2018.06.29 Three Ways to Identify the Felon - Recognition Evidence
Two men took a taxi to the Surrey Central Inn. Shortly after the taxi arrived, two men in masks robbed a clerk inside. Next, just outside, two men attempted to car-jack a car. Evidence suggested that the two men in the taxi were the robbers.
The big question was "whodunnit?"
At trial, the taxi driver and the victim of the car-jacking pointed at Mr Field, 2018 BCCA 253 in the dock and told the court that they recognized him as one of the two men in question.
The judge ignored the identification evidence from the two eyewitnesses. The judge knew that eyewitness identification of strangers often goes wrong. He had good reasons. The taxi driver meets way too many customers for these guys to make any real impression on his memory. The car-jacking victim saw two masked men, under highly stressful conditions, for only a short time. Both of these guys came into a court room and saw one prisoner in a dock. It was easy for these witnesses to believe that the guy that looks like a criminal was the criminal.
The in-court identifications didn't prove the case.
But there was more evidence.
A video-recording system inside the taxi captured images of the two
men who went to Surrey Central Inn.
The trial judge compared Mr Field to the taxi security video. Although he probably noticed some resemblance, he also knew from other testimony that Mr Field's appearance changed between offence and trial. Therefore, he refused to rely on his own impression of the similarities between the robbers and the defendant.
Showing the video to the judge didn't prove the case.
But there was one more kind of evidence.
Early in the investigation, police suspected Mr Field. They sent pictures from the security video to probation officers who knew him, but they didn't say who they suspected. One probation officer recognized Mr Field. That probation officer forwarded the picture to another probation officer, again not naming Mr Field. The second probation officer also recognized him.
That persuaded the court beyond a reasonable doubt that Mr Field committed the robbery.
Mr Field's appeal failed.
The court noted the three ways to prove identity:
- Eyewitness identification of a stranger.
- Judge's comparison of the defendant to images of the offender.
- Recognition by people who know the defendant.
The eyewitness identification would have been much stronger if the eyewitnesses picked Mr Field from a photo pack shortly after the offence. Showing a witness one person and asking "is this the man?" can have the effect of telling the eyewitness "this is the man." This kind of eyewitness identification formed part of many wrongful convictions. Judges don't trust it. As an investigator, you want to show eyewitnesses lots of faces to choose from, not one suspicious one.
If security cameras capture really clear pictures of the felon, then the judge can compare the defendant to the culprit. Beware. Some defendants change their appearance while in jail. To prevent that problem, take good pictures of your suspect, and supply them to Crown as part of your report.
As this case demonstrates, recognition evidence can prove the case, if you do it correctly. When you send images to the person who knows your suspect, don't supply the suspect's name. And ask that witness not to name the culprit to any other potential recognition witnesses.
As Steve Jobs used to say: and one more thing....
In some police reports, when describing video of the offence, officers will write a summary of what the video captured "the accused" or "the suspect" doing.
Security video captures "the culprit" or "the felon" or "the robber" or "the assailant" or "the exhibitionist" committing the crime. "The suspect" is the person you think did it. "The accused" is the person on trial. Don't mix 'em up. The big question in an identification case is whether they are the same person. Even if you believe that they are, use different words for "the felon" and "the suspect", to show that you understand the issue.
2018.06.16 Impaired Drivers - Serving Documents
Mr Fitzpatrick, 2017 CanLII 85809 (NL SC) drank too much to drive. Police busted him. After he blew into the instrument, the technician who analyzed his breath prepared a certificate which could be filed at trial, proving how much booze was in him at the time. The investigating officer served him with a copy of the breath technician's certificate ... or at least ... the officer thinks he did, based on his "usual practice".
Section 258(7) of the Criminal Code prohibits the court from accepting such a certificate "unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate."
The trial judge refused to accept the certificate because the officer didn't give sufficiently persuasive evidence that Mr Fitzpatrick received a copy. The appeal court agreed.
Routine events are easily forgotten. Some officers routinely swear an affidavit of service of the certificate. Doing so - or at least making notes of the event - may help you when such a case comes to trial.
