You likely know that video-recording children's statements can result in the video becoming part of their evidence at trial. It started years ago with sexual offences, but Parliament broadened the section to make it work for all witnesses under 18.
It also works for people with mental and physical disabilities. s.715.2
Mr Osborne, 2017 ONCA 129 and his circle suffered developmental delays and mental disabilities. He told one of them that he intended to kill his exgirlfriend. And he did. At trial, the friend could not remember the conversation, but could remember telling the truth to the police. Was his video-recorded statement admissible?
This section applies more broadly than just young folks with intellectual challenges. And it applies to all crimes, not just murder and sexual offences.
Aged victims often deteriorate after a crime. Video-record their statements when possible too.
If a guy gropes a woman's breasts, and pulls her shirt so that he can peer at her breasts, we call it sexual assault.
Cst Khan, 2017 ONCA 114 said it was a search incidental to arrest, to ensure that she carried no weapons.
To be fair, he just busted the woman for buying cocaine. But the way she remembered it, he seemed more interested in flesh than weapons.
The trial judge believed the woman. Khan lost his job and his reputation.
When you exercise powers of arrest, you do what would otherwise be called an assault and kidnapping. Use those powers respectfully, and accountably.
If you read her description at the beginning of the decision, you may get ideas on good and bad search procedures.
The remainder of the decision discusses a technical legal issue. Most police won't find it interesting.
When investigating others for drug offences, police noticed Mr Saciragic, 2017 ONCA 91, and started watching him.
In October, they saw him engage in two open-air transactions with strangers. He handed something to someone, received something in return, and drove away. After the second transaction, they arrested him, and found he had received a ring from a jeweller. But it sure looked suspicious.
The following April, police officers noticed him engaging in counter-surveillance efforts, when driving. He drove to an apartment building, and then drove away to meet with someone in a lonely spot. Mr Saciragic gave the other guy a box. Police closed in. Both guys fled, but police caught them. The box the other guy got from Saciragic contained a kilo of cocaine. Saciragic had keys, and key fobs which might operate the gate to the underground parking at the apartment building.
Officers hurried back to the apartment building, working off the theory that it was Saciragic's stash house.
The police tested one of the keys in the door of unit 1107. It worked. They entered to clear the place of people. One officer pulled back a shower curtain and found lots of cocaine. They pulled out, and got a warrant. With the warrant, they got damning evidence.
The trial judge concluded that the first search violated Mr Saciragic's s.8 rights because the police fears that someone inside might destroy evidence were based only upon speculation and not evidence. (The appeal court judges didn't really address whether this was or was not a proper case for an exigent circumstances search.)
Defence complained that the police violated Mr Saciragic's privacy by getting digital information from the key fob. The judges all disagreed. This differed from searching a cell phone because the key fob contained such minimal information about Mr Saciragic. Defence complained that by looking at the security video and then telling the police what he saw, the manager violated Mr Saciragic's expectation of privacy, and because police asked him, he acted as their agent. Even if he did act as their agent, the judges concluded that Mr Saciragic enjoyed no reasonable expectation of privacy over the information:
"...no intimate details of the appellant’s life were revealed by the provision of the information that, on a single occasion, the appellant exited and re-entered the elevator at the 11th floor. This information did not yield any information about the nature of the appellant’s activities in unit 1107, or even whether he used unit 1107 as a residence. Similarly, no intimate or biographical details were revealed by the fact that the fob he used when police observed him enter the parking garage was assigned to unit 1107."
The judges also found that the manager did not act as an agent of the officers.
With the information police lawfully obtained from the manager, they had enough to justify the issuance of the warrant. The second search was lawful. Mr Saciragic's conviction stuck.
I find this case interesting on several levels:
Police information systems contain data about criminal investigations and whether charges were laid. Other information systems record whether charges stuck.
Before applying for warrants, officers routinely consult police databases, and record in their applications what they find.
Convictions impress judges. Acquittals generally do not.
An officer investigated a grow op operated by Mr Paryniuk, 2017 ONCA 87. He wrote 45 pages justifying why a justice should permit police to search the place. He consulted a police database, and recorded in the ITO incidents in which police charged Mr Paryniuk with drug offences.
The ITO didn't mention that courts acquitted Mr Paryniuk of each one.
Judges hate that. The ITO looked more compelling than was justified. It makes the applicant seem deceitful.
What saved this officer was truthfulness. The ITO did not pretend that the previous incidents led to conviction. It explained what source the officer turned to, and that the suspect was "charged" or "involved". An experienced justice would know the difference between those words and "convicted".
Routine police work relies on routine use of police databases. But judges care more about convictions and acquittals. For a judicial application, complete your computer research by turning to a court database.
This one matters. It may well go to the Supreme Court of Canada. Even before they rule on it, you should think about the ideas it raises.
Mr Patrick, 2017 BCCA 57 drove an SUV at 4:30am on a dark residential street. A lone female officer noticed that the licence plate matched one involved in an identity theft. She pulled it over. It contained four large men. One looked beat up. Another was unconscious, for reasons nobody explained. She asked for vehicle registration. She received an empty plastic envelope. Although the occupants spoke politely, the officer called for backup.
The men identified themselves. Computer checks suggested were involved in drugs and other crime. The three passengers raised violence warnings.
One of the occupants gave police a cell phone. On the other end of the line was a woman who claimed to be the owner of the SUV. She gave her name and date of birth. The officer found the phone number of the victim of the identity theft, and called it. A different woman answered. The officer figured that someone was lying to her.
When backup arrived, she detained everyone so that she could investigate their fraudulent possession of the SUV. Mr Patrick appeared to fiddle or fumble with his seatbelt. The officer told him to keep his hands where she could see them. He kept fiddling. Another officer entered the vehicle and yelled at him to put his hands where they could be seen.
When they got Mr Patrick out of the vehicle, she noticed a large bump in his clothes, just under his right shoulder. The officer asked:
"Do you have something on you?"
Mr Patrick patted the bulge.
The officer asked what it was.
He replied "a shotgun".
It was, indeed, a loaded sawed-off shotgun, which became the subject of charges.
Defence argued that:
Trial judge agreed, and excluded the evidence of the shotgun.
The Appeal Court came to a different conclusion.
You don't get to search for weapons every time you detain someone. You need reasons to fear that the suspect has things that could hurt you, and might use them against you. You can take all of the circumstances into account. You don't need to wait for the suspect to take the first aggressive step before this power triggers.
But if asked in court why you searched, you need to explain sufficient reasons that the judge will understand why the risks were real. The trial judge complained that officers described their safety concerns only in general terms.
In my experience, police officers often express their fears in the negative: "I didn't know if he had any weapons" "I didn't know what he was going to do next." An absence of information does not give you grounds to search someone.
You can do better. Try explaining the risks in positive terms. Rather than describing what you didn't know, identify the risks you did know about:
The Court of Appeal held that you can ask questions during a pat-down search, but you should take care how you ask them.
"In my view, questioning a detainee about to be frisk searched as to whether they are in possession of anything that might cause the searching officer injury is minimally intrusive search. In some respects, it is less intrusive than a physical pat-down search. I would hold that narrowly tailored questions of this kind motivated solely by safety concerns are permissible." [my emphasis]
With the benefit of this hindsight, was the officer's question "narrowly tailored" to identify items that posed police a risk? The court ordered a retrial. At that trial, defence will argue "Do you have something on you?" could be interpreted to mean "Do you have anything illegal in your clothing?" Therefore, the question isn't "narrowly tailored" to address officer safety.
This argument would be much harder to make if the officer had said "I'm going to search you now for weapons, and anything that could hurt me. Do you have anything on you?"
What questions do you ask during a pat-down search? Do they invite responses about offences, or do they focus specifically on officer safety? Do you want to change your standard wording?
Note that the suspect has no obligation to answer you. Don't arrest someone for obstruction of justice just because they didn't tell you about the needles in their jacket.
Note as well that the suspect's remarks about the weapons you find will
not be admitted at trial. After detention, you must deal with rights to
counsel. If you ask questions and get answers before solving lawyer
issues, the trial judge won't admit the answers for proof of the crime.
An officer arrested Mr Patrick, 2017 BCCA 57 for possessing a sawed-off shotgun (see above). Even though Mr Patrick wanted to talk to a lawyer right away, she didn't let him call a lawyer from the scene, using a cell phone. She took him to the police station.
The trial judge thought the officer flagrantly violated Mr Patrick's rights. The Court of Appeal wasn't so sure.
Section 10(b) of the Charter, requires you to give a suspect his legal rights "without delay". But the courts find that you may delay that access to counsel where circumstances so require.
That doesn't mean you can always delay access to counsel until you reach the police station. If access can be given at the scene of arrest, without risk, then handing the suspect a cell phone to use in the back of a police car may be appropriate.
But many prisoners can abuse their access to a cell phone.
Some scenes are too chaotic to permit you to give that access: Accident scenes. Feuding neighbors.
If you have a reason specific to this prisoner or this situation, then you can delay his or her legal calls until the situation is under control.
Mr Mauro, 2017 BCCA 45 picked a bad time to crash his Audi. It carried $100,000 worth of cocaine when it hit another vehicle. Instead of worrying about the injured woman in the other car, Mr Mauro phoned his mom, and instructed her to bring his Jetta to the scene. He took a shopping bag out of his car and held it until his mother arrived. He put the shopping bag into the Jetta, and his mom drove it a short distance away.
Police attended to deal with the car crash. The injured woman's husband told the police about Mr Mauro's strange behaviour with the shopping bag.
A police officer questioned the mom. She denied having anything in "her" car. The officer figured she was lying, and cautioned her sternly against public mischief. He told her it would be in her best interests to give him the bag.
He scared her. She gave him the bag.
At trial, Mr Mauro complained that the police searched his Jetta without a warrant, thereby breaching his s.8 rights.
The judges agreed.
Defence complained that the officer detained Mauro's mother without telling her that she could get legal advice.
The judges agreed.
Defence said that the evidence should be excluded.
The judges disagreed.
Mr Mauro had standing to complain about the warrantless search of his car. He didn't have standing to complain about police treatment of his mother. But having established a breach of his s.8 rights, he needed to persuade the trial judge to exclude the evidence. At that stage, the trial judge could consider all the breaches of Charter rights that the police committed during the investigation. Including violations of the mother's rights.
But mom tricked the police into thinking the Jetta was her car. She lied to the police about the object in it. The judges sympathized more with the police than with the defendant. Evidence admitted; drug dealer busted. Thanks, Mom.
You are sworn to protect everyone's Charter rights all the time. Because trial judges can sometimes consider the Charter rights of 3rd parties, when investigating suspects, you need to protect the Charter rights of the people they hang around with.
Have you ever issued a traffic ticket, and later found you forgot to fill in the year, or the municipality where the offence occurred?
In York (Regional Municipality) v. Wadood, 2017 ONCA 45, court decided that you can correct minor mistakes before filing the ticket with the court.
But don't add an extra offence or change the charge. For that, you'll need to issue a new ticket.
To distinguish between a major and a minor change, you should ask yourself whether the person who received the original ticket would still understand what the charge was about, even though she or he did not receive the correction.
This case applies to the Ontario Provincial Offences Act only. Don't assume the same rules apply elsewhere in Canada.
Two vehicles raced. One crashed, killing the driver. Police broadcast a plea for the driver of the other vehicle to come and talk to them. Mr O’Leary, 2015 ONSC 1346 aff'd 2017 ONCA 71 showed up at the police station unannounced. An officer asked him why he came. He explained that he responded to the request on the radio.
The officer told him he could get the advice of a lawyer. The officer told him he "may" be charged. The officer told him that he was free to go, and that he did not have to say anything about the crash. The officer never searched him, nor told him where to go (except once when indicating where to sit). He stayed. He talked. His statement convicted him.
