA 753 sold pot. Police arrested her, and found her in possession of plenty of pot.

At trial, the defence complained that the police should have been more suspicious of the tipster: The tipster's past tips resulted in drug-related arrests, but did those arrests result in convictions?

The court dismissed this concern: it takes a long time for some tips to result in convictions. Police should not wait that long before relying on the tipster's next tip.

But you should be careful of acquittals.  Courts don't like that kind of information. You should check to see if arrests based on your tipster's tips resulted in acquittals.  And you should reveal that information when applying for a warrant.

2015.11.07 Facebook Evidence

I just read the case of R. v. Luceno, 2015 ONCA 759.

A 25-year-old guy met a 13-year-old girl over Facebook.  They met and had sex.

Their Facebook profiles might have contained some useful evidence.

It's an offence for someone that old to have sex with someone that young. But it's not an offence if he took reasonable steps to learn her age.  Both said the other lied about his or her age. Did his profile say he was 18 or 19, in the hope of attracting younger girls?  Did hers claim she was 19?

Many questions could have been answered by capturing their Facebook profiles and messages.  She deleted hers.

Other complainants might not delete theirs. Ask for their consent to preserve evidence from Facebook. You want:

As it turned out, in this case none of this information mattered much.  The accused denied having sex with the complainant, and the judge didn't believe him.

2015.11.03 Search and Seizure - Automobile Crash Data Recorders

The law around the searching of data recording devices in automobiles remains confused.

Last year around this time, I wrote about Hamilton, 2014 ONSC 447 and Fedan, 2014 BCSC 1716.  In Ontario, police need warrants to obtain the data from these devices.  B.C. officers do not.

There's another Ontario decision which affirms that Ontario police need warrants: Glenfield, 2015 ONSC 1304.  For the rest of you, I know of no developments.

As a rule of thumb, the more data that the devices contain, the more likely you're gonna need a warrant.

2015.11.03 Impaired Driving - Breath Demands

 - "Are You Gonna Blow?"

After you demand that a drunk driver provide you a breath sample, don't give him a choice whether or not to blow. Act like the driver will provide a sample until he makes it absolutely clear he won't. The idea of refusing to blow should come from the driver, not you.

Mr Bagherli, 2014 MBCA 105 crashed his car and ran away before police arrived. They found and arrested him.  He told the officers he wanted legal advice.  An officer made a breath demand:

"I demand you provide samples of your breath necessary to determine the concentration, if any, of alcohol and to accompany me for that purpose.  Should you refuse this demand, you will be charged with the offence of refusal.  Will you provide samples of your breath?"

He replied: "No".

Thereafter, he never blew.  Nor did he talk to a lawyer - he kept passing out.

At trial, he beat the charge of refusing to provide a breath sample.  The problem arose with the emphasized words.  Those words elicited evidence from Mr Bagherli after his arrest, but before he had an opportunity to exercise his right to counsel.

To be clear, when you read a screening device demand, the driver must provide breath samples forthwith. No right to talk to a lawyer unless your screening device isn't ready within minutes.

When you read a breath (or blood) demand, you must hold off eliciting evidence until the driver exercises or waives the right to counsel. Don't go asking whether the driver will blow.  If the driver wants a lawyer, then you're eliciting evidence before the driver gets legal advice.  And even if the driver doesn't want a lawyer, it suggests to the driver that he has a choice.  The idea of refusing to blow shouldn't come from you.

2015.10.25 Exigent Circumstances

What circumstances justify freezing a residence?

Confidential sources told police that Mr Nguyen sold cocaine wholesale to a drug dealer named Shae Hunter, 2015 BCCA 428. They watched Mr Hunter visit local known dealers and members of a criminal gang. They understood that Mr Hunter would soon "reload". They saw a Mr Pham visit his house carrying a duffel bag, and leave only minutes later. There were other people at home.  When they arrested Pham at the Nanaimo ferry terminal, they found $50,000 in cash in the duffel bag.  This, their observations and the source information led them to believe Mr Hunter just bought lots of cocaine.

They also feared that someone might have observed the arrest, and tipped off Mr Hunter, who would then hide his drugs.  So without a warrant, they entered and cleared his place of people, relying on s.11(7) of the Controlled Drugs and Substances Act.  Once they had the scene under control, they got a warrant and found the drugs.

That section authorizes police to search for drugs in residences, without a warrant, if they have

Defence argued:

  1. even after the arrest of Pham the police lacked sufficient grounds to search Mr Hunter's house;
  2. the police created the crisis by arresting the guy with the duffel bag in a public place. They didn't need to.  They could have waited and arrested him somewhere else more private.
  3. the officers had sufficient grounds to get a warrant before they arrested Pham. They should have applied for the warrant before arresting him.

(Doubtless you noticed the conflict between (1) and (3)).

The judges accepted none of these arguments, but they spent some time thinking about the second one.

Judges restrict your use of "exigent circumstances" powers. You can't create exigent circumstances as an excuse for avoiding judicial pre-authorization. But these officers had no control over the location and timing of Mr Pham's arrest.  He was about to board a ferry, and leave the area. Mr Pham forced their hand. The money proved their suspicions. Police did not know whether Pham or Hunter had accomplices who might have observed the arrest and tipped off Hunter.  The officers had to act.

If you can control the situation, you can get a warrant before you search.  If you can't control the situation, then you can act before asking for judicial permission... if you have reasonable grounds.  Follow the example of this team.  If you rely on exigent circumstances to justify a search without judicial authorization, search no more than is necessary to end the emergency.  These officers cleared the house of people.  Once you have things under control, post a guard and get your warrant.

2015.10.17 Impaired driving - Breath Techs

I just ran across a decision from January of this year.  I think that qualified breath technicians should know about it.

What makes you a breath tech? After your course, you received a certificate which says you know how to operate the instrument. When testifying, you might get asked who designated you to be a qualified technician. That's what happened to the breath tech in R v Lange, 2015 SKQB 15.  He said that the national breath tech coordinator signed his certificate.

Unfortunately, s.254(1) defines a breath technician as:

"...a person designated by the Attorney General as being qualified to operate an approved instrument"

Because the technician testified that somebody other than the Attorney General did the designating, the court found that it could not rely on the breath tech's certificate of analysis.  Mr Lange beat the charge.

The legal issue was not whether the technician knew how to operate the instrument properly.  The national breath tech coordinator doubtless taught him well.  The legal question was whether the Attorney-General had designated him as a "qualified technician".

Quite probably, the Attorney General did make that designation.  But the technician didn't know how to say it.  Check your own documents.  If someone asks you who taught you how to operate the instrument, then tell them about the expert who taught you.  If someone asks you who designated you as a qualified technician, then tell them about the name of the Minister who designated you.

2015.10.17 Impaired Driving - British Columbia's Administrative Roadside Prohibition Programme

In B.C., police officers process most drunk drivers under provincial legislation instead of the Criminal Code. The penalties are immediate, expensive and inconvenient.

Yesterday, in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, the Supreme Court of Canada found that the original version of BC's immediate roadside prohibition programme violated s.8 of the Charter by reason that a single screening of a driver's breath risked imposing serious consequences without sufficient safeguards against error. Screening devices can give false results, depending upon calibration or mouth alcohol.

