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

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

- Henry Waldock

Book

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

Loading

New Law


2016.05.02 Reasonable Grounds and Confidential Sources


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

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

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

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

Did they jump the gun?

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

Sorta.

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

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

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

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

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

2016.04.27 Voluntariness and Confessions - What the Judge may Think


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

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

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

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

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

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

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

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

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

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

2016.04.23 Search & Seizure - Exposing your Sneaking and Peeking


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

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

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

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

Around 6 months later, they got more information.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That was a problem.

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

The officers' "little" corrections led to problems.

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


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

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

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

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

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

How can this be?

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

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

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

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

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

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

2016.04.13 Search & Seizure - Report to A Justice

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

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

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

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

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

2016.04.09 Inventory Searches


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

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

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

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

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

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

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

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

2016.04.05 Arson Investigation - Circumstantial Cases

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

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

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

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

2016.04.01 Too Much Evidence

, or Not Enough?

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

Whodunnit?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2016.03.26 Production Orders - Cell Tower Dumps

 and Database Dumps

In cities, cell towers serve tens and even hundreds of thousands of people each day. Cell phone companies record which phones used their towers. Those people enjoy some expectation of privacy over their locations.

Some investigations rely on combing through all the cell tower information. For example, in the Mahmood 2011 ONCA 693 case, robbers with guns stole $500,000 worth of product from a jewellery store. Without much to go on, police got a warrant for a dump of records of cell towers in the area. Later investigation led them to a phone that they could connect to the purchase of a disguise used in the robbery. And that led them to the robbers and some of the jewels. In that case, the court found that the police violated s.8 by asking for too much information.

Rogers Communications, 2016 ONSC 70 complained to court about production orders police sought for the purpose of investigating a string of jewellery store robberies. The officers wanted all the records from the towers nearest stores for the days of the robberies. Around 40-50 towers. And the police wanted the subscriber information for every caller. And billing information, including credit card numbers.

That's a lot of data.

Nothing in the orders indicated how the subscribers' privacy would be protected.

The court identified some principles.

Minimal intrusion - you should seek orders which intrude only as much into other people's privacy as you need to get the job done. In this case the officers didn't need the billing information until they found a phone of interest.

Incrementalism - rather than demanding everything that could eventually be useful, request information step-wise, so as to minimize the violation of privacy. For example, officers may have been able to narrow their investigation significantly by examining the cell phone numbers first. When they found a couple of phones of interest, they could then seek an order requiring the phone company to identify the subscribers of only those phones.

The court made seven suggestions for officers who apply for orders which affect the privacy of lots of people:

  1. An application should explicitly assert that the officer understands the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind. (And if you don't build your investigation that way, you'll get crucified at trial.)
  2. Your application should explain why all the towers and date ranges are relevant to the investigation. "This obviously flows from what is now the s. 487.014(2)(b) Criminal Code requirement that there be reasonable grounds to believe that the documents or data requested will afford evidence respecting the commission of the offence."
  3. For the same reason, your application should explain why you need all the types of records you seek. Do you really need all that banking and credit card information?
  4. Narrow your search to match the information you have. For example, if the evidence indicates that a robber made a series of calls lasting less than one minute this detail might permit the target of the order to narrow the search and reduce the number of records to be produced.
  5. Instead of demanding all the records, and sifting through them yourself, ask for an order which requires the phone company to collect the records and sift through them, and issue you a report of what they found. "For example, in this case a report on which telephone numbers utilized towers proximate to multiple robbery locations would contain identifying information concerning only a small number of robbery suspects and not the personal information of more than 40,000 subscribers which the Production Orders sought."
  6. If you need the raw data instead of a report, explain why.
  7. Confirmation that the types and amounts of data that are requested can be meaningfully reviewed. Spell out what kind of data you expect to get, and how you plan to make use of it.

Counsel for a phone company suggested that if you do obtain vast quantities of data from cell phone dumps, that you should soon destroy what you determine to be irrelevant.

Caution.

If you do that, defence may complain that the records you destroyed may contain the very data required to establish an alibi, or otherwise defend the case.

Do not take this decision as gospel. It is a trial-level decision. Appeal courts tend to give more authoritative answers. The only parties were the police, the Crown and the phone company. Nobody to represent the defence interest.

But these seven ideas have legs. Don't ignore them.

2016.03.26 Search & Seizure - Officer Safety


How much can you search to protect yourself?

I noticed this case last summer. I should have commented on it then. Better late than never.

Police officers attended an apartment in response to a 911 call. The dispatcher told the attending officers that a neighbor called in the complaint. A domestic. The woman was crying and screaming "stop hitting me".

A woman came to the door. Police entered.  Mr Ahmed-Kadir, 2015 BCCA 346 emerged from the bedroom. An officer arrested him for assault. Another officer walked through the apartment, and saw nothing of concern.

After 15 minutes, one officer noticed drugs on top of the refrigerator. Then she realized that she stood with her back to a closet that nobody had checked for people. She looked inside. It was full of shelves - no room for a person to hide. But a shopping bag sat on one shelf. An officer looked in the bag and found a handgun.

The officer who looked in the closet said she was looking for people, and for officer safety.

The court excluded the gun from evidence.

On entry, the officers were entitled to look around for people, for officer safety. The officers knew only of a man and a woman; and they found a man and a woman. The judges didn't think, after 15 minutes, that the officers had reasonable grounds to fear that another person might be hiding in the closet, nor that the person would pose them any danger. And the bag on the shelf posed no obvious danger either.

They judges did not complain about the the drug seizure, the drugs were plainly visible.

The lessons to draw are simple and obvious:

  1. When you "clear a residence", you need to be able to give reasons why you needed to walk through it.
  2. Safety of victims and officers can give you reasons; but you need to be able to identify why, in each situation, those concerns arose.
  3. If you need to search for officer safety, do it properly, right away.
  4. If you do a haphazard job in the beginning, you expose yourself to unnecessary dangers.
  5. If you wait too long to search a residence "for officer safety", it will look like a search for evidence, which in many situations be unlawful.

2016.03.21 Right to Counsel - Counsel of Choice


After you demand breath samples from a driver pursuant to s.254(3) of the Criminal Code, you must test his breath "as soon as practicable". No sitting around waiting.