He appealed, complaining that the police:
The judges rejected all of these arguments. But there are lessons to learn from them.
Defence counsel asked the interviewing officer to say at what point he had reasonable and probable grounds to believe that Mr O'Leary committed the crime, and complained that the officer should have arrested him at that point.
That's silly. Defendants don't have a Constitutional right to be arrested just because an officer starts to believe in their guilt. You can be completely convinced of a fellow's guilt, and still decide not to arrest him.
I suspect that this police officer may have felt uncertainty on this topic, and tried to duck that question. As a result, he may have looked evasive on the witness stand.
If you decide not to arrest someone, then it's perfectly fine to admit that you had grounds: "Yes, counsel, after your client admitted driving the vehicle I believed that he was guilty. But I had decided not to arrest or detain him, so I didn't." If counsel presses you, you can respond: "Are you saying I had an obligation at that point to arrest or detain him? I am unaware of any such legal obligation, but I would be grateful for the judge's guidance on that point. I certainly told him of my suspicions and his right to silence. I certainly wanted his side of the story."
Do you photograph just the face or the full appearance of your suspects?
A couple of guys robbed a convenience store. One wore a mask. The clerk complained to police and described the clothing of the two robbers.
45 minutes later, police apprehended two guys wearing remarkably similar clothing. One was Mr McKay, 2017 SKCA 4. A smart officer photographed all their clothing carefully, and later compared it to security video in the store.
Unfortunately, the trial judge mishandled the evidence, requiring retrial. But there wouldn't be a case without the careful documentation of the clothing these guys wore when police found them.
In some cases, you don't care about the suspect's clothing or appearance. But in routine investigations, it's easy to ignore valuable evidence. Did the drunk driver have bloodshot eyes? Sometimes the absence of evidence means something. Did the suspect in a domestic assault suffer damage to his clothing or injuries to his body?
When you need to solve a whodunnit, photographs of your suspect's appearance before and after the event can shed much light on whether you caught the felon.
When you explain the right to counsel, listen to your suspect’s responses, and record them. React when they express any hesitancy.
Mr Dunford, 2017 SKCA 1 drove on a highway, feeling happy that his Canadian immigration papers arrived. Too happy. He ignored some construction road signs for 13km. When some big trucks slowed for a flagger, he overtook them. He was going full highway speed when he hit the flagger, killing her.
Mr Dunford’s mood changed from happy to distraught. He cooperated with the police investigation and gave a full statement. The officer who interviewed him explained his legal rights to him. Mr Dunford said he understood. He didn’t want a lawyer. At the beginning of the interview, “Mr. Dunford indicated that he did not mind going without a lawyer and said he just wanted to ‘get it done’.”
When a suspect declines counsel, defence will look for even the slightest ambiguity. In this case, defence argued that the officer breached Mr Dunford’s rights by failing to clarify. The court responded:
“The police do not have an obligation to respond to a detainee’s misunderstanding of his rights or how to implement them if that misunderstanding is not communicated to the police or if there are no other indicators suggestive of a lack of comprehension.”
So you don't have to read minds, but you must watch to see if your suspect appears confused about his or her rights.
I previously wrote about Clark, 2015 BCCA 488, a decision from BC which clarified whether you can rely on the telewarrant process in non-urgent search warrant applications.
The problem was, judges in other provinces disagreed.
Not any longer.
Yesterday, the Supreme Court of Canada agreed with the BCCA: R. v. Clark, 2017 SCC 3.
In case you missed it last time, here's what I wrote:
During a night-shift, Cst Marshinew finished preparing an application for a warrant to search a residence where Mr lived. No justice of the peace worked in his vicinity at that time of night. Must he stay up until the morning to apply in person, or could he apply at night by telewarrant?
Defence argued that there was no urgency. The investigative plan involved assembling the search team in the following afternoon. Therefore, the police didn't need the warrant immediately.
The trial judge accepted the idea that telewarrants can only be granted where there is a need for the warrant to be issued before a personal application could be arranged. The appeal court disagreed. At para 68, Frankel J.A. said:"The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week. Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued. The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated."
The judges agree that you should state, in the ITO, the circumstances that make it impracticable for you to appear personally before a justice. That generally means explaining how you know that no judge or justice of the peace (in B.C., a "judicial justice") is not available. Some provincial courts like BC issued directives from which you can quote when explaining why a Justice is not available to hear your application in person.
Section 488 of the Criminal Code prohibits searches by night unless there are reasonable grounds set out in the ITO, and the warrant specifically permits the search by night.
This section was intended to protect residents in their beds at night. But the broad language leaves no exceptions. When you apply under s.487 to examine a cell phone or vehicle, in your police station, after 9:00pm, remember to add language to your ITO and draft warrant which jusitifies and permits the search to commence after 9:00pm.
Defence counsel recently argued that this limitation applies to searches under the CDSA. It doesn't. Shivrattan, 2017 ONCA 23.
Ms Nissen, 2017 ONCA 10 liked her neighborhood. Everyone got along ... until she hired a different babysitter. The first babysitter was one of the neighbor's boys. When she got another babysitter, the first one got mad. She asked around, and learned that the boy broke into another residence nearby, stole some guns, took them to school and threatened kids. Something had to be done.
She called the police. She wanted to tell them what she knew, but she did not want anyone to know who gave them the information. The investigating officer assured her she could give her information confidentially.
He video-recorded the interview. Her information must have been good. After an investigation, police arrested the boy, and they laid charges. The first officer got re-assigned. Another officer disclosed her statement to defence.
The boy and his parents learned that she ratted him out. The dream neighborhood turned into a nightmare. The and his parents harassed and threatened her.
So she sued the police.
This decision teaches several lessons:
Documentation: If the first investigator intended to keep her identity confidential, he should have documented it clearly in the file.
Clarity: If he intended that she be a witness, then he should have clarified that with her before taking the statement.
Foresight: Early in an investigation, you want information, but later, you want evidence. Early in an investigation, people often want to complain about a problem, and tell you what they know. Later on, cooperative witnesses become reluctant when they realize that holding the crook accountable means telling the crook about the evidence against him, and who gave that evidence. The police denied promising Ms Nissen confidentiality at the beginning. At the end of the events, she was sure they did.
Balance carefully your immediate need for information against your future need for evidence. Make promises of confidentiality slowly, deliberately and clearly. And document them. In cases where you foresee trouble, you could tell witnesses what they say may come out in court.
Mr Koopmans, 2017 BCCA 10 tried to kill Mr Martin by shooting him. Mr Martin was the most important witness in the case.
Mr Martin used drugs. During the investigation, he suffered paranoia. He suspected that police were conspiring against him, and told the investigating officer so. Apparently, he also told her that an officer who attended the scene was "dancing and skipping" in front of him. At the jury trial, defence counsel sought to make an issue of this, either to undermine Mr Martin's credibility or to undermine the police in the eyes of the jury.
I suspect that an officer who attended the scene shared a private joke with another officer, unrelated to the investigation. Mr Martin interpreted the officer's antics as malice toward himself.
Even regular folks carry plenty of misconceptions about police. In your work, you tend to meet the people at the margins of society, who have drug addictions and mental disorders. Those folks can easily misinterpret you.
You deal with the misery of broken lives on a daily basis. It's hard to stay compassionate, respectful and professional all the time. To relieve the emotional toll, you need a place to laugh and joke together. If that place must be the crime scene, look around for witnesses and security cameras before you crack a joke or pull a gag.
And don't play with the exhibits.
M.B., 2016 BCCA 476 had a teenage problem: she didn't like her boyfriend's previous girlfriend ("C.B."). That girl was pregnant. And she still liked M.B.'s boyfriend ("I.S."). Might the birth of the baby distract the boyfriend from M.B.?
M.B. wrote a text message to the previous girlfriend:
“I hope you know that you’ll get stomped if you come to this school, dirty bitches like you aren’t welcome here”
Did these words constitute a criminal threat?
It all depends upon the context.
In this case, investigators collected all of M.B.'s communications to the ex-girlfriend:
“Cool. You'll have like no friends. Our school is really cliquey and no one likes fat pregnant bitches.”
“Ha ha. Been at my school for three years. I think I know how things go and I bet the kid's not even [I.S.]'s. Lol.”
“Lol cause you're a dunce ha hahahahaha wow. And I said I bet the kids not even [I.S.]’s cause you’re a dirty slut who probably sleeps with everyone just to get attention”.
They also acquired messages M.B. sent to her boyfriend about his old girlfriend C.B.:
“[C.B.]'s so annoying. I'm going to like kick her in the stomach when she moves here.”
“If she wants to fight with me I will own her ass. Just sayin'. You know I don't take people's shit.”
“Ya. So will your kid be when I fuckin' kick [C.B.] in the stomach. Joke.”
“I'm not afraid to hurt her [smiley face] because I’m a heartless bitch, rememberrrrr.”
“Holy tits. Get [C.B.] to stop fucking messaging me or I'm gonna rip her face off.”
“K well blah I’m gunna fucking hurt her.. Dude I can make myself look more preggo then [C.B.] could lol”.
By itself, the disputed message would not prove a criminal threat. But this context, persuaded all the judges that M.B. meant to frighten C.B..
When investigating relationship violence, many investigators focus too narrowly on the last bit of unpleasantness. Without context, it may appear less or more serious than would be revealed by some history.
You want more. Some current communication systems like SMS, voice-mail and Facebook permit you to recover the words exchanged before the final event. Get as much as you can.
In your investigations, if you find an GPS device device, you may get a great deal of information.
I stumbled upon R v Didechko, 2016 ABQB 376 today. The GPS in that case automatically recorded everywhere Mr Didechko went: to the bar; to the place where the hit and run occurred; to his parent's house; and then where he dumped the car. He reported the car stolen, but the GPS showed that he never gave the thief any opportunity to take it.
The trial judge found this evidence pretty compelling.
If you find such a device would produce interesting evidence, then get judicial authority to download it.
2016 ONCA 944 sat on a toilet in a tiny bathroom in an apartment. He
closed the door. His pants were down. A police officer forced his way
into the apartment, opened the door, told him to pull up his pants, and
removed him from the bathroom.
Mr Reid complained that the police officer violated his privacy. From
his perspective, they sure did.
Given the embarrassing circumstances, why didn't the judges sympathize?
He probably argued that exposure when undressed upset him. But perhaps the discovery of 38 grams of cellophane-wrapped cocaine in the water in the toilet embarrassed him more.
It all depends upon the circumstances. Let's look at it from the
Sgt Dey responded to a 911 call of an assault in progress. When he
arrived, he met a woman outside the apartment who told him that
Mr Reid, her ex-boyfriend assaulted her, and he possessed drugs, and was
breaching his curfew. She said Mr Reid could be found in unit 202.
Someone in the lobby told Sgt Dey that a black guy in unit 202 was
dealing drugs and "it was crazy up there", with people coming and going
from the unit all the time.
These circumstances gave Sgt Dey plenty of reason to suspect that
criminal activity was occurring in the apartment, but no lawful grounds
to enter contrary to the wishes of the residents.
Cst Dey went to the door, knocked, and asked questions of the woman who
answered. She said she needed time to dress. He heard people shuffling
around inside. The door opened a bit. She denied living there, and did
not know who did. Same with the white guy with her. They said there was
nobody else in the apartment.
Cst Dey now suspected an "apartment takeover", and feared for the
safety of the lawful residents.
Fear for life justifies entry and search, but only to the extent
necessary to resolve the safety concern.
He forced his way in. He looked in the bathroom. That's when he found
Mr Reid. And the cellophane-wrapped package of cocaine.
Mr Reid didn't live there. You'll find in the decision lots of
discussion about whether he had standing to complain about violations of
privacy. But the key to this case is whether the officer acted out of
concern for life and safety.
