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

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

- Henry Waldock


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


New Law

2016.01.27 Book Update

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

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

Click the link if you want to know more.

2016.01.26 Search and Seizure - Automobile Crash Data Recorders

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

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

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

2016.01.25 Search Warrant - Searching the Place Identified on the Warrant

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

Things on the ground differed from the drawings.

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

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

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

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

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

2016.01.25 Exigent Circumstances Search

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

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

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

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

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

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

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

2016.01.19 Authenticating Communications - Emails and Texts

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

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

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

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

2016.01.09 Drunks -  Keep or Release?

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

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

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

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

But public safety and the safety of your prisoner does.

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

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

2016.01.08 Warrant drafting - Pedigrees of Criminal Sources

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

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

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

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

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

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

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

2016.01.06 Mr Big Operations

 - Simulated Violence

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

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

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

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

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

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

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

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

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

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

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

2016.01.03 Laying Charges - Swearing to Reasonable Grounds

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

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

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

The court didn't like this procedure because:

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

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

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

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

These apparently subtle distinctions have big impacts on cases. I predict that the appeal courts will have to address this question next year.

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

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


Statement-taking - Admissible Hearsay

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

In 2001, someone stabbed Alexander Sanderson to death.

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

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

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

Mr Badger died in 2006.

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

The trial occurred in 2011.

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

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

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

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

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

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

What can you do?

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

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

2015.12.19 Using the Evidence of Confidential Informants at Trial

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

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

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

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

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

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

2015.12.13 Arrest & Detention - Detaining for Interviewing

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

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

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

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

2015.12.11 Interviewing Skills

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

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

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

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

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

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

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

Mr Viszlai appealed.

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

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

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

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

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

2015.12.02 Preservation of Exhibits

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

2015.11.30 Search Warrants - Telewarrants - "Impracticable"

 does not require "Urgency"

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

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

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

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

Do other provinces agree?  I did a brief search.

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

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

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

2015.11.30 Search Warrant applications - Note your Conversation with the Justice

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

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

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

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

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

That was a good idea.

When applying for judicial authorization:

2015.11.23 Note-taking

 and Record-Keeping

Daylight savings time creates confusion. The clocks change. Sleeping patterns change. It's easy to get sloppy.

Around daylight savings time, the officers involved in the investigation of Mr Thompson, 2015 ONCA 800 screwed up their record-keeping.

A tipster said Mr Thompson dealt drugs from a fast food restaurant. Police arrested Mr Thompson's cousin, who emerged from the restaurant, and found drugs. They got a warrant and busted Mr Thompson. At trial, two stories emerged.

On the police version, the cousin had drugs on his person when he emerged from the restaurant.  That information justified the issuance of a search warrant.  But the ITO went on to say that the cousin told the police that he got the drugs from Thompson.

The cousin said that there were no drugs on his person. Heck, the police didn't arrest him when he emerged from the restaurant but after he went home.

Defence got really excited about failings in the officers' documentation.

Although Mr Thompson's conviction stood, this case reminds us that you can avoid embarassment by:

2015.11.23 "Statutory Rape" - s.150.1 survives constitutional scrutiny

Mr A.B., 2015 ONCA 803 met Miss MB at a dance studio when he was 17 and she was 11. They danced well together for 4 years. After they left the studio, they started dating.  He was 21 and she was 15.  She asked him for sex; at first, he resisted, then he relented. Her mom died.  Her dad started seeing someone new.  She moved out.  Mr A.B. impregnated her. She had an abortion, which caused her an emotional breakdown.  Authorities investigated, and he was charged with sexual assault.

Obviously, she consented: sex was her idea.  Section 150.1 of the Criminal Code removed consent as a defence because of the age difference between them.

The trial judge acquitted him, because he felt that s.150.1 went too far in criminalizing this relationship. The prosecutor appealed, and got a conviction.  He appealed.  The Ontario Court of Appeal upheld the conviction.  Even if the child wanted the sex, the adult must not engage. Children are too vulnerable. The legislation is constitutional.