But in 2012, the legislation changed, requiring officers to give the driver a second chance with a different screening device. The changes also expanded the driver's opportunity to challenge the prohibition by way of an administrative review. The court hinted pretty strongly that the new regime would pass constitutional muster.

The appellants challenged the administrative regime by pointing out that it has virtually replaced the Criminal Code provisions in B.C.. A majority of the judges replied: "A provincial enactment that allows police to make a discretionary decision about whether to enforce the Criminal Code or the MVA in particular circumstances is not one that 'compromise[s] the proper functioning of the Criminal Code'".

This means B.C. police can use their good sense to determine when to proceed by way of a criminal investigation, and when to solve the case by way of an administrative prohibition.

Use this discretion for the protection of the public.  Administrative prohibitions are easy. Effective criminal investigation of impaired drivers is difficult. Check the history of the driver you're investigating. If past administrative measures failed to deter him, then perhaps its time to try criminal measures instead.  B.C. officers should practice their criminal investigation skills, lest they forget what to do to investigate a fatality caused by an impaired driver.

The court rejected another challenge to the legislation. Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47. Under s. 215.41(3.1) of the act a police officer may inflict a roadside prohibition on a driver only if the officer has:

"reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol".

That means you need to know:

  1. the screening device worked properly;
  2. it did not give a falsely high result by reason of a burp or a recent drink; and
  3. the "warn" or "fail" result means that the driver's ability to drive is "affected by alcohol".

Mr Wilson argued that police officers should require independent evidence confirming that alcohol affected the driver before they can prohibit a driver.  The court rejected this idea.

But the court agreed that the screening device does not decide a prohibition.

Be clear about this: You should never prohibit a driver because they blew a fail or a warn.  You should only prohibit a driver if the fail or warn caused you to believe that alcohol "affected" the driver's ability to drive.

The legislation requires you to think for yourself.

The screening device does not know whether it was calibrated properly, nor whether that calibration was recent.  But you can find out.  The screening device does not know whether the driver recently burped.  But you can watch for this.  The screening device does not know what a "warn" or "fail" tells you about a driver's ability to drive. But during your training, you should have learned from toxicologists what those results mean.  If you don't remember, then before you do another roadside prohibition, go back to your materials and find out.

2015.10.15 Strip Search

 at the Scene of Arrest

Police searched Mr Parchment, 2015 BCCA 417 at a residence during a drug raid.  They found drugs in a baggie attached to his penis by a rubber band.

Mr Parchment complained that police should not do strip-searches in the field without good reason. That's what the Supreme Court of Canada said in Golden, 2001 SCC 83. Therefore the drugs should be excluded.

The judges agreed with Mr Parchment that the officers needed good reason, but in this particular case, the officers had sufficient reason, and furthermore, they followed the appropriate steps.

What were the reasons? What were the steps?

The officers burst into the house - I guess they had good reason before they got there to fear that evidence would be destroyed if they knocked and announced.

They saw Mr Parchment toss something to the floor near a refrigerator. Under the fridge they found rock cocaine. They patted him down, and found two knives in his clothing. He wore two trousers.  They removed the outer one. They laid him on the floor, where he squirmed in an odd manner. A supervising officer authorized a further search. Male officers stood him up, and took him to another room where the other occupants of the house could not watch. An officer patted him down again, and felt something hard in his groin area. The officer pulled the waist of his trousers away from his body, and looked down. Mr Parchment wore no underpants; and the officer could see the baggie.  The officers pulled his pants to his knees, removed the baggie, and dressed him again. They couldn't remember whether they put on fresh gloves to search him.

In Golden, the court adopted an English test to determine when a strip-search is appropriate in the field:

  1. Can the strip search be conducted at the police station and, if not, why not?
  2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
  3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
  4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
  5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
  6. What is the minimum of force necessary to conduct the strip search?
  7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
  8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
  9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
  10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
  11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

If you supervise other officers, you might find it useful to compare this checklist against what the officers did in this case. I found four points on this checklist on which these officers were vulnerable to criticism. Read the decision. See what you think.

If you need to strip-search in the field, follow the checklist. How will you remember it? Well, the exercise I suggest might help.

Mr Parchment testified that the search was done improperly, and without good cause. These judges didn't believe him. But in your next case, your suspect may present better than him. Number 11 matters. After the bustle and excitement of a search, everyone should take detailed notes of what happened and what they saw.

2015.10.09 Detention - Triggering s.10

Ms Wong, 2015 ONCA 657, a 26-year-old university graduate, called police to report the theft of her car.  An officer attended her apartment. She invited him in. It smelled of marijuana. In the kitchen, the officer saw some “Zigzag” cigarette papers and a digital scale on the counter. He suspected drugs. He asked her for insurance documents and other documents relating to the car.  She moved to the den, where he saw "two tin boxes with drug markings, rolling papers and metal screen filters that he knew were commonly used to smoke marijuana". He started asking questions about drugs.  He told her she didn't have to answer his questions.

He picked up a box, sniffed it, and said "I smell marijuana, what's up with that?" She said it was her boyfriends, and she did not know what it was.  The officer asked "Well, okay, I can go with that. What else is here that’s not yours, that’s your boyfriend’s?"

She pointed to a drawer, and opened it. It held bags of marijuana.

He cautioned her again on her right to silence, and kept asking questions.  She told him she was scared.  He told her: “I believe you’re not a bad person, so if you cooperate with me I’m sure you’ll be fine, but if you lie to me and I find out, you’ll be in trouble.” she led him to the bedroom and pointed out a black duffel bag, which he opened.  It contained lots of drugs.  Police later got a warrant and found drugs, guns and id.

The trial judge sentenced her to 6 years. I don't know if she recovered her car.

Ms Wong appealed. She complained that before she showed the officer any drugs, he had detained her. And because he did that without telling her that she could get legal advice, all the evidence should be excluded.

The appeal court agreed. She beat the rap.

The court did not say "asking questions triggers detentions".  Asking questions can trigger detentions.  The test is whether "a reasonable person in her situation would conclude that she no longer had the freedom to choose whether or not to cooperate with the police."

I think you may find reading this case challenging and instructive.  It's worth debating with your peers how this officer might have handled the two investigations without breaching the Charter.

2015.10.07 Alternate Suspect

Somebody robbed a bank.  And the next day, someone looking just like him, and wearing the same clothes, robbed another bank. This time he presented a demand note. The hoodie and the sunglasses he wore made identifying the robber difficult.  But just after the second robbery, police found a matching hoodie in a nearby garbage bin, along with a written demand "have gun give me all money".

The officer who first examined the sweatshirt did not record finding anything interesting in the pockets.

An investigator thought that the robber looked like Victor Wolynec, 2015 ONCA 656. He asked Mr Wolynec's parole officer to look at the bank security video stills. The parole officer said the robber looked like Brian Bush.  The investigator did nothing to investigate Mr Bush's whereabouts at the time of the robbery. Instead, he pursued the idea that Wolynec was the robber. A different parole officer looked at stills from the security video, and concluded that the robber was Wolynec.

The investigative team sent the hoodie to the forensic lab to see if they could get DNA from it.  By luck, the forensic lab found a crumpled tissue containing Wolynec's DNA inside a pocket.

