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

2014.10.12 - Website slowly returns

From September 2013 to the end of August 2014, I worked as legal counsel for the Independent Investigations Office. During that time, I took this website off-line.  Providing legal information to police did not accord with my position in that agency.

In September 2014, I returned to Crown Counsel, which allows me to publish my suggestions on criminal law.

Much can happen in a year.  I want to review each of the pages of the old site for accuracy before putting them back online.  You will find much under construction over the next few months.

New Book

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

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New Law


2014.12.13 Search and Seizure - Search of Cell Phones Incidental to Arrest


The Supreme Court of Canada finally explained what searches of cell phones police may do after an arrest.  In a 5:4 split, they decided that you can search a cell phone incidental to arrest, but set some limits and conditions which represent a compromise between the various different conclusions past judges reached.

Two men robbed a jewellery merchant at gunpoint and fled in a black car.  Eyewitness descriptions and the licence plate led the police quickly to locate and arrest Mr Chapman and Mr Fearon, 2014 SCC 77.  But they didn't find the jewellery or the gun.  In his pocket, they found a cell phone.  They checked the text messages and found an unsent text (“We did it were the jewelry at nigga burrrrrrrrrrr”).  In the photos, they found an image of a handgun.  At trial, the officers explained that they were in a hurry to find the missing items, and thought that the phone might provide leads.

Mr Fearon and various civil liberties organizations argued that police needed a warrant to search in his phone.  Three of the judges agreed.  But four decided that where an investigation requires prompt examination, you may search without a warrant - within limits.

What are those limits?

  1. Lawful arrest - as with all searches incidental to arrest, the search depends upon a lawful arrest.  A lawful arrest requires reasonable grounds to believe (and belief) that the suspect committed an offence for which s/he may be arrested without a warrant.
  2. Search truly incident to arrest - you can't poke around in a cell phone just because you arrested someone.  You need reasons connected to the arrest, such as protecting people, or preserving or discovering evidence relevant to the offence.  Even if you can justify looking at the suspect's texts or photos, you can only look back so far in history as is truly relevant to the offence.  You can't prowl through the whole phone.
  3. Serious offence - "a search of a cell phone incident to arrest will generally not be justified in relation to minor offences."  When you stop a distracted driver, you can't snoop through his or her phone for evidence to prove they were texting and driving. Robbery, rape and murder plainly qualify.
  4. Pressing investigative need - although the court rejected the notion that warrantless searches of cell phones should be done only in exigent circumstances, it introduced a requirement of "immediate investigative purpose".  You should get a warrant unless the circumstances render it impractical. For example, if you need to look into the phone immediately for fear of losing evidence during the time it takes to apply for a warrant, then you can look.
  5. Detailed documentation - if you do search using this exception, you must take very detailed notes of what you searched in the phone and why.  If you're going to operate the phone, I suggest video-recording the process including your explanation of what you're looking for and why.

In Mr Fearon's case, the court found that the officers met the first three conditions, but not the last. The majority found that the failure to document breached Mr Fearon's rights, but not so much as to justify excluding the evidence. 

I found the third point the most confusing.  The majority rejected the notion that police can search only in "exigent circumstances".  But the judges created a pre-condition which closely resembles exigent circumstances.  The court rejected the notion that searches of cell phones incidental to arrest must require police to have reasonable grounds to believe that evidence will be found.  But in the many cases where there is no urgency in searching the phone, police must get a warrant.  To get a warrant, they'll need to meet that standard - even though it's a search incidental to arrest.

2014.12.10 Reasonable Grounds - Articulating your Beliefs

Tipsters told Cst Emberley that Mr Day, 2014 NLCA 14 was trafficking drugs.  Cst Emberley applied for and obtained a warrant to search Mr Day's house, but he didn't write all the information he knew into his application.  After obtaining the warrant, but before searching the house, surveillance officers saw Mr Day walk out of a bar with two young women in a manner that looked like a sale.  Cst Emberley directed the officers to arrest Mr Day.  They found drugs.  Although Cst Emberley later searched the house, the prosecutor withdrew all charges relating to what he found there.  The prosecutor didn't think the warrant would survive judicial scrutiny.

At trial, defence threw a clever question at Cst Emberley:

If the judge had refused your warrant, would you have arrested my client?

If the officer said "yes", defence could argue that the officer was an undisciplined rogue, who would arrest people even after a judge told him he lacked sufficient grounds.  If the officer said "no", then the defence could say that the officer didn't really believe that he had reasonable grounds to arrest.

Cst Emberley deflected this question:

He declined to speculate what he would have done.
He tried to point out that judges may refuse to grant a warrant for reasons other than the sufficiency of grounds.

Based on this, the trial judge found that at the time of the arrest, the officer didn't actually believe that he had sufficient grounds to arrest.  The judge excluded the evidence.

The Court of Appeal and the Supreme Court of Canada rejected the trial judge's findings because they had no foundation in the evidence.

The officer never said he wouldn't have arrested.

An officer may arrest when s/he believes that the suspect is probably guilty, and the evidence available to the officer makes this a reasonable conclusion.  You must take a judge's opinion about the sufficiency of your grounds very seriously.  But if you have information that the judge did not know, you may reasonably reach a different conclusion.  In this case, Cst Emberley had more information than the judge.  He was entitled to reach a different conclusion.

Cst Emberley failed to recite all of the information available to him in his application for a warrant.  That caused trouble.  When applying for warrants, recite or summarize all the evidence in favour and against issuing the warrant.

But Cst Emberley's answers in court were accurate and fair.  He declined to speculate on what he would have done if things had gone differently.  That's appropriate.  When testifying you can decline to speculate about things that never happened.

2014.12.07 Wrongful Conviction - The Harm of Non-Disclosure


In a big investigation, leads and minor bits of evidence can sometimes fall by the wayside. That can lead to problems.

In a basement suite in Surrey in 2004, a woman was raped.  She said three men were there, but only two assaulted her; and one of those two owned the place.  Mr Dhillon, 2014 BCCA 480 owned the place.  Police found him naked and intoxicated in the suite, only hours after the rape.

The woman said that one of the rapists fathered her child.

The judge convicted Mr Dhillon of the rape. After he served his sentence, he was deported.

Although police disclosed to the Crown that some DNA turned from the forensic examination of the victim, some DNA results never reached the prosecutor.

After the conviction, DNA sampling of the accused went to the DNA databank.  Nobody noticed it failed match either of the male profiles from the victim.  Only when one of those two male profiles matched some other guy, years later, did police re-examine the case.  Mr Dhillon's DNA didn't match either profile, nor the baby's DNA.

He could possibly be innocent.

The court granted him a new trial, and then stayed those proceedings.  He had already served his sentence, and the likelihood of conviction was low.

Full disclosure matters, even when it seems obvious that the right guy is charged.

2014.12.06 Search and Seizure Incidental to Arrest - Genital Swabs & Fingernail Clippings

I argued this case and I think it's interesting.  Perhaps that's why this summary goes longer than usual.

Early one morning, a naked woman screamed for help from the third floor balcony of an apartment building.  A neighbor called police, who attended and found her outside in the parking lot.  She said a stranger in the building raped her.  She said he used no condom.  She wasn't sure if he ejaculated. About 3 1/2 hours later, when Sgt Santosuosso knocked, Mr Harasemow, 2014 BCSC 2287 came to the door of the apartment in question.  Sgt Santosuosso noticed:

Mr Harasemow made a comment which reasonably led Sgt Santosuosso to believe he found the rapist, so he arrested Mr Harasemow.  After reflecting and conferring with a forensic identification member, he directed his team to seize DNA evidence from the suspect.