Did Mr AB go to jail? No. The trial judge discharged him after conviction.

But this reminds us that adults having consensual sex with kids under 16 are - if the age difference exceeds 5 years - committing a crime in Canada.  For kids under 14, an age difference of 2 years of more renders the sex a crime.

2015.11.13 Detention or Conversation - Formally Describing Casual Encounters

At 3:00am, a police officer in a cruiser rolled down the window and addressed a pedestrian on the street.  The officer asked him his name, and his date of birth. Adrian Poole, 2015 BCCA 464 told them who he was.

The computer system told the officers that a judge or justice had issued a warrant for Mr Poole. The officer and his partner arrested him. That's when they found the loaded handgun concealed in his waistband.

It was cocked and ready to fire.

At his trial, Mr Poole complained that the police officers detained him, and they should have told him about his rights to counsel.  The two police officers had to account very precisely for a conversation which started in the most casual way.  Unsurprisingly, everyone remembered the conversation a bit differently. Especially Mr Poole. He assured the trial judge that the officers told him "stop".

The trial judge didn't believe Mr Poole.  It would have been easier if the two officers had recounted the conversation more precisely.

Because you may be called upon to provide precise accounts of banal conversations, your record-keeping matters. Finding a loaded handgun in someone's pants provides you a big clue that it's time to take out your notebook, and write what occurred before you discovered it. Recording devices in cruisers can record enormous quantities of banal material ... and some crucial stuff.

Mr Poole's arguments didn't impress the appeal judges either. If you address a suspicious person in a public place, you can trigger a detention - or not - depending upon what you say and how you behave. A fellow might reasonably believe that he's detained if you say "Stop right there. Keep your hands where I can see them." But he may well feel quite differently if you address him: "Hey buddy, I don't think I've met you here before.  What's your name?"

2015.11.07 Informants - Reliability

Someone told police that Ms Nguyen, 2015 ONCA 753 sold pot. Police arrested her, and found her in possession of plenty of pot.

At trial, the defence complained that the police should have been more suspicious of the tipster: The tipster's past tips resulted in drug-related arrests, but did those arrests result in convictions?

The court dismissed this concern: it takes a long time for some tips to result in convictions. Police should not wait that long before relying on the tipster's next tip.

But you should be careful of acquittals.  Courts don't like that kind of information. You should check to see if arrests based on your tipster's tips resulted in acquittals.  And you should reveal that information when applying for a warrant.

2015.11.07 Facebook Evidence

I just read the case of R. v. Luceno, 2015 ONCA 759.

A 25-year-old guy met a 13-year-old girl over Facebook.  They met and had sex.

Their Facebook profiles might have contained some useful evidence.

It's an offence for someone that old to have sex with someone that young. But it's not an offence if he took reasonable steps to learn her age.  Both said the other lied about his or her age. Did his profile say he was 18 or 19, in the hope of attracting younger girls?  Did hers claim she was 19?

Many questions could have been answered by capturing their Facebook profiles and messages.  She deleted hers.

Other complainants might not delete theirs. Ask for their consent to preserve evidence from Facebook. You want:

As it turned out, in this case none of this information mattered much.  The accused denied having sex with the complainant, and the judge didn't believe him.

2015.11.03 Search and Seizure - Automobile Crash Data Recorders

The law around the searching of data recording devices in automobiles remains confused.

Last year around this time, I wrote about Hamilton, 2014 ONSC 447 and Fedan, 2014 BCSC 1716.  In Ontario, police need warrants to obtain the data from these devices.  B.C. officers do not.

There's another Ontario decision which affirms that Ontario police need warrants: Glenfield, 2015 ONSC 1304.  For the rest of you, I know of no developments.

As a rule of thumb, the more data that the devices contain, the more likely you're gonna need a warrant.

2015.11.03 Impaired Driving - Breath Demands

 - "Are You Gonna Blow?"