Defence pointed out that the investigator had tunnel vision.  He did not accept any evidence which disagreed with his theory.  Defence suggested that the investigator was so biased against Wolynec that the investigator planted the DNA-laden tissue into the pocket of the hoodie before sending it to the lab. What gave that theory credibility was that the police could not fully account for the continuity of the sweatshirt from seizure to analysis at the DNA lab.

The trial judge did not like the investigator who ignored evidence of an alternate suspect. 

The DNA evidence did persuade the trial judge of Mr Wolynec's guilt.  The appeal court agreed.

Lessons for police officers in this case include:

2015.10.02 Traffic Stop off the Highway

When investigating motor vehicle safety, you don't need reasonable grounds to suspect that a driver committed an offence before you can pull the driver over.  But the legislation empowers you to do that only on "highways".

But what about private property? The Saskatchewan Traffic Safety Act did not authorize police to stop a vehicle in a pub parking lot for the purpose of checking whether the driver had a licence and insurance. Lux, 2012 SKCA 129.

What if you see the vehicle driving on a public road, and then it pulls into a parking lot? According to the Ontario Superior Court of Justice, in R. v. Heer, [2013] O.J. No. 6432, 2013 ONSC 7257, Ontario police can still investigate traffic safety issues on a parking lot even without grounds to suspect an offence, so long as they saw driving on a highway, and decided to pull the driver over before the driver reached the parking lot.

Your mileage may vary. The relevant legislation varies from province to province to province. In B.C., a mall parking lot is a "highway".  Cyr v. Koster, 2001 BCSC 1459.  In Ontario, a restaurant parking lot is not. Tresham, 1998 CanLII 14756.

I did not provide a link to R. v. Heer because it's not available on any free websites.  I asked CanLII to add it to their database. I hope they will.

2015.09.29 Right to Counsel - Uncertain Suspects

When you arrest or detain someone, you must tell them that they can retain and instruct counsel. When you ask them what they want to do, some answer ambiguously. That's a trap for you.

For example, when asked if he wanted a lawyer, Mr Wydenes 1999 BCCA 202 said “No, I guess not.  I don’t know.”  The court found that triggered a duty on the officer to inquire further.

Mr Owens, 2015 ONCA 652 said "No, not right now."  Many Ontario provincial court judges held that required the officer to read the secondary Charter warning.  Yesterday, the Ontario Court of Appeal straightened them out. The obligation to read the secondary Charter warning arises when a prisoner suggests that he wants to talk to a lawyer and then appears to change his mind.

Mr Bishop, 2013 BCSC 522 also said "not right now".  The BC judge came to the same conclusion as in Owens.

Although you arrest people routinely, many of the people you arrest find the process unfamiliar.  They may respond hesitantly. Know that judges will scrutinize this interaction carefully.  Therefore listen to what your prisoner says, and react to what they say.

Usually, you arrest people and then take them to the police station. I think you should always ask again about access to counsel when you reach the police station.  It gives the suspect an opportunity to think about his/her situation, and it shows good faith on your part.  Always makes notes of this second interaction.

2015.09.22 Search and Seizure - Warrant Drafting - "Step Six

" review at trial

Confidential informants told police that "Jen" Crevier, 2015 ONCA 619 ran with a bad crowd, trafficked drugs and possessed firearms in a one-bedroom apartment in Toronto. Police officers drafted an application for a warrant which explained the sources' information, along with what the police knew about the sources, and what other information they had which matched what the sources said. A justice granted a search warrant. Police who executed it found drugs and guns in the apartment.

In order to give Ms Crevier full answer and defence at trial, the prosecution provided defence with copies of the applications, with redactions to prevent Ms Crevier (or anyone else) from figuring out who informed on her. But the remaining information did not sufficiently explain why the justice could have granted the warrant.

The defence challenged the warrant.  Ordinarily, in such a challenge, the trial judge sees only the material which the defence received. But this time, the disclosed information could not support a warrant. The prosecution gave the judge the original application, and summaries of the redacted material.  The summaries identified the kinds of material in the redactions, without identifying the confidential sources. The trial judge checked those summaries against the redacted material to ensure they were accurate, and then gave the summaries to defence.

Defence didn't like the idea of the judge deciding their challenge to the warrant based on information they could not see. But because those summaries sufficiently equipped the defence to probe the weaknesses of the application, the judge could then look at the original material without redaction.  That material persuaded the judge that the warrant could properly have been granted. The judges in the appeal court approved of the procedure and agreed that the warrant properly issued.

The Supreme Court of Canada proposed this complicated procedure in the case of Garofoli, [1990] 2 SCR 1421 (SCC) as the last of a six step process for examining judicial authorizations. Few prosecutions tried "step 6" until recently. This decision re-affirms the procedure.

This means when drafting applications for warrants or wiretap, you must:

You should structure what you write in expectation the trial process will involve redaction and disclosure to defence. This link illustrates some concepts, but I provide it only to demonstrate structure, not as a precedent.  Don't copy and paste from it into your applications.

2015.09.21 Prisoner Privacy redux

If your cell block contains cameras which view and record prisoners using the toilet, consider making changes now. Several Ontario judges found that those setups violate s.8 Charter rights.  Mok, 2015 ONCA 608

2015.09.07 Facebook Identification

Mr Emam stood outside a nightclub with a friend, when a stranger shot his friend to death.  Two days later, he was recounting what happened to another friend when that friend showed him some Facebook pictures, and pointed out the face of Mr Mohamed, 2014 ABCA 398. Mr Emam recognized him as the shooter.

Pretty good lead.  Pretty crappy lineup.

The investigators didn't just take Mr Emam and his friend at their words.  The investigators made a point of downloading the Facebook pages which Mr Emam saw.  Not just the image of the suspect, but all the photos that Mr Emam saw during this informal identification process.

Defence unsuccessfully argued that this identification procedure was so flawed that it should not be admitted into evidence. I suspect that part of the reason they failed was that the witnesses could show other faces that Mr Emam saw on Facebook before identifying Mr Mohamed. That identification evidence combined with other evidence (Mr Mohamed had a dispute with the deceased), led to Mr Mohamed's conviction.

Where evidence comes from Facebook, get screen dumps of the crucial evidence immediately.  But don't just get the information.  Try to get the remaining context.

This decision came down last year. I'm sorry that I didn't notice it until now.

2015.09.06 Authenticating Exhibits - What Made this Video and When? Who Downloaded it?

How hard is it to get a conviction for assault if you have a video of the attack?

Pretty hard, if you can't prove the authenticity of the video.

Mr Bulldog, Mr Geiser and Mr Joe, 2015 ABCA 251 attacked Mr Keepness. They did it in a jail, where security cameras recorded the whole thing. Being a "good" con, Mr Keepness refused to testify.

You might think that the video proves the case. But exhibits prove nothing until people testify about them.

For example, suppose you find a cardboard box labelled "moon rocks" on your desk.  You look inside and see rocks.  Do you believe that they came from the moon?

Only if you're gullible.

Suppose instead, Buzz Aldrin gives you a box containing rocks, and says "I collected these on the moon. Take a look." Those rocks became more interesting because personal testimony authenticated them.

Judges want the same thing: testimony which explains the exhibit.

