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

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

- Henry Waldock

Book

My publisher collected many of the more frequently-used chapters of my books into a single (cheaper) paperback edition: "Common Canadian Criminal Code Offences and Procedures 2016-2017".  Some of you may find it useful.

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New Law

2018.02.18 Impaired driving - Screening Devices - One for the Road

Mr Schlechter, 2017 SKQB 189 drank too much to drive. A police officer caught him as he drove away from the bar, but he beat the charge. What went wrong?

When first speaking with Mr Schlechter, the officer observed symptoms suggesting alcohol impairment. Rather that jump to a demand for analysis of breath, the officer decided to make a screening demand. Where the symptoms aren't overwhelming, this is a prudent course of action.

Before screening Mr Schechter's breath, officer didn't ask when Mr Schlechter had his last drink (or if he did ask, he didn't record the answer). Mr Schlechter blew a fail. The court saw that as a problem: if Mr Schlechter had a recent drink, then mouth alcohol could cause the screening device to "fail" even if Mr Schlechter had a legal quantity of alcohol in his body.

I have long felt this is a silly concern. The purpose of the screening device is not to prove guilt but to separate the plainly innocent from the probably guilty. I think if the driver was foolish enough to drink just before driving, then the driver deserves a trip to the police station to measure his blood-alcohol concentration. The Supreme Court of Canada seemed to take this approach in 1995. (Bernshaw at para 38.) The mere possibility that he may have had a recent drink doesn't matter, but if it's probable that mouth-alcohol will affect the screening device, then you should wait a bit before using it.

Subsequent courts have been more generous to drunk drivers. If the suspect just emerged from a place of drinking, many judges feel that the officer who makes a screening demand must take steps to eliminate any possibility of a recent drink before screening the driver's breath.

This arises from the individual nature of litigation. Each drunk driver who emerges from a bar will say that the officer who demands a breath screen must satisfy him or herself first that the drunk did not recently drink, otherwise the officer will violate his s.8 right not to have his breath tested without reasonable grounds.

But screening devices must be operated "as soon as practicable". You must not waste your time investigating irrelevancies, lest you violate the s.9 right of the driver not to be delayed without reason.

Therefore, ask the question early "when did you have your last drink". Write down the answer.

In this case, after blowing a "fail", the driver told the officer that he had a drink 5 minutes before the test. The officer ignored that information. He should have re-tested the suspect's breath once the mouth-alcohol dissipated.

2018.02.17 Investigative Techniques

After a robbery, the felon dumped his jacket and some gloves near the scene.

Police found DNA from Mr Goulbourne, 2018 ONCA 153 on the jacket.

Case closed? No way. They found DNA from some other dude on it too.

Police found his DNA on the gloves.

Case closed? Well, that makes it much stronger.

These investigators located a book-in photograph which showed Mr Goulbourne wearing a jacket that matched the one from the scene.

Ahh. That's better.

Many investigators stop looking when the evidence satisfies them of the guilt of the accused. The test is higher than that. Keep looking. An investigation is complete when you have canvassed all available sources of evidence. A good investigator thinks of more sources of evidence.


2018.02.17 Trespass and Reasonable Expectations of Privacy

Is it okay to step into someone's back yard to have a chat with people lounging there?

Mr Le, 2018 ONCA 56 visited the residence with the bad reputation, in a rough part of town.

Some police officers patrolling the area walked down a path that led behind the fenced back yards of the neighboring properties. The path ended at a gap in the fence that opened into the back yard of that residence. It was a low fence. They found Mr Le socializing with the resident and others.

Two officer stepped onto the property, and started asking questions. Mr Le acted suspiciously, and when the police asked him what he carried in his bag, he fled. It turned out to be drugs, cash and a loaded handgun.

But did the police violate his Charter rights?

Because the officers lacked both judicial authority (ie a warrant) and consent from a resident, Mr Le complained that the police breached his expectations of privacy. The trial judge and two Court of Appeal judges rejected that complaint: it wasn't his back yard, therefore the police didn't violate his privacy.

If the police found the gun on the resident, it might have been a different story.

The third judge found it offensive that police walked onto the property without lawful authority. He would have excluded the evidence and acquitted the drug dealer.

He has a point. Don't annoy the judges. Try to act lawfully at all times.


2018.02.17 Keeping the Peace between Rival Protesters - Breach of the Peace

What tactical steps are appropriate when you police rival groups who want to protest in each others' faces? How much force should you use when stopping someone before violence erupts?

Mr Fleming, 2018 ONCA 160 carried a flag that would inflame the opposing group. He carried it towards their location. Some of the opposing group started running toward him. Trouble was coming fast. Police officers got close to Mr Fleming and told him to back off. He kept going. An officer decided to arrest him to prevent a breach of the peace. Mr Fleming resisted and got hurt. He sued police for false arrest and interference with his Charter rights.

He won.

Police appealed, and the appeal court ordered a new trial.

People can protest in public places, but if it's likely to cause violence and harm, you can intervene.

Public protests put police in dangerous legal and tactical positions. Balancing civil liberties and public safety requires police restraint in the face of unrestrained emotions. But keeping officers safe requires some pro-active tactics too.

Where necessary, you can create buffer zones. You can lawfully prevent people from going where the public are normally permitted to go.

If there is even a small possibility that you would find yourself in a difficult situation like this, I recommend reading the facts of this decision, and thinking for yourself "how would I have handled this situation?" The mental exercise may help prepare you for the real thing.

The answers are complicated. The decision itself is about civil law - not my field. Therefore, I can only recommend that you review your own policies about protests and civil disobedience.

Mr Fleming's injuries arose from what appears to be manhandling during his arrest.

I feel silly saying the obvious: "when arresting and restraining difficult people, use tactics which allow you to do so safely without hurting them more than necessary in the circumstances." You were trained long ago. You know much more about these skills than me. But reading a case like this reminds one how fundamental those skills are. If your tactical skills have grown rusty, it would seem sensible to go for a refresher course.


2018.02.10 Detention & Delay

How long can you keep someone detained on "reasonable suspicion"?

It depends.

A tipster told police that a guy boarded a VIA train in Vancouver, carrying two black suitcases that smelled of marijuana. The guy was going to get off at Parry Sound, Ontario. The tipster gave a detailed description. Police officers saw Mr Barclay, 2018 ONCA 114 get off that train at Parry Sound. He matched the description.

If you had received that tip, what would you do?

These officers detained him for possession of narcotics. They gave him immediate access to counsel, by cell phone in the police cruiser. They sniffed his suitcases, but detected nothing.

They called for a drug dog.

Parry Sound is small, pretty and rustic. I'm sure that some fine and noble dogs with excellent noses reside there; but none were trained to detect drugs. The nearest drug dog was 90km away - nearly 2 hours' drive.

They took Mr Barclay to the police station, where he could use a bathroom and a landline for access to counsel while they waited for the drug dog.

When at last it arrived, it indicated drugs in the luggage. The officers arrested Mr Barclay, searched the luggage and found 33 pounds of marijuana.

At trial, Mr Barclay complained that investigative detentions were supposed to be "brief", and this one was lengthy. The trial judge didn't buy it, but the appeal court did: this delay was too long.

How long is too long? In this case, the judges figured that 26 minutes from the moment police first set eyes on him was about the time limit. But how long a "brief" detention lasts depends upon the circumstances. They gave a list of factors other judges might consider:

The judges let the evidence in anyway. They liked how the investigating officers gave Mr Barclay immediate access to legal advice. They didn't treat him like a criminal: they let him sit - without handcuffs - in an interview room while he waited.

For police officers, this stands as a reminder that during a "detention" based upon reasonable suspicion, you need to move swiftly to confirm the issue or release the suspect.