After you demand that a drunk driver provide you a breath sample, don't give him a choice whether or not to blow. Act like the driver will provide a sample until he makes it absolutely clear he won't. The idea of refusing to blow should come from the driver, not you.

Mr Bagherli, 2014 MBCA 105 crashed his car and ran away before police arrived. They found and arrested him.  He told the officers he wanted legal advice.  An officer made a breath demand:

"I demand you provide samples of your breath necessary to determine the concentration, if any, of alcohol and to accompany me for that purpose.  Should you refuse this demand, you will be charged with the offence of refusal.  Will you provide samples of your breath?"

He replied: "No".

Thereafter, he never blew.  Nor did he talk to a lawyer - he kept passing out.

At trial, he beat the charge of refusing to provide a breath sample.  The problem arose with the emphasized words.  Those words elicited evidence from Mr Bagherli after his arrest, but before he had an opportunity to exercise his right to counsel.

To be clear, when you read a screening device demand, the driver must provide breath samples forthwith. No right to talk to a lawyer unless your screening device isn't ready within minutes.

When you read a breath (or blood) demand, you must hold off eliciting evidence until the driver exercises or waives the right to counsel. Don't go asking whether the driver will blow.  If the driver wants a lawyer, then you're eliciting evidence before the driver gets legal advice.  And even if the driver doesn't want a lawyer, it suggests to the driver that he has a choice.  The idea of refusing to blow shouldn't come from you.

2015.10.25 Exigent Circumstances

What circumstances justify freezing a residence?

Confidential sources told police that Mr Nguyen sold cocaine wholesale to a drug dealer named Shae Hunter, 2015 BCCA 428. They watched Mr Hunter visit local known dealers and members of a criminal gang. They understood that Mr Hunter would soon "reload". They saw a Mr Pham visit his house carrying a duffel bag, and leave only minutes later. There were other people at home.  When they arrested Pham at the Nanaimo ferry terminal, they found $50,000 in cash in the duffel bag.  This, their observations and the source information led them to believe Mr Hunter just bought lots of cocaine.

They also feared that someone might have observed the arrest, and tipped off Mr Hunter, who would then hide his drugs.  So without a warrant, they entered and cleared his place of people, relying on s.11(7) of the Controlled Drugs and Substances Act.  Once they had the scene under control, they got a warrant and found the drugs.

That section authorizes police to search for drugs in residences, without a warrant, if they have

Defence argued:

  1. even after the arrest of Pham the police lacked sufficient grounds to search Mr Hunter's house;
  2. the police created the crisis by arresting the guy with the duffel bag in a public place. They didn't need to.  They could have waited and arrested him somewhere else more private.
  3. the officers had sufficient grounds to get a warrant before they arrested Pham. They should have applied for the warrant before arresting him.

(Doubtless you noticed the conflict between (1) and (3)).

The judges accepted none of these arguments, but they spent some time thinking about the second one.

Judges restrict your use of "exigent circumstances" powers. You can't create exigent circumstances as an excuse for avoiding judicial pre-authorization. But these officers had no control over the location and timing of Mr Pham's arrest.  He was about to board a ferry, and leave the area. Mr Pham forced their hand. The money proved their suspicions. Police did not know whether Pham or Hunter had accomplices who might have observed the arrest and tipped off Hunter.  The officers had to act.

If you can control the situation, you can get a warrant before you search.  If you can't control the situation, then you can act before asking for judicial permission... if you have reasonable grounds.  Follow the example of this team.  If you rely on exigent circumstances to justify a search without judicial authorization, search no more than is necessary to end the emergency.  These officers cleared the house of people.  Once you have things under control, post a guard and get your warrant.

2015.10.17 Impaired driving - Breath Techs

I just ran across a decision from January of this year.  I think that qualified breath technicians should know about it.

What makes you a breath tech? After your course, you received a certificate which says you know how to operate the instrument. When testifying, you might get asked who designated you to be a qualified technician. That's what happened to the breath tech in R v Lange, 2015 SKQB 15.  He said that the national breath tech coordinator signed his certificate.