However, for the purposes of s.10 of the Charter the demand "detains" the driver. The driver enjoys the right to retain and instruct counsel without delay, including the right to seek advice from any counsel of choice that may be reasonably available.

An officer made such a demand on Mr Vernon, 2015 ONSC 3943 at 6:45pm on a Sunday evening. They reached the police station at 7:23pm. Mr Vernon said he wanted to talk to a particular lawyer. At 7:30pm, the investigating officer called that lawyer, but one minute later, unbidden, he placed a call to Legal Aid. The duty lawyer called back at 7:44pm, and Mr Vernon spent 12 minutes getting advice from him.  At the time, he expressed no complaint about the quality of legal advice.

He waited until the trial to complain.  There he said that he would rather have spoken with his own lawyer.

The trial judge agreed that the police breached his right to counsel.  So did the summary conviction appeal court and the Court of Appeal.

The judges agreed that the officer should have told Mr Vernon that he "had a right to wait a reasonable amount of time for his counsel of choice to call back."

This puts you in a difficult situation. If you wait too long, then you fail to take the breath samples "as soon as practicable". If you don't wait long enough, then you fail to respect the driver's right to counsel. The judges don't say what a "reasonable amount of time" would be.

The judges agreed that the officer should have taken more steps to try to contact the lawyer of choice.

The cross-examination suggested that the officer should have looked up the lawyer's home number, and checked the Law Society's webpage for other phone numbers. In many cases, these steps will be futile; but taking those steps would make a show of good faith.

This area of criminal practice has been litigated frequently for 30 years, and yet no standard procedure emerged for satisfying a detainee's s.10(b) rights. Although the judges in this case all agreed that the officer did it wrong, they did not say what would have been "right". If asked, most criminal practitioners will come to different conclusions.

I think the answer to these conundrums emerges by considering a police officer's duties under these circumstances:

I suggest that the solution to this conundrum of investigating the offence "as soon as practicable" while waiting for a lawyer who never calls is done by asking person who enjoys the right how he chooses to exercise his rights. Refuse his requests only when they become unreasonable.

This case may revive debates in your office about how to deal with difficult demands for counsel of choice. Good. Beware of anyone who claims to have a fool-proof procedure that works every time. In my view, Charter rights are respected by understanding the principles, not by following blindly a standard procedure which works in most cases.

2016.03.17 Right to Counsel - Eliciting Evidence

Mr Sabados, 2015 SKCA 74 gave police reasons not to like him. They arrested him for robbery. He got bail after 450 days in custody. I guess Mr Sabados had a substance abuse problem: the judge imposed a term that he provide police with breath samples if an officer formed reasonable grounds to suspect that he consumed alcohol.

Mr Sabados didn't stay out on bail for long. 3 months later, police attended to a new complaint. They arrested Mr Sabados for death threats, assault, and breaching his bail by possessing drugs and alcohol.  They offered him access to counsel.

He wanted to talk to a specific lawyer.  He called, and left a message for the lawyer to call back.  Knowing this, an officer interviewed him about the new offence before Mr Sabados got legal advice.

That was a mistake.

Police must hold off eliciting evidence until after the prisoner waives or exercises his right to counsel. Asking questions about the offence is "eliciting".

During the interview, the officer noticed an odour of liquor. Knowing of the bail condition, the officer demanded that he provide a breath sample. He said he would not give samples until after he spoke with a lawyer.

So they charged him with refusing, contrary to his bail order.

That was another mistake.

Demanding bodily samples is "eliciting".

Mr Sabados won.

Even though the recognizance required Mr Sabados to blow, he still had a right to get legal advice before incriminating himself.

If you arrest a suspect, and the suspect wants legal advice, arrange for that legal advice before asking that suspect to provide evidence against himself. You can search incidental to arrest before the legal advice, but you can't ask him for bodily samples, statements or re-enactments of the crime until he exercises or rejects his right to legal advice.

This principle arises most often with serious motor vehicle cases. Drunk drivers who crash often go to hospital. When you demand blood samples from the driver who caused a serious accident, you must give that driver the access to counsel he requests before you take his blood. It's more complicated to do in a hospital, but the principle still applies.

2016.03.09 Gathering Evidence - How much is Too Much Evidence?

A troubled young man on a reserve complained that Mr Hume, 2016 BCCA 105 molested him. The young man said he arrived at Mr Hume's residence drunk. Mr Hume gave him more booze. He passed out. He claimed that awoke naked on the living room floor and found Mr Hume shaving his testicles. He complained to police and showed them that all his body hair was gone. By the next evening, a police officer executed a search warrant on Mr Hume's place.

The officer found no pubic hair on the living room floor. But the vacuum cleaner contained a large quantity of short curly dark hair. The officer dumped the contents of the vacuum cleaner into a bucket, photographed it, and took a small sample.

The DNA lab said that the sample was not suitable for DNA analysis.

At trial, the judge did not permit the police officer to testify whether this hair had fallen out naturally or had been cut.  The judge felt this opinion required expert opinion.

In submissions to the jury, the defence explained away the hair: this was a home on an aboriginal reserve. Lots of people there would shed dark hair. And the home had pets.

I invite you to consider with the perfect vision of hindsight what you would do to get the most out of the evidence in the vacuum cleaner. Would you ...

  1. Keep all the contents of the vacuum cleaner?
  2. Spread the contents of the vacuum cleaner out on a white paper sheet before photographing it?
  3. Find an expert to assess whether this hair was cut.
  4. Examine the hairs under a microscope, and compare them to cut human hair.
  5. Photograph the hairs under a microscope.

It turns out that the police officer did enough in this case to satisfy the jury. They convicted Mr Hume. Next time, it might be different.

2016.03.08 Implied Invitation to Enter Private Property


If you suspect someone of committing an offence, you can't walk onto their private property for the purposes of searching for evidence. But you can walk onto private property for the purpose of communicating with them, even if you know about the offence. It's a peculiar line, which is difficult for judges to assess.

Police officers in rural BC arrested Mr Parr, 2016 BCCA 99 under the Mental Health Act. He was speaking incoherently about his fiancée. They towed his vehicle and took control of his dog.