2018.06.16 Youth Statements
After consuming ecstasy, 16-year-old N.B., 2018 ONCA 556 went for a walk with his cousin to a convenience store. He returned without his cousin, and got changed. He went to a friend's residence where he told everyone that his cousin was in trouble and needed help. Someone "told" him that his cousin had been attacked and dragged into "Lackie's Bush". He took some friends and relatives there, and found his cousin, dead. He freaked out, and hugged the body.
Police were called, and they attended.
N.B. pestered one of the officers for information, interfering with his efforts to investigate. The officer punched him and arrested him for causing a disturbance. A different officer took N.B. back to the police station for questioning about the death of his cousin. They put him in a locked interview room.
When they started a witness statement, N.B. asked if he was arrested. The officers told him he was arrested for breach of the peace, and he would be released. They knew that the cousin died, but they did not tell N.B., for fear of upsetting him.
N.B. gave conflicting statements about what happened. At first, he told police that he and his cousin split up at the convenience store. When the officers told him (falsely) that there was security video, N.B. changed his story. He said he went to Lackey's Bush with his cousin to smoke pot, and a group of guys attacked his cousin, and N.B. ran away.
The change of story led the officers to arrest him for murder. The trial judge convicted him, but on appeal he got a new trial.
- he did not have to make a statement to the police as a witness;
- he was free to leave at any time;
- he could consult with a parent, adult, or counsel, and have any of these people present for the interview.
The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.
The appeal court made several main points.
- For such a statement to become evidence, the Crown must prove beyond a reasonable doubt that police did what that section requires.
- Three things trigger s.146: arrest, detention, or the investigating officer has reasonable grounds to believe that the young person committed an offence.
- "Detention" includes psychological detention. Even when the officer thinks the kid is free to go, the kid reasonably believes he isn't free by reason of what the police officers said and did.
The officer who punched N.B. was later convicted of assault causing bodily harm and obstruction of justice. Those events occurred in the execution of his duties on some other occasion, but his explanation of that event resembled his description of events with N.B.
What lessons emerge?
- Police officers need to keep calm when others aren't. I know that's easier said than done.
- In the chaos when you first arrive, everyone's a witness, and everyone could be the culprit.
- As suspects, young people get special treatment, whether you detain them or not.
2018.06.16 Statements & Corroboration - Exception to the Rule against Hearsay
General duty policing teaches young officers some bad habits.
In the daily rush from file to file, the duties of an officer who first responds to a call for service make it seem that an investigation ends when all the witnesses give statements.
When a suspect or an important witness reveals what happened, that's not the end of the investigation, but the beginning. The good investigator asks "What parts of these statements can further investigation confirm or refute?"
Mr Larue, 2018 YKCA 9 and his girlfriend Christina didn't like Christina's previous boyfriend Gordon Seybold. Gordon Seybold died when fire consumed his grow-op. The forensic pathologist couldn't say what killed him - heart attack, fire or violence? But his blood on the business end of a baseball bat tended to suggest violence. Mr Larue's blood turned upon the handle of that same bat.
Christina found a great new job with an organization run by Mr Big's sister, Ms Big. She told Ms Big that she and Mr Larue killed Mr Seybold. Mr Larue fought with Seybold first. Then both of them hit Mr Seybold on the head with a baseball bat.
Mr Seybold also got involved in the organization. He told a similar story.
Mr Larue and his girlfriend underwent separate murder trials. At Mr Larue's trial, the girlfriend refused to testify. Could the Crown use the girlfriend's statement?
The trial judge said "yes". Then the Supreme Court of Canada gave its decision in Bradshaw, 2017 SCC 35. To admit hearsay statement of an accomplice, generally the courts will need corroboration of "material" parts of the accomplice's statement. Was there independent evidence that confirmed her assertion that Mr Larue participated in the assault?
His DNA on the handle of the bat, and his admissions of involvement to Ms Big made the difference.
You only find corroboration if you look for it.
A uninterested investigator merely interviews witnesses. A biased investigator tries to find evidence which matches the complainant's version (and ignores anything that doesn't). An interested investigator makes a real effort to capture all the evidence, and ask the suspect what happened. A good investigator reviews what the witnesses and suspect said searches for evidence which confirms or rebuts their various versions.
That takes more time that general duty likes to give. Rarely does general duty teach young officers to become good investigators.