Unfortunately, s.254(1) defines a breath technician as:

"...a person designated by the Attorney General as being qualified to operate an approved instrument"

Because the technician testified that somebody other than the Attorney General did the designating, the court found that it could not rely on the breath tech's certificate of analysis.  Mr Lange beat the charge.

The legal issue was not whether the technician knew how to operate the instrument properly.  The national breath tech coordinator doubtless taught him well.  The legal question was whether the Attorney-General had designated him as a "qualified technician".

Quite probably, the Attorney General did make that designation.  But the technician didn't know how to say it.  Check your own documents.  If someone asks you who taught you how to operate the instrument, then tell them about the expert who taught you.  If someone asks you who designated you as a qualified technician, then tell them about the name of the Minister who designated you.

2015.10.17 Impaired Driving - British Columbia's Administrative Roadside Prohibition Programme

In B.C., police officers process most drunk drivers under provincial legislation instead of the Criminal Code. The penalties are immediate, expensive and inconvenient.

Yesterday, in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, the Supreme Court of Canada found that the original version of BC's immediate roadside prohibition programme violated s.8 of the Charter by reason that a single screening of a driver's breath risked imposing serious consequences without sufficient safeguards against error. Screening devices can give false results, depending upon calibration or mouth alcohol.

But in 2012, the legislation changed, requiring officers to give the driver a second chance with a different screening device. The changes also expanded the driver's opportunity to challenge the prohibition by way of an administrative review. The court hinted pretty strongly that the new regime would pass constitutional muster.

The appellants challenged the administrative regime by pointing out that it has virtually replaced the Criminal Code provisions in B.C.. A majority of the judges replied: "A provincial enactment that allows police to make a discretionary decision about whether to enforce the Criminal Code or the MVA in particular circumstances is not one that 'compromise[s] the proper functioning of the Criminal Code'".

This means B.C. police can use their good sense to determine when to proceed by way of a criminal investigation, and when to solve the case by way of an administrative prohibition.

Use this discretion for the protection of the public.  Administrative prohibitions are easy. Effective criminal investigation of impaired drivers is difficult. Check the history of the driver you're investigating. If past administrative measures failed to deter him, then perhaps its time to try criminal measures instead.  B.C. officers should practice their criminal investigation skills, lest they forget what to do to investigate a fatality caused by an impaired driver.

The court rejected another challenge to the legislation. Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47. Under s. 215.41(3.1) of the act a police officer may inflict a roadside prohibition on a driver only if the officer has:

"reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol".

That means you need to know:

  1. the screening device worked properly;
  2. it did not give a falsely high result by reason of a burp or a recent drink; and
  3. the "warn" or "fail" result means that the driver's ability to drive is "affected by alcohol".

Mr Wilson argued that police officers should require independent evidence confirming that alcohol affected the driver before they can prohibit a driver.  The court rejected this idea.

But the court agreed that the screening device does not decide a prohibition.

Be clear about this: You should never prohibit a driver because they blew a fail or a warn.  You should only prohibit a driver if the fail or warn caused you to believe that alcohol "affected" the driver's ability to drive.

The legislation requires you to think for yourself.

The screening device does not know whether it was calibrated properly, nor whether that calibration was recent.  But you can find out.  The screening device does not know whether the driver recently burped.  But you can watch for this.  The screening device does not know what a "warn" or "fail" tells you about a driver's ability to drive. But during your training, you should have learned from toxicologists what those results mean.  If you don't remember, then before you do another roadside prohibition, go back to your materials and find out.

2015.10.15 Strip Search

 at the Scene of Arrest

Police searched Mr Parchment, 2015 BCCA 417 at a residence during a drug raid.  They found drugs in a baggie attached to his penis by a rubber band.

Mr Parchment complained that police should not do strip-searches in the field without good reason. That's what the Supreme Court of Canada said in Golden, 2001 SCC 83. Therefore the drugs should be excluded.