Knowing that a team of officers was investigating Mr Parr for growing marijuana at his residence, Cst Jenkins went there to tell Mr Parr's fiancée where he was. Perhaps she could take back his dog.

Cst Jenkins found nobody, but noticed odours of marijuana on the property, and equipment for growing it. He told the team. The team got a warrant, and took the operation down.

If Cst Jenkins went there to investigate the marijuana grow operation, then he intruded unlawfully on the land, and his observations could not be used to support the warrant.

Defence argued that Cst Jenkins went there to investigate: Cst Jenkins didn't phone, he went there in person. It was a long drive from the police detachment to Mr Parr's place. After failing to find her, Cst Jenkins took no further steps to locate the fiancée.

The trial judge believed Cst Jenkins when he said his purpose was simply to speak with the fiancée.

This case makes for good reading, not just for the teams, but also the general duty officers those teams communicate with. What's your purpose when you go into private property? Did someone actually invite you? Can you rely on the implied invitation, because they would want you to communicate with them?

Don't rely on my summary.  Read the decision, to understand how the judges analyse this subtle distinction.

2016.03.07 Objective Investigating and Reporting

Police arrested Mr. Laing, 2016 ONCA 184 in a mall parking lot. They found two loaded handguns in his possession. As part of the investigation, some officers obtained and watched mall security video of the take-down. They took no notes if its contents. Between investigation and trial, the DVD which contained that video recording went missing.

Mr Laing's counsel asked the trial judge to drop the case by reason of the lost evidence. The trial judge refused. At trial, defence accused police of planting the guns. He suggested that they destroyed the DVD as part of a cover-up.

According to the officers, the cameras pointed the wrong way, and captured none of the take-down. Too bad they took no notes.

The jury convicted Mr Laing, and the appeal court upheld the conviction.

I think that there's a lesson in here. Human beings tend to notice evidence which supports their beliefs. I suspect that this tendency affected this investigation:

Could anyone fault the officer for thinking that Mr Laing carried a gun? Of course not.

During the take-down, officers found guns. Naturally, they recorded information about that. It was obviously important.

After the take-down, the officers who watched the security video saw no information about the guns. It seemed obviously unimportant. Therefore they took no notes of the video's contents. The DVD seemed unimportant. They took less care in lodging it into exhibit storage.

Perfectly natural human behaviour. But it formed the foundation of the defence attack. And I doubt any of the officers enjoyed having their integrity attacked.

An objective investigation seeks out all reasonably available sources of evidence. An objective report accounts for every investigative angle pursued. It was a good idea to look for the video. It captured nothing that the officers wanted to see

2016.03.06 Conspiracy, Aiding and Abetting - The Marijuana Growers' Supply Shop


What's the difference between aiding and conspiring?

Mr Nguyen, 2016 ONCA 182 and his son-in-law ran a garden supply store in an unusual way. For accountability and marketing purposes, most vendors track which customer bought what. Mr Nguyen's store accepted only cash. He kept no records of customers and what they bought. Most shops sell their products in packaging which advertises the source. Mr Nguyen wrapped his products in plain bags. Customers could load their purchases at a loading bay hidden from view. Like some vendors, Mr Nguyen's store had a van to deliver the goods to the customer. Unlike most vendors, Mr Nguyen let his customers drive the company van away to undisclosed locations.

The store stocked only products useful for growing marijuana. It stocked unusual garden supplies, such as electrical circuit panels and ductwork. He sold nothing that was illegal to possess.

Police followed four customers, each of whom led police to grow operations.

The trial judge convicted Mr Nguyen of the charge of conspiring with his son-in-law and the purchasers of their products to aid and abet the production of marijuana.

That was a mistake. The purchaser and vendor of an illegal product don't conspire, because their objectives differ: the vendor wants money; the purchaser wants the product. Had the charge accused only Mr Nguyen and his son-in-law of conspiring to aid others in the illegal production of marijuana, that charge might have stuck.

But he was guilty of actually aiding others in the illegal production of marijuana. But that required more than merely following the customers, and finding grow operations where the products went. It required evidence that Mr Nguyen was involved in the sales of the products to those customers, or otherwise assisted the purchasers.  That's what aiding is. Nguyen himself helping the customer.

2016.03.05 Possession - "What's in the Gun?"


Section 95(1) of the Criminal Code creates a specific offence of possession of a loaded restricted/prohibited firearm.

Mr Hunter, 2016 BCCA 94 possessed a loaded handgun, cocked and ready to fire, in a storage compartment under the seat of a scooter he sometimes drove. Did that make him guilty of the offence?

Nope.

Not if the Crown can't also prove that he knew it was loaded.

Sometimes, the circumstances make it obvious. For example Mr Francois, 2014 ONCA 234 took a handgun with him to complete drug transactions which involved threatening to kill people with it. When police arrested them, they found it contained bullets. The circumstances allowed the court to infer that he must have known it was loaded.

But Mr Hunter's circumstances differed. Police found him in a park talking with friends, near the scooter. These circumstances did not lead to any clear reason to say he knew about the bullets in the gun.

That means finding someone with a loaded handgun is not the same as proving they knew the bullets were in the gun. Because courts acquit if there is any doubt, keep investigating. Sometimes they load the bullets with their bare hands, and leave fingerprints. Sometimes, they have more bullets in their pockets, or somewhere nearby. Sometimes, if you ask the right questions, the prisoner, or someone who knows him, will talk.

2016.03.05 Possession - "What's in the USB stick?"

What kind of "circumstances" persuade judges that a suspect had guilty knowledge?

When police arrested Mr Arsabekov, 2016 ONCA 169 in his car, they found a USB stick and a credit card reader.  The USB stick contained lots of credit card information.

Could the judge convict him of possession of the credit card data? Only if the judge could find beyond a reasonable doubt that he knew about the data inside the USB stick.  The presence of the credit card reader (and some efforts to evade police) persuaded the judge that he knew.

The Appeal Court agreed.

It's not illegal to possess a credit card reader. But having one along with a memory device containing stolen credit card information suggests that you know about the credit card information.

2016.03.03 Production Orders and Search Warrants - Reasonable Grounds to Suspect an Offence


We all know that a judge can't issue a search warrant or production order unless the officer provides reasonable grounds to believe that the warrant or order should be granted.