2018.06.16 DNA - secondary transfer
The remarkable sensitivity of forensic DNA testing becomes a curse to police.
When police officers examined the crime scene in Larue, 2018 YKCA 9, they seized some guns and a baseball bat. The officer who handled the exhibits did not change gloves. That opened the door for defence to argue that police transferred the suspect's DNA from one exhibit to another during exhibit processing. That mistake caused one judge to dismiss the value of a forensic discovery of Mr Larue's blood on the handle of the baseball bat that killed the victim. Other judges took a different view.
Have you recently checked your supply of disposable gloves?
2018.06.15 Entrapment - Confirming Tips about Dial-a-Dopers
A tipster gives you the phone number of a drug trafficker. You call it, arrange a purchase, and bust the guy. Simple.
Not so simple.
Your job as a police officer is to prevent crime, not encourage it. If you persuade someone to commit a crime that they would not otherwise have committed, then the courts call your behaviour an "abuse of process".
Where you have a real reason to suspect that a person, or place, or phone line is involved in the commission of crime, you may create an opportunity for someone to commit a crime, and then bust them if they do.
Doesn't the tip give you real reason to suspect a phone line?
It depends a bit on the quality of the tip, and the conversation you have with the person who answers when you make your call.
Separately, police got tips about Mr Williams and Mr Ahmad 2018 ONCA 534. Investigators did minimal investigation of the Williams tip, and no investigation of the Ahmad tip. The trial judge in Williams case found that the police entrapped him, and stayed the trafficking charge. The trial judge in Ahmad's case relied upon the conversation during the call to find that the police used the phone call to investigate the tip, found no entrapment, and convicted.
The loser in both cases appealed.
The Ontario Court of appeal analyzed what makes for entrapment in dial-a-dope cases. They found no entrapment in either case. But the judges disagreed on the analysis.
If you engage in such operations, you need to read this decision, because it highlights the ground rules.
After you get a tip, and before you make the call, consider investigating the tip:
- How recent is it?
- How credible is the informant?
- Do your information systems contain any information about the phone number or the suspect?
If, after that effort, all you have is a bare suspicion, you can still make the call, but you need to let the person who answers establish that there are drugs for sale.
Read the decision to see how that's done.
2018.06.14 Cupid's arrow in the Workplace - Stinchcombe and the Secret Affairs of the Heart
Police suspected Mr Biddle, 2018 ONCA 520 of three rapes committed in 1986. By 1987, he was convicted of all three. He successfully appealed two convictions: the Supreme Court of Canada ordered new trials. That process took so long that by the time the court ordered the new trials, one complainant didn't want to proceed again, and the other case was too weak to go on its own. The prosecution gave up.
Mr Biddle's third conviction depended upon the complainant's identification of Mr Biddle. That wasn't done very well. A police officer took her to a courthouse where he was appearing on his other matters, and asking her if she recognized him.
Not exactly a great lineup.
He lost the appeal on that conviction in 1993, but he never gave up fighting.
In 1999, the complainant and the officer who showed her Mr Biddle revealed that through the course of the investigation and prosecution, they fell in love. They married, and later, divorced. But they never revealed their blossoming relationship through the course of the prosecution.
Both swore up and down that the officer did not reveal information about the investigation to the complainant. But there are hints in the proceedings that he did. Those hints could have been used effectively by defence counsel to create doubt.
And so, 25 years later, the Ontario Court of Appeal ordered a new trial.
I can not imagine that it will proceed.
There are some tough lessons here.
Identification: It seems simple to show the suspect to the victim and ask "is this the culprit?" If the incident happened months before, you create a suggestive event which may cement a false identification. Even if the identification is correct, the evidence looks weak.
Disclosure: The defendant is entitled to know all information which may assist in the defence of the case. The existence of a romantic relationship between an investigator and a key witness is something defence needs to know.
In the early stages of a romance, the lovers rarely know where the relationship will go. It seems like a fragile flower - the chill of outside criticism might kill it like a late frost. It seemed offensive to these two new lovers that professional obligations should require disclosure of such a personal matter.
And yet the court ruled that they did. The professional obligations of a police officer intrude into personal life.