I suspect that the judges might have allowed a longer investigative detention if the investigating officers had called for the drug dog before the train arrived in Parry Sound. But can you fault the officers? Their tipster told them that people should be able to smell the dope. When they headed to the train station, they may well have believed that they did not need a drug dog to accompany them.


2018.02.10 Disclosure & Delay

Mr D.A., 2018 ONCA 96 faced charges of sexual misconduct. Several times, when his lawyer attended court to set a trial date, the prosecution released new packages of disclosure.

Each time, the defence lawyer declined to set a trial until he had a chance to review the new material.

Those delays, combined with the court's calendar, delayed the trial over the tipping point, and the court stayed the charges.

I can't say why police delivered new disclosure just before each court appearance. Crown argued that the new materials weren't important. But the defence lawyer who receives them doesn't know their importance that until he or she reviews them.

I can say that many police officers still entertain the notion that delivering disclosure "in time for court" is good enough.

Nope.

Disclosure of police materials needs to happen well before court, so that the lawyers can read and understand it, and decide how to respond to it when they get to court.


2018.02.05 Compelling the Suspect to Help - Assistance Orders to Unlock Phones

Some encryption technologies offer pretty good privacy. That means the fastest current computer systems in the world won't break them in the lifetime of the universe.

You need another way in.

What if you have good evidence that your prime suspect stored evidence in an encrypted device. Think child pornography, stolen bitcoin, the terrorist cell's membership list, or any other digital information of evidentiary value.

Can a judge make him decrypt it?

In some countries, a judge can. Apparently not in Canada. Boudreau-Fontaine, 2010 QCCA 1108 Talbot, 2017 ONCJ 814.

If you click the link for Talbot, you won't find the reasons. That case is on appeal to the SCC. Stay tuned.

2018.02.04 Text Messages in the Recipient's Phone - Sender's Expectation of Privacy

The case of Marakah returns to visit us already.

Whistler is a party town. Tipsters told police that Mr Vickerson, 2018 BCCA 39 sold cocaine. Following up on those tips led police to watch his place. Lots of visitors, but few wanted to stay for long.

Police arrested one of those visitors, searched him and found him in possession of cocaine. They also looked at that guy's cell phone. Without a warrant. They found messages between him and Mr Vickerson which helped justify the granting of a search warrant. A search of Mr Vickerson's residence produced drugs and cash.

At trial, Mr Vickerson complained that the police search of the customer and his cell phone violated Mr Vickerson's rights. The trial judge found that the police had reasonable grounds to arrest the customer. The drugs were admissible against Mr Vickerson.

The trial judge assumed that the senders of text messages always enjoy an expectation of privacy over them. For that reason, he excluded that evidence.

The Court of Appeal disagreed. They said that the judge should have heard evidence on that topic, to work out whether Mr Vickerson enjoyed any expectation of privacy over the messages. Because there was no evidence on the point, they didn't conclude whether he did or didn't.

What does this mean for you?

  1. The judges are still giving little guidance about how to determine when a sender of text messages still enjoys an expectation of privacy over the messages when they arrive in the recipient's phone.
  2. "Standing" is a dangerous game. These officers searched the customer's cell phone with dubious legal authority. You are paid to uphold the law. Make sure you have legal authority whenever you intrude on anyone's privacy - suspect or victim.

(I observe that these officers searched this customer's cell phone before the Supreme Court of Canada set the rules for those kinds of searches. See Fearon, 2014 SCC 77. Now that the rules are clear, I don't expect judges to be so kind to officers who search cell phones contrary to those rules.)

2018.02.02 Search & Seizure on the Internet - Production Orders for Craigslist & Facebook

The BC. Court of Appeal thinks you can get a production order for foreign companies which do business in Canada electronically. Judge Gorman of the Newfoundland Provincial Court disagrees. In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018, 2018 CanLII 2369 (NL PC)

Eventually, this issue will work its way up the appeal chain until we get a straight answer for everyone.

2018.01.23 Noble cause corruption - Letting your job get you down

Mr Hansen, 2018 ONCA 46 had a good job. A detective constable in the Weapons and Gangs unit.

Not any more.

He conspired with a confidential source to frame a local drug dealer. The source said he would plant a handgun in the drug dealer's couch. Hansen agreed, and encouraged the source when he got cold feet. The source texted Hansen that the gun was planted in a sofa at the drug dealer's place. Within an hour, Hansen swore an application for a search warrant. Police searched the place and found drugs and drug paraphernalia. No gun. A small quantity of drugs. (See the trial decision for more detail.)

Text messages on Hansen's phone documented his conversation with the source. Hansen's sworn application told quite a different version of what the source knew about the gun. And so it became clear that Hansen perjured himself.

The decision doesn't explain how Det. Hansen's secret dealings with the source became known. There are several likely routes: diligent defence disclosure demands led to disclosure of some of his text messages; or the source decided to turn in a cop; or a fellow officer borrowed his cell phone.

When you think about it, secrets like this can get out.

Hansen was right. The drug dealer had drugs, and probably caused much pain and suffering in his community. Hansen likely had strong reasons to want to lock him up. A noble cause. A cause to believe in.

But Hansen went about it wrong. He signed up to enforce the law. That means using the law to reach his objectives. Lawfully. Legal proceedings often reach disappointing results. It's not like TV, where the good guys always win and the bad guys always go to jail. It's easy to understand why some officers lose faith in the justice system.

If you're feeling like that, or someone you work with is talking like that, it's time for a philosophy check.

Telling lies on oath is a crime. Committing crime to catch criminals undermines your moral authority. You are no longer one of the "good guys". And you could lose your job and go to jail.

Get used to the notion that the justice system resists your efforts to convict the people you think are guilty. Experience teaches that bad things happen if it's too easy to get a conviction.

Get used to the idea that the law ties your hands with procedural steps that hobble your ability to serve and protect. Those procedures developed over decades, each for a good reason. You signed up to enforce the law. The law includes those cumbersome rules.

If you can't reconcile yourself to these compromises, then look for other work. Lots of employers want to hire a police officer who retired with a good reputation. But a conviction for perjury makes your resume less appealing.


2018.01.20 Whodunnit - Third Party Suspects

Courts worry about the reliability of photo lineup identification. The slightest weakness can raise doubt.

Two men and a woman burst into an apartment. One of the men carried a gun. They robbed a resident. One of the occupants thought she recognized one of the men as Travis or Dillon Soderstrom. She picked Travis Soderstrom and Curtis Vidal, 2018 BCCA 21 out of photo lineups. None of the other victims recognized the robbers. One of the victims testified that the wrong guys were charged.

Travis and Dillon look much like each other. Both brothers lived in the same town as the robbery. Would this photo lineup identification really prove that Travis was the brother?

Not by itself.  But police researched Dillon's whereabouts at the time of the robbery.

Dillon wouldn't give a statement, but he did say that he was working.

Dillon worked out of town. In another province. He flew there. The airline had records. Those records established his alibi, when Dillon wouldn't cooperate.

And that made the difference. Travis was convicted, and lost his appeal.

This case illustrates the importance of corroborating a photo lineup identification:

2018.01.10 Search & Seizure on the Internet - Production Orders for Craigslist & Facebook

BC courts will now issue production orders to foreign companies that do business in Canada strictly over the internet.

Some of the biggest Internet companies try to behave like good international citizens. They protect the privacy of their users, but will release data to police when a judge says they should.

All too often, those internet companies possess data valuable to your criminal investigations. Threats are delivered over Facebook. Stolen property is fenced through Craigslist. Much of that data is private. But Canadian judges baulked at telling people outside Canada to divulge evidence to Canadian police.

In international law, good countries respect the sovereignty of other countries. Canada tries to behave like a good sovereign nation. Canadian judges don't exercise their legal powers beyond their jurisdictional borders. A B.C. provincial court judge's powers generally end at the borders of B.C.. The Criminal Code makes some exceptions which extend a few powers to the rest of Canada, but not into other countries, like the USA.