Except, s.487 also uses the word "suspect" in relation to how sure the judge should be that an offence occurred.  And before March 9, 2015, so did the former general production order section.

Does this difference mean anything?

In Nero, 2016 ONCA 160 at para 62, the court said it does.  They said that the judge doesn't need belief, only suspicion, that an offence occurred.

I observe that Parliament removed the word "suspect" from the current general production order section. If Parliament thinks suspicion is too low a standard for production orders, then a judge may conclude that suspicion is too low a standard for search warrants too. When applying for search warrants, rely on this difference at your peril.

But Parliament deliberately chose "suspicion" for many other kinds of searches, such as number recorders and preservation demands. I see less risk there.

2016.03.03 Production Orders - Evidence "Respecting" an Offence

Police suspected Mr Nero, 2016 ONCA 160 of organizing a major drug trafficking operation.  Initially, they sought cell phone records, to find out who he called, and which cell phone towers he was nearest when he called. 

Production orders get you evidence "evidence respecting the commission of the offence". It's often difficult to explain why you think specific records fit that description. At trial, defence argued that these records would establish only that he talked to people, but not that he was guilty of any offence.

At para 83, Watt J.A. observed:

"The records need not be conclusive proof of guilt."

The production orders were good.  When you apply for a production order, you needn't explain why the records will prove guilt, only how they might provide evidence about the offence.

2016.02.29 How much evidence is Too Much Evidence?


In the basement of their house, Mr Walchuk, 2015 FCA 85 beat his wife unconscious. The house caught fire and burned. An expert told the trial judge that someone poured gasoline (or some other accellerant) at the top of the stairs. The trial judge convicted him of murder, on the theory that he set the fire.

After he exhausted his appeals, Mr Walchuk found different experts who concluded that the first expert was wrong. No accellerant on the stairs started this fire: it started somewhere else. There was some evidence to suggest that his wife started the fire by crashing her car into the house before the beating in the basement. He asked the Minister of Justice to review the case: was this a wrongful conviction?

The Minister didn't think so. Nor did the Federal Court Judge, nor the Federal Court of Appeal.

Why not? Among other reasons:

Read the decision for all the circumstances.

The prosecutor could prove those circumstances only because investigators, with active curiosity, looked into questions like "where did that matchbook come from?"

The defence challenged the expert after the trial and the appeals all passed. This conviction stood because the investigators gathered (and the prosecutor presented) more than evidence than necessary to prove Mr Walchuk's guilt.

So when is your investigation complete? After you have attempted all that is reasonably possible to gather all the evidence available.  Don't quit investigating just because you become satisfied of the suspect's guilt. Keep gathering evidence until all the available evidence is collected.

The smaller the case, the harder it is to do a complete investigation. But the burden of proof in a domestic assault is the same as murder: proof beyond a reasonable doubt. So many of those reluctant spouses recant, it hardly seems worth any effort. But if you bust enough wife-beaters, you may prevent a murder. Like Mr Walchuk.

2016.02.28 Arresting and Releasing Foreigners


When you arrest and hold a foreigner, one of your obligations under Art. 36(b) of the Vienna Convention on Consular Relations (1963), is to inform the person concerned without delay of his right to contact consular officers from his home state. (Only a few countries in the world are not parties to this convention.)

Failure to do so does not usually breach Charter rights (Walters, 2013 ABCA 204).

After arresting a foreigner, are you obliged to bring him or her before a justice of the peace? Nope. Provo, 2015 ONCJ 311. You can release him or her yourself. But you should turn your mind to whether the suspect will return to court.

Sections 498(1)(d) (and s.503(2.1), by reference) of the Criminal Code, permit you to release the suspect on recognizance (Form 11) with or without conditions.  You can even take up to $500 cash on deposit, to make sure that the suspect attends court.

You might want to consider how you to account for the deposit. Do you seize it and place it in exhibits, and report the seizure to a Justice, or do you deposit it with the court?

2016.02.14 Sexual assault


Mr Edgar, 2016 ONCA 120, a big man, grabbed a woman outside her apartment, and made her let him in.  He kept her captive there for an hour, making various non-sexual demands: he needed to use her phone.  He wanted water. At the end, he made her sit and watch him masturbate. For a few minutes, she did. He touched only himself, and not her. She then fled, leaping off the balcony. She broke both ankles in her effort to escape him.

Did he sexually assault her, even without touching?

Yes.

Why?

Read the definition of "assault" in s.265 of the Criminal Code.  It includes more than touching. Assault includes a threat of force, accompanied by the immediate means to carry it out.

She only sat down because he had threatened her. She watched only because he demanded it. He had her under his control. The whole confinement was an assault, and he rendered it sexual when he compelled her to watch him.

Why do you care?

Because we often forget that second part of the definition of assault.

The man who raises his fist to a woman assaults her even without striking, if he does so in a manner that causes her to believe that a blow was imminent. At your next domestic call, the complainant may say that no blows were struck before you got there. When the reluctant complainant says "he never hit me, he only threatened", you should follow up: "Did he make it look like you were about to be hit? Did you think that was going to happen?"  If you get "yes", then she described an assault. If you believe her claims are probably true, and arrest is necessary in the public interest, then you can arrest him for assault.

If you do, he may express bewilderment "I never touched her, man."  If so, have some sympathy for the blighter. Maybe you should take him to an interview room, and explain why you arrested him. Video-record it. Who knows, he might even show you how he held his fist.

2016.01.30 Press Conferences - Prejudice to Fair Trial


When you make a big bust, holding a press conference tells Canadians that police are effective, and crime doesn't pay.

But tread carefully. 

After police busted Mr Pedersen, 2016 BCCA 47 and his accomplices for importing one tonne of cocaine they told the world. At trial, Mr Pedersen asked for a stay of proceedings. He complained that the publicity robbed him of a fair trial.  The jury would be prejudiced against him.

The judges denied his application.  But they commented:

"care must be taken to avoid prejudicing the accused, particularly where the trial will be held before a jury."

What do you avoid showing and saying in such a press conference? I have little skill in media relations; I won't tell you how to talk to reporters. But your prosecutor would fear press coverage of:

In this case, the trial judge disliked the "trophy" or "self-congratulatory" tone of the press conference, but she liked the fact that press conference revealed no detailed personal information about the suspects.