Before Mr Harasemow got to speak to a lawyer, the officers:

  1. seized Mr Harasemow's clothes,
  2. swabbed his hands and his penis for the victim's DNA, and
  3. took fingernail clippings.

The woman went to a hospital.  She permitted a forensic nurse to swab her genitals for DNA evidence.

The forensic lab found traces of male DNA in the swabs from her body, but not enough to identify him.  At trial, a DNA expert testified that before ejaculation, men often leave too little genetic material in the woman to allow for identification.

But they found her DNA on the swab from his penis.

Mr Harasemow didn't want that evidence admitted.  He argued:

The judge rejected all of these arguments:

The judge let the jury hear the DNA evidence.

Swabbing the genitals of the suspects of recent rapes can provide crucial evidence.  After being raped, not every victim will permit forensic sampling from her body.  According to the DNA expert in the case, even if she does permit it, many attackers leave insufficient genetic material in their victims to identify them - especially if he does not ejaculate.

Some judges in Canada think police need warrants to do genital swabs: R. v. Laporte, 2012 MBQB 227; R v Saeed, 2014 ABCA 238 (per Watson & Bielby J.A.)

Others don't: R v Saeed, 2014 ABCA 238 (per McDonald J.A.);  R. v. Amey, 2013 ONSC 5108; Harasemow, 2014 BCSC 2287.

I think you don't need a warrant.  But I do think that these searches raise specific concerns:

Rape victims endure forensic examinations of their bodies which last an hour or more.  Swabbing a rape suspect's penis takes seconds.  You may find the latter task distasteful, but you may recover valuable forensic evidence.  The expert in this trial testified that this kind of evidence perishes quickly - 4-24 hours.

This case suggests that in B.C., officers may proceed with some confidence.  The Ontario decisions suggest that police should give access to counsel before swabbing genitals.  In Manitoba and Alberta, genital swabbing without a warrant remains controversial.  I hope they re-litigate the issue there.

2014.11.28 Arrest and Detention - Getting your Grounds

 - Dispatcher Error

Someone shot Mrs Stevenson in the head.

Near the end of her messy divorce, she was just stepping out of her new residence to go to work.  Her new paramour found her moments later, dying.  He called police.

The Brockville police attended quickly, and asked him who might have done this.  He said that Mr Stevenson 2014 ONCA 842 was a "possibility", and that Mr Stevenson had the kids in Malloryville, 25km down the road.  This information did not provide reasonable grounds to believe in Mr Stevenson's guilt, but certainly reason to suspect him.

The officer radioed his dispatcher, who conveyed the information to the dispatcher responsible for Malloryville.

Unfortunately, the information changed as it travelled.  The officers in Malloryville received radio broadcasts that identified Mr Stevenson as the shooter.  Relying on that information, they arrested him.  They bagged his hands, and took him to Brockville.

By the time Mr Stevenson arrived in Brockville, the Brockville police had gathered sufficient evidence to justify arresting him: he drove a car similar to a vehicle which left the area at the time of the shooting; he threatened the complainant, and was serving probation for it; he had been in town that day; they learned of the messy divorce.  But they didn't arrest him, because the Malloryville officers had already done that.

The Brockville officers swabbed his hands, and found gunshot residue (GSR).  An expert explained to the jury how this suggested that he recently fired a gun.  They convicted him.

Defence complained that the police obtained this evidence as a result of an unlawful arrest.  Reasonable suspicion justifies detention, but not searches of the person for evidence.  Was the GSR admissible?

The court found that the original arrest breached Mr Stevenson's right to be free from arbitrary arrest.  The court could have excluded the GSR evidence.  Instead, the judge admitted the evidence, in part because:

Mr Stevenson's conviction for murder survived appeal.

This case shows why courts dislike hearsay: people can garble information as they hear and repeat it.

Grounds to arrest or detain often rely on hearsay.  Police officers can't operate like judges: to act quickly, you must rely on some information that comes to you second hand.  But even dispatchers get information wrong sometimes.  Double-checking the hearsay evidence you receive when drafting search warrant applications can save you loads of trouble later.  If you have time to double-check hearsay before arrests, you may avoid the embarrassments of this case.

For dispatchers, this case illustrates the importance of relaying information accurately.  Nobody wants to be the person whose error resulted in the release of a murderer.

2014.11.21 Possession - Willful Blindness & Innocent Possession


Mr Farmer 2014 ONCA 823 shared an apartment, and computer and a bed with Mr M.R..  Although M.R. had his own laptop, he used Mr Farmer's desktop computer extensively, often when Mr Farmer wasn't there.  On the authority of a search warrant, police seized both computers, searched them and found lots of child pornography on both of them.

Mr M.R. claimed full responsibility for the material.

Mr Farmer told the police that he knew, or at least had a good idea, that there might be child pornography on his computer, but that he had not downloaded or accessed it and had no interest in it. He said that he knew M.R. accessed child pornography in relation to M.R.'s diaper fetish, and that he had seen M.R. looking at images of teen males dressed in underwear on the desktop computer.  He put two and two together.  But he condoned it because M.R. was his partner for whom he cared.  He took no steps to confirm his suspicion or to delete all the child pornographic images to prevent further access.

Was Mr Farmer guilty of possession of child pornography?

The trial judge found that Mr Farmer was willfully blind to the presence of unlawful images in his computer.  In his view, that sufficed for "possession".  But he acquitted, relying on the doctrine of "innocent possession".

The Crown appealed.

The appeal court judges disagreed with the trial judge's reasoning, but upheld the verdict.

Innocent Possession

They rejected "innocent possession".  What's that concept?

It's like this.  Suppose I found a bag of cocaine in a playground. I decide to remove it, to protect children who might discover it.  But if I pick it up and take it home, knowing what it is, then at law, I "possess" a controlled substance.  Should I be convicted or congratulated?  If I take it home for the purpose of calling police and disposing of it safely, then I am in "innocent possession".  I possess it without any intention to exercise control beyond that needed to destroy it or otherwise put it permanently beyond my control.

Mr Farmer did not possess the pictures for the purpose of destroying them or removing them from his computer.  Innocent possession did not apply.

Wilful Blindness

The judges rejected "willful blindness" too.  Let's consider that.

wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”, “an actual process of suppressing a suspicion.”

These judges felt that the facts fell short of establishing that Mr Farmer actively turned a blind eye to what his lover was doing.

And besides, they reasoned, accessing differs from possessing.  Mr Farmer was charged with possessing.  What he ignored was the possibility that his partner was accessing child pornography.

I dunno.  If the evidence in this case failed to establish willful blindness, it came awfully close.

For police officers, when you have enough evidence that you figure that the suspect should have known about the contraband in his control, knowledge is a great topic to discuss.  Many of these folks will say "I didn't know, and I didn't want to know what was there."  Not wanting to know is wilful blindness.  Try asking him: "You're a smart guy.  You knew enough to know that whatever was in the package was trouble?"  "You decided not to look into it because you didn't want to see, and be sure of your suspicions."

2014.11.16 Right to Counsel - Internet Access and Google

A young impaired driver, Mr McKay, 2014 ABQB 70 got legal advice he didn't like.  At trial he complained that the police had failed to give him access to the Internet, to allow him to research lawyers to give him legal advice he might have liked better.  The trial judge agreed with this complaint, suggesting that police get with the times, and let prisoners use Google.

In this case, Mr McKay never asked for internet access, and never complained about the legal advice he got.  The officers could hardly be blamed for a problem they didn't know about.  The appeal court ordered a new trial.

But the appeal court agreed that police should permit prisoners to find their lawyers using modern information systems.