Long before the internet, countries entered into "Mutual Legal Assistance Treaties" - agreements that allowed each country to make a formal request of the other country to investigate a crime, and deliver the evidence so discovered. Because these processes involve layers of government in both countries, they move achingly slowly.

Canadian courts will not generally order foreign companies to produce documents or data when those companies have no presence in Canada.

This created a frustrating impasse: the foreign companies would gladly deliver evidence to Canadian police officers if those officers could obtain a judge's order, but the Canadian judges wouldn't give one.

Craigslist provides the perfect example. It has no office and no staff in Canada. However, it provides classified advertising services for every major urban area in Canada. It does business in Canada. Craigslist is here, except not physically.

A B.C. police officer applied for production of data from Craigslist. Judge Brecknell of the Provincial Court declined. He felt that BC judges can't compel Californian companies to disclose information. So did the judge above him. But the Court of Appeal said "yes", it can be done, even if there may be problems prosecuting the internet company for refusing to obey the order.  BC v. Brecknell, 2018 BCCA 5.

This is unusual. Don't do it if you have alternatives.

If the internet company has employees or an office in Canada, then try for a production order which compels them or it to produce the records. The court confirmed that a production order is an "in personam" order (it compels a person to do something). People in Canada are subject to Canadian production orders. No extraordinary measures there.

If the internet company has no physical presence in Canada at all, then your application for a production order must establish the internet company's virtual presence by proving its business activity in Canada. That will take some creative investigating and drafting. In addition to explaining what data the company has and how it relates to your investigation, you should also look up and quote the company's privacy policy with respect to law enforcement. Find out the proper legal name of the company, and establish that it has "possession or control" over the document or data that you need.

I think this is a significant development of Canadian law. It reconciles the transnational nature of the internet with the traditional limits of the exercise of power between sovereign nations.

From the corporate point of view, it also makes sense. Craigslist and companies like it want to protect the privacy of their customers, but they also want to respect local laws in every country. Therefore, they set up policies which permit judges in foreign countries to determine whether in each particular case, privacy or public safety is more important. Responsible internet companies respect the decisions of the judges of the countries where the internet reaches. This Canadian legal decision supports that responsible international corporate approach.

PS: This decision applies in BC, but not necessarily in other provinces. Judge Gorman in Newfoundland disagreed with the B.C.C.A.. He found that production orders can not be used this way.  In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018, 2018 CanLII 2369 (NL PC)

2018.01.06 Whodunnit - Third Party Suspects

Allegations of tunnel vision are easy to make, and hard to refute - unless you do the work of investigating alternate theories.

After 28 years of marriage, Barbara Short had enough. She complained of his verbal abuse. She retained a lawyer to sue for divorce and division of family assets. Her husband, Roger Short, 2018 ONCA 1 didn't like that idea. He told her cousin he would rather hurt or kill her than lose half of his property.

Someone murdered Barbara Short the the back yard of the family home by bashing her head. A 4" x 4" board lay near her body, with her blood on it.

Naturally, your attention would turn toward Roger.

But there were other suspects. Maybe it was Mr Robertson. She was having a torrid affair with him. Her body contained evidence suggesting that she engaged in sexual activity that night - which would suggest that she was with her lover. If so, it couldn't have been Roger that killed her.

Maybe it was a thief. At the back of the family home was a gas storage tank. The cap from that tank was removed. Maybe she interrupted someone stealing gas, and that person killed her. After all, a violent thief named Mr Harper lived nearby.

Lots more evidence pointed towards Roger: when police asked him questions, he downplayed his marital difficulties; he destroyed Barbara's poems which recorded her misery in the marriage; he asked a friend to destroy the letter he received from Barbara's lawyer.

At trial, defence accused the police of tunnel vision: "you just looked for evidence which tended to make Roger look guilty" "you overlooked evidence that any one else might have done the deed".

Psychologists say that we all tend to apply "confirmation bias": we believe evidence which supports our preconceptions; and we ignore evidence which doesn't. Tunnel vision is normal human behaviour. That doesn't make it right.

If you think your job is to collect only evidence which supports your theory, then you do have tunnel vision. Your job is to identify all sources of relevant evidence, and gather that evidence. That means devoting resources to investigate alternate suspects.

Roger testified that he went to a local hockey game, then drank at some bars. When he got home, he found his wife was dead.

The first jury couldn't decide whether to convict Roger. The second jury found him guilty of murder. The court of appeal ordered a retrial because of issues with his lawyer. At the third trial, Roger's lawyer will tell the jury that his story could be true: there were others that might have killed Barbara. The prosecutor will want corroborated evidence that the lover and the thief were elsewhere when Barbara died. Finding that evidence now will be much harder than finding it at the time of the killing.

Whether you're investigating the identity of a murderer, or the truth of a domestic assault, your job is to investigate all sides of the story. Don't just stick to the best theory. Look for the evidence which supports or contradicts the alternate theories too.

It's surprising what you may find. Thomas Sophonow went to jail for a murder that was probably committed by a guy named Terry Arnold. Investigators at the time knew of him, but didn't fully investigate his alibi. David Milgaard went to jail for a rape-murder that was actually done by a known rapist named Larry Fisher.

Those are unusual cases. The main suspect usually is the felon. But in court, you don't want to face the question:

"Why didn't you investigate these alternatives?"


2018.01.04 Weapon - When is a Knife a Weapon?

Suppose a judge orders me not to possess any "weapon". Suppose you find me holding a knife. Can you arrest me?

It depends.

The Criminal Code does not define a knife to be a "weapon". It says:

"weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;

If you find me holding the knife to carve my pork chop, you can't arrest me. If I stand up from my dinner, point the knife at you, and tell you that I will drive it deep into your chest, then not only can you arrest me for threatening you, but you can also arrest me for breaching the judge's condition.

These two examples - eating dinner and threatening people - lie at opposite ends of a spectrum. Where is the line in the middle which separates the "weapon" from the "non-weapon"?

Mr Vader, 2018 ABQB 1 generously gave us an example. An officer found him "in the driver's seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically." The handle of an old machete stuck out from the under the driver's side floor mat of the vehicle and a fishing knife, in a leather scabbard, lay in an open area at the bottom of the driver's side door.

He wasn't fishing or hunting. He wasn't somewhere that a machete could be useful. Only because the trial judge eliminated all innocent possibilities, could the judge conclude that the knives were there for use against other people. The trial judge convicted him. He appealed, and lost.

But it wasn't a frivolous appeal. It highlights an important principle. A knife isn't a "weapon" unless you find circumstances that fit it within the definition.

When you find a guy on a "no weapons" condition, you can't arrest him just because he has a knife. Take a look at the circumstances. You may reasonably infer that most folks who carry machetes in the middle of a city intend to possess them as "weapons". But discovering someone in possession of a folded Swiss Army knife isn't so clear-cut.


2018.01.01 Search & Seizure - Warrantless Search - Third Party Consent


When two people share a place, can police searching one person's possessions on the basis of the other's consent?

It depends upon the expectations of privacy as between them.

Cst Clarke, 2017 BCCA 453 seized things like guns, drugs, booze in the course of his employment. He stored some of these exhibits in quite the wrong places. That got him into trouble.

He and his mother owned a house in Chilliwack. Because he lived in Surrey, he rented the Chilliwack house to Ms Ferrer. But he stowed some of his seized property in the garage. Ms Ferrer permitted other officers to search the house. They found the missing exhibits. Hence, the trouble.

At trial, he complained that she could not waive away his right to privacy. He said that the police needed a warrant. To determine whether he was right, the judges considered what privacy Cst Clarke reasonably expected from Ms Ferrer.

That was complicated.

Who "owned" the place? In 2008, Cst Clarke and Ms Ferrer signed a formal rental agreement, giving her the entire residence. She thought she was buying the place from him.