The investigators in this case made the same mistake investigators make all over the country. They took no time to establish who downloaded the video. (The prosecutor also made a mistake by failing to ask the guards whether the video accurately recorded what occurred. Lucky for them, the witnesses provided just enough evidence that the judge could infer that the video was authentic.)

It would have been much easier if the person who downloaded the video testified about it.

Avoid this mistake. When collecting a security video, don't expect that the video will testify for itself. Identify who downloaded it from the security system.  That person should make notes about what they give you, in case they must testify.

And check the date and time settings on the system, if you possibly can. People often forget to check the settings, especially when the clocks change in the spring and fall.

2015.09.05 Exigent Circumstances Search - Freeze the Scene or Apply for a Warrant?

A good confidential source told police that "TJ", a gangster, just got out of jail, and was moving lots of cocaine into town. He told them where "TJ" lived and what car he drove. "TJ" appeared to be Mr Kim, 2015 ABCA 274, a gangster with a record for trafficking, who just got out of jail and drove that car. Police officers watched Mr Kim meet someone for 30 seconds in a dark spot behind a gas station. They saw more suspicious activity with friends at a restaurant.  They arrested Mr Kim and some of his friends.  One of the group (not Mr Kim) possessed 7 rocks of cocaine wrapped in cellophane.

Next officers rushed to his house.  The lights were on, but nobody answered the door.  Without a warrant, they entered it, and searched for people. They found none, but noticed a drug scale and lots of cash. Officers stood guard at the door, while others applied for a search warrant. When it arrived, they searched more carefully and found more cocaine and more cash.

Mr Kim complained that the police violated his rights by entering his house without a warrant. The officers explained that they had reason to fear that someone inside the house might destroy evidence before they had time to get the warrant. Some of their reasons included:

  1. The source described large quantities of cocaine; but the officers seized only a little.
  2. The arrest occurred where friends of Mr Kim could see.  A friend might call his home and tell occupants there to destroy evidence before police arrived.
  3. The lights were on, suggesting that someone might be home.

Mr Kim accused the police of creating an avoidable emergency. Police should no be allowed to circumvent the obligation to get a warrant by manufacturing exigent circumstances.

The court sided with police this time:the officers didn't know what they would see until they watched Mr Kim.

If you have real concerns that evidence will be destroyed if you don't freeze the scene, then you may - without a warrant - enter a residence to preserve the evidence. In CDSA cases, you rely on s.11(7) of the Controlled Drugs and Substances Act.  In criminal cases, you rely on s.487.11 of the Criminal Code.

But don't manufacture unnecessary emergencies. Apply for your search warrant in advance, if you can.

2015.09.05 Warrant Drafting - Full, Fair and Frank

The officer who drafted the application for a warrant to search Mr Kim's house failed to mention that Mr Kim possessed no drugs when arrested.

The trial judge didn't like that.  Nor did the appeal judges.

An application for a search warrant resembles a trial. The justice reviews evidence, and then makes a decision.  If you don't tell the justice both sides of the story, then the justice may reach the wrong conclusion.  If you possess evidence suggesting that the drugs aren't there

If you know of evidence which suggests that the warrant should not issue,

2015.09.05 Documenting your Search

Mr Dhillon 2015 BCCA 375 drove a truck through the border.  A compartment contained 30 bricks of cocaine worth $1.5 million. Defence suggested that Mr Dhillon might not have known of the drugs because someone could have opened a panel in the roof, and dropped the cocaine into the compartment.

Someone took good pictures. Those pictures showed the cocaine neatly stacked, which would be impossible from the roof.  Mr Dhillon was convicted and the conviction stuck.

If you find something interesting, photograph it before you move it.  And write notes in case the photos don't turn out.

2015.08.29 Report to a Justice - Redux

The Ontario Court of Appeal reminds us again that you violate Constitutional rights when you fail to report to a justice what you seized.  United States v. Mathurin, 2015 ONCA 581

2015.08.28 Expectation of Privacy - Fraudulently obtained Internet Service

Mr Feltham signed up for internet service.  Mr Caza, 2015 BCCA 374 fraudlently took over his account, and used the service himself to download child pornography. Police officers noticed his activity, and asked his internet provider, Shaw, for subscriber information. Shaw gave them personal information which led them to Mr Caza.  Mr Caza complained this breached his reasonable expectation of privacy, citing Spencer, 2014 SCC 43.

The court found that he had no reasonable expectation of privacy because he obtained the internet service by fraud.

This resembles the argument that a car thief can't complain that you violated his privacy by searching his car, because it's not his car.

The difference between cars and internet service is that you can't usually tell whether your target is fraudulently using internet service.  The investigators were lucky that time.  Post Spencer, you mostly need to get subscriber information by way of the new production orders.

2015.08.26 Writing - Warrant drafting

 - Active Voice

Police work involves writing. Some prosecutions stand or fall on the quality of police drafting. Writing well can make the difference between success and failure.

A confidential informant told his/her handler that "Marvin" (later identified as Michael Green, 2015 ONCA 579) packed a pistol. Another officer drafted an application for a warrant. Confidential informants won't talk if they think that their identities will be discovered.  The drafter wisely separated the source's information into material he thought would not tend to reveal the source's identity (Appendix B), and the highly specific material from which Mr Green might identify who ratted him out (Appendix C).

The warrant issued, and police busted Mr Green with drugs and a loaded semi-automatic pistol.

When it came to trial, the defence challenged the warrant: did the appendices really convey enough information to justify issuing the warrant? To protect the source, the prosecution could only rely on Appendix B - and even it needed some redacting.

Just to be clear, when you apply for a warrant application must convince the justice that he or she should grant the warrant. The justice reads everything, in private. Later, at public trial, a judge reviews only the redacted material, but asks a different question: Could a justice lawfully issue the warrant based only on this (redacted) material?

The trial judge and the appeal judges examined only what the officer wrote in Appendix B. Because of how the officer wrote it, they nearly agreed with the defence. Judges distinguish between personal observation and gossip on the street. Try reading what the officer wrote, and ask yourself, "Does it tell you how the source knew that the target had a gun?

On January 11th, 2008, I spoke to Constable SILLS #2830 who received information from a confidential informant indicating that a male named “Marvin”, who was later identified as Michael GREEN  October 10th, 1957, was in possession of a semi automatic handgun at his residence located at 189 Queen Street East in the City of Brampton.
Michael GREEN was observed to be in possession of a semi-automatic handgun within the residence of 189 Queen Street East in the City of Brampton.

Who observed Green holding the gun?   Perhaps the confidential source repeated street gossip. By writing in the passive voice (italicized in the quotation) the officer omitted crucial information. And if that were all he wrote, the warrant would have fallen.

Later in Appendix B, the writer mentioned as an afterthought:

The C/I has [redacted] seen Michael GREEN in possession of a semi-automatic handgun.

Apparently, the source saw the gun in Green's possession after all. This information saved the case.

I find police write in the passive voice too often. Just yesterday, I reviewed a file in which an officer wrote that the contraband "was found" in the offender's possession, instead of identifying which officer found it. Because it appeared in a CSO breach report, that one poorly drafted sentence could have scuttled the prosecution. Just like the Green case.

Avoiding the passive voice takes practice. Try it. You may write better as a result.

2015.08.25 Search & Seizure - Standing - Privacy of Text Messages

Here's another cell phone case for the Supreme Court of Canada.