Even though Sgt Dey knew of various crimes that might be investigated,
he bore a greater responsibility to protect life and limb. When he acted
on that responsibility, he entered and searched lawfully.
Take no liberties with this power. Even when you exercise it honestly,
defence will attack you saying that you used this concern as an excuse.
(Write a lot of notes afterwards.) Things can go very badly if you use
this power to find evidence. Lawsuits. Damages. Not pretty.
A guy called 911 to complain about two guys carrying handguns at Tim
Horton's. He said that he and his buddy were following the car the
gunmen got into. He gave vague descriptions of the people, but provided
a licence plate. He gave updates where to find the car. He offered to
stick around to tell police what happened. Police found the car he
described, where he described it. It went 60km/h in a 40km/h zone.
An officer stopped the car.
Would you arrest the occupants based on this information?
These officers did.
They found drugs, but no guns.
One of them, Mr Carelse-Brown,
2016 ONCA 943 complained that the officers lacked reasonable grounds to
believe that the occupants committed a crime. The officers knew nothing
about the caller, and therefore had no reason to trust him. The officers
should have detained the car and investigated.
The judges disagreed. Finding a car that matched the description,
location and direction described in the call tended to confirm the
caller. The caller seemed willing to identify himself fully by meeting
Because of the high public risk, the court approved of quick and
decisive police action. "This was a dynamic, dangerous and rapidly
changing situation involving a serious threat to public and officer
Judges might want to to work slower - detaining first and investigating
- if the crime complained of did not pose immediate public risk.
When you arrest or detain a suspect, you don't need to tell him in
precise legal language what offence you're investigating, but he needs
to know the extent of his jeopardy. At the early stages of an
investigation, you often know little. Based on what you do know, err
towards describing the more serious offence. That way, the suspect can
get relevant advice.
2016 ONCA 964 drove his car into a pedestrian. The pedestrian had been
driving, and got out to confront Mr Moore about his driving. The
arresting officer told Mr Moore that he was under arrest for dangerous
driving. Mr Moore got legal advice from duty counsel. Then the officer
told Mr Moore that they were also investigating him for assault with a
weapon. Mr Moore wanted legal advice, but could not reach his lawyer.
Police proceeded to interview him.
At the trial for assault with a weapon, Mr Moore complained that the
officers did not sufficiently advise him of the charges, and that he did
not get the legal advice to which he was entitled. The trial judge
rejected this, but the appeal court agreed.
The s.10(a) warning tells the suspect what kind of trouble he's in. The
s.10(b) process ensures that he can get legal advice relating to that
If you aim high at the s.10(a) stage, then you need go through the
s.10(b) stage only once. If the jeopardy increases, then the suspect
needs fresh legal advice.
Don't allege offences for which you have no evidence. For example,
don't tell the suspect that you're investigating a "murder" until you
have information suggesting that the victim died. But if the victim's
condition is critical, then tell the suspect so. And if you give
informal information like this, write down what you said. You need to
show the court that you really explained to the suspect what trouble he
When applying for judicial authorization to intrude on someone's
privacy, you must tell the judge or justice everything that you know.
What do you say about about someone you don't trust?
When investigating a murder, police in Ottawa received a tip that the
suspect's father was overheard saying it was better the victim was
killed rather than his son. When applying for wiretap, the affiant
cautioned the issuing justice “to take a skeptical view of the
informant’s information because, to my knowledge, it is second hand
information and not direct knowledge.” He aid that this information did
“not advance investigators in this case and can only be treated as
intelligence…” Although he asked for permission to intercept the
father's communications, he omitted this information from his “summary
of grounds for belief” in respect of the dad.
The officer had better information to suggest that the suspect's dad
knew about the murder. When investigators came asking questions about
the murder, the dad lied to police about his son's whereabouts. Shortly
after the dad met with other suspects, he drove in a manner that would
prevent police from following him.
The officer got the authorization.
The decision doesn't say whether the police busted the suspect for the
murder. But the dad's communications revealed him to be dealing in
drugs. As a result of the interceptions, police busted him with heroin
and lots of cash.
2016 ONCA 933 persuaded the trial judge that the warrant should not have
been granted. The investigating officer forgot to tell the issuing
justice that the dad was on bail for drug trafficking charges. His "heat
checks" could have been unrelated to the murder.
The trial judge even found that the affiant "deliberately withheld
relevant information that would have completely negated the inferences
he sought to be drawn by the issuing justice". The court of appeal
disagreed with this conclusion too, but agreed that the officer should
have included the information about the trafficking charges.
I think that the Court of Appeal liked the caution with which the
affiant dealt with the unreliable source information. It may have
helped them conclude that the officer did not act in bad faith.
Beware of leaving information out. Probably, the officer should have
included information about Mr Hafizi's outstanding drug trafficking
If you have information you think is untrustworthy, you can say so in
your application. That's a lot better than leaving the information out.
Two men attacked Mr Pierre inflicting wounds that nearly killed him. At
the scene he said "Carl" or "Carlton" did it. He sank into a coma for a
month. When he first awoke, he wrote a name "Karl Atire" on a piece of
paper. At trial, Mr Pierre said that was a mistake brought on by
medications. He meant Carl Renous.
Police collected photographs of various people of interest, including
Mr Pierre's friends. Each face was quite different from the others. The
day after he awoke, police showed him these photographs. Mr Pierre
picked out Mr Charles,
2016 ONCA 892 as one of his assailants. He later told police that Carl
Renous was the other. Defence complained that this did not follow proper
Bad news: the investigators misplaced the picture of Mr Charles that they used in this lineup. This made for some embarrassing testimony. Good news: the investigators video-recorded the process, showed each picture to the camera. and preserved that video-recording. Bad news: the officers did not give Mr Pierre the standard instructions for a photo lineup. Good news: Mr Pierre claimed to know his assailants.
Later, when less medication flowed through Mr Pierre's veins, the
investigators did a fresh photo-lineup process with him, using pictures
of people that resembled Mr Charles. He picked Mr Charles again.
Ordinarily, one uses a photo lineup to see whether a witness can
distinguish between a suspect and similar-looking people unrelated to
the offence. When the witness only met the suspect during the offence,
this method discriminates between recognition, and mere similarity of
the suspect to the felon.
When the witness knows the felon, this procedure packs less punch: of
course the witness recognizes an acquaintance in the photopack.
Because Mr Pierre knew his attackers, the first photopack served a
useful purpose - it identified the felon. If he had not known his
attackers, it would have undermined any subsequent identification.
Because the officers video-recorded the procedure so well, that one
could see in the video what picture Mr Pierre chose. That reduced the
impact of the misplaced photo.
That's unusual. No video-recordings I've seen of photo-lineups captured
clear images of each picture as the witness examined them. In a recent
trial I ran, it would have helped. You might consider reviewing the
video quality, camera angle, and presentation methods you use when
showing a photopack to a witness.
Regardless how formally or informally you present pictures to
witnesses, carefully preserve the pictures you showed. Mark or annotate
the ones which the witnesses pick. Keep the others as well. They
are all exhibits. You'll need them at trial.
In the case of Mr Charles,
2016 ONCA 892, described above, police found cell tower records showing
Mr Charles' cell phone travelled to the town where the attack occurred,
and returned to Toronto just afterwards.
The decision doesn't explain how police learned Mr Charles' phone
number. I suspect that an investigator relied upon hearsay from a police
database, or information from an uncooperative or unavailable witness.
At trial, Mr Charles' probation officer testified that Mr Charles gave
him that phone number about 2 weeks before the attack. Defence
complained that the probation officer was a person in authority, and Mr
Charles did not give his phone number voluntarily. The judges sided with
the prosecution; but they won't always.
I suspect that the idea of proving Mr Charles' phone number through the
probation officer was an afterthought, not a result of considered
investigation. I think this because I encountered a similar problem this
week, which I solved in a very similar way.
Investigators often work from what they "know" rather than what can be
"proved". When the matter comes to trial, the prosecutor suddenly
demands evidence to prove things that seemed obvious during the
investigation. And at the last minute, sometimes you can't find
witnesses to prove the obvious.
If the probation officer's evidence had been inadmissible, I'll bet
that the prosecution would have had a hard time linking the phone number
to Mr Charles.
If a fact like that underpins the whole case, take time to find
admissible evidence to prove it. For example, how do you prove that a
suspect used a particular cell phone number?
Some folks use words to tell you that they don't like being arrested.
Some use body language. Words of unhappiness do not constitute
resistance. At what point does the body language become a crime?
During Mr Kennedy's
2016 ONCA 879 arrest for armed robbery:
One officer also said that Mr. Kennedy tried to pull away.
Did any of this amount to resisting arrest? The judges agreed:
"the offence of resisting a peace officer requires more than being
uncooperative: it requires active physical resistance." The pulling away
would be resistance. But what about the other actions? Although Mr
Kennedy's actions sat "at the very low end of the scale of acts of
resistance", these actions constituted resistance. Anything less is not.
You often arrest or detain difficult and impolite people. From
paragraphs 31 to 35 this decision reviews a variety of situations in
which courts decided what constituted criminal resistance and what did
not. Most officers will profit by reading them. I take from these
paragraphs that "resistance" involves applying force to the officer, or
doing something which requires force or energy which prevents or
interferes with the officer's arrest.
Good investigators never take the statements of two witnesses in
circumstances where one can hear the other's version of events. It's all
too easy to interview several people at once, especially when
eyewitnesses feel urgency to report to police what they saw. But it
undermines the statement they give together because to the court looks
like collusion - each witness learns what the other saw, and may
deliberately or inadvertently start to describe the event the same way.
But that's just part of the problem.
Consider the unfortunate case of Ms Clause,
2016 ONCA 859. She invited Mr Martin to her house for a birthday party.
It went badly. Other guests beat up Mr Martin. He left the party, but
felt so angry, he returned to fight with his assailants. He lost that
fight too. And then someone stabbed him in the eye. He and two
eyewitnesses said Ms Clause was the stabber.
A jury convicted her, but for various reasons, the appeal court ordered
a new trial. One of the reasons involved collusion.
The eyewitnesses were Mr Martin's roommates. Only Mr Martin gave a
statement to police around the time of the attack. Their close
relationship raised a real concern with the court that they might have
deliberately agreed to name Ms Clause, or that by discussing the case,
some may have affected the memories of others. The appeal court thought
the jury should have been instructed to consider that possibility.
How do you stop eyewitnesses from comparing their recollections with
each other? All you can do is ask:
"Before I turn off this recording device sir, I'd just like to ask you one more thing. It sounds like you and your roommate are important witnesses in this matter. Until this case finishes, could you please avoid discussing with her the details of what you saw?"
Although Mr Schouten,
2016 ONCA 872 looked, an officer noticed an odour of liquor on his
breath. It was the morning after "a local motorsports event". The
officer was checking the sobriety of drivers emerging from the grounds.
Mr Schouten told the officer that he had not consumed any alcoholic
beverages for 10 hours, but he could not remember how much, nor what he
The officer believed that alcohol would be eliminated from the body in
10 hours, but because of the odour, the officer demanded that Mr
Schouten blow into a screening device.
The screening device read a fail. Later, breath tests showed Mr
Schouten still had too much booze in his body to drive: 120 and
At trial, defence attacked the officers grounds: if the guy looked
sober, and last drank so long ago that he would not have any booze left
in his body, then it was unreasonable to suspect that he had any booze
in his body.
He won at trial. And at the first appeal. But he lost the appeal that
All three judges in the Court of Appeal agreed: an odour of liquor on
the breath of the driver justifies making a screening device demand.