In 2007, he signed an agreement which required him to give Ms Ferrer 48 hours notice if he wanted to enter the residence. But their relationship became intimate. Although he still lived in Surrey, he came and went from Ms Ferrer's place as he pleased, without giving any notice at all. He "sort-of" lived with her "part time". He kept some personal effects in the house, and he stored a pile of "stuff" in a corner of the garage. He threw a tarp over some of it.

Ms Ferrer and her children had access to the garage. She parked her van in there, but they left his stuff alone. Sometimes, when he left something in the house, she would add it to the pile in the garage. She didn't really like him keeping ammunition there, because she had children.

But she didn't go through his stuff in the garage.

Ms Ferrer's relationship with Cst Clarke broke down. He told her she might have an STD - which alarmed her. When she learned he was seeing someone else, she became concerned that he would infect the next woman too. She called upon his supervisors - who took great interest in the items Cst Clarke stored in her garage.

Could Ms Ferrer's consent authorize police to search her residence? Yes.

Could her consent authorize police to search her garage? Yes.

Could her consent authorize police to look under the tarp? No.

The court found that Cst Clarke had a reasonable expectation that she wouldn't look under that tarp at his stuff. And if that was his expectation of privacy from Ms Ferrer, then he enjoyed a reasonable expectation that police would not use her consent as an excuse to lift the tarp and look underneath.

When asking Ms Ferrer for her consent, the officers got her to sign a consent form. Good idea. That showed good faith, and created a permanent record of her consent.

Nobody asked whether there were any parts of the house that Ms Ferrer usually left as Cst Clarke's private areas. It's a subtle point, but I expect it to grow in importance, particularly in light of Marakah (see 2017.12.09).

This case suggests that when you ask a non-suspect for consent to search a place for evidence against a third party, you should ask: "Are there any parts of your home/computer/phone/building/property that you leave as <suspect>'s private space?" If the consenter says "yes", you'll need a warrant to search those places.

2017.12.10 Suspicion vs. Belief - General Warrants

Mr Christiansen, 2017 ONCA 941 looked suspicious. He came and went from an apartment, taking one box in and leaving with another. He associated with another suspicious guy. It looked like a drug operation. The officers watching him wanted to know more about what was in the apartment.

So they got a judge to authorize covert entry into the apartment "to gather information that the evidence of trafficking is presently located inside the [Unit], to support the issuance of a Controlled Drugs and Substances Act (CDSA) Warrant to search".

They found drugs. The got a warrant under s.11 of the CDSA, and busted Mr Christiansen.

But there's a problem.

Judges can not generally authorize covert entry except under s.487.01. That section requires that the ITO establish reasonable grounds to believe that the offence was, is being, or will be committed. If the officers lacked enough evidence to say that they believed the crime was being committed, then they lacked grounds to get a general warrant.

Furthermore, judges can not grant a warrant under that section if there is another warrant that would do the job. Like, maybe, a search warrant under s.11 of the CDSA.

You can use general warrants to sneak and peek. But only if the ITO establishes that probably:

  1. the offence happened (or is happening, or is going to happen),
  2. information about that offence will be found in the place, and
  3. an overt search will prevent you from recovering as much information about the offence as a covert one.


2017.12.10 Text Messages in a Drug Dealer's Phone

 - Hearsay

If you're involved in drug investigations, it's worth reading this case to see what kind of evidence makes received calls and texts on a drug-dealer's phone admissible.

When police searched the residence of Mr Bridgman, 2017 ONCA 940, they found lots of prescription drugs, many stored in bottles bearing the wrong labelling.

When police searched the phone they found on his person, they found text messages which seemed to request drugs.

At trial, the Crown wanted to put the text messages into evidence. Defence said "that's hearsay".  Defence was right. Suppose I send you a text message saying "sell me 1kg of cocaine" from my (throwaway) phone. If your boss reads the text message, the boss will infer that you are a drug dealer. Why? Because my text says so. At your trial, you can complain "Wait a second! Whoever sent that text is not taking the witness stand, swearing to tell the truth, and explaining what made them think I sell drugs. And I can't cross-examine the jerk. This is no better than a 911 tipster."

Those were the winning arguments in a case called Baldree 2013 SCC 35.

But Mr Bridgman lost this argument.

That's because his phone contained lots of texts from lots of different people. Whoever used his phone responded to one of those messages indicating that he did have drugs to provide. The odds that someone texted the wrong number were way lower than the single call at issue in Baldree.

And one more thing. A police expert in drug investigations explained why it would be really difficult to get the people that sent the messages to testify: they don't like being identified as drug users because that's socially embarrassing; and they don't like being identified as informers because it becomes harder to get drugs from dealers.

Those answers helped the Crown prove that it was "necessary" to rely on the hearsay. And the multitude of texts made the evidence "reliable". And that justified admitting it. (See my page on Hearsay).

2017.12.09 Text Messages in the Recipient's Phone - Sender's Expectation of Privacy

You may enjoy an expectation of privacy in the text messages you send me, even after they arrive on my phone.

Mr Marakah, 2017 SCC 59 sent text messages to Mr Winchester regarding the illegal firearms transactions they were engaged in. An informant alerted police. Police obtained warrants, and busted both men. Police seized and searched their cell phones.

But there was a problem. The trial judge found flaws in the searches of both phones. The text messages from Mr Marakah's cell phone were excluded from the trial.

Crown tried a clever tactic: they tendered Mr Marakah's text messages from Mr Winchester's cell phone. They argued "standing": the idea that Mr Marakah could complain about unlawful searches of his own phone, but he could not complain about unlawful searches of someone else's property.

That worked at trial and in the Ontario Court of Appeal (2016 ONCA 542), but a majority of the judges in the Supreme Court of Canada didn't buy it. They said:

"a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it"

Because Mr Marakah sent it to a specific person, and had told him to delete the text messages after reading them, and because of the relationship between the two men, the court found that Mr Marakah retained a reasonable expectation that the state would not read the text messages in Mr Marakah's phone without judicial pre-authorization.

This extends an "expectation of privacy" further than many of us predicted. I found this a surprising decision.

Does this mean that a victim of harassment can not give the police texts and emails she received from her tormentor without police first obtaining a warrant?

I don't think so. (Beware: some of my colleagues disagree with me.)

Note that in the Marakah case, the recipient of the private texts - Mr Winchester - did not give the texts to police. Police just took 'em. An action of the state. No consent. No intervention by the recipient. (I think the intended recipient's consent makes a big difference.)

Suppose a harasser sends nasty messages to a victim. I figure that the analysis differs if the victim gives them to the police. If the victim sends copies of the texts to you, then you merely receive, rather than seize the texts.

Some might say this distinction doesn't make any difference. The Supreme Court has found that police can violate expectations of privacy even by merely receiving private information (R. v. Dyment, [1988] 2 SCR 417). I figure that this situation differs enough from Dyment that the courts will find victims and witnesses can decide who sees the messages they receive. Surely, the victim, who has rights to life, liberty and security of the person, has the right to give police the key information which will secure those rights.

What does this decision mean for police?

When your investigation leads you to text messages, phone messages or emails from one person to another, you should ask the recipient "are you giving these message to me?" Don't seize them, but receive them.

If you get those messages from some third party, rather than the recipient, consider whether the participants in the communications expected privacy.This might be the anxious parent of a child who received luring communications. If so, you need authority to intrude on expectations of privacy. Perhaps exigent circumstances apply. If not, perhaps you need a warrant or production order.

Marakah will generate lots of litigation. How do you avoid it?

Make sure that any time you intrude on the privacy of any person, you have lawful authority. Don't rely on "standing". Every time you do, you admit that you're acting unlawfully.