Police stopped Manjit Guray's vehicle, asked some questions, searched his trunk, and then arrested him for possession of drugs for the purposes of trafficking.  The trial judge found that they lacked reasonable grounds.  The officers then searched Mr Guray's cell phone, and found text messages which suggested that Mr Guray was about to complete a drug deal.  The officers continued the text message conversation, which led them to arrest Mr Pelucco, 2015 BCCA 370 and search his house.  Among other things, they found a kilo of cocaine in his car and 280 grams of heroin in his house.

Mr Pelucco complained that the police violated his privacy by unlawfully reading his text messages on Mr Guray's phone.  The prosecutor argued that Mr Pelucco doesn't have a right of privacy in someone else's phone.

Because the search occurred in the course an unlawful arrest, the trial judge agreed that Mr Pelucco enjoyed a reasonable expectation of privacy over his text messages in Mr Guray's phone.  So did two of the three appeal court judges.  But because one judge disagreed, the Federal Crown has a right (if it wants) to ask the Supreme Court of Canada to hear an appeal.

The lesson for police is to avoiding building your investigations based upon Charter breaches and standing arguments. Obey the law. If Mr Guray's initial arrest had been found lawful, Mr Pelucco wouldn't have a leg to stand on.

2015.08.22 Judicial Pre-Authorization - Hard Entries

 - Uncertainty in the Law

A confidential source told police that Mr Al-Amiri, 2015 NLCA 37 and an associate trafficked drugs from their residence. An officer wrote to Canada Post asking them to look out for suspicious packages addressed to that home. A postal official noticed one that turned out to contain 15,300 ecstasy pills. The officers took all but three of the pills from the package, and installed a tracking device and an alarm which would alert police when the recipient opened the package. They sought a general warrant to permit the police to enter the residence and freeze the scene when the occupant(s) opened the package.  They didn't tell the issuing judge that they planned a "hard" entry.

The trial judge hated the warrant and its execution. 2013 CanLII 22340

He found a multitude of flaws, including:

The appeal court disagreed with all of these conclusions.

Like the trial judge, some police officers out there still think you need judicial pre-authorization for hard entries. As the appeal court explained, you don't need pre-authorization, but you do need good information in advance of the entry that suggests that you should omit the "knock and announce" required in normal searches.

The Canadian criminal justice system suffers an irreparable flaw - it relies entirely upon human beings. Police officers, lawyers and judges can all make mistakes. I'm human too. What you read on this website may also contain errors (though I try to avoid it).

Part of understanding "the law" means understanding that the latest decision from a trial judge - or even a court of appeal - must be respected.  But it isn't necessarily the last word. On contentious issues, the common law gropes its way dimly towards justice. And as this case shows, even settled questions may arise again.

2015.08.22 Right to Counsel in Impaired Driving Investigations - A Delicate Balance

After you demand that a suspected drunk driver provide breath samples, you must obtain those breath samples "as soon as practicable".  No wasting time.

You must also inform the driver of his or her right to get legal advice, and facilitate access before taking those breath samples. And if a driver asserts that he wants legal advice, and then changes his mind, you must give him the secondary Charter warning, making it clear that you will hold off eliciting evidence until he gets a reasonable opportunity to get legal advice.

Did Mr Swaine, 2014 ONSC 7049 want legal advice before he blew? The officer who first dealt with him made an unclear note about what he said. Then Mr Swaine waffled. He wasted time. He gave no clear answer. Then he said "You know what? … fuck it" He then provided breath samples without complaint.  At trial, Mr Swaine remembered telling the police that he wanted to speak to a lawyer. 

Ambiguity ruined this case. The trial judge found that Mr Swaine waived his right to counsel.  The appeal court disagreed.

If the officer had spent time explaining the secondary Charter warning to Mr Swaine, then at trial Mr Swaine might have remembered wanting to get the breath test done promptly, without legal advice.  His lawyer would have argued that the officer wasted time: "My client didn't want a lawyer, and made that clear. The officer wasted time talking about a lawyer my client didn't want. Therefore, these breath samples were not taken 'as soon as practicable'."

You're wrong if you rush him to the instrument, and you're wrong if you push him to the phone. Scylla and Charybdis. How do you navigate this difficult territory?


Be clear about your duties: get breath samples promptly; give suspect access to legal advice if he wants it.

Be clear in your questions. "Do you want legal advice before blowing into the instrument?"

Clearly record the responses. (I like audio or video recordings.)

Put the ball in the suspect's court. If he expresses uncertainty about seeking legal advice, read the secondary warning, then encourage - but don't force - him to talk to duty counsel. Give him the choice to talk with a lawyer of his choice, and then press on with your investigation.

2015.08.15 Hidden bruises -

Ultraviolet Light



In violence cases, your observations of the presence or absence of injuries on the victim or suspect can make all the difference in the case.

In my experience, people often complain of being struck, but the investigating officer sees no injuries. Some bruises take hours to develop, so the officer finishes dealing with the victim or suspect before the injury shows. One way to capture this evidence is to photograph the person the next day. Some injuries never show.

This case suggests another technique.

A woman complained that Mr Lawrence, 2015 BCCA 358 raped her, and when doing so, choked her to unconsciousness. Her neck showed no injury. Not even the doctor who examined her found injury. Sgt Gosling decided to examine her neck under ultraviolet light, and found marks consistent with bruising, about the size of fingertips, just below her jaw line.

Good thinking, Sgt Gosling!

The prosecutor asked Sgt Gosling to testify about his observations, but did not qualify him as an expert.

The appeal court said that his testimony was "expert evidence", and therefore the prosecutor made a mistake in failing to qualify him as an expert.  Fortunately, Sgt Gosling testified about his many years' experience in forensic work, and his use of this technique.  The court found that what he said in court sufficed to prove he was an expert, even though the prosecutor did not follow the formal steps. They also liked how he restrained his evidence to merely his observations, and did not express opinions about how the marks got there.

If you're in an identification section, this can happen to you. Therefore:

  1. If you use unusual light sources and make interesting observations in the case, write up your observations in a manner which identifies it as expert evidence.
  2. Include in your CV comments about your training and experience using these techniques to make similar observations.
  3. If the prosecutor forgets to qualify you as an expert, but asks you questions about a topic which requires expertise, talk lots about your experience and training in the use of the technique.
  4. Experiment with your unusual light sources in situations where you know the truth - if you suffer a bruise which doesn't show, try shining the light on it to see whether it fluoresces.
  5. Beware of articles which merely praise the technology. Learn and explain the limits of the technology. Will ultraviolet light sometimes fluoresce in places that aren't injured? If so, why? Can it fail to detect injuries that are actually there? If so, why?

2015.08.12 Self-defence

 and Reporting Use of Force

Cst Power, 2014 SKQB 356 patrolled downtown when he noticed Mr Stonechild, intoxicated again. Mr Stonechild suffered hepatitis and AIDS. Sometimes he cooperated with police, and sometimes he was a nasty drunk. Rather than arrest him immediately, Cst Power told Stonechild to walk to the detox unit, two blocks away. Cst Power followed in his police car as Stonechild walked there, but wouldn't go in. Cst Power got out of the car.

Because Cst Power was putting on latex gloves as he got out, he didn't notice Stonechild approaching him until Stonechild was 4-5 feet away, fists clenched and coming fast.