In my opinion, if your prisoner requests internet access in order to locate his or her lawyer, you should try to provide it - if you have the means.  However, you should supervise the prisoner's efforts to locate a lawyer because web pages can be used for many purposes other than research.  An impaired driver should not waste time playing Farmville on Facebook before providing breath samples.  After an assault, you should not let your suspect send threatening gmail to the victim.

If you can not allow the prisoner to use computers available to you (many police computers contain very sensitive information), then you might ask the prisoner what searches s/he wants to do, run those searches yourself, and give him or her print-outs.

You have a constitutional obligation to provide a reasonable opportunity to get legal advice.  The Yellow Pages have yellowed greatly since the passage of the Charter.  According to the Canadian Internet Registration Authority, 85% of Canadians connect to the Internet.  Google and other search engines provide us access to information like telephone numbers.  If you have that access at work, and a prisoner says he wants to use it instead of the Yellow Pages to identify a lawyer, you may find it difficult to explain to a judge why you turned him down.

2014.11.15 Search and Seizure - Reports to a Justice


"Do we really have to complete a Form 5.2?"

If you're a peace officer, and you took something away from someone without their permission by "seizing" it, then yes, you have to complete a report to a justice.  Read s.489.1 of the Criminal Code.

Mr Garcia-Machado, 2014 ONCJ 81 crashed his car, injuring himself and his passengers.  Police obtained his medical records by means of a search warrant but did not file a report to a justice for 4 months.  Those records established that drugs and alcohol impaired Mr Garcia-Machado.  Because the officer failed to report those records promptly, the trial judge excluded the evidence.

Here are the usual objections I receive.  Here are the answers:

The officer who investigated Garcia-Machado thought he had several months. The section requires reporting "as soon as practicable".  Telewarrants require reporting "as soon as practicable" and within 7 days.

Save yourself embarrassment later.  Do the paperwork now.

2014.11.15 Search and Seizure - Automobile Crash Data Recorders


When modern cars crash, an electronic device records the car's speed and braking activity in the last few seconds before the crash.  Do drivers enjoy sufficient privacy in that data that police officers require warrants to read and analyze the data?

Two recent decisions do little to answer the question.

Hamilton, 2014 ONSC 447, an off-duty police officer, crashed his truck, killing someone.  Without obtaining consent or a warrant, an investigator downloaded the data from his "Airbag Control Module", which showed that he accelerated through an intersection instead of braking.  At his dangerous driving trial, Hamilton asked the trial judge to exclude the data.  Hamilton testified that he believed the data in his  was private to him.  The trial judge agreed, but admitted the evidence under s.24(2), in part because the law had been unclear whether this search required judicial authorization.

That judge seemed to treat these devices like personal computers or cell phones.

Mr Fedan, 2014 BCSC 1716 also crashed his car.  Again, without a warrant, police downloaded the data from his "sensing diagnostic module", without benefit of a warrant.  Section 8 of the Charter protects reasonable expectations of privacy.  These have two parts: what the claimant actually thought, and what the reasonable judge thinks about that belief.  Unlike Hamilton, Mr Fedan did not testify that he thought the data was private.  This trial judge found no subjective expectation of privacy.  The trial judge hinted that she did not agree with the judge in Hamilton's case that there should be a reasonable expectation of privacy in this data.

This judge distinguished crash data recorders from computers and cell phones.  The latter usually contain much more personal information.

For all police officers investigating accident scenes, remember that s.489(2) authorizes you to seize evidence if you are:

All Canadian cops can seize the car.

But that doesn't authorize Ontario police officers to search the crash data recorders.  Apparently, they need warrants now.

In British Columbia, we still don't really know.

In the long run, if the electronic devices in vehicles retain significant information about the habits of their drivers, such as the routes and times that they drive, officers will need judicial authorizations.  In the short term, while these devices retain only a few seconds of driving data, reasonable people will disagree whether warrants are required.

2014.11.11 Search and Seizure - Strip Search


I like the way Mr Justice David Watt writes:

"Bart Alec Muller got arrested. And then he got searched. Twice. First, a frisk search. Three cellphones. Some money. No drugs. Second, a strip search. A plastic bag between his buttocks. Crack cocaine. Cocaine. Oxycodone tablets."

The trial judge convicted Mr Muller, 2014 ONCA 780, but Watt J.A. ordered a new trial.

Two confidential sources identified an apartment where a big guy sold crack, and they described him.  Police got and executed a warrant.  They found four people, but no drugs.  Just as the search team entered the building, officers outside the building saw Mr Muller - a big guy - leave the building.  He generally matched the informants' description. And he dropped an electronic scale as he walked away.

The officers arrested him for trafficking. 

Defence complained that the officers lacked grounds to arrest him: there are lots of big guys in Windsor.  The judge found that the timing of his departure, his similarity to the sources' descriptions, and the electronic scale together tipped the balance in favour of arrest.

The officers frisked Mr Muller, and found three cell phones and some cash but no drugs.  The search team found no drugs in the apartment.  The officers decided to strip-search the four people in the apartment, and Mr Muller.  They found the drugs between his buttocks.

A strip search requires you to believe you will probably find evidence. Mr Muller's counsel complained that the police lacked sufficient grounds.  Officers admitted that they find crack cocaine in underwear or between butt-cheeks only 5% or 7.5% of the time.  The mere possibility that police would find evidence of an offence may justify a frisk search, but it won't justify a strip-search.

The judge concluded that the officers had sufficient grounds for this strip search.  The last alleged drug transaction occurred only hours earlier.  The electronic scale bore apparent cocaine residue.  Strip-searches of the other occupants of the apartment located no drugs.  By process of elimination, if there were any drugs, they had to be on Mr Muller somewhere.

If the search was lawful, why did this smart judge order a new trial? Because the officers did the strip search badly.

Strip searches violate privacy.  When performing one, you should minimize the violation of privacy as much as possible.

In addition, the officers who strip-searched the other suspects kept no notes and destroyed all video of their searches.

Watt J.A. writes well.  You should read his decision.  Some lessons to draw from this case about strip searches include:

  1. Second thought: If you're considering whether to strip search a suspect, you should first ask yourself whether you will likely find evidence of the offence for which you arrested.
  2. Second opinion: Ask a senior officer to take responsibility for the decision to strip search.
  3. Private places for private searches: Minimize the impact on the prisoner's privacy: minimize the number of eyes that watch; let him/her cover some parts while you search others.
  4. Be aware of cameras: You become so accustomed to working under video cameras, you easily forget them.  For strip-searches, you need an objective record of the search process.  But recording a suspect's nakedness preserves it for future eyes to watch.  Therefore, I suggest erecting a narrow modesty screen - such as a high-backed chair - between the suspect and the camera.  If the suspect chooses to expose himself or herself to the camera - that's their choice.  But you offer as much privacy as you can while still preserving an objective record of the incident.
  5. Minimize distribution: After the strip-search, whether it obtained evidence or not, preserve the recording in a sealed envelope.

2014.11.04 Confessions - Person In Authority


Canadian courts developed a hard rule that the prosecution must prove the voluntariness of all confessions given to a person in authority.  In the peculiar case of Mr J.J., 2014 ONCA 759, this led to a curious result.

Mr J.J. formed a relationship with a police woman.  Her 14-year-old daughter alleged that he had sex with her.  He denied it.  The mother kicked him out, but wasn't sure who to believe.  She called him and told him she would reconcile with him if it was her daughter who initiated the sex.  He admitted sex with the girl.

Ordinarily, if the mother were not a police officer, the trial judge would admit such a confession into evidence without question.  But this trial judge found that she acted as a police investigator at the time she made the offer.  She was a person in authority.