2017.12.09 Identifying a Suspicious Person

Many police officers suffer from a persistent legal misunderstanding. I receive queries about it regularly. It arose again in my trial work this week. My trial isn't done, so let's consider an older case.

The Calgary City Police had a problem. Thieves kept breaking into the officers' private vehicles, parked in a lot near the police station.

One night, an officer saw a young woman in a black leather jacket emerge from the area of the lot. He asked her to stop, but she kept walking. He asked her what she was doing in the lot, but she walked away. They grabbed her and demanded that she identify herself. She refused to explain, and she refused to tell them that her name was Patricia Guthrie, 1982 ABCA 201.

She was charged with obstruction for failing to answer their questions. She beat the charge.

In most situations, Canadian enjoy the right to silence. They law does not require them to answer a police officer's questions, even about identity.

There are exceptions.

Today, the Guthrie case might go a little differently. If an officer has reasonable suspicion that a person committed a specific offence, the officer may detain the suspect. (That wasn't clear in 1981.) But even after a formal detention, you still can't compel the suspect to identify herself ... unless you arrest her.

But there's no harm in asking for identification. No problem explaining why you want the identification. I think you can photograph people you detain, even if they won't identify themselves. R. v. Multani, 2002 BCSC 68.

Just don't arrest them for obstruction just for failing to tell you who they are.

2017.11.26 Security Video Evidence - Tips and Ideas

Chad Davidson shot Tyler Johnson dead. Three guys (Barreira et al. 2017 ONSC 1665) accompanied Davidson at the murder scene, just outside a pita shop in downtown Hamilton. They left in a hurry.

Police collected 80 hours of security video from businesses in the area. Clips from these videos showed the four guys and Mr Johnson before, during, and after the killing. Clips also showed the various witnesses observe the action and run for cover - which was useful for corroborating their testimony about what went down. People who knew the defendants identified them from the videos.

Certain clips permitted the viewer to identify the four guys. For example, a Tim Horton's camera captured good quality images of their faces. But most of the video provided insufficient detail to identify the guys. By watching other clips, the officers track the guys as they left Tim Horton's and went to the scene.

One video system used infra-red technology, which tended to distort colour.

A certified forensic video analyst assembled all the useful footage into a composite video, with a single running clock. It did not include the aftermath.

Establishing the accuracy of that clock took some work. The clocks on the security systems differed from each other. One system recorded no time-stamp at all.

The officers who collected the video footage carefully compared the times on their cell phones with the clocks on the security systems. But most cell phones display only hours and minutes. Not seconds. Synchronizing the videos required some guesswork. But the officers did have one known event from which to work. On video, a guy in the Timmy's phoned 911 to report the incident. One can see him turn his phone off at the end of the call. The 911 system provided the exact time that his call ended.

The trial judge had no problem with a composite video which contained unmodified clips from the original videos. Because the expert testified about the effects of infra-red photography on colour, he did not find any problem including that footage either.

The judge did worry that the police could select video clips to make the accused look guilty. However, the judge saw enough of the raw footage to realize that this compilation was fair. Defence counsel did not identify any additional clips they thought needed to be added.

The final composite video displayed a running clock superimposed over each clip showing the best estimate police could make of the actual time of the events displayed. It also included circles and captions which identified each of the key participants.

Because the expert used special skills to link the times together, the court allowed the jury to see video containing the super-imposed clock. But the circles and captions came from hearsay. The judge excluded all those annotations.

At the end of the trial, the jury convicted the defendants. I guess this video made a difference.

We can learn plenty from this investigation.

  1. Security video can prove a great deal.  Collect it.
  2. Security video systems don't always use the correct time. When collecting security video, compare the time on the system to the time on your cell phone.
  3. In the video, look for an event whose time can be accurately placed (in this case, the 911 call). Use that as an anchor to measure time before and after it.
  4. Where you have many videos, preparing a composite video can make understanding them much easier.
  5. Infra-red cameras distort colour. If you get unexpected colours, consult an expert.
  6. Be cautious about annotating a composite video to explain your theory of the case. The judge may exclude the video if you mark it up.
  7. Include all relevant footage. Disclose all footage to defence. Offer to add more footage at the request of the defence.

The judge didn't like the the clock on the composite video because it showed seconds. This suggested false accuracy. Because officers recorded video-system accuracy only to the nearest minute, it was accurate to 1 minute at best.

In some cases, the exact time doesn't matter. In others, it makes or breaks the case.

One can do better than minutes. You can get it down to seconds:

  1. Establish the accuracy of your cell phone's clock by pointing its browser at Canada's National Research Council's time website. (My computer is about .5 seconds slow. My phone is about 1.5 seconds slow.)
  2. Your cell phone records time and date information every time it takes a photograph. Learn how to access that data. Take a picture today, at a known time. Send the picture to a Windows computer. Use the "Properties" function to examine the metadata. It will show you several date and time stamps. Beware. The computer created one when it received the file. That's the wrong timestamp. Look for the time stamp that the camera created. On a Mac, open the photo in Preview, and use "Show Inspector".  Look for the "Exif" information.
  3. When you collect security video, take a picture of the system's clock using your cell phone. Compare the Exif data from the photo to the time on the video-system clock.


2017.11.07 Condolences - Abbotsford Officer Down

Yesterday, a police officer died on the job in Abbotsford, B.C.. It is the worst news his family, his friends and his colleagues could receive. I add my small voice to the multitude who honour Cst John Davidson, and I wish his family healing through their grief.

2017.11.05 Dangerous Driving - Hazards of the Job

A guy named Romano, 2017 ONCA 837 drove an F-150 at 109km/h in a 60km/h zone. He struck and killed a beautiful 18-year old girl who was trying to jay-walk across the street.

He wasn't drunk. He wasn't high.

He was just trying to catch up with some people he knew.

What do you think. Was his driving criminal?

The first jury didn't think so. But the trial judge made a mistake. The Court of Appeal ordered a new trial.

Why am I telling you this?

'Cause Romano was a police officer driving an unmarked vehicle. He wanted to catch up with the rest of the surveillance team.

Now a girl is dead, and the family sued for $2M.

Probably Romano thought that it was important to watch this particular target. Today, I'll bet he wished he drove slower.

I hope you think your work is important. Passion for the job gives you the energy to do it well. But too much passion distorts one's priorities.

It's a question of striking a sober reasonable balance.

So let's all try to be simultaneously passionate and dispassionate.

I still work on that balance. I hope you do too.

Be safe out there.

2017.11.05 When to Stop Investigating - Confidence or Completeness

A guy in a mask robbed a bank in Oakville.

A cop across the street responded just as he ran out. The cop saw the robber jump into a car. The cop drew his gun and attempted to open the driver's side. He and the robber faced each other for a 10-20 second standoff. Because the robber had removed his mask, the officer saw his face.

The robber drove off, but police soon found the car, abandoned. It still contained the mask.  The mask had 2 DNA profiles on it. One belonged to Thomas McConville, 2017 ONCA 829.

That day, other investigators prepared a photo lineup containing his face. They showed it to the officer, who picked Tom's face.

Closed case?

Not quite.

Tom's brother Shawn was in Oakville that afternoon.  Shortly after the robbery, he hired a taxi, which took him to Hamilton, 30k away.

Maybe he did the robbery.

Brothers tend to resemble each other. Brothers often associate with each other. Sometimes, they share property. One might let the other borrow his mask for a while. Shawn's picture wasn't in the photo lineup. Maybe Tom's picture was the one that looked most like the robber because Shawn did it.

And besides ... brothers have similar DNA. Those huge odds that the DNA experts quote don't apply to related individuals.

The prosecution tendered no DNA evidence from Shawn.

That could have been a problem.

The trial led to a conviction, but only because of the presence of mind of that first police officer when challenging the robber. In court, this one wasn't the slam-dunk that it probably seemed to be when the DNA and the photo-lineup led to Thomas.