Cst Power kicked him in the abdomen, knocking Mr Stonechild away. Mr Stonechild fell, cracked his head and bled.

When asked about the incident by a superior officer, Cst Power re-enacted it, showing himself pushing Stonechild with his hands instead of his foot. Cst Power filed a use of force report with this explanation.

Unbeknownst to Cst Power, a security camera recorded the whole incident.

An assault charges was laid against the officer for using excessive force. A defence expert testified that Cst Power should not have distracted himself by pulling on his latex gloves while exposed to the possible danger of an angry drunk; but the kick matched standard police training for repelling the attack. After watching the video, the trial judge convicted Cst Power for using too much force. The appeal judge acquitted, observing that Cst Power had little opportunity to assess how much force to use at the instant he reacted. The matter is proceeding on to further appeal.

I suspect that Cst Power's lie about the kick caused most of his difficulty. (I am curious how it got into evidence, considering that the officer was likely compelled to account for his actions that day. But that's a separate issue.)

Several lessons can be drawn from this case:

  1. Pay attention to tactical self-defence training - avoid putting yourself at risk. Cst Power should have put on his gloves in a safe place.
  2. Practice self-defence - you are hired to handle the most unpredictable people. Keep your instincts sharp.
  3. Telling lies is dangerous for you. Police use of force attracts much scrutiny. This scrutiny creates fear in the officer who injured someone. That fear moves some people to minimize or lie. But in the long run, deceit is harder for everyone else to accept than a split-second error in judgment in the use of force.

2015.08.11 Search & Seizure - Expectation of Privacy in a Casino - Interception of Private Communication

Mr Wiwchar, 2014 BCSC 2108 walked into a casino. The signs on the door told patrons of the 24-hour video surveillance inside. Police were watching Mr Wiwchar. They asked the security staff at the casino to zoom in on Mr Wiwchar.  The cameras were pretty high quality.  They captured text messages he composed on his Blackberry, even before he sent them.

At trial, Mr Wiwchar complained that police violated his privacy. The casino's surveillance was to catch cheaters at games, not to snoop on the private lives of their patrons. The police directions resulted in surveillance which exceeded what the casino would normally do. And besides, he said, this was interception of private communications. Even a general warrant could not authorize this kind of surveillance.

The prosecution pointed out that the patrons were warned of the high level of security. This couldn't be "interception", the prosecution argued, because Mr Wiwchar hadn't sent the messages yet.

The trial judge agreed with defence. The prosecution eventually got a conviction anyway, and so they will not appeal this decision.  This is a trial decision, not an appeal. It provides you a warning of what other judges might conclude, but does not provide a final answer.

2015.08.09 Surveillance in the Cell Block - Charter Breach or Police Duty?

Does cell-block security video violate or protect prisoner's rights?

Ms Wildfong, 2015 SKPC 55 needed to pee. But police had arrested her for impaired driving. The investigating officer took her to the police station and let her pee in a cell.  He arranged for a matron to supervise, to make sure that Ms Wildfong didn't consume alcohol before the breath test.  The officer forgot that the security system would video-record Ms Wildfong. He didn't tell her she would be recorded. At trial, Ms Wildfong complained that the police gave her the impression that she enjoyed privacy, but the recording of her private urination violated that reasonable expectation of privacy. The trial judge agreed that this violated Ms Wildfong's rights.

Should you give prisoners privacy? Should you turn off or block the video cameras in your cell block?

Prisoners sometimes do strange things in police cell blocks.  Some will kill themselves, even if arrested for minor matters. You have a duty to protect your prisoners from harm.

Maybe someone should watch your prisoners even when they pee.

Some drinking drivers will consume alcohol in order to defeat the breath testing equipment. That's what Ms St. Pierre [1995] 1 S.C.R. 791 said she did when she got privacy. You have a duty to collect reliable evidence.

Maybe someone should watch your prisoners even when they pee.

Police officers and guards sometimes abuse or neglect prisoners. Video cameras can hold them to account. When prisoner Ashley Smith killed herself, prison security video was necessary to find out whether the prison staff acted properly. There is a reasonable argument that you should have no control over security video recordings of your actions.

Maybe cameras should watch you when you deal with prisoners.

The judge who decided Ms Wildfong's case referred to several similar cases in which judges concluded that surveillance violated the privacy rights of prisoners. In light of these broader issues, I question whether these judges are heading in the right direction.

I expect this issue to percolate slowly up to higher levels of court.

What can you do in the mean time?

  1. Remember your security system. What it records often provides relevant evidence. If so, put a copy in your file.
  2. Disclose your security system. When arriving in your police station, tell your prisoners that it records them. This may reduce their expectation of privacy.
  3. Prevent unnecessary violations of privacy. Aim your cameras to avoid capturing images of prisoners' genitals. Erect partial screens, to block unnecessary views. Minimize who watches prisoners pee. Seal up copies of video recordings of private activity, and limit who accesses them.


Search & Seizure - Report to a Justice

To those officers who doubt the necessity of "Form 5.2", the Ontario Court of Appeal resolved your doubts: you breach s.8 of the Charter when you fail to report to a justice what you seized using your powers as a peace officer.

Mr Garcia-Machado, 2015 ONCA 569 drove drunk and crashed. With a warrant, police got his blood samples from the hospital, and later, acquired his medical records. But the investigator failed to report the seizures until 15 weeks after the crash. He thought the obligation triggered when an officer swears the charges.

The trial judge excluded the evidence and acquitted the drunk.

The Court of Appeal agreed that officers who fail to file these reports "as soon as practicable" violate s.489.1; and they breach the constitutional rights of the persons whose property they took or whose privacy they violated by seizing the evidence.

In this case, the court found sufficient extenuating circumstances that they felt the evidence should have been admitted anyway. This officer did actually file a report. Better late than never.

If you haven't read s.489.1 recently, perhaps you should. Test your knowledge with this quiz:

"I don't have to file a form 5.2 unless charges are laid."
"I don't have to file a form 5.2 if I give the thing back."
"I have 7 days to file a form 5.2."
"Filing a form 5.2 means I get to keep the exhibit for a while."
"I get to keep the exhibit for 3 months after I file the 5.2."
"Form 5.2 is just for search warrants."
"I don't need to do a Form 5.2 for documents obtained through a production order."

2015.08.07 Confessions - Voluntariness

"If I confess will you let my girlfriend go?"

Mr Heatley, 2015 BCCA 350 robbed convenience stores. His girlfriend drove. Eventually, police surveillance caught them in the act, and both were arrested. An interviewer spent four days trying to get Mr Heatley to talk about all the robberies. Mr Heatley didn't want to talk, but particularly, he didn't want his girlfriend to stay in jail.  Eventually, he talked.  Defence complained that police exploited his concern for his girlfriend, thus rendering his confession inadmissible.

The common law places many limits on what you can say to a suspect to persuade him or her to confess.  You must attend to their physical needs - feed them, let them sleep, get them the medication that they need. You must not overwhelm their ability to choose whether to speak. You must avoid offering a deal which undermines their freedom to choose.

In this case, it was Mr Heatley who proposed the deal.  Repeatedly.  And every time, the investigating officer explained that he could not make such a deal; all he wanted was the truth. He suggested to Mr Heatley that the truth might get his girlfriend and him into more legal trouble, but would be better for them both morally in the long run.  The judges concluded that this statement was voluntary.