Therefore, the appeal court found that there should have been a voir dire to determine the voluntariness of Mr J.J.'s confession.  The appeal court hinted that they weren't sure that the mother was really acting as a police officer at the time.  But given the trial judge's findings, they had to order a new trial.

As police officers investigating offences, you should not offer inducements to suspects for the purposes of obtaining confessions.  The usual mistake involves intimating to the suspect that you, the prosecutor or the judge might treat him more leniently on bail or a trial if he would admit the crime.   This is the first time I've encountered a police officer offering to sleep with the suspect if he would just confess.

If you police officers, in your private lives, find yourselves discussing a possible crime with a potential suspect, beware of your role as police officer.  You may not be able to do what a private citizen could do in eliciting a confession.

2014.11.01 Right to Counsel - Taking it Seriously


After Mr Wood, 2014 BCPC 13 crashed his car, he acted as if he were in shock.  An officer also noticed that he smelled of liquor, and got him to blow into a screening device.  It registered a fail.  The officer read him his rights, and asked if he wanted to talk to a lawyer.  He said "no".  Ambulance attendants took him to hospital to see if he needed treatment.  The officer accompanied him in the ambulance, and turned on a recording device to capture conversation.

The officer followed these wise steps with some unwise remarks:

"So, Scott, I've already ah read you, your rights, that was all of the jabber before. Ah, ahum, before we took off there from scene. Do you have any questions for me? Do you understand all your rights and all that jazz?"

When they reached the hospital, the officer accidentally missed reading a small portion of the blood demand.  It might not have made any difference.  But the judge disliked the officer's attitude towards this suspect's Charter rights.  It wasn't "jabber" nor "jazz".  The judge excluded the blood test results.

By all means, record your conversations with your suspects, before and after you explain their rights.  But always take their rights seriously, because judges do.

2014.10.20 Wiretap Disclosure

Section 193(1) of the Criminal Code prohibits anyone from disclosing the content of - and even the existence of - intercepted communications.  A Part VI authorization would do you no good whatever if investigators couldn't discuss what they've overheard.  Therefore, s.193(2) provides exceptions to the general rule, one of which permits disclosure of lawfully intercepted communications "for the purpose of any criminal investigation".

Another exception permits disclosure "for the purpose of giving evidence".

In Imperial Oil v. Jacques, 2014 SCC 66, a majority of the Supreme Court appears to have rewritten that phrase to mean "for the purposes of preparing to litigate in any proceeding".

The Competition Bureau of Canada investigated price-fixing in Quebec's retail gas industry.  Its investigators obtained authorizations to record conversations, and gathered enough evidence to lay charges.

Meanwhile, a public interest group launched a class-action suit against gas retailers.  They applied under civil rules for disclosure of the intercepted communications.

If intercepted communications ought to be kept private, should the dozens of civil litigants involved in this case obtain the private conversations of the business people involved?  What if their conversations stray from the price of gas, to more personal topics, such as their problem children or their love lives?

The court found that the need courts to obtain the truth allows for such disclosure even in civil cases - subject to controls to prevent more dissemination than necessary to litigate.

This should not usually affect police investigations.  But it reinforces two concepts:

Detention and Search


An officer stopped Mr Christie, 2013 NBCA 64 for driving with an expired registration sticker.  Mr Christie couldn't produce a licence or registration.  Seeing a hunting knife in a sheath in the driver's door pocket, and an open wine bottle on the floor behind the driver's seat, the officer detained Mr Christie, handcuffed him and placed him in the back of the police car.  The officer then searched the car for liquor and weapons.

When you detain a suspect, you may only search for weapons if you have reason to fear that weapons might harm you.  Generally, you can't search for evidence.

Unsurprisingly, the judges disliked this search, and excluded the evidence.  But they also disliked the detention.  In the absence of evidence of any threat to the officer, they found no need to handcuff Mr Christie or secure him in the back of the police car.  They found those actions "arbitrary", and therefore a violation of Charter rights.

Don't handcuff suspects or imprison them in your car for your safety unless you actually have reasons to fear for your safety.

But...

Canadian weather can freeze or overheat people.  Sometimes, you should put people in your police car for their comfort or safety.  Some of those people may become suspects - such as the driver of a car involved in a terrible crash.  Because the judges see such significance in putting people in the backs of police cars, you should tell people who aren't detained that they aren't detained.  Check on them frequently, in case they want to get out.

Searching Cell Phones incidental to Arrest

Ten months after busting Mr Vye, 2014 BCSC 93 for dealing in drugs, police searched his cell phone "incidental to arrest".  The officers examined everything except the ring-tones.  This included the photographs he apparently took of a naked woman, and his texts about her.  Defence challenged this search.

You can't search incidental to arrest unless there's evidence you think you might find.  No evidence explained what the officers thought they would find when they searched the phone.  A search "incidental to arrest" must be connected to the arrest.  The delay caused the judge to disbelieve that this search had anything to do with the arrest.

Cell phones can contain lots of data.  Because the officers did nothing to narrow the search to relevant information, the breadth of the search offended the judge too.  It was okay to duplicate the contents of the phone to preserve them, but not okay to examine everything.

2014.10.05

 Search & Seizure - "Reasonable Expectation of Privacy" - Cop Ban

Mr Felger, 2014 BCCA 34 posted a sign on his store banning police officers from unless they possessed a warrant.  His lawyer wrote a letter to police demanding that they respect Mr Felger's prohibition.  Inside, Mr Felger sold marijuana to all members of the public who entered.  Undercover officers entered and purchased drugs without first obtaining warrants.  Mr Felger convinced the trial judge that by doing so, the officers violated his Charter-protected right of privacy.

The appeal court disagreed.

Section 8 of the Charter protects people, not places.  The court observed that Mr Felger's sign created an artificial distinction, which purported to make very public activities private.  They found that he did not enjoy a reasonable expectation of privacy by posting this sign.

Reading between the lines, I suspect that the police got some good legal advice before challenging Mr Felger's approach.  That's a good tactic for handling outrageous interpretations of the law.


2014.09.29 Search & Seizure - Warrants and Production Orders - "Reasonable Grounds to Suspect" that an Offence has been committed

Section 487 and section 487.012 both refer to reasonable grounds to believe that an offence was committed or was suspected to have been committed.  Long debates have raged over whether this justifies the granting of a warrant or production order where only suspicion exists that an offence occurred.

In R v Fedossenko, 2014 ABCA 314, the majority found that suspicion suffices for production orders.  Expect a further appeal.  Maybe the Supreme Court of Canada will finally answer the debate.

2014.09.13 Search & Seizure - Night Search

Section 488 prohibits the execution of search warrants at night unless your application satisfies the justice that there are reasonable grounds to do so, and the justice authorizes it.  What justifies a night search?

Mr L.V.R.'s 2014 BCCA 349 stepdaughter complained that he sexually abused her.  She said he had photographs in his residence.  At 7:42pm, police arrested him at his residence and cleared the residence of people. With members standing guard to secure the contents, the lead investigator applied for a search warrant.  The Justice of the Peace rejected his first application because it failed to explain any need for a night search.  The officer applied again, this time explaining:

27.       I am re-submitting this application for a search warrant requesting night time execution for the following reasons:
a)         [L.V.R.] is currently in custody and will go before a Provincial Court Justice tomorrow (June 4th, 2008) therefore the evidence that I am seeking in this search warrant is required prior to his appearance.

b)         There are currently police officers maintaining continuity of the residence located at [address], Surrey, BC.

c)         As this is my last night shift I will be unavailable until the 10th of June, 2008 and fear that in this time there would be an opportunity for loss of evidence if the search warrant is not executed prior to [L.V.R.]'s release from custody.