The judges agreed with Mr Parchment that the officers needed good reason, but in this particular case, the officers had sufficient reason, and furthermore, they followed the appropriate steps.

What were the reasons? What were the steps?

The officers burst into the house - I guess they had good reason before they got there to fear that evidence would be destroyed if they knocked and announced.

They saw Mr Parchment toss something to the floor near a refrigerator. Under the fridge they found rock cocaine. They patted him down, and found two knives in his clothing. He wore two trousers.  They removed the outer one. They laid him on the floor, where he squirmed in an odd manner. A supervising officer authorized a further search. Male officers stood him up, and took him to another room where the other occupants of the house could not watch. An officer patted him down again, and felt something hard in his groin area. The officer pulled the waist of his trousers away from his body, and looked down. Mr Parchment wore no underpants; and the officer could see the baggie.  The officers pulled his pants to his knees, removed the baggie, and dressed him again. They couldn't remember whether they put on fresh gloves to search him.

In Golden, the court adopted an English test to determine when a strip-search is appropriate in the field:

  1. Can the strip search be conducted at the police station and, if not, why not?
  2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
  3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
  4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
  5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
  6. What is the minimum of force necessary to conduct the strip search?
  7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
  8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
  9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
  10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
  11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

If you supervise other officers, you might find it useful to compare this checklist against what the officers did in this case. I found four points on this checklist on which these officers were vulnerable to criticism. Read the decision. See what you think.

If you need to strip-search in the field, follow the checklist. How will you remember it? Well, the exercise I suggest might help.

Mr Parchment testified that the search was done improperly, and without good cause. These judges didn't believe him. But in your next case, your suspect may present better than him. Number 11 matters. After the bustle and excitement of a search, everyone should take detailed notes of what happened and what they saw.

2015.10.09 Detention - Triggering s.10

Ms Wong, 2015 ONCA 657, a 26-year-old university graduate, called police to report the theft of her car.  An officer attended her apartment. She invited him in. It smelled of marijuana. In the kitchen, the officer saw some “Zigzag” cigarette papers and a digital scale on the counter. He suspected drugs. He asked her for insurance documents and other documents relating to the car.  She moved to the den, where he saw "two tin boxes with drug markings, rolling papers and metal screen filters that he knew were commonly used to smoke marijuana". He started asking questions about drugs.  He told her she didn't have to answer his questions.

He picked up a box, sniffed it, and said "I smell marijuana, what's up with that?" She said it was her boyfriends, and she did not know what it was.  The officer asked "Well, okay, I can go with that. What else is here that’s not yours, that’s your boyfriend’s?"

She pointed to a drawer, and opened it. It held bags of marijuana.

He cautioned her again on her right to silence, and kept asking questions.  She told him she was scared.  He told her: “I believe you’re not a bad person, so if you cooperate with me I’m sure you’ll be fine, but if you lie to me and I find out, you’ll be in trouble.” she led him to the bedroom and pointed out a black duffel bag, which he opened.  It contained lots of drugs.  Police later got a warrant and found drugs, guns and id.

The trial judge sentenced her to 6 years. I don't know if she recovered her car.

Ms Wong appealed. She complained that before she showed the officer any drugs, he had detained her. And because he did that without telling her that she could get legal advice, all the evidence should be excluded.

The appeal court agreed. She beat the rap.

The court did not say "asking questions triggers detentions".  Asking questions can trigger detentions.  The test is whether "a reasonable person in her situation would conclude that she no longer had the freedom to choose whether or not to cooperate with the police."

I think you may find reading this case challenging and instructive.  It's worth debating with your peers how this officer might have handled the two investigations without breaching the Charter.

2015.10.07 Alternate Suspect

Somebody robbed a bank.  And the next day, someone looking just like him, and wearing the same clothes, robbed another bank. This time he presented a demand note. The hoodie and the sunglasses he wore made identifying the robber difficult.  But just after the second robbery, police found a matching hoodie in a nearby garbage bin, along with a written demand "have gun give me all money".