Sometimes, you get a comfortable feeling that you've collected all the evidence you need. Beware.

I think an investigation is complete when all the evidence has been collected. Not "enough" evidence, but "all" evidence. In this case, Shawn's DNA profile was relevant.

Okay. To make police budgets balance, I'll concede some wiggle-room: "An investigation is complete when all reasonably available sources of evidence have been canvassed." What's "reasonably available" differs depending you're investigating a murder or a shoplifting.

2017.10.31 Oops. Should I tell Defence I made a Mistake?

Yes.

The earlier the better.

In R v Mamouni, 2017 ABCA 347, lots of disclosure came tumbling out just before trial. Some examples included:

  • The exhibit officer revealed that he made a mistake in his testimony at the preliminary hearing.
  • During pre-trial interviews, several officers revealed details about the crime that appeared nowhere in their notes or reports.
  • And by the way, during the investigation, the officers obtained a General Warrant which wasn't revealed anywhere in the disclosure.

When new information comes in at the last minute, it can change how the trial proceeds. If the trial changes too much, defence can ask for an adjournment. And blame Crown for the delay.

In this brave new regime of Jordan, that can kill a perfectly good prosecution dead.

What must you disclose? Mr Justice Watson explained it this way:

The point is that "likely relevant" can be distinguished from "barely relevant" as well as from "not relevant". The Crown should never presume that even barely relevant evidence acquired as a product of an investigation need not be disclosed and in a timely way. To say that the Crown has no such obligation is not the law, largely because it is not up to the Crown to decide what use the defence may make of any evidence, howsoever limited the relevance may be. As it was put in Vallentgoed, at para 63 "the Crown must produce records unless it is beyond dispute that they are not relevant".

Naive police officers may read this paragraph and relax. The judge keeps talking about 'Crown' not 'police'. True. But the 'Crown' can't disclose any information in the possession of 'police' unless police disclose it. Therefore, a wise police officer reads this paragraph to say:

The police should never presume that even barely relevant evidence acquired as a product of an investigation need not be disclosed and in a timely way. It is not up to the police to decide what use the defence may make of any evidence, howsoever limited the relevance may be. The police must produce records unless it is beyond dispute that they are not relevant.


2017.10.26 Impaired Driving - Screening Device Demands - Blow a Second Time

Around 2:00am, an officer saw a speeding car. 94km/h in a 60km/h zone.

A strong odour of liquor wafted out of the car when the officer stopped it. Did it come from the driver or the passenger? The officer asked the driver, Mr Norrie, 2016 ONSC 4644 aff'd 2017 ONCA 795 to step out of the car. Mr Norrie had bloodshot eyes, and said that he last drank 2 hours earlier in a bar. He had difficulty producing paperwork.

The officer suspected he had alcohol in his body, and therefore read him a demand that he blow into a screening device. It registered a fail. The officer arrested Mr Norrie and secured him in the police car, and spoke with Mr Norrie's passenger.

That's when the officer noticed a partially-consumed beer in the front console of Mr Norrie's car.

The officer believed that Mr Norrie lied about when he last drank. If Mr Norrie had recently been drinking, then the "fail" result would not be reliable. The officer formally released Mr Norrie from arrest. He removed the handcuffs, but demanded a second breath test. He explained why.

While the officer waited for mouth-alcohol to dissipate, the officer offered to help Mr Norrie contact counsel. But that didn't work out.

The officer read the screening device demand a third time. Mr Norrie blew, and it registered "fail" again. Re-arrest. Back to the police station. Access to counsel. Blow. Busted. Released on a Promise to Appear

Things got messier after that. The charges did not get sworn before the court date. Once they were sworn, the summons didn't reach Mr Norrie. This caused some delay, which led to a separate issue.

The trial judge stayed the charges, finding that the second screening device demand arbitrarily detained Mr Norrie, and prevented him from getting legal advice to which he was entitled. The trial judge was greatly upset by the delays in bringing Mr Norrie to court.

The summary conviction appeal judge disagreed. Because the officer had good reason to think that the original screening test was wrong, the officer proceeded correctly in making a second demand. And during that time, the right to counsel remained suspended.

Do drivers ever lie about when they had their last drink? Of course they do. Are you required to believe them? Of course not - if you have good evidence that they are lying. When you're not sure, how hard must you investigate to discover the truth?

Ahh. That last question is the trickiest.

As a practical matter, breath screening is supposed to be done quickly. If the driver lied to you about that last shot of tequila before he started driving, I think he deserves to take a detour to the police station for a breath test. But if the open beer is right by the driver, then perhaps, like the good officer who investigated Mr Norrie, you should proceed more carefully.

One more thing. Remember that the officer read the screening device three times? Be careful of that. You can only make that kind of demand "forthwith" after you form reasonable suspicion. If the officer "made" a second or third demand, then he was wrong, because he made them long after he formed his suspicion. On the other hand, if made a single demand, but reminded Mr Norrie of it after he realized that the first test was not "a proper analysis", then he was right.

How many times you read a demand doesn't matter. But the timing of making a demand does.

2017.10.22 Re-enactment Video

Re-enactments of a crime are hard to do well.

Mr Gosse, 2017 BCCA 356 drove an SUV that hit a motorcycle. Security video cameras in the area provided much information about how the collision occurred.

A police officer wore a GoPro camera on her head and recorded what she saw when she drove the route Mr Gosse drove before the crash. She intended to show the judge what the driver should have seen when his vehicle approached and hit the motorcycle.

Unfortunately, someone placed a motorcycle in the wrong spot.

After the trial judge convicted him, Mr Gosse appealed. He said this mistake caused the trial judge to get the wrong idea of what happened.

Re-enactment videos like this can be really helpful. But it's hard - often impossible - to recreate the exact same conditions as the offence under investigation.

Outdoor video is affected by time and date. Light changes depending upon the time of day. Even if you return at the scene two months later, lighting changes depending upon the time of year and weather. In some driving cases, changes in foliage matters. A springtime video of a winter event may mislead the court.

If you make one, Murphy's law says you'll get something wrong. If you don't make one, the judge may not understand the case properly. Damned if you do, damned if you don't.

Despite the challenges, such videos can help. In this case - even with the mistake - the officer's video did help the trial judge and the appeal judges understand just how visible the motorcycle would have been to Mr Gosse when he ran it down. Mr Gosse lost his appeal.

Particularly in accident cases, police officers tend to document the wreckage. But the crime happens before the crash. Good investigation of the crime involves recording how the road looked to the felon before the crash happened.

2017.10.21 Journalists are now Special

Bill S-231 came into force on October 18. It enjoyed all-party support in Parliament, on the basis that it provides some protection for journalist's sources.

It goes much further than that. It protects journalists.

It creates special rules for search warrants against journalists generally:

  1. If you are drafting a warrant for production of information from a news outlet, you have new rules to follow. Read the legislation.
  2. Even if you don't want to discover a journalist's source, or get the raw footage from their video coverage of a crime, special rules apply.  If you want "a journalist's communications or an object, document or data relating to or in the possession of a journalist", you must apply to a superior court, not a lowly justice of a provincial court.
  3. This applies even if you are investigating a journalist for a crime. Suppose a journalist texts his ex-wife and threatens to shoot her with the handgun he keeps in his bedroom. If you want a warrant to enter his house and seize the gun, you need to ask a superior court judge. If you seize his phone, then you need to ask a superior court judge for authority to search it for the texts.
  4. If you get one of these special journalist warrants, you don't get to look at any of the documents you obtain right away. You seal up the documents, and give them to a superior court judge. You give notice to the journalist that you want to look at the documents. The journalist may apply to a superior court judge for an order preventing you from looking at the documents because they reveal a journalistic source. For the example involving the homicidal journalist's cell phone, that will slow your investigation considerably.
  5. If you execute a regular warrant or production order and wind up obtaining a journalist's communications or "an object, document or data relating to or in the possession of a journalist", then the rule in #4 applies to any documents you seize. The language is so broad, it might apply to a drug dealer's score sheet or a call girl's client list - if the document contains the name of your local reporter.