The appeal court disagreed that the applicant's availability had any relevance.  Other officers could perform the search.  The prospect that L.V.R. could be released had some relevance - perhaps he could interfere with data on computers in the residence after his release.  Two things swayed the court:

    1. The residence was empty.  Section 488 protects people from unnecessary invasions of their homes at night.  Because the home was empty, nobody would be disturbed by the search.
    2. Therefore, police officers waiting until daybreak were wasting time ("idling").

The take-home lessons:

- When applying for Criminal Code search warrants to search between 9:00pm and 6:00am, always explain why you need to search at night.

- If you know that nobody will be in the place you intend to search at night (whether under the Criminal Code or the CDSA), say so in your application.

- Risk of loss of evidence is a good reason.

- Wasted time of officers is a valid reason.

- Unavailability of a specific officers is a bad reason.

Arrest & Detention - Plain Smell


Cst Moore stopped a speeding pickup truck.  He turned on a video-recording device before dealing with the driver.  After speaking with the driver, he walked towards his cruiser, and stopped mid-stride when an "overpowering" odour of vegetative marijuana struck him.  He returned to the driver and explained what he smelled.  He later recovered seedling marijuana plants from the truck.

Based solely on the smell, could he lawfully arrest the driver, Mr MacCannell, 2014 BCCA 254, and search the truck?

You may arrest people for indictable offences they committed in the past or are about to commit (s.495(1)(a)), for offences that they are committing now (s.495(1)(b)), or on an outstanding warrant (s.495(1)(c)).

Possessing less than 30g of marijuana is a strictly summary conviction offence.  Until Cst Moore looked inside, he could not know whether Mr MacCannell committed or was about to commit an indictable offence.  Cst Moore had no information about outstanding warrants.  Therefore, he could only arrest if he believed that Moore was in the course of committing an offence.

Because of Cst Moore's past investigations involving marijuana, the court found he could distinguish between burnt and fresh marijuana.  Smoke is evidence of possession of marijuana at some time earlier.  Because this smelled fresh, Cst Moore had evidence that Mr MacCannell continued to possess marijuana.

Was this enough evidence to establish reasonable grounds to believe that MacConnell was committing an offence?  Perhaps he had a medical marijuana licence.

The court found that an officer need not exclude the possibility of licences before making the arrest.

Mr MacConnell had no licence.  The court upheld his conviction.

Who is the Queen?

Mr McAteer and some friends, 2014 ONCA 578 wanted to become Canadian without pledging their allegiance to the Queen.  Some were republicans, one was a Rastafarian.  None felt any desire to promise good things for members of the House of Windsor.  The court responded that the oath is an oath to the Canadian way of governing ourselves, not fealty to a person:

"[T]he oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed..."

To become Canadian, Mr McAteer must swear an oath of loyalty to our Canadian system, which uses the monarch as a representative of the people and the people's way of organizing ourselves.

Search and Seizure - Courier Contracts

Mr Calkins sent a package of illicit drugs to Mr Godbout, 2014 BCCA 319 by courier.  Mr Calkins signed a standard form, which referred to the courier company's website for the full list of terms.  The website included this:

Without notice, DHL may, at its sole discretion, open and inspect any shipment and its contents at any time. Customs authorities, or other governmental authorities, may also open and inspect any shipment and its contents at any time.

Someone at the courier company suspected something about this package and opened it.  When she saw its contents, she told police.  They came and saw, and seized the package, and arranged for a controlled delivery.

Mr Godbout complained that the police violated his expectations of privacy.  The court observed that the police violated the sender's privacy.  It figured that as the recipient, Mr Godbout could enjoy no greater expectation of privacy than the sender.  The terms of the contract allowed police to examine the contents, and therefore nobody violated Mr Godbout's expectations of privacy.

What you find on a website about privacy policies may provide good evidence about a suspect's expectations of privacy.

Undercover Operations - Mr Big

Mr Hart, 2014 SCC 52 had twin daughters who drowned in a lake.  He explained to his wife that one fell off a dock.  He couldn't save her because he couldn't swim.  So, in a panic, he rushed home, forgetting the other one at the dock.  The police didn't buy this story, but he stuck to it.

Police launched a Mr Big operation, which completely beguiled Mr Hart and lifted him out of his poverty and social isolation.  He believed the fictitious gangsters were his best friends.

One undercover operator boasted of disciplining prostitutes for the gang, and hinted that he even killed them.  Mr Hart responded by claiming to have murdered his daughters.

Later, when Mr Hart met Mr Big, he gave conflicting versions of how he achieved this.  Did he push them off the wharf with his shoulder ... or his knee?

The judges agreed that this undercover operation went too far in persuading Mr Hart to talk.

Prejudicial effect: By involving the suspect in what appears to be crime, the operation creates evidence of the suspect's bad character, which the court feared could prejudice the jury against him.  After he spent every day for 4 months trying to join a criminal gang, "... it is easy to see how the jury could come to view the respondent with disdain."

Probative value: The prospects of wealth and a welcoming community can be powerful incentives for vulnerable people like Mr Hart to admit to crimes - regardless of the truth.  And fear of violence from gangsters could also encourage people to say what they think the gangsters want to hear.  Where the incentives are too strong, the court may lose trust in the confessions these techniques elicit. Of course, confessions which reveal details which only the true culprit  could know - such as the location of a murder victim's body - tend to reveal the truth of the confession.  Mr Hart lived in isolation; his confession revealed no confirmable facts.

By contrast, Albertan police persuaded Mr Mack, 2014 SCC 58 to confess to a murder by applying gentler techniques.  They gave him only modest payments for mild (apparent) criminal activity.  They didn't use scenarios involving violence.  His confessions led to remains of the body.  The judges agreed that the evidence from this undercover operation should be admitted.

Until now, the courts automatically admitted confessions elicited by this technique.  Now, they will examine the confession in a voir dire to determine whether its probative value exceeds its prejudicial effect.  If not, the jury won't hear anything about it.

This decision confirms what circumspect undercover units already know.  Beware of giving the defendant reasons (or excuses) to explain away his confession:

Perhaps for some targets, Mr Big should be a reformed gangster, whose business involves mostly lawful transactions.  Maybe he runs a slightly shady private investigations firm, in which trust, loyalty and honesty are important business practices.


Detention - Reasonable Suspicion


Police received an anonymous tip that a man wearing a black T-shirt and jeans, having dreadlocks and a "baby-face" walking on a particular street in a troubled neighborhood carried a gun.  Police attended and found Mr Williams 2013 ONCA 772 fit this description.  They told him they were investigating a firearms complaint, and asked if he was armed.  He "bladed" his body, gave no verbal response, and reached for his waistband.  The officers told him to raise his hands and turn around.  He didn't.  They grabbed his arms, and quickly found a loaded handgun in his waistband.

Defence called it an arbitrary detention.  The judge agreed that the tip - by itself - did not provide reasonable grounds for suspicion.  But Mr Williams' behaviour when the officers addressed him added more information to the tip.  This rendered a detention reasonable.

The risk of a firearm rendered a pat-down search reasonable in the circumstances.  The firearm was properly admitted into evidence.

When justifying a detention, you should explain all of the details which gave you reason to suspect that crime was afoot.

Sexual Assault Investigation


Sexual assault complainants enjoy some additional protections when they complain to police.