2018.06.03 Note-taking - Never enough
A police officer stopped Mr Lotfy's 2017 BCCA 418 pickup-truck because it speeding between Whistler and Vancouver. The cab stunk of air-fresheners, and the driver was nervous. A computer check indicated that other police officers arrested Mr Lotfy with a large quantity of marijuana a few months earlier. Then the officer smelled the smell of fresh marijuana. He arrested Mr Lotfy, and found lots of marijuana in the truck.
At trial, defence challenged the officer's grounds for arresting Mr Lotfy.
The officer wrote in his notebook only one of the things that made him think Mr Lotfy's truck contained marijuana: the odour. No note about the nervousness. No note about the air fresheners.
Defence attacked: if the officer didn't write a note about these things, then they may not have happened. Maybe the officer is making up observations after the fact to justify jumping to conclusions at roadside.
The attack failed: the officer could point to notes he made about these topics in the report to Crown Counsel. He wrote that within days of the incident.
But I bet he wishes he made more notes.
When your investigation moves from innocent interaction to search to discovery of contraband, what you observed at the beginning of the interaction makes all the difference. After the excitement of arrest and discovery, you need to take your mind back to the beginning, and record all the observations which led you to take action.
2018.06.02 Loose lips sink ships - Revealing evidence to Witnesses
On July 26, 2005, someone murdered Mauricio Castro. At trial, the Crown argued that it was a killing related to drug trafficking. One of the witnesses was Mr Khananisho.
Mr Khananisho told police that he put Mr Deleon and Mr Restrepo in touch with Mr Allen, 2018 ONCA 498.
On the witness stand he was pretty reluctant.
Years after the conviction, after a meeting with Mr Allen's girlfriend, Mr Khananisho recanted.
He claimed that the police told him enough detail about the killing that he could invent a story that matched. He said police told him to tell "the truth" (meaning their truth), or he would be charged with conspiracy to commit murder.
On the strength of this recantation, the defendants appealed a second time. Had Mr Khananisho been a more important witness at trial, or a more consistent witness on appeal, the court might have permitted a second appeal.
Several lessons for officers flow from this case:
- Avoid telling witnesses what other evidence you have before - or after - you take a statement.
- Keep a complete record of the conversations with important witnesses.
- Applying pressure on a witness to get a statement may backfire in the long run.
2018.05.26 "Person of Interest" - What does it mean?
At the morning briefing, four officers learned of a homicide that occurred the night before. They saw images from security video of people of interest. Although one officer thought he recognized someone, he did not identify that person at the briefing.
The four officers went to the crime scene to pick up more security video. On their way back they talked with two guys who looked like the people in the video.
Those two guys were later charged with murder. They asked the judge to exclude the evidence that those officers obtained during their conversation. They said that they were "detained", and did not receive information about access to counsel.
The four officers testified poorly. They did not make notes at the time. They reconstructed events. They contradicted each other.
All of them tried to assure the court that this was not a "detention" because the defendants were only "persons of interest", not suspects.
It didn't work.
The judgment is pretty clear: "Person of interest" isn't a magic phrase that turns a detention into an innocent encounter. (R. v. Jama, 2017 ONSC 470 at para 47). These officers were investigating a homicide. The judge found that these four officers stopped these two guys and talked to them for quite a while. The officers did not tell them why, nor did they offer an opportunity to get legal advice.
I think this case provides a good example how routine work can go wrong quickly, when done in a "routine" fashion. General duty officers, read and beware!
2018.05.24 One-party consent to prove Lack of Consent - Date Rape - Sexual Assault Invevstigation
Date rape allegations arise often. Proving them is hard because:
- There are usually only two witnesses - the complainant and the defendant
- The interaction begins with consent
- The defendant claims the consent continued
When an 18-year-old woman complained about Mr Colling, 2017 ABCA 286. She said that when she told him she didn't want to have intercourse right away, he told her he would wait 14 dates. Investigators encouraged her to call him in a recorded conversation, and discuss the incident. The conversation went like this:
|Her:||I don’t know. I’m just . . . I don’t know. I’m kind’a upset. I said no. It has been bugging me. I said no. Why did you do it?|
|Him:||Yeah, there’s a difference between no, don’t and no, okay, go ahead.|
|Her:||I didn’t say no, okay, go ahead. I just said no, don’t. And you said we wouldn’t. You said we’d wait for the fourteen dates or whatever.|
|Him:||Yeah. So it happened. I wasn’t really thinking. It was in the moment. I’m sorry.|
That proved pretty compelling at trial. Even though he said she consented, this recording persuaded the judge that she didn't.