I am troubled by this bill because it was advertised as protection of journalistic sources. If that's all you think of when investigating journalists who commit crime, you will fall into the technical traps it creates.

The new legislation requires you to jump through extra hurdles. If you forget, then journalists who commit crimes may beat the charges.

2017.10.21 Voyeurism - Reasonable Expectation of Privacy - Search of Digital Devices

Mr Jarvis, 2017 ONCA 778 worked as a teacher at a secondary school.

He bought an interesting camera. It looked like a pen, but it recorded video of whatever he pointed it at.

He took it to work, where he aimed it down the cleavages of his female students (and one teacher). He surreptitiously recorded video. 19 times. 33 victims. No consent.

Did he commit voyeurism, contrary to the relatively new section 162.1?

The trial judge said "no", because the evidence didn't prove he did it for a sexual purpose. The Appeal Court said that the trial judge was wrong about that. Only a prurient interest in the breasts of these young women could explain Mr Jarvis's recordings.

The appeal court had a different concern. The section says it's a crime to snoop like this only if the victim "is in circumstances that give rise to a reasonable expectation of privacy". While agreeing that what Mr Jarvis did was deeply immoral, two of the Court of Appeal judges felt that an open classroom is not a sufficiently private place to engage the section. It's not a bedroom or a washroom.

I sense that the Crown will appeal.

But there are other reasons to find this decision interesting. Like search and seizure.

A police officer first responded to the complaint from the school. The principal told him that he and other teachers had seen Mr Jarvis holding an unusual pen as if using it to video-record students. A red LED emitted light from the top of the pen. He aimed it down toward the students' breasts. After the principal saw the Mr Jarvis pocket the pen, he cornered Mr Jarvis and asked for the pen. Mr Jarvis lied, saying he left it in the classroom. When challenged, he relinquished the pen.

The principal gave it to the school superintendent, who briefed the police officer and handed over the pen.

Would you search the pen without a warrant?

The officer figured he lacked grounds to arrest Mr Jarvis. He figured he needed more information to get a warrant. So he did a cursory search of the contents of the pen. He found videos of breasts. He relied on that cursory search to justify the warrant. The judges didn't like that.

They found that Mr Jarvis enjoyed an expectation of privacy in his electronic device. The officer should have sought permission from a judge or justice before looking inside it. And they found that the officer should have known that he needed a warrant.

Then the judges observed that this expectation of privacy did not go very deep. The principal and the superintendent had authority to seize the pen-camera and search its contents. The device contained only videos of the students and no other private information. Because of that, they found that the videos could be admitted into evidence, notwithstanding the breach of the Charter.

The judges observed that if the officer had interviewed all the eyewitnesses, their evidence would have justified the granting of a warrant. The officer should not have taken the short-cut.

This last point bears consideration. You don't need proof beyond a reasonable doubt that the contraband is in the place you want to search. Just reasonable grounds to believe it is there.

The lessons to draw from this case include:

The officer could have said to the principal: "I don't have authority to look inside this device. Do you? If you do have authority, and you decide to exercise that authority, I'd like to know what you find." If you have a conversation like this, take a bundle of notes. If the teacher acts as your agent, then what the teacher finds is inadmissible.


2017.10.16 Evidence of Opportunity


In any "whodunnit", it helps to figure out who had the opportunity to commit the crime.

75 women independently complained that someone sexually assaulted them during surgeries. The only medical person common to all those operations was Dr Doodnaught, 2017 ONCA 781, an anesthesiologist.

His lawyer asked obvious questions: how could anyone do such things in busy operating rooms without getting caught? Maybe the anesthetic gave the women sexual dreams. Maybe somebody else did the things these women suggested.

Investigators studied how operating rooms work: to prevent infection, the surgeon and nurses drape the patient to separate the sterilized surgical area from the rest of the patient's body. Some of the drapes reach up quite high. But the anesthesiologist works on the other side of the drapes - where the surgical staff cannot see.

He had opportunity.

Opportunity does not prove the identity of a felon. Maybe somebody else did the crime.

Dr Doodnaught liked those drapes extra-high. The women all complained of sexual acts done to parts of their bodies that were on the non-sterile side.

The surgical team stayed on the sterile side of the drapes. To move to the anesthesiologist's side would breach medical protocol because it risked infection when they returned to the sterile side.

Therefore, Dr Doodnaught had exclusive opportunity - nobody else could have done the deeds complained of.

Okay. I took some liberties. In fact others could sneak into Dr Doodnaught's side of the room, but they rarely did. You can read the decision for yourself to get the full sense of it.

But the point remains, proving exclusive opportunity establishes identity. Partly proving exclusive opportunity partly proves identity. But even just proving opportunity helps prove the case. Proving opportunity means showing who was there at the scene of the crime, and who wasn't.

You discover that by learning as much as you can about the place and the people in it. The place could be an operating room, a drug house or the scene of an arson:

Who had access? How? What did they do there? Could anybody else have been there at the key moment?

2017.10.16 Applying for a Warrant with Weak Grounds

After investigating for a while, you know some things for sure, and you make reasonable inferences about other things. Beware of those inferences. It's easy to believe too strongly in them.

After a robbery, it took investigators 2 months to gather enough information to justify a warrant to search a residence connected to Mr Silva, 2017 ONCA 788. They had plenty of reason to believe that Silva's girlfriend lived there. They say Mr Silva attend there once shortly before they executed the warrant. And a phone that was loosely associated with the robbery was registered to �Mike Silva� at that address.

They got their warrant, and found firearms.

The trial judge felt that the grounds contained in the ITO did not sufficiently connect Mr Silva to that address to justify searching it for evidence of the robbery. The trial judge felt that the officers should have investigated more. The decision doesn't say what he was looking for, but I suspect he wanted some evidence to show that Silva stayed there so often that he would leave his possessions there.

After all, that's what a warrant application needs to establish: "the stuff I'm looking for will probably be in the place I want to search".

The judges had mercy on the officers, and admitted evidence anyway.

Why?

Because they acted in good faith. They asked a justice if their evidence sufficed, and the justice said "yes".

But beware: when drawing weaker inferences, it is easy to overstate the evidence. If you do, the judges won't be so merciful.

2017.10.16 Recording all Interaction

When police arrested Mr Silva, 2017 ONCA 788, he gave a statement taking responsibility for the guns they found. At trial, he told the judge that the police threatened to charge his girlfriend unless he made the statement, and promised to release her if he did.

The officers denied making such threats or offers.

It's easy to see how such a conversation might arise. Imagine that the conversation actually went this way:

Suspect: Did you arrest my girlfriend?
Officer: Yes.
Suspect: If I tell you I'm responsible, will you let her go?
Officer: We'll see.

At trial, the defendant will say "the officer promised me that my girlfriend would go free if I confessed".

How do you defend against that?

The best defence is a recording device, which records all conversation from the point of arrest until you're done speaking with the suspect.

2017.10.07 Swearing Affidavits - Hearsay and Process

What's the difference between knowing and believing? Lawyers may explain that you "know" what you experienced, but you "believe" what you learned from credible sources. When you swear an affidavit or information to obtain, lawyers are going to read it. It pays to distinguish between what you saw and what you learned from others.

In B.C., serious administrative penalties hit drivers who get caught with too much alcohol in their bodies. The police officer sends a sworn report to the Superintendent of Motor Vehicles. The driver can contest those penalties by challenging the sworn report. Mr Brar, 2017 BCCA 322 challenged such a report. He complained that the officer swore to the truth of facts that he had no personal knowledge of. He did this by attaching calibration certificates to his report, and swearing to the truth of the report. But he didn't do the calibrations, therefore he could not swear that the certificates were accurate. The affidavit would only be true if he swore that he believed that the instruments were properly calibrated.