To defend such complaints, defence often attack the complainant's credibility.  They ask for every police report which pertains to such complainants.  The Supreme Court of Canada concluded that these reports enjoy the special protections of s.278.1-278.4 of the Criminal Code.  Defence won't receive those police reports just by asking.  They need to prove relevance.  R. v. Quesnelle, 2014 SCC 46

Right to Counsel


After a party, Mr Taylor, 2014 SCC 50 rolled his truck, injuring three of his passengers.  An officer who attended the scene arrested him for impaired driving causing bodily harm.  Mr Taylor said he wanted legal advice, and he wanted to speak with his father.  A paramedic at the scene found nothing obviously wrong with Mr Taylor's health, but recommended that the officer take him to the hospital just in case.  The officer wisely took that advice.

The emergency ward was busy that night (perhaps tending to Mr Taylor's passengers).  He waited 20 minutes with the officer before medical staff attended to him.  Medical staff checked out Mr Taylor, and took blood samples for hospital purposes.

The officer did nothing about access to counsel before leaving the hospital.  He forgot.  He called it a "rookie mistake".

Next morning, the officer got a search warrant for the hospital's samples.  Analysis of the samples proved Mr Taylor drove drunk.

Mr Taylor's counsel complained that Mr Taylor did not receive legal advice at the earliest opportunity.  Even though the officer took no part in drawing Mr Taylor's blood, the appeal courts found sufficient connection between the officer's conduct and the evidence to justify excluding the blood test results.

The prisoner's right to counsel "without delay" does not mean that you must offer a cell phone to the man you arrest before you handcuff him.  You may delay legal rights until you protect people, property and evidence from peril.

"Without delay" can mean sooner than "when we get to the police station", especially if you expect detours and delays before calling lawyers.  Don't leave rights to counsel hanging.

Community Policing - Triggering a Detention


When you encounter suspicious people on the street, you may start a conversation which becomes a detention and then an arrest.

When the interaction changes from "conversation" to "detention", you must explain s.10(b) rights.  Lawyers often disagree when that moment arrives.

At 2:30am, young Mr B.S., 2014 BCCA 257 (yes those are his initials) walked with 4 other young people in a residential neighborhood.  An officer approached them because he thought they might be underage, intoxicated, and possibly interested in mischief.  He smelled liquor, but they denied drinking.  He asked them if they had outstanding warrants.  When he asked Mr K.J. for id, K.J. tried to walk away.  The officer called him back, and looked at his id.  Then Mr B.S. started to fidget with something behind his back.  The officer became nervous for his safety, and decided to search Mr B.S. for weapons.  He found a baton and drugs packaged for sale.

Mr B.S testified that from the moment the police officer first approached the group he felt he was not free to leave.  However, another member of the group testified that she felt free to go throughout the interaction with the police.

Defence argued that by approaching the group, the officer detained them.  The officer had no reason to suspect them of any offence, and therefore the detention was arbitrary.  Defence complained that the officer failed to give any Charter rights until long after the detention.

The trial judge and the appeal court disagreed.  The detention in this case occurred when the officer decided to search B.S..

But it ain't always so.  If your actions would cause a reasonable person to believe that he or she can not leave, then you trigger a "psychological detention".  Depending on how he called Mr K.J. back, this officer could have caused the other members of the group to feel that they couldn't leave either.

At the scene, you can control your words and actions.  In the court room, counsel will urge the court to interpret them differently.  If, at the scene, you clearly distinguish between liberty and detention, then, in the court room, you can describe that clear distinction, and dispel confusion about when the conversation turned into detention.

Searching a Residence in Exigent Circumstances

 - 911 call

A child phoned his grandmother complaining that his parents were fighting.  She called police, telling them that the child would call only if the fight got "pretty serious".  When police attended the residence, no sound came from the house, even after 25 minutes of knocking.  When they broke in, they found Mr Depace, 2014 ONCA 519., drunk, and the child's mother.  They searched the residence more widely, in case others were in the house, injured.  Downstairs, they found drugs and scales and sheets detailing who owed him money.  Defence argued that the police should have left the house when they found the three occupants unharmed.  The court observed "the police do not need to take the word of the occupant that everything is alright."

Search of Cell Phones Incidental to Arrest


To download and examine the contents of a cell phone, you need a warrant, even if you seized it incidental to arrest.  You may still be able to do a cursory examination of it without a warrant.  R. v. Mann, 2014 BCCA 231

Note-taking


In Acosta, 2014 BCCA 218 the court observed that no rule of law yet requires police officers to make contemporaneous notes.  Failing to take them in that case led to a costly appeal.

"Plain smell" of marijuana

The plain smell of vegetative (rather than burnt) marijuana emanating from a vehicle may suffice for grounds to arrest the occupants.  Acosta, 2014 BCCA 218

Right to Counsel

Two children complained that their stepfather, Mr T.G.H., 2014 ONCA 460 sexually abused them for years.  Their mom didn't believe them.  The boy told police that a peculiar flap of excess skin hung over Mr T.G.H.'s anus.  When interviewed in January, Mr T.G.H. denied having such a feature.

In October, police officers got a general warrant to permit them to examine his anus and if it was there, to photograph it.  The female officer who interviewed him executed the warrant.  Because she told him of his right to counsel at the interview, she felt no need to tell him of his right to counsel before the execution of this warrant.  She carefully avoided interviewing him during the process.

The defence complained that the execution of the general warrant was a "detention", and that triggered a right to counsel.  The court agreed.  The prior exercise of the right to counsel addressed the interview.  This search addressed a completely different (and unexpected) investigative technique.  The officer breached Mr T.G.H.'s right to counsel.  (The court admitted the evidence under s.24(2).)

When you execute a warrant which allows you to search a person's body, such as a DNA warrant, give the subject access to counsel.

General Warrant

Two children complained that their stepfather, Mr T.G.H., 2014 ONCA 460 sexually abused them for years.  Their mom didn't believe them.  The boy told police that a peculiar flap of excess skin hung over Mr T.G.H.'s anus.  When interviewed in January, Mr T.G.H. denied having such a feature.

Police got a general warrant to permit them to examine his anus and if it was there, to photograph it.  A female officer executed it.

She found and photographed the flap of skin.  This evidence helped prove the case.

The idea of getting a warrant to authorize this intimate examination was a good one.  I was surprised that a female officer executed it - ordinarily, you should only do such a search upon a person of the same gender.  I think that the warrant should have authorized photographs whether or not the skin flap was present - the absence of the skin flap could have been evidence that the child was mistaken.  It would be appropriate to obtain such evidence because it would have assisted Mr T.G.H. in his defence.

Interviewing the defendant - promises


Police had reason to suspect that Mr M.S.M., 2014 ONCA 441 sexually abused his daughter.  During an interview, the investigating officer suggested that unless he confessed his daughter would not get the psychiatric she needed.  The trial judge found this inducement rendered the confession involuntary.

Ordinarily, an inducement is improper if you have control or influence over it.  Linking lenient treatment in court to confession is a classic example.  This inducement was less clearly under the officer's control. While I suspect this particular case is close to the line, it highlights the dangers of pushing too close to that line.  Pick your leverage carefully.

Documents in Possession


Police saw Christine Black, 2014 BCCA 192 step out of a building, lock it and walk away.  Inside, sitting on a table, they found a grow operation, and a note addressed to "Chrissy" instructing her on maintenance of the operation.  Relying on Baldree 2013 SCC 35, the defence argued that the note was hearsay, and therefore inadmissible.  The court disagreed: documents found in the possession of the defendant may provide circumstantial evidence of their guilt.

When you search a place or person for evidence of an offence, take some time to record where you found documents, and read the documents you find.

DNA Transfer - The Achilles Heel of DNA Evidence


The great advantage of DNA is its sensitivity.  And sensitivity is its drawback too.