Therefore, despite your excitement after the biggest bust in your career, you should take a deep breath before the press conference, and calm down.  Remind yourself that what you say there will be used to cross-examine you, and attack the case. When the reporter presses you for information about the defendants and their individual roles, avoid saying anything exciting enough that a juror would remember it a year later. "Giving too many details at this early stage could undermine the accused's right to a fair [jury] trial."


2016.01.29 Citizen's Arrest - Civilians don't need Charter Cards

 ... unless you organize them

After Mr Nguyen, 2016 BCCA 32 attacked another man at a bar, bouncers grabbed  and held him until police arrived. During the wait, Mr Nguyen told them things that his lawyer wished he hadn't said. At trial, Mr Nguyen complained that the bouncers failed to tell him his rights under the Charter, and asked the court to prevent the jury from hearing what Mr Nguyen said about the fight.

The judges concluded that the Charter does not require private citizens acting on their own to explain Charter rights.

They would have to explain Charter rights if you instruct or enlist private citizens to arrest or detain miscreants as some organized initiative.

2016.01.27 Book Update


My publisher recently released the 2015-2016 edition of Common Canadian Criminal Code Offences and Procedures. This book collects into one soft-cover book the parts my two larger (and more expensive) books that I use most. Some police officers tell me that they found the previous edition useful, and no police officer has told me otherwise. Either you folks are just polite, or perhaps there's something there that police officers like.

This edition covers the same topics, but reflects court decisions and changes in the legislation. (Since the last edition, the "Harper Government" amended the Criminal Code about 15 times, causing hundreds of changes to the act.)

Click the link if you want to know more.

2016.01.26 Search and Seizure - Automobile Crash Data Recorders

In November, I reported the growing Ontario case law which suggests that you need a warrant if you want to search the device in a vehicle which records the last few seconds of driving data. (Hamilton, 2014 ONSC 447; Glenfield, 2015 ONSC 1304).

Now the B.C. Court of Appeal upheld a trial decision which came to the opposite conclusion.  Fedan, 2016 BCCA 26.

In that case, the police obtained a warrant to search the vehicle for other forensic evidence such as DNA, but they did not obtain permission to search the black box. The court found that they didn't need judicial pre-authorization because the driver enjoys no expectation of privacy in it.

2016.01.25 Search Warrant - Searching the Place Identified on the Warrant

Intercepted communications of a drug king-pin led police to believe that a woman called "Momo" supplied crystal meth to the king-pin's network. Police watched him enter the front door of a residence in a mixed commercial and residential plaza, let in by a woman. When drafting the warrant to search that place, the affiant wisely obtained schematic diagrammes which suggested that the front door led to an apartment at the rear of the building. The schematics showed a rear entrance to the same apartment. Two vehicles registered to Valerie Pham parked in the lot outside the building. Her sister Tammy received the Hydro bills for apartment 4204B. Valerie's driver's licence photo resembled the woman who welcomed the king-pin. Police believed Valerie was "Momo". The justice granted their application to search of "4204B Dundas Street West (rear)".

Things on the ground differed from the drawings.

The front entrance did not reach the rear apartment.  The front entrance led to an undocumented apartment in the basement.  There, they found Ms Ting, 2016 ONCA 57.

Her apartment was not at the "rear", and did not connect to that apartment. Police searched it, and her cell phone, anyway. For an hour and 40 minutes.

They found drugs and money. They figured that she must be "Momo". Then, realizing that they had a problem with the warrant, they applied for, and obtained, a new warrant. This one let them search "residence of 4204B Dundas Street, West".  With that warrant, they searched some more, and found more drugs.

The judges hated it. The first warrant authorized the search of a different residence. The second one failed to identify which of the apartments there the officers wanted to search. The real "Momo" - Ms Ting - beat all the charges.

The address on the face of the warrant matters. Apartment buildings pose special problems. Researching before you apply for a warrant helps prevent mistakes. When you execute the warrant, make sure you enter the right place. And if the warrant is wrong, fix the problem before you search.

2016.01.25 Exigent Circumstances Search


On February 14, Mr Mengitsu sold drugs to an undercover police officer who came to his apartment.  On February 24, the same officer arranged to purchase more from Mr Mengitsu, a dealer.  That day, the dealer foolishly told the officer he needed to get some more from his supplier. Other officers watched him visit the nearby apartment of Mr Phoummasak, 2016 ONCA 46 before completing the sale.

The officers believed Phoummasak was the supplier.  They debated whether to apply immediately for a warrant to search the Phoummasak's apartment. The officer in charge directed them to buy drugs one more time, to make sure of the supplier's location. Anticipating this, they started drafting their application, and arranged another buy.

On March 15, 2012, the dealer sold them drugs again. Again, he needed to visit Mr Phoummasak's apartment before completing the deal. The officers planned to arrest the dealer as he returned to his own apartment. Instead, he walked to Phoummasak's apartment building. The arrest team took him down in public, right in front of the supplier's apartment building. The dealer's cell phone then began to ring repeatedly.

Fearing that this arrest would cause his supplier to hide or destroy his drugs, the officers entered the Phoummasak's residence without a warrant.  They found Mr Phoummasak throwing baggies of drugs off the balcony.

At Phoummasak's trial, defence agreed that exigent circumstances may justify a warrantless search, but complained that the police created the emergency. Defence said police had sufficient grounds for a warrant after the second buy, but police chose not to apply for it. If police create the emergency, then police can't rely on exigent circumstances.

The court agreed with this general principle. You can't manufacture exigent circumstances as a way of circumventing the legal requirement to get a search warrant.  But these officers planned all along to get judicial authorization. They were just double-checking the location of their intended search. Their plans went awry when the dealer went in an unexpected direction. The court found that the police response to the unexpected events was reasonable, and not an effort to avoid paperwork. Mr Phoummasak lost at trial and on appeal.

Unexpected developments may justify a warrantless search under s.487.11 of the Criminal Code (or, in the case of drugs, s. 11 of the CDSA). But don't plan to rely on this power. If you expect a development which will trigger a need to search a place, consider applying in advance for a General Warrant under s.487.01 which authorizes you to search when the expected development occurs.