But notice that judges at two levels of court thought otherwise. Some
judges sympathized with the defence argument. Those are the sorts of
judges who may find other arguments persuasive. Here are a couple of
typical arguments, and ways you can investigate in order to answer them:
|The officer mistook an odour emanting from the car
or the clothes of the suspect for an odour coming from the breath.
||Take more than one sniff. Distinguish between
breath and body odours.
|The odour of liquor is subjective - especially when
the odour is faint.
||Get a second opinion from another officer,
especially if the suspect denies consuming alcohol.
2016 ONCA 857 fell asleep while driving a commercial vehicle. The truck
drove into oncoming traffic and killed someone.
Was falling asleep a crime? No.
But driving for too many hours without rest is. He faked his driving
logs, making it look as if he got enough rest. Investigation into those
driving logs discovered that he kept himself awake and driving for way
too long before the crash. And a jury considered it criminally negligent
to keep driving in that state.
When a commercial truck driver crashes, you might want to examine his
2016 BCCA 440 stabbed his wife with a bayonet and strangled her. At his
murder trial, he said he did so because he honestly believed that she
wanted to die, and that she had attempted to kill herself by consuming
Valium. He asked the judge to acquit him because if he was guilty of
anything, it was aiding a suicide, not murder.
The trial judge convicted him, and the appeal court upheld the
"Aiding" is merely helping another person to do something, not doing it
Intentional killing another person is murder. He intended that his
actions kill her, and they did. He was guilty of murder.
People often confuse "intention" with "motive". Even if his motive was
to help her, his intention was to kill.
Most police officers turn on a recording device before interviewing a
suspect about the alleged offence. That's good, because it provides a
complete record of what you said to the suspect. The judge needs that
recording to determine whether you put any unfair pressure on the
suspect to talk.
If you do that, and you interview properly, then you can expect lawyers
to focus on conversation which occurred before you started the recording
2016 ONCA 837 claimed that during the 2-minute walk from the cells to
the interview room, the investigator implied that unless he talked about
the offence, he would not get released from custody. The
investigator testified that he usually said nothing while walking a
suspect from cells to the interview room, but could not recall if he
talked with the prisoner on that occasion.
The trial judge didn't buy Mr Carr's claim, but another judge might.
Those brief interactions matter.
Most investigators take care to record their interactions with their
suspect. But in my experience, the less an officer participates in the
investigation, the less care the officer takes to record his or her
interactions with the suspect. For example, the officer who transports a
suspect from the arrest to the police station will often turn on no
recording device and take minimal notes. When that officer testifies,
s/he has virtually no memory of the conversation.
And then the defendant says "that's when the officer told me that
unless I explained what happened, I wouldn't get out of jail" or "the
officer told me that judges and prosecutors go easy on guys who fess
Every officer who interacts with a suspect between arrest and interview
is a witness, and must be able to account for their conversation and
treatment of the suspect.
What do you do if you think there's contraband in the mail?
Well, there are lots of things you can do. One of them is to involve
the authorities at Canada Post. But you must do that carefully.
American law enforcement officials complained to Canadian police that
2016 CanLII 11698 (NL SCTD) was selling ephedrine over the internet, and
shipping it to the USA. Police investigated, and found some evidence to
support this complaint.
In a letter, a Canadian officer asked Canada Post to inspect Mr King's
That's a problem. You can't search mail. If you direct Canada Post to search someone's private mail, then Canada Post acts as your agent.
The officer realized this problem, and sent a second letter which
explained why this exportation was unlawful, and suggested that Canada
Post might examine these packages as "unmailable", and if they found
ephedrine that they might turn it over to police.The judge still found
that the officer turned Canada Post into a police agent, even with the
second letter. To this judge, it still looked like the police were
telling the postal inspector what to do, and turning him into their
There was a better way to write the letter. In situations like this,
your "request" should not read like a command but the humble submission
of information. It should state the grounds which might move the
postal inspector into action. But it should leave the decision whether
to inspect up to the postal inspector:
Dear postal inspector:
I received the following information, which suggests that Mr King is using your postal service to ship ephedrine to the USA:
I asked a lawyer at the Department of Justice, who told me that doing this is an offence because ... .
I have no authority to search mail in the course of post, nor can I request or require you to search mail on my behalf, and so I make no such request.
Only you have the authority to inspect mail. Only you can decide whether to inspect any of Mr King's mail.
Schedule 4 of the Non-mailable Matter Regulations defines any " item transmitted by post in contravention of an Act or a regulation of Canada." as "non-mailable". Section 4(d) of those regulations require you to deliver such mail to police. If you do encounter this kind of non-mailable matter in relation to Mr King, I would be the appropriate person to contact.
Please contact me if I can be of any assistance.
Some "missing person" reports waste your time. And sometimes you meet a
2016 ONCA 812 didn't like his daughters' boyfriends. By disobeying his
commands about their love lives, they offended his sense of honour.
Other members of his family shared his offence. The four offended ones
murdered the girls, and those members of their family who supported
them. The victims were bashed on the head, placed in an old car, and
pushed into a canal.
Then the four killers went to the police station to file a missing
Subsequent investigation proved that their reports were false. Their
statements became important evidence against them.
Most missing persons reports come from genuinely worried people. But if
it turns out that you interviewed the killer, won't you be glad you
A police investigation into a 2011 murder stalled, and the prime
suspect had fled the country. The lead investigator thought that police
could intercept his friends discussing the murder with him if sufficient
stimulus inspired the friends to call him. Undercover officers would
talk to the friends. Because organized drug trade appeared to motivate
the murder, the undercover officers pretended to be connected to
Montreal drug suppliers, interested in "getting rid of" a "rat" - a
witness who spoke to police regarding the murder.
The original plan would have caused no difficulty. The U/Cs would talk
to each of the suspect's friends in public places where they could walk
Instead, they cornered Ms Derbyshire,
2016 NSCA 67 one morning, and pressed her for information about the
murder. To everyone's surprise, she told them how she helped the suspect
dispose of evidence and flee the jurisdiction. For the day, the officers
controlled her movements: they took her cell phone, and they demanded
and received answers.
She was charged with accessory to murder. The case depended upon her
remarks to the police officers.
Through her lawyers, she complained to the trial judge that the U/Cs
terrified her with implied threats of serious harm or death. In
violation of her right to silence, they compelled her to give
information against herself. And she complained that the officers'
failure to record their conversations with her violated her right to a
I find irony in that last complaint. In Duarte,
 1 SCR 30, the court agreed with defence complaints that without
prior judicial authorization, covert recording of a suspect's
conversations violated his s.8 rights. Now a defendant complains that
failure to make such a recording violates her s.7 rights. The judges
rejected this complaint. But the fact that defence argued it
suggests that defence counsel value police accountability very highly.
You can use transparency as a factor to support the issuance of 1-party
The judge believed Ms Derbyshire's version of the events. The U/Cs were
controlling and terrifying: the officers extorted a confession from the
accused by threats of violence. The judges found that unacceptable, and
excluded the confession.
The officers painted a less frightening picture of their interactions.
Perhaps a recording of the interaction might have supported their
version. But their testimony did not impress the judges. One of the U/Cs
did most of the talking; the other seemed to recall very little of the
conversation. The two U/Cs and their cover man each described the
operation and its purposes in significantly different terms. The
planning and execution differed greatly.
This case offers suggestions for all police:
Two cases this week show how judges like it when police treat suspects
fairly. Here's the first.
2016 ONCA 772 walked into a police station and told the clerk he wanted
to confess to burning down his mother's house. An officer came to speak
to him. Mr Fernandes explained that he was homeless and wanted to go to
jail. The officer explained that arson is serious, and punishable by
imprisonment. The officer urged him many times to get legal advice, and
reminded him several times that he was free to leave at any time. At
first, Mr Fernandes refused, but after a while, he relented, and spoke
with duty counsel. After that, he confessed.
Because police laid charges, I guess somebody did burn down Mr
Fernandes' mother's house.
At trial, Mr Fernandes' lawyer argued that the confession was not
"voluntary", for two reasons:
The trial judge agreed, and excluded the confession. Mr Fernandes beat
The Court of Appeal rejected these ideas. The concept of
"voluntariness" protects the suspect from unfair pressures that the
police put on the suspect to get him to confess. In this case, the
officer didn't cause Mr Fernandes' homelessness. The officer did nothing
to coerce or tempt a confession from the suspect. Quite the opposite.
This officer put roadblocks in the way.
At first blush, I thought the officer went too far to persuade Mr
Fernandes to get legal advice. Mr Fernandes was not detained,
therefore section 10(b) of the Charter had not triggered. But Mr
Fernandes explained that he wanted to go to jail. By doing
so, he alerted the officer that the usual incentive to remain silent did
not apply. By urging Mr Fernandes to get legal advice first, the officer
showed the judges that he was not going to take unfair advantage of Mr
Fernandes' desperate situation.
The appeal court liked this fair treatment, and ordered a new trial.
When you make a breath demand of a driver, several obligations trigger.
Which one comes first?
2015 ABCA 354 caused a bad motor vehicle accident. At the scene,
officers feared that victims might die. When an officer asked him to
blow into a screening device, Mr Rowson wanted to call a lawyer. Knowing
the seriousness of the matter, the officer let him talk to a lawyer for
a short time before testing his breath. Mr Rowson failed. The officer
demanded breath for analysis, and he later blew 117 and 105 mg%.
At trial, defence argued that the officer did not test Mr Rowson's
breath "as soon as practicable". Because the officer "searched" Mr
Rowson's body contrary to law, the officer therefore breached Mr
Rowson's rights under s.8 of the Charter. The officer should not
be permitted to rely upon the "fail" result to justify the breath
analysis demand. Defence asked the court to exclude the results from the
The appeal court agreed that the officer breached Mr Rowson's s.8
rights by allowing Mr Rowson to call a lawyer before blowing into the
screening device. But they disagreed that the breath tests should be
excluded. They sympathized with the officer, who plainly recognized the
seriousness of the situation, and properly worried that Mr Rowson should
get legal advice.
The Supreme Court of Canada agreed with the Alberta Court of Appeal.
To answer the question I posed, the correct priority of events is:
But judges like it when you really care that the suspect gets legal
advice when he faces jeopardy.
Social workers received confidential tips that a child living at the
residence of Mr Noftall,
2016 NLCA 48 faced danger because he grew and sold marijuana from that
The social workers decided to investigate. But they lacked equipment,
skills and training to handle the potentially violent reactions of
criminals who lived there. They asked a police officer to accompany
Without a warrant, two social workers and cop entered Mr Noftall's
place, for the purpose of investigating a child safety complaint. But
this cop had experience taking down grow operations. And the place
smelled of growing marijuana.
The social workers told Mr Noftall they didn't need a warrant. Mr
Noftall took a social worker and the officer to his (small) grow. An
insecure rifle hung nearby, with ammunition at the ready.
Mr Noftall complained that the officer violated his rights under s.8 of
the Charter. The trial judge figured that because the officer merely
accompanied the social workers for their protection, the officer did not
breach s.8. The appeal court disagreed: after the officer smelled
growing marijuana, the officer should not have "searched" by going to
the grow room. Instead, the officer should have compelled Mr Noftall to
wait in the kitchen while the officer phoned for a warrant.
Telewarrant: Although the Criminal Code provides for oral telewarrants,
you should be very cautious of using them. You get one chance to say
everything perfectly. Nobody checks your work. And if your forget to
mention something important, things will go badly at trial.
Search: I agree that when you enter a private residence without a
warrant and without consent, you must act in accordance with the lawful
authority that got you in there. If a situation arises where you have
reasonable grounds to believe that evidence of a crime will be destroyed
if you do not freeze the scene, or search the place, then s.487.11
applies. You don't need a warrant. But you should limit your warrantless
searching to the least necessary. Get a warrant once you get the scene
Despite the breach, the court admitted the evidence. Mr Noftall stayed
When police arrested Mr Day,
2016 NLCA 52 for drug trafficking, he shouted out to his girlfriend not
to say anything to police. At trial, he testified that he had nothing to
do with the pound of marijuana in the trunk of his car, and suggested
that maybe his girlfriend put it there.