Mr M.C., 2014 ONCA 307 played "zerbert monster" with the neighbor's 5-year-old.  A "zerbert" is blowing a raspberry on a child's skin.  The next day, the little girl said that he blew zerberts on her vagina.  With his tongue.  She was wearing a sundress over underwear.  An external vaginal swab located only her DNA.  But her underwear bore his DNA too.

The trial judge convicted him, but the appeal court ordered a new trial.  The trial judge failed to consider whether the accused's DNA could have transferred to the child's underwear innocently.

When you find the suspect's DNA in a place that suggests guilt, investigate whether it could have transferred there innocently.

Impaired driving - Breath Testing - Taking Samples "As Soon as Practicable"


After a breath or blood demand, you must take both samples "as soon as practicable", and account for delays.  When police tested the breath of Mr Singh, 2014 ONCA 293, 28 minutes elapsed between the first and second samples.  Of course, law required the police to wait 15 minutes after the first sample.  But there was no explanation of the delay for the second sample.

The Court upheld Mr Singh's conviction in this case, but it was a gamble.  If something prevents you from testing the subject promptly, explain the delays in your report.

Production Orders or Wiretap? Text messages

In Croft, 2013 ABQB 640, police obtained a production order against a telephone company to get text messages that the company stored in its servers after they were sent.  The court found that this constituted "interception of communication", and therefore unlawful.

This suggests that you should stop using production orders to get text messages from Telus.  If you have a case that did, let your prosecutor know about this decision.  The judge extended the reasoning in R. v. Telus Communications Co. 2013 SCC 16 beyond what the SCC decided.  If you want to get a production order for this purpose, get legal advice.

Value in Video-Recording Eyewitnesses

In Groves, 2013 BCCA 446, police responded quickly to a homicide in the downtown east-side.  Someone in a gathering of street-people pushed a woman under a bus.  Mr Emerson gave police a video-recorded statement very shortly after the event, before he had time to discuss what he saw with other eyewitnesses.  Unfortunately, Mr Emerson was “messed up” on heroin at the time of the event and the recording of the statement.  Even worse, at trial, he retained no memory of the incident.  However, the prompt video-recording of his evidence allowed the trial judge to admit his statement in evidence, which made all the difference at the trial.

There is great value in video-recording the statements of eyewitnesses, even if the witness does not seem valuable at the time.

Searching a Vehicle Incidental to Release

An officer caught Mr Valentine, 2014 ONCA 147 driving a car 20 minutes into his curfew.  The officer arrested Mr Valentine and put him in the back seat of a police cruiser.  The officer then considered releasing him, but because CPIC indicated that Mr Valentine was on bail for violence and threats, and that he posed an escape risk, the officer thought that Mr Valentine could pose a risk to the officers immediately after release.  The officer searched the driver's area of the car for weapons.

He didn't find any weapons, but he did find cash and a smell of fresh marijuana.  He arrested Mr Valentine for possessing it.  The officer then searched the trunk and found 18 pounds of shrink-wrapped bud.

At trial, Mr Valentine complained that while secured in the police car, he posed no risk to the officer.  Therefore, the officer had no authority to search his car.  These complaints fell on deaf ears.

Because of Mr Valentine's particularly nervous behaviour, and because of his past history of violence, this "officer safety" search was justified.

That doesn't mean you can search the car of every person you arrest for breach of bail.  If you want to search for "officer safety", you better have evidence which shows a real risk.

Arrest and Detention - Right to Counsel


Mr Taylor, 2013 ABCA 342 crashed his car, injuring his passengers, including his sister.  Police figured he drank too much, arrested him for impaired driving, and told him he could call a lawyer.  He wanted to call his lawyer and his father.  Mr Taylor figured he wasn't hurt, but the ambulance attendants persuaded him to go to the hospital to be checked out.  His speech was clear.

Half an hour passed before he left the scene.  Nobody arranged for him to make phone calls from there.  He spent 20 minutes at the hospital before the nurse took blood samples for the hospital's purposes.  Nobody arranged for him to get legal advice.  After the nurse took blood samples for the hospital, a police officer made a blood demand.  Nobody arranged access to counsel.  40 minutes later, a doctor drew blood from him for police.

Of course, you should never elicit evidence from a detained or arrested suspect without first permitting him to get legal advice if he wants it.

Investigators in this case realized this mistake.  They got a warrant for the hospital samples.

The trial judge figured that was okay.  Two appeal court judges found that Mr Taylor should have received the legal advice before the hospital took the samples.  The Supreme Court of Canada may hear argument in April.

All this could have been avoided.  The officer called it a "rookie mistake" when he failed to arrange access to counsel for Mr Taylor.

Don't make that same rookie mistake.


Arrest & Detention - Explaining why - s.10(a)


Vancouver police knew Boden, 2014 BCSC 66 had a history of violence, weapons, flight from - and confrontation with - police.  They also reason to suspect him of a series of sexual assaults.  So they set up a surveillance team.  Members of that team saw him approach a woman from behind and grab her right buttock.  He then fled in the direction of a dogmaster and his dog.

When the dogmaster saw Boden, the dogmaster said:

“City Police” “You’re under arrest.  Get on the ground or I’ll send my dog”

Boden replied:

“What? What for?”

The officer repeated his words, but did not identify any offence.

Mr Boden fled.  During a protracted struggle, Mr Boden asked:

“What did I do? What did I do?”

The trial judge found that the officers did not answer the question.

Did he obstruct or assault a peace officer in the execution of duty?

The trial judge found that the officers breached Mr Boden's s.10(a) right.  When deciding whether to submit to an arrest, Mr Boden was entitled to know what the officer was alleging against him.  The appeal court found that in exigent circumstances, you can delay the explanation for later, when things are under control.  It's entirely possible Mr Boden may win on further appeal.

None of this expensive litigation would be necessary if the dogmaster had added three words to the phrase "You're under arrest" ... "for sexual assault".

Get in the habit, and stay in the habit, of identifying the reason for a person's arrest or detention.  Section 10(a) of the Charter requires it.

Search Warrants - Swearing the ITO

Two courts now say that you can swear your Information to Obtain before a Commissioner for the Taking of Oaths (such as Crown Counsel), and then submit your sworn document to a Justice of the Peace to issue the warrant. R. v. D.G., 2014 ONCA 75; R. v. Spencer, 2009 SKQB 341.

I see this as one more slow step towards giving telewarrants equal status to ordinary search warrants.

Search & Seizure - Execution of Search Warrant - Read it


Police applied for a warrant to search 3325 McQueen Road for:

marihuana, marihuana plants, [and] documents identifying ownership and/or residency of 3325 McQueen Road, West Kelowna

The justice gave them a warrant to search that address for:

marihuana, marihuana plants, [and] documents addressed to 3325 McQueen Road, West Kelowna

When searching that place, they found marijuana in abundance.  An officer also seized a birth certificate and a passport of Mr Mandziak, 2014 BCCA 41.  The passport asserted that his address was 3325 McQueen Road, but directed anyone finding it to send it to the Canadian government at another address.  The birth certificate bore no address.

So neither identification document was "addressed to" 3325 McQueen Road.  Both linked Mr Mandziak to the residence.

During testimony, the officer provided no explanation why he seized these things, contrary to the wording of the warrant.  He could have relied on s.489; but he didn't say so.

Two of three judges in the Court of Appeal threw out the conviction and ordered a new trial.  We'll see if it goes on to the SCC.

Lessons to learn:

  1. Read the warrant.
  2. If you want to seize something not named in the warrant, figure out whether you have the authority to do so.
  3. If you do seize something pursuant to s.489 or "plain view", say so when asked.