The officer who first examined the sweatshirt did not record finding anything interesting in the pockets.

An investigator thought that the robber looked like Victor Wolynec, 2015 ONCA 656. He asked Mr Wolynec's parole officer to look at the bank security video stills. The parole officer said the robber looked like Brian Bush.  The investigator did nothing to investigate Mr Bush's whereabouts at the time of the robbery. Instead, he pursued the idea that Wolynec was the robber. A different parole officer looked at stills from the security video, and concluded that the robber was Wolynec.

The investigative team sent the hoodie to the forensic lab to see if they could get DNA from it.  By luck, the forensic lab found a crumpled tissue containing Wolynec's DNA inside a pocket.

Defence pointed out that the investigator had tunnel vision.  He did not accept any evidence which disagreed with his theory.  Defence suggested that the investigator was so biased against Wolynec that the investigator planted the DNA-laden tissue into the pocket of the hoodie before sending it to the lab. What gave that theory credibility was that the police could not fully account for the continuity of the sweatshirt from seizure to analysis at the DNA lab.

The trial judge did not like the investigator who ignored evidence of an alternate suspect. 

The DNA evidence did persuade the trial judge of Mr Wolynec's guilt.  The appeal court agreed.

Lessons for police officers in this case include:

2015.10.02 Traffic Stop off the Highway

When investigating motor vehicle safety, you don't need reasonable grounds to suspect that a driver committed an offence before you can pull the driver over.  But the legislation empowers you to do that only on "highways".

But what about private property? The Saskatchewan Traffic Safety Act did not authorize police to stop a vehicle in a pub parking lot for the purpose of checking whether the driver had a licence and insurance. Lux, 2012 SKCA 129.

What if you see the vehicle driving on a public road, and then it pulls into a parking lot? According to the Ontario Superior Court of Justice, in R. v. Heer, [2013] O.J. No. 6432, 2013 ONSC 7257, Ontario police can still investigate traffic safety issues on a parking lot even without grounds to suspect an offence, so long as they saw driving on a highway, and decided to pull the driver over before the driver reached the parking lot.

Your mileage may vary. The relevant legislation varies from province to province to province. In B.C., a mall parking lot is a "highway".  Cyr v. Koster, 2001 BCSC 1459.  In Ontario, a restaurant parking lot is not. Tresham, 1998 CanLII 14756.

I did not provide a link to R. v. Heer because it's not available on any free websites.  I asked CanLII to add it to their database. I hope they will.

2015.09.29 Right to Counsel - Uncertain Suspects

When you arrest or detain someone, you must tell them that they can retain and instruct counsel. When you ask them what they want to do, some answer ambiguously. That's a trap for you.

For example, when asked if he wanted a lawyer, Mr Wydenes 1999 BCCA 202 said “No, I guess not.  I don’t know.”  The court found that triggered a duty on the officer to inquire further.

Mr Owens, 2015 ONCA 652 said "No, not right now."  Many Ontario provincial court judges held that required the officer to read the secondary Charter warning.  Yesterday, the Ontario Court of Appeal straightened them out. The obligation to read the secondary Charter warning arises when a prisoner suggests that he wants to talk to a lawyer and then appears to change his mind.

Mr Bishop, 2013 BCSC 522 also said "not right now".  The BC judge came to the same conclusion as in Owens.

Although you arrest people routinely, many of the people you arrest find the process unfamiliar.  They may respond hesitantly. Know that judges will scrutinize this interaction carefully.  Therefore listen to what your prisoner says, and react to what they say.

Usually, you arrest people and then take them to the police station. I think you should always ask again about access to counsel when you reach the police station.  It gives the suspect an opportunity to think about his/her situation, and it shows good faith on your part.  Always makes notes of this second interaction.