The judge didn't find his testimony persuasive. What Mr Day shouted to
his girlfriend did not easily mesh with his innocent explanation.
And besides, his girlfriend had recently texted him "the bags you gave
me are done" and Mr Day replied, “Don’t worry, I’ve got you”.
All too often, prisoners in police custody call out to each other with
advice or instructions about what to say during the investigation. Those
remarks can make a significant impression on the trial judge, if you
take the trouble of writing them down.
2016 NLCA 33 worked in a Newfoundland police station. Posted on the wall
in the drug section of her office, she noticed a picture of her cousin.
She warned her cousin that he was being watched. Indeed he was.
But investigators found out that she violated her oath of
She lost her job. She got charged with obstruction of justice. The
trial judge sent her to jail. (The appeal court reduced the sentence to
a conditional sentence, but only because she confessed, she apologized,
and she pleaded guilty.)
Leaks do happen. Beware of conflicts of interest. Supervisors might
want to tell this cautionary tale gently, not to threaten staff, but to
remind them of the harm they can do to themselves when they feel the
improper tugging of family ties.
Security video can prove independent events to a high degree of
confidence. I hope that you routinely look for security video in
the area of offences you investigate. Here's a case from earlier this
year which illustrates what to do.
2016 ABCA 204 drove a stolen truck. He took it to a 7-11, where he had
the bad luck to be noticed by an off-duty police officer. The officer
watched Mr Saddleback get gas, and pay for it inside the convenience
store. Because Saddleback looked particularly suspicious, the officer
called in other officers. Those officers pursued the truck. Mr
Saddleback fled and escaped. The store security video was the only way
to prove the driver's identity.
Security video evidence tends to suffer from some routine - and
avoidable - flaws. Those problems arose in the trial:
Everything turned out okay. The clerk remembered Mr Saddleback from
that day, and was able to testify that the video accurately depicted
what occurred when Mr Saddleback attended. The court accepted the
clerk's testimony that the video accurately showed what happened when Mr
You won't always be so lucky.
Cst Vachon-Zee recognized a frequent offender sitting in the passenger
seat of a Chrysler Cirrus. He didn't recognize the driver, Mr Mr Ali,
2016 ABCA 261. A computer search reported no concern that the car was
stolen. But the officer was suspicious. In his experience, thieves often
stole this model of car. He wanted to know what the passenger "was up
to", and to check whether the car was stolen. He decided to check the
The car stopped when signalled to do so. An odour of fresh marijuana
wafted from the driver's window. The officer arrested the driver, and on
a search incidental to arrest, found crack.
At his trial, Mr Ali argued that an officer who stops a vehicle to
investigate crime needs reasonable grounds to suspect that someone in
the vehicle was involved in crime. The appeal court agreed. If you're
going to stop a vehicle to investigate crime, you need more than mere
But this officer also wanted to check vehicle ownership
documents. You don't need reasonable grounds to suspect that a
traffic safety offence is being committed to stop a car.
Courts call this a "dual-purpose" stop. Defence counsel distrust you
when, after the fact, you try to justify a stop as a stop for vehicle
safety enforcement. If you find something interesting, they will
cross-examine you for a long time.
Therefore, when your instincts tingle, and you want to pull over a
suspicious vehicle, think about what you're investigating. If you have
solid reasons to suspect crime, pull it over. If you don't have solid
reasons, consider whether licencing and registration, sobriety and
roadworthiness interest you.
If they do, actually investigate those issues. Make inquiries over the
radio or the on-board computer (if you have one). Ask questions about
By the time you encounter drugs or stolen property, it's too late to
come up with excuses for stopping the suspect.
Sometimes, confidential sources provide good information. Judges issue
warrants and authorizations. Police bust bad guys.
Defence counsel then attack the process by which police obtained the
warrants and authorizations: did the officer who applied for the
warrants and authorizations accurately describe the reliability of the
sources, and the information they gave? Should the officer have
mentioned other information which tended to undermine the source's
credibility or suggested the warrant should not have issued?
To ask that question, defence counsel ask for documents relating to the
information that the confidential sources gave: Source handler's notes,
source debriefing reports, everything. "Full answer and defence",
Many judges agreed. But that risks identifying the confidential
source. Some judges assumed that redacting the documents would suffice
to protect the identities of the informant.
Today, in R.
v. McKay, 2016 BCCA 391, BC's top court responded.
No. Defence is not entitled to everything. Only what's relevant to what
the officer knew (or should have known) when he or she applied for the
No. Redaction does not always protect confidential sources. Little bits
of information can burn a source.
Defence is still entitled to disclosure when challenging an
authorization or warrant, but they need to show why disclosure of the
material may assist in showing that the authorization should not have
This decision solves some problems in BC, particularly for the RCMP's
Human Source Unit.
When you apply for an authorization to listen to private
communications, you must identify an offence, and all the persons you
"know" whose communications you have reasonable grounds to believe may
assist in the investigation of that offence.
Those people are "knowns". You need to identify them in order to
intercept their conversations lawfully. And if you knew about them, and
failed to identify them in the application, then even if you do
intercept their conversations, the court may exclude the recordings from
So how much do you need to "know" to make a person "known"?
Two separate teams of police investigated what appeared to be two
separate schemes to import cocaine from Argentina to Kelowna, BC. The
two teams shared some information. There were enough similarities to
raise suspicion that they may be related. It turned out that Mr Montgomery,
2016 BCCA 379 and an associate participated in both. The first operation
identified them. Wiretap captured their conversations in the second
investigation. They complained that the police should have identified
them as "knowns" when applying for the authorization in the second
The court had no difficulty rejecting this argument. "Known" needs to
be reasonable belief, not mere suspicion.
But the test remains slightly weird. You must have reasonable grounds to believe that "probably", listening to this person's conversation "may" assist the investigation of the offence. The court noted at paragraph 92 the prospect of further litigation on this topic.
"On a dark desert highway, cool wind in his hair," Cst Ferguson stopped
a car driven by Mr Prestupa,
2016 SKCA 118. Okay, it was prairie, not "desert". And "cool"
understates the chill of Saskatchewan in January. A screening device
registered a "fail" when Mr Prestupa blew into it. Cst Ferguson read him
a breath demand.
That triggered an obligation to test Mr Prestupa's breath "as soon as
practicable". Cst Ferguson's police station lay 75 or 80 km away; other
police stations were a bit closer. Mr Prestupa asked the officer to let
his parents pick up his car, rather than allow it to be towed. Cst
Ferguson agreed. They called his parents. Meanwhile, Cst Ferguson called
for a breath technician to attend his detachment to test Mr Prestupa's
breath. It took a while for the parents to arrive. He left the scene 47
minutes after the initial stop.
Cst Ferguson drove rather quickly back to his detachment. 75 or 80 km
in 33 minutes. Hmm.
Mr Prestupa blew 190 & 180mg%.
At trial, Mr Prestupa complained that the officer did not test his
breath "as soon as practicable": there were closer police detachments to
which they could have gone.
The trial judge agreed, but the appeal courts didn't buy it. The phrase
is "as soon as practicable" not "as soon as possible". And
besides, there was no evidence that the other detachments had
breath-testing equipment and breath technicians at the ready.
Several ideas emerge from this case:
Many tasks will slow you down. Impaired driving prosecutions can fall
apart if you:
Some of you encouraged me to write about the Supreme Court of Canada's
recent decision R.
v. Jordan, 2016 SCC 27.
It discusses trial delay - the legal wrangling, adjournments and court
scheduling conflicts that seem to have no relation to police work.
Why did these police officers care? Because all their hard work will go
to waste if the court throws out a case that took too long.
What can police do about delay? Doesn't it all happen at the Crown
office and the court house?
There are some things you can do little about. If the government won't
pay for prosecutors, judges or courthouses, then delays may mount.
But the courts often blame police for delays. Usually for late
Some officers find it difficult to sympathize with this criticism.
Collecting, vetting and packaging every little bit of paper, digital
information, photograph and video is a colossal chore. It's boring, and
the little bits of information that you miss are usually unimportant in
the big picture.
If you feel that way, try imagining that you were about to buy a house.
An expensive one. You will commit all of your money, and you will sign
up for a large mortgage. This purchase decides your finances for the
next 20 years. On the day of the deal, the vendor hands you a folder
containing 1,000 pages of documents including maintenance receipts and
at least 30 reports from property inspectors who examined the house in
the last 5 years. Would you sign on the dotted line without reading the
folder? At least 30 purchasers paid for property inspections, and walked
away without buying this house. Are you sure about this?
That's how defence counsel feels when "new disclosure" shows up just
before trial. They don't want to start the trial until they know
everything about the case. The diligent defence lawyer will ask for an
adjournment. Judges sympathize. They grant the adjournment. And they
blame police for failing to provide the disclosure in time for trial.
Clever defence counsel capitalize on this sympathy. I've seen cases
where the late disclosure of a single page of trivial information
resulted in an adjournment. And the court blamed the delay on the
Delays lead to stays of proceedings.
What can you do?
General duty officers
Disclosure ain't the only problem you can fix.
When a warrant issues for an accused, when the charge is laid, or
later, make real efforts to find him. And if your first efforts fail,
make sure you follow up regularly. If the guy leaves Canada, even
failure to pursue extradition promptly can count against the
This post is long, but I did not explain the Supreme Court of Canada's
decision. I don't think that fine points matter much to police. In a 5:4
split decision, the majority concluded that a judge should generally
kill a prosecution if the Crown or court delay it more than 18 months
... unless there's a good explanation. Cases in superior courts
get 30 months. The minority predicted problems with this
one-size-fits-all approach. The judges all agreed that delay is a bad
thing, and that the prosecution and its partners bear the burden of
bringing accused people to trial promptly.
The court breathed new life into the right to a speedy trial. Defence
counsel will look for reasons to blame you for delay.
Section 254(3) requires you to make breath demands "as soon as
practicable" after you realize that the suspect's ability to operate a
motor vehicle is impaired by alcohol. Some officers arrest the
suspect but forget to read the breath demand at the scene. By the time
they reach a police station, it's no longer "as soon as practicable".
This case suggests an interesting solution.
2016 ONCA 572 crashed his car into another car, injuring the people in
it. He had been drinking. The attending officer got distracted by the
chaos of the accident scene. At the scene, he arrested Mr Guenter for
impaired driving causing bodily harm, but he only got around to reading
the demand at the police station.
Lucky for him, the breath technician had his own way of dealing with
things. The breath tech always:
The court found that the investigator's breath demand was not made "as
soon as practicable", but the breath technician's demand was. The breath
tech learned from the investigator that the suspect drove while
impaired, and then promptly demanded breath samples. That (new) demand
lawfully required Mr Guenter to blow, even if the first one didn't.
About 2 hours after the crash, Mr Guenter blew 170mg%. The evidence was
admitted, and Mr Guenter was convicted.
Does that mean every breath technician should now emulate this breath
technician in every case?
I don't think so. Not only must the demand be made as soon as
practicable, but you must test the suspect's breath as soon as
practicable too. In ordinary cases, where the first breath demand was
properly made, defence can argue that making another one wastes time.
If your colleague arrives at the police station, and then remembers to
read the breath demand, you can save his or her investigation by asking
your colleague for the evidence and information which suggests that this
person - within the preceding 3 hours - operated or had the care or
control of a motor vehicle while impaired by alcohol. If the answers
satisfy you, you can make the demand "forthwith or as soon as
practicable". After your demand, let the suspect speak to counsel again
Until I read this decision, I would have doubted the lawfulness of this
procedure. If you use it, expect prosecutors and defence counsel to
challenge your actions. Bring them copy of Guenter,
2016 ONCA 572 to explain yourself.
In some provinces, including Ontario, when drivers crash their cars,
legislation requires them to tell police what happened when police ask.