The decision doesn't say much about the work that went into setting up this conversation. I infer from the phrase "lawfully intercepted telephone call" (para 82), that the police applied for an authorization to intercept ("wiretap") the conversation, based on her consent.
If she had recorded the conversation of her own accord, it would be admissible. s.184(2)(a) of the Criminal Code. But when police suggested that she make this call, they turned her into an agent of the state. When an agent of the state records a private telephone call, the state needs judicial pre-authorization. R. v. Duarte,  1 SCR 30. You get that if you ask a judge for it pursuant to s.184.2 of the Criminal Code.
This sort of evidence can a huge difference - if you can get it. Many "date-rape" complaints come from minors.
Getting consent from an adult to record her conversation with her rapist is one thing. But there are legal and ethical impediments to involving a minor in a criminal investigation. Don't embark on such an investigation without getting legal advice from your lawyer.
(The Supreme Court of Canada upheld the conviction. The legal arguments did not relate to 1-party consent.)
2018.05.21 Search of a Residence - Exigent Circumstances - Mental Health
Mr French, 2018 BCSC 825 possessed a restricted handgun, a prohibited assault rifle, a silencer for the handgun, and some prohibited magazines. Police found them in his apartment, but at trial, the judge excluded all the evidence. Why?
Police first attended Mr French's apartment in response to a 911 call that people broke into his apartment, and someone got punched in the face. Officers who attended discovered that there was a party next door; the neighbors were drunk. One of them explained that Mr French sent suicidal texts. A group of partiers broke into his house. Mr French punched one of them in the face. Another neighbor also told police that Mr French suffered from mental illness. A police database confirmed that at some time in the past, Mr French had been diagnosed with a mental illness.
Police asked Mr French to come out and talk with them. He did. Although sweating profusely, he denied feeling suicidal.
Police searched the residence for the safety of anyone who might be in it, and for officer safety.
The trial judge found that they lacked sufficient reason to go in:
- If they wanted to investigate Mr French's mental illness, they had him outside his residence. They didn't need to go in.
- if Mr French punched anyone, it was in response to an unwanted invasion of his home.
- there was no reason to believe anyone remained in the residence that needed police protection.
Efforts to justify the intrusion into his residence under s.117.02 or 117.04 foundered. The officers had no reason to believe that the residence contained guns, nor that Mr French's current condition endangered anyone.
The trial judge's decision highlights many common failings of police responses to ambiguous situations:
- Although the officers handcuffed Mr French, nobody told him why they detained him.
- The officers did not give him prompt access to counsel.
- Some officers took no notes at all.
- Some officers contradicted others in testimony.
- One officer correctly felt that they needed a warrant to enter. Another officer overruled him.
This situation became complicated. These officers made common mistakes.
I recommend that general duty officers and their supervisors read this decision. It's a good decision to discuss and consider. Ask themselves: "How should I handle a similar situation if it came up?"
This decision does not give you answers for every possible situation that will arise. Your next mental health call differ from it. But the decision does help you identify when you should enter a residence to check on the safety of people inside, and when you shouldn't.
2018.05.21 Impaired Driving - Drugs
Mr Jackson, 2018 ONCA 460 fell asleep in his car with his foot on the brake pedal. He left the engine running and the transmission in drive. His vehicle was at an intersection.
Police officers tried to wake him up. It took considerable effort. When he woke, he couldn't put the transmission into park. Mr Jackson's car rolled forward and bumped into the police cruiser. When they got him out of his vehicle, he moved slowly, slurred his speech, and stood and walked unsteadily.
Nope. He consumed no alcohol.
But on the passenger seat were several bottles of prescription pills.
He told one of the officers that he had ingested Diazepam and Benzodiazepine, but had not consumed alcohol.
Lengthy delays in giving him access to counsel and conducting a DRE exam resulted in exclusion of significant evidence of his drug consumption. Even his remark about drug consumption was excluded because he had not received access to counsel before he made it. Defence pointed out that nobody tested the pills in the bottles to see if they matched the labels.