2016.01.19 Authenticating Communications - Emails and Texts

If you get a text message from my phone, does that mean I sent it?

In R. v. Seruhungo, 2016 SCC 2, the trial judge wasn't prepared to assume that the sender of a text was always the owner of the phone. The dissenting judge in the Alberta Court of Appeal agreed with him: R. v. Seruhungo, 2015 ABCA 189.  So did most of the judges of the Supreme Court of Canada.  You can't always expect the owner of the phone is the person who sends all the messages from it.

When your investigation leads you to text messages and emails of importance, you will naturally assume that each message came from the account holder.  But the court may need evidence to support this inference. A text from a phone number proves only that the phone sent the message, not whose fingers did the typing.  If you receive an email from someone, then you know which account sent it, but not who typed it.

If you case stands or falls upon emails or texts, look for evidence which authenticates the message.  Does the text say something or say it in some way that establishes who typed it?

2016.01.09 Drunks -  Keep or Release?

When you arrest a drunk under the Criminal Code, how long should you keep him or her in custody?

Mr Hardy, 2015 MBCA 51 didn't just refuse to provide his breath into a screening device, he was rude and argumentative with police. They kept him in custody for 12 hours before letting him go.

At trial, Mr Hardy claimed that the police kept him in custody as punishment for refusing to blow. He said the officers should have called his girlfriend to come and pick him up. He asked the judge to throw out the charges because the officers arbitrarily detained him.

The answer to my question is: Drunkenness does not justify detention. The fact that the officers thought that Mr Hardy was drunk was no reason to keep him in custody.

But public safety and the safety of your prisoner does.

Because Mr Hall was an obstreperous, belligerent and unreasonable drunk, the officers decided to keep him until he became safe to himself and others. (If you do the same, keep notes, or better still, record his conduct on audio or video.)

Was it acceptable for the officers to decide at the beginning to keep him for 12 hours, or were they required to monitor Mr Hardy, and release him as soon as he became safe?  This court found that the officers did not bear an obligation to monitor Mr Hardy constantly. (I imagine waking a sleeping drunk every 30 minutes to check his sobriety would render a detention unreasonable.) However, I do not think it wise to lock up every drunk up for 12 hours and ignore them.  Some may calm down and become safe after shorter periods.  I suggest checking on them with increasing frequency after they have had an opportunity to sober up.

2016.01.08 Warrant drafting - Pedigrees of Criminal Sources


"I've got this great source," the officer told the judge. "He can be an agent. Based on what he says, you should grant me an authorization to listen to his conversations with Mr Hall."

Later, at trial, the truth about this agent came out.

The proposed agent hated Mr Hall, 2016 ONCA 13. The agent believed that Mr Hall helped torture and murder his sister. The agent had a bad drug addiction, and a horrible record of crime, and sought extraordinarily lenient treatment from police in exchange for information.

Perhaps the judge would not have been so impressed if the officer revealed these details to the judge.

Relying on the officer's affidavit, the judge issued a wiretap authorization.

When the trial judge learned the whole truth, he excluded all the evidence obtained by the wiretap.  Mr Hall beat some serious charges.

It's too easy to get caught up in what your source tells you. Before you ask for a warrant, take some time to discover and report the problems with your source.

2016.01.06 Mr Big Operations

 - Simulated Violence

In R. v. Hart, 2014 SCC 52 the Supreme Court decided that no jury should hear about a confession obtained by a Mr Big operation unless the Crown could first prove its reliability.  That may be done either by showing corroboration or that the circumstances of the confession rendered it unlikely that the target would lie. The court also observed that when police use outrageous tactics, courts may stay proceedings.

Defendants who confess to Mr Big often say at trial that they lied to Mr Big because they feared him, and they said what he wanted to hear because they were so dependent upon the money and friendship they received from the undercover officers.

When persuading suspected murderers to confess, these operations include scenarios of simulated violence. Going too far with this may undermine the investigation.

Mr Hart was a particularly vulnerable and needy individual. The Mr Big operation he underwent preyed upon this, leading the court to find that his confession should not be admitted.

In Laflamme v. R., 2015 QCCA 1517, police suspected that the accused murdered his wife in 1973. During a Mr Big operation in 2008, the target saw simulated violence on people outside and inside Mr Big's organization. Mr Big intimated that the target and his new friend faced the prospect of serious violence or death if the target did not confess. This went beyond providing incentives to confess, and imposed undue pressure.  The court directed a stay of proceedings.

However, in R. c. Perreault, 2015 QCCA 694, R. v. Allgood, 2015 SKCA 58 and R. v. Johnston, 2016 BCCA 3, the courts found no abuse of process in investigations in which the accused saw some pretty serious simulated violence.

Mr Allgood saw the organization remove a member from its ranks without violence, but Mr Big said that he "recently" had to "bury a friend". Mr Perreault saw what appeared to be violence as well, but the organization never directed its violence towards him.

Mr Johnson underwent a Mr Big operation in which he participated in the kidnapping of a "debtor" and his "girlfriend". While he drove the van, the officers staged a beating in the back. Later, they made it appear that they murdered the debtor and his girlfriend. He later confessed, giving details which largely matched hold-back and other evidence, but included details which contradicted some of the evidence.

As nicely summarized in the Johnston case, what distinguished the good operations from the bad were exploitation of vulnerability, and directing violence at the target.

As officers conducting these operations have always known, confirming the details of the target's confession makes a huge difference at trial.

I think that the Johnson scenarios survived judicial scrutiny because the officers collected evidence that Mr Johnston was his own man, unafraid of what he saw. It's not just that the officers directed no threats at him. The result might have differed if the police used the same tactics on a more timid target.  Therefore, continuously watch for the target's timidity or callousness, and tailor your operations in response.

2016.01.03 Laying Charges - Swearing to Reasonable Grounds


Criminal prosecutions formally start when someone lays a charge. Many of you do this by presenting the charge to the justice of the peace, and swearing or affirming that you have reasonable grounds to believe that the accused did the crime.

Don't swear because someone told you to swear the charge. Read enough of the file to know why you think that this person committed this crime. You don't need to read the entire file; summaries will do. But you can't lay a charge without knowing any of the evidence.