The most important Canadian case on voluntariness is still Oickle.  If you read no other decisions, read that one. But this one's a valuable read. I recommend it to you officers who interview suspects, even if only rarely. Don't rely on my summary. Click the link and read what the judges thought. Pay close attention to the parts of the interviews which defence counsel highlighted. Language like that is dangerous.  Pay close attention to the passages that the judges highlighted.  See how to avoid trouble when interviewing.

2015.08.03 Arrest on a Warrant - Bring a Copy if you Can

While doing some basic research, I ran across this interesting decision from last year.

When a warrant issued for the arrest of Mr Gerlitz, 2014 ABQB 252, police knew they had a problem. He considered himself to be a "sovereign citizen" - not bound by any law of Canada. They expected trouble, so they organized a tactical team to assist. Mr Gerlitz acted less violently than they feared, but demanded his rights, refused to give his name, and talked over their explanations. He demanded to know why they were arresting him.

Nobody thought to bring along a copy of the warrant.

Section 29 of the Criminal Code requires you - if feasible - to bring a copy of any warrant you plan to execute, and to produce it on request.

Mr Gerlitz complained that the officers failed to explain sufficiently why they arrested him, and thereby breached s.10(a) of the Charter. The judge decided that the officers in this case did not breach Mr Gerlitz's Charter rights by failing to comply with s.29. I suspect that Mr Gerlitz's contrary nature may have helped him reach that conclusion.

You might not be so lucky in the next case.

If you plan to execute a warrant, bring a copy if at all possible.

2015.07.13 Arrest - Reasonable Grounds during a Gang War

Sources told police that Mr Sanghera, 2015 BCCA 316, stored rifles and handguns in his mother's garage. They got a warrant.

No guns, but plenty of ammunition, and the butts sawn from two long guns.

Over the days that followed, more information poured in: At a casino, Mr Sanghera got into a shoving match with a member of a rival gang. According to a source, a couple of weeks later, someone drove by Mr Sanghera's residence and shot at it. The next day, there had been more drive-by shootings at the residences of two members of the rival gangs. The day after that, police officers near Mr Sanghera's residence observed two rival gang members doing heat checks as they drove in Mr Sanghera's neighborhood. Police set up road blocks to prevent drive-by shootings.

A couple of days later, Mr Sanghera's cousin's girlfriend complained to police that two vehicles boxed in vehicle.  She escaped by driving on a sidewalk. She named one driver as the man from the casino. She was driving Sanghera's cousin's vehicle at the time.

A few days later, an untested source told police that the Sangheras were hunting for the rival gang. The source said that the Sangheras were wearing body armour and carrying firearms. The police discovered Sanghera was driving a rental vehicle.  They found him driving it slowly back and forth through a specific area. It stopped at a massage parlour. Four men went in. An hour later, they emerged.

Police arrested the men, and found handguns and ammunition.  Defence argued that police lacked sufficient grounds to arrest the men for any identifiable offence.

The judges disagreed.

Offence - Past or future?

Many officers would limit themselves to offences already committed - such as possession of a weapon for a dangerous purpose. But the officers who watched did not see any weapons that day.

The court found that the officers could rely on the part of s.495(1)(a) which authorizes arrest when someone "is about to commit an indictable offence".

Reasonable Grounds - An Exercise in Logic

The judges agreed that the officers had sufficient grounds to arrest.

When I ask police officers to explain why they arrested or detained or searched, they usually regurgitate all the facts, but they rarely link it together, to make the conclusion obvious. Indeed, the decision contains a quote from the testimony which shows this happening. I suspect that this officer probably prepared to give a more detailed answer, if asked.

For those who want practice constructing such an answer, the facts in this case provide an excellent exercise.

See what you come up with.  Click the button to see how I might explain it:

2015.07.10 Drunk in a "Public Place" - Detention and Arrest

A taxi driver complained to police that Mr Guray, 2015 BCCA 183 would not leave his cab. The officers told him to get out of the cab. After he got out, the officers arrested him for being drunk in public. When they searched him, they found cocaine in his pockets.

Mr Guray complained that the police broke the law by

These complaints often succeed - but they didn't this time. Consider what could go wrong, and what went right.

Suppose you pluck a drunk from a private place, and put him in a public place. You would be responsible for putting him there, not him.  Courts look unfavourably on officers who put drunks in public places and then arrest them for "drunk in a public place" (DIPP).

But these judges found that the taxi cab was a "public place". It might be a private place when a paying fare occupies it. But Mr Guray wasn't a paying customer. The cabbie wanted him out.

Was Mr Guray drunk? He mumbled incoherently, he had balance issues and glossy, bloodshot eyes.  But only one of the two officers detected any odour of liquor, and it was faint. He had good posture.  Perhaps he was just ill.  The court held that a police officer need not have proof of impairment, only reasonable grounds.  This officer had other reasons to believe alcohol caused the problem.  For example, the events occurred in the vicinity of bars, after closing time, when drunks are common.

Many officers fail to appreciate that "drunk" is not enough for DIPP. Impairment must render the drunk a danger to himself or others. You must fear for safety of people or damage to property. In this case, however, Mr Guray's intoxication appeared to be depriving the cabbie of his livelihood. He appeared to lack the ability to find his way home. Mr Guray's lawyer wisely avoided arguing this issue.

Arresting someone does not give you the right to search their person for anything you might find. You must look only for items related to the offence or the arrest. These officers sought:

  1. liquor - which would provide evidence of the offence;
  2. weapons - which could endanger the officers; and
  3. identification - so that the officers could determine who they arrested.

These are all lawfully incidental to this arrest. And that's why Mr Guray lost his appeal.

2015.07.08 Expectation of Privacy

- Common Areas of a Condominium

Do police need a warrant to investigate in the common areas of a condominium or apartment?  Two similar investigations reached different conclusions.

Ontario police had reasons to suspect that Mr White, 2015 ONCA 508 sold drugs from his unit in a 10-unit condominium.  Also for good reasons, BC police suspected Mr Webster, 2015 BCCA 286, sold drugs from his apartment.

In both cases, police got into the buildings by circumventing the security system at the front door. While investigating Mr White, plainclothes officers managed to follow the postman into the building.  They discovered that the back door didn't lock properly, and entered that way on two other occasions. Mr Webster actually held the front door open for the plainclothes officers who were watching him. On another occasion, another resident let them into the building, also without knowing who they were.

These investigations led the police to seize quantities of illegal drugs from both residences.  Mr White beat the rap.  Mr Webster went down.

The Ontario courts found that by entering and looking around the building, and by watching Mr White and listening outside his unit, the officers violated Mr White's reasonable expectation of privacy in the common areas of the building. Police needed a warrant to investigate in those hallways. The BC courts found that Mr Webster enjoyed no reasonable expectation of privacy in his building's common areas. No warrant required.

Is there or isn't there an expectation of privacy in the common areas of an apartment or condominium?

The facts distinguish the cases.  Mr Webster had the misfortune of sharing his building with the lead investigator of the drug team. At least one resident of the apartment wanted the drug cops there.  Mr Webster made the mistake of holding the front door open for strangers - plainclothes police. His claim to expect no strangers to wander his hallways fell flat.