But the right to silence means that suspects of crimes can't be
compelled to explain their involvement. This case explored the
interaction between right to silence, statutory compulsion, and a police
officer's duty to hold off eliciting evidence before a detainee got his
right to counsel.
2016 ONCA 572 was drunk. His car crashed into another car injuring its
occupants. But who drove his car?
The first police officer to attend asked Mr Guenter if he was
hurt. Mr Guenter replied "No. My heart hurts because I feel bad
for hitting this vehicle with a family in it." After an officer
arrested him for impaired driving causing bodily harm, he banged his
head on the hood of the cruiser. He later blurted out - of his own
accord - things like "drank too much J.D.”; “I smoked weed”; “a couple
of beers, it’s Christmas". " I made a mistake. I was at a Christmas
party. He shouldn’t have turned in front of me."
He also said: "Shoot me in the back of the head.” “Shoot George too. He
ran into the bush.” “I should have never let him drive.” At trial, Mr
Guenter testified that another guy named George drove the car.
His earlier comments proved he drove. Were they admissible?
His lawyer argued that legislation compelled him to tell the officer
about the accident. Therefore, admitting these remarks would violate his
right to silence. But the prosecution pointed out that the officer asked
about his health, not about the accident. The judges agreed.
His lawyer argued that after the arrest, everything that Mr Guenter
said before he got to talk to a lawyer should be excluded. The
prosecution responded that after detention or arrest, police must hold
off eliciting evidence from the suspect. That's what these officers did.
They asked no questions. They weren't trying to get evidence out of him
before he spoke with a lawyer. Mr Guenter volunteered these remarks of
his own accord. The judges agreed.
Mr Guenter was convicted.
In B.C., the legislation no longer compels drivers to give explanations
for accidents to the officers who attend. Before detaining a BC driver
at an accident scene, you can ask questions, knowing that the answers
won't be excluded from trial.
In other jurisdictions, officers need to gather information from other
sources than the driver.
At trial, defence will challenge your version of how these
When a detained suspect blurts out information of his or her own
accord, the investigating officer rarely has a notebook open and a pen
in hand. A subsequent
decision dwelt upon the value of contemporaneous audio and/or
video recording during these dynamic interactions. I agree, but with
caution. Making lots of audio or video recordings means storing,
disclosing and transcribing lots of recordings too. It's the way of the
future, but I suspect it costs more than most proponents realize.
Some drug dealers complained to police of a couple of home invasions
committed by men with guns.
Police suspected two buddies Keenan and Kelman, both drug dealers and
users. One day, when they were both in custody, police made them an
offer: lead us to the gun used in the first robbery, and you'll get
bail. They accepted the deal, produced a gun, and - with the consent of
Crown - they got bail.
A little while later, police told Keenan that he would soon face
charges over the first home invasion. Keenan gave a statement. He told
police he was the getaway driver. He named Kelman and his friend, Mr McGown,
2016 ONCA 575 as the robbers who entered the house.
All three got charged. Keenan, the rat, pleaded guilty, and made arrangements be sentenced on the basis of his police statement. Kelman also pleaded guilty and got sentenced. McGown wanted a trial.
At the preliminary inquiry, Keenan testified for the Crown. He gave a
new version. He wasn't the driver, his good buddy Kelman
was. He went into the house with McGown.
Keenan got sentenced as the driver. He even got a reduced sentence because he "cooperated" with the state.
At trial, Keenan testified for the Crown. He was the only witness who could establish that McGown participated. He gave much the same story as he told at the preliminary inquiry. Defence pointed out that his "cooperation" with the Crown involved admitting that he didn't take full responsibility at sentencing for what he did. He was a liar that manipulated the system. That undermined his credibility.
His good buddy Kelman testified for the defence. Kelman agreed that he,
Kelman drove the car. Indeed, much of his story matched Keenan's
version. But Kelman said that his good buddy McGown wasn't even there.
Oh, no. Some other dude he didn't know participated in this crime. A
stranger. Some friend of Keenan's.
The judges believed Keenan the rat, not Kelman. McGown went down. But
only because other evidence confirmed that Keenan told some truth, and
there was no evidence to suggest that Keenan was protecting some third
Beware of rats. Their statements sound great. Confirm everything that
you can. When these folks reach the court room, their testimony often
changes. Sometimes dramatically. Don't offer them special deals,
immunity or reduced sentences without Crown's blessing ... and lots of
documentation. Because at trial, you will look like a fool if it appears
that the rat duped you.
Can a judge authorize a police officer to disobey legislation? In Whipple,
2016 ABCA 232, the Alberta Court of Appeal seemed to suggest that a
judge may issue a General Warrant which authorizes a police officer to
disobey s.10(a) of the Charter. I expressed some discomfort with that
notion. Just a few days earlier, the Ontario Court of Appeal held that a
General Warrant can not authorize a police officer to disobey s.503 of
the Criminal Code. This decision makes more sense to me.
Even though the court held that the officers breached Mr Poirier's,
2016 ONCA 582 rights, you gotta give them some credit for trying to do
this one correctly.
Reliable confidential sources told police that Mr Poirier sold drugs.
Whenever he wasn't selling, he stored them in his rectum. The
investigating officers obtained a general warrant which authorized the
officers arrest Mr Poirier and to hold hold him for as long as it took
him to defecate all the drugs out, and to watch him and control him so
that he did not conceal or destroy the drugs during this vigil.
It took 43 hours. In stages separated by many hours, Mr Poirier
eliminated crystal methamphetamine, heroin, cocaine and Dilaudid.
Each time something came out, he told the officers that was everything.
And then later, more came out.
Defence complained that this was not a search, but a detention. Section
487.01 - the General Warrant section - empowers a judge to authorize
police to "...use any device or investigative technique or procedure or
do any thing described in the warrant that would, if not authorized,
constitute an unreasonable search or seizure in respect of a person or a
person’s property". The court disagreed: it's a search that takes
time because of the passive nature of the searching: the police just
watch till nature takes its course.
After an arrest, s.503 requires you to bring your prisoner before a
justice "without unreasonable delay" and within 24 hours (unless no
justice is available).
Defence complained that s.487.01 does not empower a judge to authorize
police to disobey the Criminal Code. The court agreed. Reasonably
promptly after the arrest (not at the 24-hour mark), the officers should
have brought the prisoner to a justice of the peace, and asked the
justice to order that Mr Poirier be detained in their custody to
complete their execution of the General Warrant.
But the officers made some other mistakes, which resulted in Mr
Poirier's acquittal. See below...
As described above, a judge authorized police to perform a "bedpan
vigil" on Mr Poirier,
2016 ONCA 582. Mr Poirier excreted lots of drugs. But there were some
The officers in this case used the General Warrant legislation in a
creative way. The court approved. But the officers got distracted by the
complications of executing it. Perhaps Mr Poirier was not a congenial
guest. It looks like the officers lost track of some basic principles of
handling prisoners. We can learn much from this investigation.
Will Duval wrote me: "Here's a good suggestion for your website..."
He's right, damn him. I spent many hours thinking about what to write
about this difficult case.
In their homes, people enjoy a right of privacy from the government. As
a police officer, you can't enter or search people's houses except with
lawful authority, such as a warrant, exigent circumstances, or
permission from a person who lives there.
But can you knock on the front door?
Long ago, some officers received a tip that Mr Evans,
 1 SCR 8 grew marijuana in his home. Because other investigative
approaches failed, they knocked on his door and explained that they were
there to investigate a grow at the residence. Oddly enough, when Mr
Evans opened the door, they smelled green marijuana, so they arrested
him, and took down his grow-op.
All the Supreme Court judges agreed that in the absence of contrary
indications, an officer may assume that every resident of a home offers
an invitation to people to come and knock on the front door (or ring the
doorbell) to communicate with the residents. But four of the seven
judges added a limitation: this "implied invitation" invites only
communication, not searches for evidence against the residents. Although
these officers wanted to talk to the occupants, they also wanted to
sniff the air when the residents opened the door. That intention turned
the door-knock into an unconstitutional search.
So, if you suspect someone committed a criminal offence, and you
approach his home with the intention of gathering evidence of the
criminal offence from a resident there, then you breach his s.8 rights
when you knock on the door (and may breach his rights even when you set
foot on his front walk). But you may lawfully knock on the door if
all you intend to do is communicate with the resident. You can knock and
talk even if you suspect that the resident committed the offence you're
there to investigate. You can even talk about the offence. And if
you discover evidence during this conversation, it's all good. But
only if your initial intention was just to talk.
2016 SKCA 105 backed his car into another vehicle, causing negligible
damage. A witness thought he was drunk, and called the licence plate in
to police. An officer went to Mr Rogers' apartment to investigate. When
the officer knocked on the door, Mr Rogers opened it. He looked,
sounded and smelled intoxicated. The officer arrested him, and demanded
breath samples. Mr Rogers blew 270mg%.
Depending how you look at it, the legal trouble began when the officer
knocked on Mr Rogers' door, or it began in court, when the officer
answered questions about what he intended to do when the door opened:
So your purpose in attending at Mr. Rogers’ home was to determine whether he had been the person driving, correct? A
And more importantly, whether his ability to operate a motor vehicle was impaired. A
And you would agree that the observation made of a suspected impaired driver’s appearance, demeanour, speech, and actions are critical pieces of investigation in an impaired driving investigation?
Yes. They are what form my grounds.
But going back to my question, you knew that the minute you opened the door you would be able to gather evidence regarding Mr. Rogers. A
Not necessarily. The minute he opened the door is when I would start observing to determine whether or not I had ... any grounds.
If the officer's only purpose in knocking had been to speak with the
occupant to find out who drove the car, then the knock wasn't a
search. But the Court of Appeal judges agreed that this officer's
knock was a search because he intended to secure evidence. And because
no judge granted a warrant to the officer permitting him to do that,
this was an unlawful search. Evidence excluded. Drunk driver acquitted.
The judges explained that they simply followed the law set out by the
Supreme Court of Canada in Evans.
If you think the legal trouble started with the officer's admission
that he was looking for evidence, then your solution to this conundrum
would be to lie in court when answering questions about your motives
when you knocked on the door. I disapprove. Not only would this be
perjury, but any good cross-examiner will reveal it to be perjury.
I think the legal trouble started at the door, not in the court room.
After reviewing many similar cases, they commented:
"There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive..."
Where's the line? Talking with the residents is okay -- even about the
offence. Knocking on the door in the hope of seeing evidence like
symptoms of impairment isn't.
You have a general duty to investigate, but the courts chastise the
officer who does try to gather evidence at the door. How do you avoid
By respecting the privacy of the home. If all you're allowed to do is
talk, then you might deliberately limit your ability to see evidence in
the residence and smell the breath coming from the suspect. You
might knock, and then move as far back as possible while still being
able to talk. Fully explain why you came, and invite the suspect
outside, or ask for permission to enter.
This approach raises two problems:
I don't think the law requires police to render themselves vulnerable
to attack. At the door of the suspect's residence, keep watching for
dangers, and routinely position yourself for safety.