A retired police officer swore charges against a batch of offenders. The batch included a charge of assault against Mr Delalla, 2015 BCSC 592. The officer met the justice of the peace in a room with a computer. The officer swore that he had reasonable grounds that the whole batch of offenders did the crimes. The justice then popped each file up on the computer, and he entered his electronic signature on each information.

The court didn't like this procedure because:

There was a separate issue: should the justice or the officer sign the document first? The answer is: it doesn't matter.  What matters is that the officer swear to the reasonable grounds before the documentation gets completed. And that's what went wrong in Mr Delalla's case. The charge was falsely sworn, and so the prosecution ended before the trial began.

2016.01.03 Disclosure - Confidential Sources - Debriefing Reports and Handler's Notes

How much disclosure must the police and prosecutors must give to defence when the only issue it probes is whether a warrant should have issued?  Recent decisions considered this question in the context of confidential source debriefing reports (SDRs) and the handlers' notes (SHNs).

Trial judges all agreed that the prosecution should redact anything that tended to identify the informants.  But they made quite different orders of disclosure (subject to that redaction):

These apparently subtle distinctions have big impacts on cases. I predict that the appeal courts will have to address this question next year. (2016.04.06 Yup: McKay is under appeal.)

Lots of officers receive information from people who don't want their names revealed. It starts out simple, but can become complex and dangerous.

When you receive such information, follow your force's documentation policies and procedures for confidential source information. If you don't know what those are, learn them.  These trial decisions indicate that following formal record-keeping procedures today will make a big difference in future cases.

2016.01.02

Statement-taking - Admissible Hearsay

Notebook notes are necessary, but not always sufficient.  There's a difference between information and evidence. Information tells investigators what happened, but evidence proves charges.

In 2001, someone stabbed Alexander Sanderson to death.

Three men were present: Terry Pechawis, Dwayne Badger and Curtis Nataucappo, 2015 SKCA 28.

That day, Badger told two officers that he and his friend Pechawis accompanied a stranger, and the stranger stabbed Sanderson.

He refused to provide any kind of statement.  The officers wrote notes about what Badger told them.

Mr Badger died in 2006.

At the time of the stabbing, Mr Pechawis completely refused to cooperate with the police. In 2009, he identified Mr Nataucappo as the person he and Badger accompanied.

The trial occurred in 2011.

Considering Badger was dead, could the officers tell the jury what Mr Badger told them in 2001? Such testimony is, of course, hearsay. The trial judge thought the jury should hear this information, but the Court of Appeal held that it was too unreliable to admit into evidence.

In this serious case, Badger prevented the investigators from collecting crucial evidence. But it illustrates a preventable problem that arises routinely.

When a witness tells you the answers to your questions, you write information into your notebook.  It's hearsay, and generally not evidence. Witnesses who testify in court give evidence. If it's important information, you need to do more than take notes.

For example, if an eyewitness tells you the licence plate of the culprit's car, you should write it down in your notebook. But that's only information. You can't testify that the culprit drove that car because you didn't see the culprit driving it. Only the eyewitness can testify to that fact.

If your notebook contains the only record of the licence plate, will the witness still remember it when you get to trial?  No way.

The prosecutor might ask the forgetful eyewitness whether she told the investigating officer what the licence plate was, and then ask you to testify what you wrote down. As this case illustrates, judges worry about accuracy. The judge may not permit you to testify about the licence plate you heard about.

What can you do?

This applies to much more than licence plates. For example, I've seen this arise with:

You need to record information in your notebook, so that you can give evidence well. But your notes will  preserve other people's evidence poorly, unless you take further steps.

2015.12.19 Using the Evidence of Confidential Informants at Trial

Confidential informants give information on condition that they not be identified. That disqualifies them as witnesses because we require witnesses to testify in open court, where the defendant can see who testifies against him. Can we never use confidential informant information to prove a case?

Mr Gaulub wore a red shirt when he went to a friend's place for a barbeque. Two men drove up in a car.  One got out, shot him in the back while the other waited.  Then they fled. Mr Gaulub had no dispute with anybody. The investigation produced evidence that Mr Sheriffe, 2015 ONCA 880, drove the car, and Mr Ashafa pulled the trigger. But why did they kill him?

The victim wore red - the colour of a local street gang. He wasn't a member. He just put on the wrong shirt that day.

An informant told police that Mr Sheriffe and Mr Ashafa belonged to a rival street gang. The informant's information provided a motive: Sheriffe and Ashafa killed him as part of an ongoing turf war.  Could the prosecution use the source's information in the trial?

Yes ... but only if the prosecution could prove that the source was very reliable, and without giving away his identity.  In this case, the prosecution succeeded.  The trial judge permitted the jury to hear what this source told a police officer.

This is the first time I've seen a court permit a confidential source's information to be admitted for its truth in a trial. It may make prosecutors look at source information differently in future.

2015.12.13 Arrest & Detention - Detaining for Interviewing


A police officer in Victoria, B.C. gathered sufficient grounds to arrest Mr Viszlai, 2015 BCCA 495 for a sexual assault committed upon a boy scout.  When she learned that he would attend a scout jamboree at Sechelt, she asked police there to arrest him, and hold him until she could arrive. Because of the ferries involved, getting from Victoria to Sechelt takes time.  They held him overnight, so that she could interview him in the morning.

Defence complained that the overnight delay violated his right to be free from arbitrary detention. Section 503(1) of the Criminal Code requires police to give him a bail hearing "without unreasonable delay".

The court re-affirmed its earlier ruling (Viszlai, 2012 BCCA 442) that you may delay the bail hearing up to 24 hours if you need the prisoner for investigative purposes such as interviewing.

Beware.  This case does not say: "after an arrest, you can hold prisoners up to 24 hours". The combination of s.9 & 11(e) of the Charter and s.503 of the Criminal Code means you need good reasons to detain prisoners after arrest. This decision says that interviewing the prisoner is a good reason for delaying a bail hearing.

2015.12.11 Interviewing Skills

Don't tell people what to say.  Not ever.  Except if you have to. In which case do it carefully.

For decades, Mr Viszlai, 2015 BCCA 495 led scouts.  One former scout complained of sexual abuse in the 1990's.  An officer took a statement from that witness, and then researched Mr Viszlai on the computer.  She discovered an uninvestigated report that he abused another scout around that time.