2015.09.22 Search and Seizure - Warrant Drafting - "Step Six

" review at trial

Confidential informants told police that "Jen" Crevier, 2015 ONCA 619 ran with a bad crowd, trafficked drugs and possessed firearms in a one-bedroom apartment in Toronto. Police officers drafted an application for a warrant which explained the sources' information, along with what the police knew about the sources, and what other information they had which matched what the sources said. A justice granted a search warrant. Police who executed it found drugs and guns in the apartment.

In order to give Ms Crevier full answer and defence at trial, the prosecution provided defence with copies of the applications, with redactions to prevent Ms Crevier (or anyone else) from figuring out who informed on her. But the remaining information did not sufficiently explain why the justice could have granted the warrant.

The defence challenged the warrant.  Ordinarily, in such a challenge, the trial judge sees only the material which the defence received. But this time, the disclosed information could not support a warrant. The prosecution gave the judge the original application, and summaries of the redacted material.  The summaries identified the kinds of material in the redactions, without identifying the confidential sources. The trial judge checked those summaries against the redacted material to ensure they were accurate, and then gave the summaries to defence.

Defence didn't like the idea of the judge deciding their challenge to the warrant based on information they could not see. But because those summaries sufficiently equipped the defence to probe the weaknesses of the application, the judge could then look at the original material without redaction.  That material persuaded the judge that the warrant could properly have been granted. The judges in the appeal court approved of the procedure and agreed that the warrant properly issued.

The Supreme Court of Canada proposed this complicated procedure in the case of Garofoli, [1990] 2 SCR 1421 (SCC) as the last of a six step process for examining judicial authorizations. Few prosecutions tried "step 6" until recently. This decision re-affirms the procedure.

This means when drafting applications for warrants or wiretap, you must:

You should structure what you write in expectation the trial process will involve redaction and disclosure to defence. This link illustrates some concepts, but I provide it only to demonstrate structure, not as a precedent.  Don't copy and paste from it into your applications.

2015.09.21 Prisoner Privacy redux

If your cell block contains cameras which view and record prisoners using the toilet, consider making changes now. Several Ontario judges found that those setups violate s.8 Charter rights.  Mok, 2015 ONCA 608

2015.09.07 Facebook Identification

Mr Emam stood outside a nightclub with a friend, when a stranger shot his friend to death.  Two days later, he was recounting what happened to another friend when that friend showed him some Facebook pictures, and pointed out the face of Mr Mohamed, 2014 ABCA 398. Mr Emam recognized him as the shooter.

Pretty good lead.  Pretty crappy lineup.

The investigators didn't just take Mr Emam and his friend at their words.  The investigators made a point of downloading the Facebook pages which Mr Emam saw.  Not just the image of the suspect, but all the photos that Mr Emam saw during this informal identification process.

Defence unsuccessfully argued that this identification procedure was so flawed that it should not be admitted into evidence. I suspect that part of the reason they failed was that the witnesses could show other faces that Mr Emam saw on Facebook before identifying Mr Mohamed. That identification evidence combined with other evidence (Mr Mohamed had a dispute with the deceased), led to Mr Mohamed's conviction.

Where evidence comes from Facebook, get screen dumps of the crucial evidence immediately.  But don't just get the information.  Try to get the remaining context.

This decision came down last year. I'm sorry that I didn't notice it until now.

2015.09.06 Authenticating Exhibits - What Made this Video and When? Who Downloaded it?

How hard is it to get a conviction for assault if you have a video of the attack?

Pretty hard, if you can't prove the authenticity of the video.

Mr Bulldog, Mr Geiser and Mr Joe, 2015 ABCA 251 attacked Mr Keepness. They did it in a jail, where security cameras recorded the whole thing. Being a "good" con, Mr Keepness refused to testify.

You might think that the video proves the case. But exhibits prove nothing until people testify about them.

For example, suppose you find a cardboard box labelled "moon rocks" on your desk.  You look inside and see rocks.  Do you believe that they came from the moon?

Only if you're gullible.