Note-taking

How does a traffic member know the importance of a traffic stop?  In a routine traffic stop, a police officer checked Mr Bains, 2014 BCCA 43.  His brief notes in a computer system caught the attention of a team of police investigating a major drug conspiracy.  Those officers showed him a picture of Mr Bains, to see if Bains was the driver.  The officer recognized him.  That information led to the grant of a wiretap authorization which sunk Mr Bains.

At trial, Mr Bains challenged the lawfulness of the traffic stop.  Because the officer could remember little to nothing about it, the court concluded it was an arbitrary detention.

You never know when a little matter will turn into a big matter.  Notes always matter.

Impaired Driving - Refusal & Right to Counsel

In a fairly routine impaired driving investigation after a car accident, an officer arrested Mr Bagherli, 2013 MBQB 189 and told him of his right to counsel. He wanted a lawyer.  The officer then asked him if he would provide breath samples.  He said "no".  The officer arrested him for refusal, and took him to the police station.  Instead of calling a lawyer, Mr Bagherli fell asleep in the phone room.  When asked if he'd like to speak to a lawyer, he said “No, I’ll talk to him later.”  The officer gave him the supplemental Charter warning.  He responded: “Yeah, whatever”.  He never offered to provide a breath sample, nor did the police re-read the demand or offer him another opportunity to provide a breath sample.

He beat the charge.

After he asserted that he wanted a lawyer, the officer had an obligation to hold off eliciting evidence until he got advice.  Instead, the officer asked a key question about the offence.

After you make a demand, proceed as if the suspect will comply.  Let the suspect come up with the idea of refusing.  Don't offer him a choice.

Computer analyses - Search Warrant or General Warrant?


The archaic language of s.487 raised doubts whether an ordinary search warrant could authorize forensic analysis of the contents of a computer.  Some legal minds in Alberta believed that a general warrant under s.487.01 would be more appropriate.

One Provincial Court judge there wrote an opinion that s.487 suffices.  K.Z., 2013 ABPC 203.

This settles the question in Alberta for the short term.  But this is a topic on which reasonable people may reach different conclusions.

If your forensic analysis of a digital device requires more than just searching it, reconsider using a General Warrant.

This judge also required information about how long it will take to get the search done.  You might want to include such information in your ITO.


Detention - How to Cause a Detention while Trying Not To

Mr Koczab had 17 kg of cocaine hidden in secret compartments in his car.

A Manitoban police officer stopped Mr Koczab, 2014 SCC 9 as he sped east.  He had an Ontario licence but his vehicle was registered in B.C..  He explained he worked in the movie business.  The car, the driver, and his explanation seemed familiar to the officer.  He gave Mr Koczab a verbal warning, and told him he was free to go.  But the officer asked if minded answering a few questions.  Relaxed and comfortable, Mr Koczab replied "Yeah, go ahead".  His answers about the car, the movie business, and his past conviction for a couple of grams of cocaine left the officer with an ever stronger sense of deja vu.  He asked about the suitcases in the back seat, and whether Mr Koczab carried liquor, drugs, or large quantities of cash.  No.  "So what's in the suitcases?" asked the officer.  "Clothes, do you want to see?"  The officer made sure Mr Koczab was giving him permission to look for drugs.  Mr Koczab showed him the clothes, but the officer noticed something odd about the carpet that looked like a hidden compartment.

The officer thought that he might detain the accused for a further criminal investigation,  He called for back up for officer safety.  He told the accused “I just have to go to my car for a minute.”  And he did go to his car and call for back up.

The trial judge found that the officer detained Mr Koczab at that point.  He found that the officer implied by this remark that Mr Koczab should not leave.  He found that the background of the many questions and concerns about drugs established a context in which Mr Koczab would not feel free to leave.   Because the officer failed to tell Mr Koczab about his right to counsel at that point, the officer breached Mr Koczab's s.10(b) rights.  The judge excluded all 17kg of cocaine which the officer later discovered, and Mr Koczab beat the charges.

The appeal court disagreed, but the Supreme Court of Canada unanimously sided with the trial judge.

For police officers, just saying "You are free to go" doesn't necessarily make it so.  If you act like the person must stay, then the judge will find that you detained a person.


Prosecutorial Liability


Criminal defendants can only sue prosecutors for malicious prosecution.  Negligent prosecution is not a reason for prosecutors to pay defendants; negligent investigation is.  Henry v. British Columbia (Attorney General), 2014 BCCA 15

Grounds for Searching a Suspect for Officer Safety

 - "Suspicion" or "Belief"

Mr MacDonald, 2014 SCC 3 played music in his apartment too loud and too late at night.  His landlord complained.  Mr MacDonald swore at him, and kept the music playing.  The landlord called police.  A police officer attended and asked him to turn it down.  He swore at her too, and kept the music up loud.  She called her supervisor, Sgt Boyd.  He knocked and kicked at Mr MacDonald's door.  Mr MacDonald opened it just wide enough that the supervisor could see a black shiny object.  But Mr MacDonald hid it behind his leg, and refused to say what it was when Sgt Boyd asked.  Fearing it might be a knife, Sgt Boyd pushed the door open a bit further.  He then saw it was a gun.  He barged in and relieved Mr MacDonald of what turned out to be a loaded handgun, unlicenced for possession in that province.

Was this warrantless entry into Mr MacDonald's residence lawful?  The trial judge said "yes".  An appeal judge said "no".  The Supreme Court of Canada said "yes", but most of them used language which creates confusion.

Until now, reasonable grounds to "suspect" that life and limb is at risk suffice to justify intrusions into privacy.  If you want to search for evidence, you need reasonable grounds to "believe" that it's there.

In this case, the majority (4 judges) said that an officer safety search "will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search" (para 41).  As the minority (3 judges) pointed out, this significantly changes the law (para 65), eliminating an important protection for police.

It may not necessarily be the disaster for police described by the minority.

That's because the majority found that Sgt Boyd had the necessary grounds to justify this search.  But Sgt Boyd never testified that he "believed" that Mr MacDonald "actually" possessed any weapon, only that he "might" possess a weapon.  In my lexicon that's "suspicion".  To the majority of the Supreme Court of Canada, apparently, that's reasonable grounds to "believe" in a threat.

In my opinion, the minority decision is better reasoned and better explained than the majority.  If you read this case, read both decisions.  Because of the confusing language, this matter will doubtless return to the Supreme Court.  In the mean time, I expect confusion in the provincial courts.

Search & Seizure - Warrant Drafting - Source Documents

Mr Vuong 2013 BCCA 527 grew marijuana in a residence.

A junior officer drafted an application for a search warrant.  In it he explained that he saw window coverings, and detected a faint whiff of growing marijuana when he walked near the property (but he didn't walk all the way around it).  He recited the electrical consumption records for the residence, and observed that this residence consumed 4x more electricity than an average home in the area.  He obtained that statistic from what he summarized as a "BC Hydro document".  But the document didn't come from BC Hydro.

This gave the JJP a false sense of the reliability of the document.

On appeal, the court found that the warrant shouldn't have been granted.  The officer should have:

There is much value in attaching an exhibit to your ITO, if the exhibit explains succinctly some important evidence in your application.

Good Cop - Bad Cop - Violent Cop

A jury found that Mr Singh, 2013 ONCA 750 and his accomplice violently stole $350,000 worth of copper.  The evidence proved his guilt, but the police investigation tactics bought him freedom.

The police investigation included a tactic of assaulting him three times to get him to confess.  Because of his charges, Mr Singh chose not to cooperate with the police discipline process; the officers suffered no meaningful penalty.

The Court of Appeal found that the police tactics were so outrageous that it had to disassociate the court from the police conduct.  Mr Singh was freed.

Guilty people have rights too.  Your job includes upholding those rights.  Don't injure your prisoners.


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