She learned that Mr Viszlai would soon participate in a scout jamboree. Fearing more abuse, she arranged for his arrest at that event.  (It was done in a manner that would attract as little attention as possible.)  She interviewed him.  He admitted abusing the scout that recently complained.  She pressed him about the other one, telling him she believed that he did it.  He admitted sexual acts with that kid too.

The officer then located and interviewed the other scout.  He denied anything occurred.  She suggested some details of the abuse.  He denied it. A few weeks later, of his own accord, that former scout returned, and told the officer that he did remember, and provided details, some of which differed from the suggestions that the officer made.

The first jury convicted Mr Viszlai, but the appeal court ordered a new trial. (Viszlai, 2012 BCCA 442)

At the second trial, defence complained that the officer told Mr Viszlai and the second witness what to believe: by suggesting what the truth might be, the officer rendered Mr Viszlai's statement, and the second witness's testimony, unreliable and inadmissible. Defence brought a renowned psychologist to testify that telling people the answers can change their memories. He condemned "The Reid Technique" as an interrogation method capable of causing false confessions, and identified features of the officer's interrogation of Mr Viszlai which matched how a Reid interrogation should proceed.

Despite this, the trial judge let the jury hear former scouts' testimony and watch the video-recording of Mr Viszlai's statement. The jury convicted.

Mr Viszlai appealed.

The court agreed that police should avoid suggesting answers to witnesses during interviews.  But this complainant remembered things differently from the suggestions that the officer made.  That showed that he had independent recall.

I am not a psychologist, but I can comment on the optics in court.  If your witness doesn't remember, and you think that his memory needs jogging, it looks better if you:

The same general principle applies to suspects. Don't put words in their mouths unless you have to.  But often, they don't want to tell you everything, and so you often have to.

In Oickle, the Supreme Court of Canada described which techniques are lawful in Canada, and which are not.  Some of the techniques originally taught by John Reid comply with Oickle, and others techniques, such as aggressive accusation, can amount to oppression in Canadian law. So don't oppress your suspects.  This officer made sure that Mr Viszlai got food, rest, access to counsel, and decent treatment. No oppression.

Read, understand and obey Oickle.  When defence accuse you of applying the Reid technique, you can respond that where Oickle and Reid differ, you follow Oickle.

2015.12.02 Preservation of Exhibits


Mr Neidig’s, 2015 BCCA 489 vehicle crashed. His friend Ian Shepherd was in the car, but died when his body flew from the car.
 
Who drove?
 
Another motorist found Mr Neidig walking on the road at the scene.  Mr Neidig said “My truck, what have I done to my truck?”  When asked if he was driving, at first he said he didn’t know, and then said it wasn’t him. At the hospital, when doctors checked out Mr Neidig, he had bruising on his left shoulder, as if he wore the driver’s seatbelt during the crash. Afterwards, he commented to a friend that a seatbelt “saved my fucking life”. Officers who examined  the vehicle, found stress marks on the driver’s seatbelt, as if the driver wore it during the crash.  There were no stress marks on the passenger seatbelt.
 
Three different experts photographed and examined the vehicle for evidence.  Without telling Mr Neidig, the police released the vehicle to the insurance company which eventually destroyed the vehicle.
 
At trial, the defence complained that police breached Mr Neidig’s right to full answer and defence: a defence expert testified, saying he would probably have found more evidence in the SUV if it had been preserved. Defence argued that police should have notified Mr Neidig of their plans for the vehicle, so that he could take steps to arrange an examination of the vehicle.
 
The trial judge agreed.  So did the Court of Appeal.  The trial judge was so outraged that police would destroy evidence that he stayed the case.  The Court of Appeal disagreed with that solution: instead, the trial should proceed, but the trial judge could consider that the lost evidence undermined the strength of the prosecution’s case.
 
Does this mean you must keep every possible shred of evidence forever? No.  But when you’re considering disposing of important exhibits, you should write to the suspect(s), and explain your intentions.

2015.11.30 Search Warrants - Telewarrants - "Impracticable"

 does not require "Urgency"

During a night-shift, Cst Marshinew finished preparing an application for a warrant to search a residence where Mr Clark, 2015 BCCA 488 lived. No justice of the peace worked in his vicinity at that time of night. Must he stay up until the morning to apply in person, or could he apply at night by telewarrant?

Defence argued that there was no urgency.  The investigative plan involved assembling the search team in the following afternoon.  Therefore, the police didn't need the warrant immediately.

The trial judge accepted the idea that telewarrants can only be granted where there is a need for the warrant to be issued before a personal application could be arranged.  The appeal court disagreed. At para 68, Frankel J.A. said:

"The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week.  Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued.  The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated."

Do other provinces agree?  I did a brief search.

Boussoulas, 2014 ONSC 5542 considered a related question: urgency may establish the impracticability of in-person warrant applications.

There are, doubtless, other decisions on the question.  If you have one which you think should be added to this list, feel free to email it to me, and I'll share it here.

What does appear in the cases which discuss the pre-requisites to telewarrants is the need for applicants to state the circumstances that make it impracticable for you to appear personally before a justice in the ITO.  That generally means explaining how you know that no judge or justice of the peace (in B.C., a "judicial justice") is not available.  Some provincial courts like BC issued directives from which you can quote when explaining why a Justice is not available to hear your application in person.

2015.11.30 Search Warrant applications - Note your Conversation with the Justice

When Cst Marshinew first applied for a telewarrant to search a residence where Mr Clark, 2015 BCCA 488 lived, he forgot to explain how he knew that no judge was available.  The justice to whom he applied talked with him, and explained what was missing from the application.

So he fixed it, and re-submitted his application.

Was it proper for the justice to talk with the officer about the application? Defence said it looked like bias. The appeal court disagreed.

Talking with a justice about the application does raise a legal concern.  The ITO should spell out everything you tell the justice.  A conversation with the justice after you draft your ITO suggests that the ITO could omit something the justice relied on to issue the warrant.

It appears that Cst Marshinew took notes of the conversation, so that he could explain all that they discussed.

That was a good idea.

When applying for judicial authorization:

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.


You can find more summaries of legal decisions at the News Archive.

Follow this link for a single (large) page which contains the Complete News Archive.