I do think that the law limits your investigation. In some cases,
exigent circumstances may justify entering the residence to preserve
But not in this case. No doubt, with every minute, Mr Rogers' liver was
busy removing alcohol from his bloodstream. Definitely, evidence was
disappearing. But you can't rely on "exigent circumstances" to enter
unless you know that an offence probably occurred. This officer had only
In s.487.11, the Criminal Code permits you, in exigent circumstances,
to search for whatever a search warrant will let you find, "if the
conditions for obtaining a warrant exist". Search warrants require
probable grounds. You can't use this power if you have only a reasonable
suspicion. And besides, a search warrant won't authorize you to sniff a
suspect's breath nor watch his "appearance, demeanour, speech, and
I do not expect the Supreme Court to clear this up any time soon. In Evans,
the court divided 4:3. In the similar case of Feeney,
 2 SCR 13, they divided 5:4. In MacDonald,
 1 SCR 37, 2014 SCC 3, they divided 4:3. In each of these cases,
the court considered how a police officer should behave at a suspect's
door. In each case, their conclusion conflicted with previous case law.
Thank you, Will Duval, for pointing this case out.
What evidence could have helped determine whether Mr M.T.L.
2016 YKCA 11 raped his friend's fiancee?
The complainant spent an evening drinking with her friend, Mr M.T.L..
Through the evening, she sent text messages to her fiancee to join them.
At the end of the evening she slept at Mr M.T.L.'s place. That's where
the sex happened. But did she consent? Afterwards, she sent a text
message to her fiancee about the encounter. She went to a hospital,
where a doctor found redness and soreness in her genitals. She declined
a formal sexual assault exam. After she complained to the police, Mr
M.T.L. allegedly sent her a message threatening to commit suicide unless
she told everyone that she lied.
The investigating officer never examined her cell phone. According to
her, she offered her cell phone, but the police weren't interested.
According to the officer, the complainant told him that she was using a
"loaner" cell phone which was now wiped and returned to the phone
company. No messages remained.
The trial judge convicted Mr M.T.L.. The appeal court ordered a
new trial, worrying that perhaps the complainant wasn't reliable.
Cell phones pack a great deal of information these days. In a case such
as this, the content of the text messages before and after the incident
could probe the complainant's feelings toward her fiancee: if they
showed that she loved him that night and wanted him to join them, then
she wouldn't likely cheat on him. The timestamps could help determine
when the important events occurred.
I can't say from reading the decision what really happened with the
cell phone. If the complainant was right, then the cop missed some
important evidence. If the cop was right, then the complainant destroyed
Lots of complainants have told me over the years that they offered
additional evidence to the investigating officer, but the officer wasn't
interested. When I asked officers to follow up, I receive mixed results.
Sometimes the cop missed key evidence. Sometimes, it's useless
It's easy to understand why an officer might discount their ideas.
Distressed people often don't think straight, and often express
themselves badly. Some are crazy, and some just sound crazy. It takes
time and patience to distinguish between the two.
In this case, the completeness of the investigation mattered to the
appeal judges. You may be called upon to explain why you didn't follow a
specific investigative lead. This case illustrates how important that
explanation may become to the final result.
I think of it this way:
If you ignore a potential source of evidence, someone may ask you why.
When can you search the contents of a vehicle?
Ontario's courts developed rules around inventory searches, based upon
their legislation. The rules in other provinces differs, according to
the applicable legislation available to them.
In two decisions, the Ontario Court of Appeal recently reviewed this
area of the law.
Late at night, police officers driving an unmarked car watched Mr Dunkley,
2016 ONCA 597 visit a couple of gas stations. He went into the kiosk
several times, he bought nothing, he came out. He drove away fast,
through a MacDonald's parking lot, as if to shake someone following him.
He drove to another gas station, and went into the kiosk. The officers
told him to stop and tried to talk to him, but he fled, discarding his
keys. He left the car unlocked. (He explained that he thought these
plainclothes officers intended him harm; he did not know they were
police.) An officer searched it for identification. When he found a
firearm, he applied for a search warrant before searching further. The
trial judge found that the search for identification was lawful, and
even if it wasn't, the officers had authority to do an inventory search
when they impounded this abandoned car; they would have found the gun
The court of appeal disagreed. The officers reasonably suspected
that Mr Dunkley was up to no good, but did not have sufficient grounds
to arrest him. Reasonable suspicion authorizes you to stop someone, and
search for officer safety. But this empty car posed no risk to them.
Reasonable belief - that the suspect probably committed crime -
permits you to search the suspect and his vicinity for evidence. The
court found that the officers' observations did not meet this higher
Finally, the court considered whether the officers could do an
inventory search. Section 221
of Ontario's Highway Traffic Act permits officers to impound "abandoned"
vehicles. But the court observed that nothing about the way this guy
parked his car indicated an intention to abandon it. The officers made
him run away. This was not an "abandoned" car. Lacking any justification
for the search, the court excluded the evidence.
A police officer saw two cars racing. He pursued one of them - an Acura
- into a dead-end street. He found it parked in a driveway at a
different address than the registered owner. A guy in an oversize white
shirt walked away from the vehicle. Another officer found Mr Ellis,
2016 ONCA 598 nearby, wearing an oversize white shirt. Mr Ellis lived at
the same address as the registered owner of the vehicle.
Because the computer system flagged Ellis as a gang member, an officer
patted him down for weapons. Something in his pocket felt hard. The
officer asked him to empty his pockets. Ellis had a cell phone and keys
for an Acura. The officer returned them. After discussing these details
with the first officer, the second officer arrested Ellis.
Police then searched the car for identification of the driver, and
found a handgun.
The court approved of the pat-down search of Mr Ellis. There were
grounds to detain, and reason to fear that he might harm a police
The court held that the police lacked authority to search his car as
part of the arrest. Although the officers had reasonable grounds to
arrest him for "careless driving", the other preconditions for search
incidental to arrest did not apply. Mr Ellis had put 50m between himself
and the car - it wasn't close enough to be in his vicinity at the moment
they arrested him. And there was no reason to believe that searching the
car would discover evidence of careless driving.
On the other hand, the court found that this car was "abandoned",
because Mr Ellis parked it in a stranger's driveway, in a position
likely to block access to vehicles. An inventory search was inevitable,
and the police would have found the gun. The court upheld Mr Ellis's
For Ontario officers who discover a recently-driven vehicle, this pair
of decisions sheds a little light on whether it is "abandoned": if the
car will be a nuisance to other drivers, then it may be abandoned. If
it's parked normally, it may not. But other factors may lead judges to
For all officers, these decisions illustrate the limitations of search
incidental to detention and search incidental to arrest. But I would add
some cautions. The Ellis case does not establish a 50m limit for the
"vicinity" of the arrest. Time also matters. Suppose you pull over a
vehicle for an offence, and the suspect flees. If you chase him and
catch him 100m from the car and arrest him, I think you can search his
car incidental to arrest. But if you find him 30 minutes later, only 25m
from the car, you can not.
Both cases emphasized the narrow scope of a search for officer safety. In the Ellis case, the suspect's gang associations justified police fears. The judges liked knowing that the officer who searched for officer safety returned the items immediately. This proved that the officer was not snooping for evidence. In the Dunkley case, they rejected the idea that the officer searched the empty car for officer safety: it posed the police no danger.
Even though s.8 of the Charter guarantees everyone's privacy, judges
can authorize you to intrude into the privacy of the targets of your
But can you stop someone without telling them the truth about why?
Section 10(a) of the Charter requires you to tell people why you
detained or arrested them. But sometimes, you need to withhold the
truth. Is there a provision of the Criminal Code which permits this?
Albertan police were investigating Mr Whipple,
2016 ABCA 232 and others for drug transactions. They didn't want their
targets to know that a judge granted a wiretap authorization in respect
of their communications. From intercepted communications, the officers
knew that Mr Whipple would transport methamphetamine. They obtained a
General Warrant under s.487.01
to search Mr Whipple's car. That order authorized the police to mislead
Mr Whipple - if necessary - as to the reason for stopping him.
The officers actually found Mr Whipple committing a traffic infraction.
They didn't need to mislead him about the reason for the traffic
stop. And they did, quite quickly, inform Mr Whipple of the drug
Defence complained anyway. They pointed out that s.487.01 creates
exceptions to s.8 of the Charter, but not to s.10(a). The trial judge
agreed, and ruled that the general warrant was invalid.
The Court of Appeal disagreed.
They observed that the general warrant authorized police to search Mr
Whipple's car, which is a matter under s.8 of the Charter. The
fact that it authorized police do the search in an unusual way did not
invalidate the general warrant.
The way they saw it, the interference with Mr Whipple's s.10(a) rights
was necessary to the execution of a justified general warrant.
I dunno. My gut urges caution. Because s.487.01 only permits
police to do what would otherwise be an "unreasonable search or seizure
in respect of a person or a person’s property", I still don't think that
s.487.01 can be used - by itself - to authorize police to lie to
detainees about why they were stopped.
In this case, if there was any authority to permit police to lie about
the reason for a detention, I think it came from s.186 - the wiretap
provision. If the wiretap operation required ongoing secrecy to achieve
its purpose, then a judge exercising the wiretap powers could make a
specific order pursuant to s.186(4)(d) ("... such terms and conditions
as the judge considers advisable in the public interest") which would
protect the secrecy of the authorization.
But I can think of situations in which no existing legislation could
help. Suppose a confidential source tells you that right now, a
terrorist is driving to a daycare to blow up children. The source begs
you to lie to the suspect about your reason for stopping him. She tells
you that his colleagues know what he's going to do today, but only she
knew which daycare he decided to hit. You find the suspect's vehicle on
the road one block away from the daycare. It commits no traffic
violations. Of course you stop the van. What do you tell the driver?
I think you should lie. The suspect has a right, protected by s.10(a)
of the Charter, to know why you stopped him. You would violated that
right. But the source has a right, protected by s.7 of the Charter, to
I think that Parliament should pass legislation by which a judge may
authorize a police officer to lie about the reason for a detention. This
case illustrates why such legislation makes sense. I also think that
there should be an exigent circumstances exception.
I thank Cst. S.D. Smith for bringing this decision to my attention.
Last year, I wrote about this case. Last week, the Supreme Court
of Canada weighed in. Although the court overturned the Alberta Court of
Appeal's rulings, my suggestions for police remain the same. I repeat
them here, so that you can see why.
Mr Villaroman 2016 SCC 33 brought a Macintosh computer to a computer store for repairs. Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net. Links in the file system suggested that someone viewed the files too. The two people who lived with Mr Villaroman did not put the files there. But was it Mr Villaroman? The trial judge thought so, and convicted him. The appeal judges weren't so sure. The one account had no password. They said.
"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."
The Supreme Court of Canada found that the Court of Appeal erred in
their re-assessment of the case by speculating about innocent
explanations for the evidence in the computer. But the court also
commented that a different trial judge could have acquitted Mr
Villaroman based on the same evidence.
It's clear that they sought judicial authority to search the computer for child pornography.
With the benefit of hindsight, I see that searching for probative non-criminal data might have helped. For example, I don't think they looked for emails with similar date stamps as the pornography. If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.
Can you snoop through the emails? Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search. Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant. And the warrant should explicitly grant you that authority.
Playing armchair quarterback, I suggest that the investigator in this
case could have sought authority "to search emails, stored
communications and documents in the computer bearing date stamps close
in time to the date stamps associated to the child pornography for
evidence of who operated the computer at the times when the child
pornography was downloaded, viewed or accessed."
Mr Winchester bought guns. Legally. 45 guns over 6 months. Police received information that he sold them on the black market, and got search warrants for several places, and got Mr Winchester's cell phone. In it, they found text messages that proved Mr Marakah, 2016 ONCA 542 committed firearms offences. The trial court found that the police violated Mr Winchester's s.8 Charter rights during their search. Mr Marakah asked the trial judge to exclude the text messages from his trial because he still enjoyed an expectation of privacy over them. Even though the police found them in someone else's phone.
The trial judge found that Mr Marakah had no expectation of privacy in the text messages in Mr Winchester's phone. Even though police searched Winchester's phone unlawfully, the court admitted the text messages from the phone into Mr Marakah's trial.