But the judge convicted him anyway.
- the police officers at the scene observed many symptoms of intoxication.
- the police officers seized the pill bottles.
- an expert matched the symptoms observed at the scene to the effects of the prescribed medication.
If you delay access to counsel, or delay DRE exams, you won't always be so lucky. If you suspect impairment by medication, perhaps you should get the medication tested.
What led to this conviction was careful observation of the suspect's symptoms, and the match to an expert's description of the effects of the drugs.
If drug-impaired driving is on the rise, then you should get into the habit of making careful observation at roadside of all the symptoms and behaviours of the driver. And as time passes, continue observing and recording those symptoms. And interview the suspect after he gets access to counsel. The judge will generally not admit evidence of what he told you at roadside before access to counsel. Video cameras are your friends. Security video cameras in police detachments continuously create disclosable evidence.
2018.05.20 Impaired Driving - Screening Device & Mouth Alcohol
Is the possibility of mouth alcohol a detail which you must "eliminate" before you can rely a "fail" result from a screening device?
No. But you should go slow when mouth-alcohol is a real concern.
Three months ago, I wrote that some judges give the defendant some surprisingly favourable treatment relating to mouth-alcohol.
Judge Paciocco of the Ontario Court of Appeal brought some common sense back into this area of the law.
An officer stopped Mr Notaro, 2018 ONCA 449 at about 2:10. She smelled the odour of liquor in his car. Mr Notaro admitted drinking in a bar. The bar was 2-3 minutes' drive from their location. The officer suspected he had alcohol in his body, and demanded that he blow into a screening device. He did. At 2:18, it registered a fail.
She never turned her mind to the possibility that he drank just before leaving the bar, and that mouth alcohol affected the reliability of the result. She didn't think to ask what time he last drank. And at the trial, when defence challenged her, she agreed that it would have been prudent to ask that question.
At roadside, she made a breath demand. Mr Notaro went to the police station. There, analysis of his breath showed he was over the limit.
The trial judge convicted Mr Notaro because the possibility of mouth alcohol was just a mere possibility. The officer knew of nothing that raised it to a likelihood or a strong possibility that mouth-alcohol produced a false "fail".
The summary conviction appeal judge and the Court of Appeal agreed with the trial judge. They all agreed that an officer who screens breath should consider any information which suggests that the screening device would give an unreliable result. But they all agreed that you don't have to wait for mouth alcohol to dissipate unless you have a real reason to think that mouth alcohol is there.
The simplest way to solve that problem is by asking the driver.
You don't have any legal obligation to ask. If you do ask, the driver has no legal obligation to answer.
Section 254(2) also requires you to proceed with breath screening "as soon as practicable". No unnecessary waiting. But you should wait if there's evidence of a real risk of mouth alcohol affecting the result.
- If the driver holds a beer can in his hand when you first stop him, you should wait for mouth-alcohol to dissipate unless very compelling reasons lead you to believe that he didn't recently drink.
- If the driver just left a drinking establishment, and there is a yeasty fresh-from-the-tap smell of beer on his breath, then you should spend a little time investigating the recency of his drinking.
- If the driver just left a drinking establishment and there is an odour of liquor on his breath, then you should ask. But if you don't get answers, this decision says you may get on with screening the breath if you honestly believe that the screening result will be reliable.
Some of you always wait for mouth-alcohol to dissipate, even if you have no information suggesting recent consumption of liquor. That's a bad idea. S.254(2) requires you to test breath "as soon as practicable". You should wait only when the circumstances of the particular case suggest the screening would be unreliable if done immediately.
2018.05.07 Impaired Driving - What are the Units?
At roadside, Mr Charest, 2018 ONSC 1719 blew into a screening device. It registered a "fail". Mr Charest provided breath samples at the police station. That went badly for him too.
The investigating officer told the judge that the screening device he used registered a "fail" at .100 milligrams of alcohol per 100 millilitres of blood. If that were true, his screening device was 1000 times more sensitive than it should have been.
The officer got the units wrong. He meant:
- .1 grams of alcohol per 100 millilitres of blood; or
- .1 grams of alcohol per decilitre of blood; or
- 100 milligrams of alcohol per 100 millilitres of blood.