Suppose instead, Buzz Aldrin gives you a box containing rocks, and says "I collected these on the moon. Take a look." Those rocks became more interesting because personal testimony authenticated them.

Judges want the same thing: testimony which explains the exhibit.

The investigators in this case made the same mistake investigators make all over the country. They took no time to establish who downloaded the video. (The prosecutor also made a mistake by failing to ask the guards whether the video accurately recorded what occurred. Lucky for them, the witnesses provided just enough evidence that the judge could infer that the video was authentic.)

It would have been much easier if the person who downloaded the video testified about it.

Avoid this mistake. When collecting a security video, don't expect that the video will testify for itself. Identify who downloaded it from the security system.  That person should make notes about what they give you, in case they must testify.

And check the date and time settings on the system, if you possibly can. People often forget to check the settings, especially when the clocks change in the spring and fall.

2015.09.05 Exigent Circumstances Search - Freeze the Scene or Apply for a Warrant?

A good confidential source told police that "TJ", a gangster, just got out of jail, and was moving lots of cocaine into town. He told them where "TJ" lived and what car he drove. "TJ" appeared to be Mr Kim, 2015 ABCA 274, a gangster with a record for trafficking, who just got out of jail and drove that car. Police officers watched Mr Kim meet someone for 30 seconds in a dark spot behind a gas station. They saw more suspicious activity with friends at a restaurant.  They arrested Mr Kim and some of his friends.  One of the group (not Mr Kim) possessed 7 rocks of cocaine wrapped in cellophane.

Next officers rushed to his house.  The lights were on, but nobody answered the door.  Without a warrant, they entered it, and searched for people. They found none, but noticed a drug scale and lots of cash. Officers stood guard at the door, while others applied for a search warrant. When it arrived, they searched more carefully and found more cocaine and more cash.

Mr Kim complained that the police violated his rights by entering his house without a warrant. The officers explained that they had reason to fear that someone inside the house might destroy evidence before they had time to get the warrant. Some of their reasons included:

  1. The source described large quantities of cocaine; but the officers seized only a little.
  2. The arrest occurred where friends of Mr Kim could see.  A friend might call his home and tell occupants there to destroy evidence before police arrived.
  3. The lights were on, suggesting that someone might be home.

Mr Kim accused the police of creating an avoidable emergency. Police should no be allowed to circumvent the obligation to get a warrant by manufacturing exigent circumstances.

The court sided with police this time:the officers didn't know what they would see until they watched Mr Kim.

If you have real concerns that evidence will be destroyed if you don't freeze the scene, then you may - without a warrant - enter a residence to preserve the evidence. In CDSA cases, you rely on s.11(7) of the Controlled Drugs and Substances Act.  In criminal cases, you rely on s.487.11 of the Criminal Code.

But don't manufacture unnecessary emergencies. Apply for your search warrant in advance, if you can.

2015.09.05 Warrant Drafting - Full, Fair and Frank

The officer who drafted the application for a warrant to search Mr Kim's house failed to mention that Mr Kim possessed no drugs when arrested.

The trial judge didn't like that.  Nor did the appeal judges.

An application for a search warrant resembles a trial. The justice reviews evidence, and then makes a decision.  If you don't tell the justice both sides of the story, then the justice may reach the wrong conclusion.  If you possess evidence suggesting that the drugs aren't there

If you know of evidence which suggests that the warrant should not issue,

2015.09.05 Documenting your Search

Mr Dhillon 2015 BCCA 375 drove a truck through the border.  A compartment contained 30 bricks of cocaine worth $1.5 million. Defence suggested that Mr Dhillon might not have known of the drugs because someone could have opened a panel in the roof, and dropped the cocaine into the compartment.

Someone took good pictures. Those pictures showed the cocaine neatly stacked, which would be impossible from the roof.  Mr Dhillon was convicted and the conviction stuck.

If you find something interesting, photograph it before you move it.  And write notes in case the photos don't turn out.

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

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