Two out of three appeal court judges agreed with the trial judge. They rejected the reasoning of the BC Court of Appeal in Pelucco, 2015 BCCA 370, which reached the opposite conclusion in a similar situation.
But those Ontario judges didn't say what you wanted them to say: "A person who sends text messages to another person always loses any expectation of privacy in those messages." See para 78. An explicit arrangement or guarantee of confidentiality between sender and recipient may create an enforceable expectation of privacy. But that's the exception in most cases, not the norm.
Therefore, in Ontario, most of the time, the sender of text messages doesn't enjoy an expectation of privacy in them after they arrive in the recipient's phone.
When courts of appeal disagree with each other, the law becomes confused.
Because people use text messaging so much, on phones and other communication technologies, you want clarity.
Because one Ontario judge disagreed, Mr Marakah can, if he wants, require the Supreme Court of Canada to hear his appeal.
Why would an officer take DNA samples from a suspect? The answer is easy: to identify the suspect. I suggest that if you do not know the suspect very well, you will want to take a photo of the suspect's face at the same time as you take the samples, so that you can remember whose DNA you got.
In a recent case of mine, a police officer in one city assisted another officer in another city by executing a DNA warrant on the prime suspect. The officer who executed the DNA warrant had no other involvement in the case, and met the suspect for only a few minutes.
Two years later, at trial, the officer couldn't remember the face of the defendant. Considering the purpose of DNA comparison, this tended to defeat the work he did taking the sample. Fortunately, he did take care record information from suspect's driver's licence, and compare the photo on it with the face of the suspect.
Can you take a picture of the person from whom you take the bodily samples? Defence counsel might argue that doing so violates s.8 of the Charter. "If it ain't in the warrant, you can't do it." I observe that the Criminal Code makes no provision for photographing he suspect at the time you take bodily samples. Instead, s.487.07(3) requires you to ensure that the suspect's "privacy is respected in a manner that is reasonable in the circumstances".
I think you can. In B.C., the case of Multani, 2002 BCSC 68, the court approved of officers taking photos of drivers they detain for traffic offences, for the purposes of identifying the driver afterwards. I think the same logic applies to the execution of a DNA warrant.
Indeed, I would go further, and suggest that you can video-record the execution of a DNA warrant for the purpose of proving compliance with the terms and conditions of the warrant. Police did this in an old case Kanuma, 2002 BCSC 355
I learned recently that RCMP recruits learn at Depot how to take bodily samples for DNA analysis. The RCMP here in BC use a kit, which contains a checklist to follow. I suspect that someone trains them to follow the checklist.
Checklists can make junior officers complacent.
When you execute a DNA warrant, your authority comes from the warrant, not the checklist. Read the warrant. If the warrant tells you to something different from the checklist, then obey the warrant.
Angel Daley, 2016 ONCA 564 tried to pawn jewellery at Money Mart. Her friend Sharon Stockton, waited outside in Angel's car. The clerk the store noticed that Angel's jewellery resembled stolen jewellery depicted in a recent police flyer, so she called police.
The police who attended tried to figure out whether Angel's jewellery was the stolen jewellery depicted in the flyer. Meanwhile, they wouldn't let her go. Therefore, they "detained" her. For approximately 40 minutes. Without telling her of her right to counsel.
From her, they learned about her car, waiting outside. An officer spoke with the friend, and saw more jewellery in Ms Stockton's possession that looked like stolen jewellery. He arrested her, searched the car, and found Angel's fentanyl, and a rather nasty knife.
At trial, Ms Daley's lawyer asked the judge to throw out the evidence: 40 minutes of waiting demands an explanation; and detentions trigger rights to counsel. They complained as well of an unlawful search.
The trial judge admitted the evidence, but the appeal court threw it out. Nobody explained why looking at some jewellery took 40 minutes. In the absence of an explanation, the detention was arbitrary. The officer should have given Ms Daley her right to counsel. (The judges agreed that the search was lawful.)
We all know that you can overlook important evidence when you move too fast. This case suggests that you can also cause trouble by going too slowly while a detained suspect waits. I suspect that the officer stopped Ms Daley from leaving the store, and then slowly and methodically figured out what the problem was. If it looks like a detention will take a significant time, then you should talk to the suspect about lawyers. If it does take a long time, you may need to explain why.
Over the last several years, judges reached different conclusions on whether you need a production order or wiretap to compel a telephone company to disclose text messages stored in their servers. Last week, the Ontario Court of Appeal weighed in. Here's the current list, by province:
I think this issue is now pretty much decided: production order, not wiretap.
Similarly, a search warrant is an appropriate tool to search cell phones for text messages. Desjardins, 2014 QCCS 6790
Last week, the British Columbia Court of Appeal published a decision it made 6 years ago. R. v. Lising, 2010 BCCA 390. I don't know why it took so long. It remains interesting reading for officers who deal with confidential sources and agents.
For 10 years, Michael Plante collected debts for the Hells Angels. In 2003, after an arrest for extortion, Plante decided to work for the RCMP by infiltrating the Hells Angels. The RCMP paid him handsomely: over $1M over several years. All he had to do was help the police bust the gangsters ... while committing enough crime that the gangsters would continue to trust him.
A cop named Bob Paulson oversaw the project. He saw a problem. The public pays police to prevent crime, but this project involved paying a guy to commit crime. That participation would make the police parties to Plante's crimes. Canadian law requires police to obey the law, not break it. Police officers don't get a mulligan just because they're trying to catch bad guys.
Fortunately, a couple of years earlier, Parliament passed legislation enabling specially-designated officers to authorize a person to do things that would otherwise be crimes. s.25.1.
If you use the legislation, then these acts aren't crimes, so I'll refer to them as "acts".
How does that work?
Investigative plans take time to develop. While working with police, Mr Plante intimidated witnesses, ripped grows, and trafficked in large quantities of drugs and firearms. It took many months for police to prepare a Letter Of Agreement (LOA) which set the ground rules for Mr Plante's immunity from criminal prosecution. (There were several LOAs after that.)
Although s.25.1 and similar provisions in the CDSA justified some of Mr Plante's "acts", others were crimes.
The investigating police were parties to the crimes. Defence applied for a stay of proceedings.
But Bob Paulson did some things the court liked.
The handlers did some things the court liked.
Mr Plante did some things the court liked.
These things resulted in:
Even though the police and Mr Plante did not comply immediately nor completely with s.25.1, the court denied the defence application, and the Hells Angels who were convicted at trial lost their appeal.
And Bob Paulson got a promotion.
Despite its age, I think this decision remains worthwhile reading for police officers. It reminds officers of highest principles: police enforce the law, but are not above the law. This applies as much to traffic cops as organized crime investigators. And it demonstrates practical steps you can take when working with nasty people.
A confidential source told police that Mr Reid, 2016 ONCA 524 kept firearms in a specific storage locker. Relying almost entirely on what the source said, police applied for, and obtained, a warrant to search that locker. They found guns. Lots of them. Stolen only a few days earlier.
What the police found suggests that this source enjoyed a position very close to the criminals. Obviously, this source would not want to be identified.
At trial, defence applied to quash the warrant.
As required by the case of R. v. Garofoli,  2 SCR 1421, the prosecution had to disclose a copy of the original application. Before doing that, the prosecution redacted (deleted) from the application everything that tended to identify the source.
This source was too good - almost everything s/he told the police tended to identify him/her. After redaction, what remained could not justify the issuance of the warrant. Mr Reid would win the application, and beat the charges.
The prosecution moved to Garofoli's "Step 6": the prosecution prepared a summary of the confidential source's information. The summary contained too little detail to identify the source, but just enough to explain why a warrant could issue. The prosecution gave that summary and the original unredacted application to the trial judge, and asked the judge to determine whether the summary fairly explained what the confidential source told police. The judge compared them, and found the summary accurate. The prosecution gave the summary to defence.
Working from the summary, defence complained that the original application failed to spell out what criminal record the source had, whether the source faced outstanding charges, and whether the source had previously given information to a police force. Defence complained this was essential information which the first justice needed in order to decide whether to trust the source and issue the warrant.
These are fair complaints, but they didn't succeed because of the very detailed information this source gave. In other cases these issues may make or break the case. When relying on confidential informants, search for this information, and include it as an appendix. Here's what you can write to achieve this:
I searched for source A's criminal convictions in CPIC [and any other database available to you], and I attach as Appendix A1 the complete list of what I found.
I searched for source A's outstanding charges in [whatever database is available to you], and I attach as Appendix A2 the complete list of what I found.
I investigated source A's past performance in giving information to police. I understand that 7 times in the past 5 years, source A gave police information about criminal activity. Further investigation confirmed the source's information 3 times. The other times, the source's information could neither be confirmed nor contradicted. I attach as Appendix A3 more detailed explanations of the information this source provided, and how further investigation confirmed it.
Naturally, the prosecution will redact the appendices. A1 and A2 tend to identify the source. But what remains in your application shows the trial judge that you disclosed the information which the first judge needed to assess the credibility of your source.
Similarly, you can summarize the source's information in your application, and include the details for the prosecution to redact. Suppose your source says "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns." That information identifies your source. You may summarize it, and include the detail for redaction:
Source A reported that Mr Reid possessed firearms in locker 13 at the premises of Vigilant Custodian Storage within the last 14 days. Source A claimed s/he obtained this information not by gossip, but from her/her own observation or by hearing or overhearing the words of a person who claimed direct knowledge. Specifically, Source A said: "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns."
Plainly, the emphasized portion must be redacted. What remains is true, but does not point so directly to the identity of the source. It leaves open the possibility that the staff at Vigilant Custodian Storage saw the guns, or that they or someone else overheard Mr Reid and the source talking. And the remaining information explains why a warrant should issue to search the locker.
Why should you bother preparing the "step 6" summary when applying for a warrant? After all, the prosecution can do it at trial.
Step 6 is controversial. In Mr Reid's appeal, he tried to argue that it's unconstitutional. Step 6 is tricky to do. If you lay the groundwork when you apply for the warrant, then the prosecution stands a better chance of success at trial.
A woman called 911. She said she heard her neighbours arguing. The male threatened to kill the female. The female cried and pleaded, “please don’t kill me.” She heard loud banging and crashing coming from their apartment.
Officers attended, and knocked at the door. No answer. After they knocked more, a woman answered. She refused to open the door. She spoke to someone behind the door, but she told police she was alone.
What would you do?
These officers feared that a man posed the woman serious risk of harm which they felt obliged to prevent. They sought permission from superiors to break in. Before that occurred, the woman stepped out of the apartment, unharmed. Without her permission, the officers entered and searched. They found Mr Lowes, 2016 ONCA 519 hiding under a bed. They found drugs.
The trial judge excluded all the evidence. He reasoned that the officers could have assured themselves of the woman's safety by questioning her, by questioning the neighbor who made the 911 call or by getting a warrant.
The appeal court ordered a new trial.
The neighbor's information gave reason to fear for the woman's safety. The woman's apparent lies at the door about who was home gave the officers reason to fear that the man was controlling and directing her.
In my opinion, the trial judge correctly identified an important principle: even in exigent circumstances, where life and limb are at risk, you should not search private places if there are reasonable alternatives by which you can ensure people are safe. But the trial judge's proposed alternatives in this case weren't reasonable. The woman already told lies; questioning her wasn't a good way to ensure her safety. The neighbor was in a poor position to assess the woman's safety. And the officers lacked sufficient grounds to justify any warrant. The appeal court found that entry and search was the reasonable response to the situation.
Therefore, this case provides some guidance for first responders who encounter similar situations all too often.
I particularly liked how these officers sought a second opinion from a senior officer before entering. In the excitement of the first response, it's easy to act without second thoughts.
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