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

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

- Henry Waldock

Book

My publisher collected many of the more frequently-used chapters of my books into a single (cheaper) paperback edition: "Common Canadian Criminal Code Offences and Procedures 2014".  Some of you may find it useful.

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New Law

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 Michael Green could 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, the 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?

Clarity.

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

-

Experts

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 Stonechild 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 are 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.

2015.08.08

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.

2015.06.26

 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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