This emphasis on the facts of the individual cases leaves you with little guidance.

I think these two cases illustrate a structural problem in the law: only one standard justifies the issuance of a warrant, even though the courts recognize a sliding scale of privacy. The "reasonable grounds to believe" standard can justify intrusions into the privacy of bedrooms and psychiatric records. The common areas of apartments are semi-private at best. Why should police need to meet the same standard in order to tread the hallways where Mr White's neighbours and their friends walk?

This tension will cause trouble.  We may reasonably expect the judges will struggle with this issue for a while yet.

In the mean time, what should you do to investigate in the common areas of secure condominiums and apartments?  These two cases suggest some strategies:

2015.06.27 Expectation of Privacy

- Who Lives in a Condominium?

Can the building manager in a condominium tell a police officer who lives in a specific unit?

In B.C., legislation requires the building manager to identify owners and tenants of the building to the other owners and tenants.  Mr Webster, 2015 BCCA 286 lived in a condominium. Police asked the building manager for Mr Webster's information.  The manager provided it. That information led to Mr Webster's arrest for PPT.  Defence argued that police should have obtained a production order. The court disagreed. Anyone in the building could ask for and obtain the information. Mr Webster did not enjoy much privacy in it. The building manager could agree or refuse to provide the information sought; his cooperation did not make him an agent of the state.


 Sexual Assault - What is Consent?

You may have met some people who don't understand consent. I know in my prosecutions, I have. A colleague sent me this explanatory video. Maybe you will encounter a situation in which it would help enlighten someone.

2015.06.26 Wrongful Conviction

When is your investigation "over"?

Maxime Ditchfield died on September 22, 1970. A jury convicted her partner, Mr Salmon, 2015 ONCA 469 of manslaughter, relying largely on the evidence of an expert that her brain injuries resulted from "blunt force trauma". The judge sentenced him to 10 years.

Mr Salmon always maintained his innocence. 30 years later, his lawyer found some experts who reviewed the evidence.  They concluded that Mr Salmon didn't hit her on the head.  The brain injury was more likely the result of a fall or a series of falls.  The prosecution found an independent expert, who agreed with the defence experts.

Last week, almost 45 years after the death, another court acquitted him.

Experts aren't always right.  Your investigation is never really "over".

2015.06.20 Murder & Manslaughter - Intoxication defence

If you're too drunk to understand that what you intend to do next will kill someone, should you be convicted of murder if you do it?  At law, the answer is "no".  To be guilty of murder, you must expect that someone will die as a result of your action.  Intoxicated people don't always forsee what sober people would see.  If so, they might be guilty of manslaughter, but not murder.

Therefore, investigate the suspect's impairment.  Officers who deal with the suspect immediately before or after the killing should record notes or video of the suspect's symptoms of sobriety and impairment.

Ms Arjun 2015 BCCA 273 hacked a friend to death over several hours.  She had a drinking problem, and had consumed some alcohol. Several hours after the killing, police attended.  She had no difficulty with balance or speech, but did seem shocked.  This evidence did not suffice to establish the kind of impairment by alcohol that would be required to deprive her of the understanding that hacking someone repeatedly with a large knife would kill him.

2015.06.07 Search & Seizure - Detention Orders

Mr Weatherill, 2015 BCSC 566 didn't like the new digital power meters that the electric company wanted to install in his house. Things must have turned ugly, because the police attended and gave him a promise to appear to attend court regarding an assault. That complaint ultimately resolved as a peace bond. But in the mean time, police seized his guns. Among those firearms were some prohibited handguns for which Mr Weatherill had no licence.

Once the assault charge settled as a peace bond, Mr Weatherill wanted his guns given to a properly-licenced friend - perhaps to sell on his behalf. Police wanted them forfeited.

The Crown persuaded a provincial court to order the guns forfeit, but the BCSC saw a problem with that.

Because the police never reported the seizure of the firearms to a justice ("Form 5.2"), and the justice never ordered the firearms detained, the provincial court never took jurisdiction over the firearms. When the time came to dispose of them, the provincial court lacked jurisdiction to make the forfeiture order which the Crown sought. Although the case doesn't say, I suspect that Mr Weatherill's friend got the guns in the end.

Reporting what you seize to a justice is bothersome. Getting extensions is inconvenient. In cumbersome language, s.490 of the Criminal Code requires it. Failure to comply with that legislation can lead to embarrassing results. For example: Raponi 2004 SCC 50.

2015.06.05 Search & Seizure - Cavity Searches and Doctors

Mr Johal, 2015 BCCA 246 sold crack cocaine to an undercover officer for $100. The officer detained him, and asked him who he was. The officer arrested him and asked him if he'd like to speak with a lawyer. Mr Johal declined it for the moment, but indicated he might want to make a call from the police station.

At the police station, in a private place, police strip-searched him. They saw blood in his underwear, and what appeared to be a white powder around his anus.

The investigating officer knew that drug traffickers usually carry more than one sale of drugs, and they often hide drugs in their rectums.  He worried that drug packaging may have broken, exposing Mr Johal to a dangerous overdose.  He took Mr Johal to a hospital. He explained his concerns to a doctor, but did not direct or ask the doctor to take any particular action. He also offered Mr Johal another opportunity to talk to a lawyer, which Mr Johal declined.

The doctor told Mr. Johal, in the presence of the police officers, that Mr. Johal had to submit to an internal search.

The officers left the room, and the doctor searched Mr Johal's rectum. The doctor reported this to the police.  The doctor then X-rayed Mr Johal, and again found nothing.

Defence complained that the police and the doctor violated Mr Johal's right not to be searched unreasonably.

The trial judge and the court of appeal found that the officers acted properly. Both decisions make good reading on a variety of issues. (And the judges kept their decisions mercifully short.)

  1. Strip searches are tricky to do correctly. Notice what steps these officers took to minimize the violation of privacy in this one.
  2. Two officers saw the white powder around Johal's anus.  You should minimize the number of eyes (and videocameras) that observe the suspect's nakedness; but you should avoid leaving an officer alone and unsupervised during a strip-search. Having a second witness observe the powder provided corroboration for an important piece of evidence.
  3. Detention triggers the right to counsel. The investigating officer took a little longer than he should have to offer access to counsel. Luckily, that did not result in any prejudice to the accused.
  4. The right to counsel applies regardless where you are.  At the hospital, the investigating officer offered Mr Johal access to counsel before the doctor examined him.  That was smart. Had the doctor found evidence, it would have been excluded if the officer had not offered prior access to counsel.  Taylor, 2014 SCC 50
  5. When you ask or direct someone to help you do your work, the law calls them your "agent".  Everything they do thereafter must comply with your duties under the Charter. Even though the doctor searched Mr Johal's rectum for drugs after the police brought him to the hospital, the doctor was not a police agent because the officers took care not to tell him what to do.
  6. The court observed that Mr Johal could have declined the medical treatment.  What would you do then?
  7. The officer testified that he "suspected" that there Mr Johal's anus contained illegal drugs.  For a cavity search for evidence, you need reasonable grounds to believe that the anus or vagina in question contains evidence. Golden, 2001 SCC 83. However, this officer also had real concerns for Mr Johal's health, which should justify searching on the lower standard of belief.

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