In s.253, Parliament chose the third way of expressing the lawful concentration.
The judges in this case convicted Mr Charest, because they figured they knew what the officer meant, despite what he said. As set out in the judgment, other officers have made similar mistakes, and other judges have not been so generous.
Units matter. Would you rather receive a milligram or a kilogram of gold?
Learn Parliament's way of expressing the concentrations of alcohol, and you won't look silly on the witness stand.
2018.04.23 Workplace Conduct of Police - Private or Public?
Sex is touchy. Especially in the chain of command.
The Chief Constable of the Victoria Police exchanged some racy Twitter messages with a police officer. It became public and turned into a disciplinary nightmare. He resigned. Elsner v. British Columbia (Police Complaint Commissioner), 2018 BCCA 147
Flirtation between married people isn't a problem - if they're married to each other. These two were married, but not to each other. The officer wasn't under the chief constable's command, but her husband was. The Chief Constable could - if so inclined - use that power to facilitate the affair.
People who carry heavy responsibilities, and who work under pressure need a time and place to laugh and develop camaraderie. That describes every police officer, even the most lowly. But people in positions of power fall into conflicts of interest very quickly when the jokes become intimate.
Part of being human is sexuality. We carry it with us everywhere. But where we work, freedom of expression comes with limits.
2018.04.08 Arrest and Interview - Explaining the Whole of the
You can't arrest someone for an offence unless you have reasonable grounds to believe that they did it. When you arrest a target, sometimes you have reason to suspect that they committed another offence too. What do you tell them?
Microsoft reported to the authorities that someone was storing child pornography on their servers. They provided the physical address of the account involved. Based on the complaint, police believed Mr. Watson, 2018 BCCA 74 possessed the images, and they suspected he might be distributing it.
The interviewers did several smart things.
- Before giving him access to counsel, the investigator told him he was under arrest for possession of child pornography and under investigation for distributing it. Part way through the interview, Mr Watson asked to speak to the lawyer again. Because he had full information of the offences under investigation, his jeopardy never changed through the interview. Because his jeopardy never changed, he had no right to a further discussion with counsel.
- Mr Watson told the police officer that the lawyer told him not to talk about the offences. The police officer told him words to the effect “that was fine” but he, the police officer, would continue talking. The judges saw nothing wrong with this response: it did not undermine the legal advice, it did not compel the suspect to speak, and yet the officer could continue to investigate.
- The officer spent 4 hours talking with Mr Watson, and drew out of him all essential admissions:
- he was the owner and only user of the computer the police had seized,
- on the morning of the search he had been looking at pictures on a USB the police had found inserted into his computer desktop tower,
- he knew the images he collected were illegal but that he could not stop himself from looking at them,
- the only reason to keep such a collection was for sexual gratification.
Reading between the lines, I see some good police work:
- A fulsome s.10(a) explanation of the investigation forestalled problems later in the interview.
- Understanding the elements of the offence and the evidence required to establish them resulted in clever questioning.
- Persistence in the interview paid off, but only because the officer knew how to respect the right to silence and the right to legal advice.
2018.04.12 Exhibit Retention
How long after a brutal rape do you keep the exhibits?
It happened in 2001. After the rape, the victim underwent a "rape kit" exam. Police seized her clothing. They cut fabric out of the crotch of her jeans. The lab found a man's DNA in that fabric, but his profile didn't match anyone in the DNA database.
A year later, to make room in the exhibit storage area, the investigator directed that the clothing be returned to the victim, and the rape kit destroyed. In 2008, the DNA databank received a profile from Mr Garnot, 2018 BCCA 107, which matched.
At trial, he argued that destruction and return of the exhibits prevented retesting them for DNA, and that undermined the strength of the evidence. The trial judge agreed that this breached Mr Garnot's right to full answer and defence.
Mr Garnot asked the judges to stay the charges. They all disagreed. It wasn't necessary because the loss of the evidence hurt the case for the Crown plenty.
Don't think that the judges approved of the destruction of the evidence. This conviction was a near thing.
Most of the exhibits languishing in your exhibit storage system have little forensic value. Some of them matter deeply. The decision to destroy exhibits comes with a risk. Make that decision carefully.
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