It was a clever argument, but the BCCA did not buy it. The legislation permitted the Superintendent to consider unsworn documents ... and besides, the preamble to the officer's report could be interpreted to mean that he knew only his report to be true.

Such arguments do not always fail. Whenever you swear to the truth of a fact in an ITO, check it a second time. You can swear to the truth of thing you experienced. But avoid asserting that you know something to be true - even if you believe it to be true - just because someone told you so.

For example, if you didn't calibrate the instruments, but you must swear to its calibration, then you should choose your language carefully:

Wrong Right
I tested the driver's breath using instruments I know to be correctly calibrated. I tested the driver's breath using instruments which I believe were correctly calibrated because I received certificates of calibration for those instruments from a colleague. I attach copies to this affidavit.


2017.09.28 Confessions - Outside Pressure


The private security company Brinks cares about money. And when they suspect their staff are up to no good, it appears that they ask questions.

Brinks issues guns to some of its staff. It protects money. Some money disappeared. So did a gun.

Brinks reported the missing gun. Brinks management suspected their own employee took it. The security director told Mr Foster, 2017 ONCA 751 if he returned the money, they would not pursue the theft with the police. Mr Foster returned most of the money. Then the security director told him they had reported the gun. He asked Mr Foster where the gun was. The security director did not promise to withhold his confession from police, but did say he would be prepared to tell the court that he had cooperated. Mr Foster confessed that he threw it in the lake, and he took them to spot.

Brinks told police everything they knew. Police found part of the gun. Police interviewed Mr Foster. He confessed.

The lawyers saw a problem with the Brinks interviews: a "quid pro quo".  If you do something for me, I'll do something for you. And not just any kind of something: the offer was a confession in exchange for legal immunity. If you, as a police officer, even intimate such an arrangement with a suspect, then the judge will exclude any confession you receive. A confession tainted by such an offer will taint subsequent confessions, unless something breaks the connection between them.

The basic rule is that judges won't accept a confession to a person in authority unless the suspect gave it "voluntarily". There are lots of ways for a statement to be obtained involuntarily. If you don't know them, read Oickle again. (If you are a police officer and you have never read Oickle, then it's like you have an STD. Don't tell anyone, but get the problem fixed immediately. I made it easy for you, click this link.)

Inducements which suggest that the suspect will get legal immunity in exchange for a confession generally don't meet that test.

The investigating officers could have taken greater care to separate themselves from the Brinks investigation. They referred to it during their interview. Lucky for them, those references did not elicit any information.

The appeal court expressed substantial reservation that the Brinks security director was a "person in authority".

Huh?

Doesn't management have "authority"? Kinda. Management has authority over employment, but in this context "person in authority" refers to criminal investigation and prosecution. Management doesn't control that.

The appeal court found a sufficient break between the Brinks interviews and the police. See para 11.

The lawyers proceeded on the assumption that the Brinks security direct was a person in authority. In a similar situation, you should too.

If the confession to management was clearly voluntary, then go ahead and refer to it in your interview of the suspect.

But if there were offers of immunity, then make sure that the suspect understands that you're starting with a clean slate. And when asking questions about the offence, don't refer to the confession that the suspect gave to management.

2017.09.23 Disclosure - 911 Calls - Save Now, Spend Later

A friend of the family overheard Mr M.G.T., 2017 ONCA 736 fight with his wife. The friend called 911. Police attended, and took statements. Mr MGT was charged. The friend testified, so did the wife. The judge convicted Mr MGT of sexual assault.

Mr MGT appealed. During the appeal, the Crown noticed that the friend's 911 call was never disclosed to Crown or defence.

Mr MGT added that failure to disclose relevant evidence to his other complaints. Those complaints failed on appeal.

With respect to the 911 call, it would not have added anything to the case.

But it might have.

You have a duty to disclose all evidence relevant to the charge. It's hard to see how the content of 911 calls is not relevant.

The police had a standing agreement with the Crown not to disclose the 911 calls unless the Crown or defence ask for it. My office has a similar agreement with our local police. It's expensive to download, redact and disclose every 911 call, especially considering that so few cases go to trial.

This cost-saving policy means that after any conviction, the defence can ask for the 911 call, in the hope that it will reveal something new. If it does, the appeal court may well order a new trial, which is very costly.

I generally prefer to get the 911 calls before trial. Those dispatchers often elicit information that the investigators miss. Costly in the short term, but cost-efficient in the long term.


2017.09.22 Sex and Murder

To understand this case, one needs to review some easily-forgotten basics about murder.

Sexual activity - consensual or not - does not turn a killing into a murder. "Murder" involves intentional killing, (or intentional infliction of mortal wounds.)  If a man kills a woman during a rape, it isn't murder ... unless the evidence proves that he meant to kill her (or inflict mortal wounds).

But if he did mean to kill her, then he's in big trouble. Murdering someone in the commission of a sexual assault is first degree murder. s. 231

Mr Niemi, 2017 ONCA 720 intentionally killed a woman by strangling her. Then, with a knife, he sliced her sweater and bra, exposing her breasts. He cut a line along the bottom of one breast. He stripped her lower clothing off. He dumped her body. He explained to an undercover officer that he took these steps to make the killing look sexual, to throw investigators off the track. He denied any sexual purpose in the killing.

Sexual assault involves violation of sexual integrity of a person who could consent but didn't. If a person is already dead before a sexual assault begins, then it's not sexual assault. No matter what sexual indignities a person commits to a corpse that they find, it isn't sexual assault.

Was this murder "first degree" or "second"?

Surprise! It's first degree.

Someone who does sexual things to a corpse without regard to whether they are alive or dead is attempting to engage in sex without consent. And that suffices to raise murder from second degree to first degree. And a guy who assaults his victim with the intention of doing sexual things to her without her consent is committing a sexual assault already, even if he ends up killing her before getting to the sexual part of the attack.


2017.09.20 Detention for Motor Vehicle Safety - "Not on a Highway"

Mr Nield, 2015 ONSC 5730 leave to appeal dismissed 2017 ONCA 722 caught the attention of a police officer when, at 1:22am, he ran across the parking lot of a MacDonald's. He got into a car that was parked at a hotel, and drove 300m along a highway, and pulled into the parking lot of a nearby motel.

The officer suspected that Mr Nield might be drinking. The officer approached the vehicle, and opened the driver's door. The officer quickly learned that his suspicions were true.

Mr Nield complained that the officer had no authority to stop him.

The Supreme Court of Canada repeatedly affirmed that you can rely on powers conferred by vehicle safety legislation (in Ontario, the Highway Traffic Act) to stop drivers at random. In Ontario, the HTA defines "driver" to be a person operating a vehicle on a "highway". Most parking lots don't meet its definition of a "highway". Therefore, the officer could not rely on that power to stop Mr Nield.

The trial judge agreed, and threw out the case.

The Crown appealed, pointing out that police officers have other powers. Under the common law, the Crown argued, a police officer may stop a vehicle for public safety regardless whether it is on a "highway" or not. The summary conviction appeal judge agreed.

To appeal again, Mr Nield needed "leave" (permission) from the Ontario Court of Appeal. They denied leave, saying that this question is not really much in debate.

I dunno. I can think of people who might debate this topic vigorously.

If you suspect some driver might be drinking, but the car is not on a "highway" (by whatever definition applies in your province or territory), I suggest that you take a moment to assess whether that driver poses a real public risk. If you detain someone in a car at a campsite because of the possibility that he might drive drunk, I think you might encounter an unsympathetic judge.


2017.09.17 Journalists accompanying Cops - Balancing Openness and Privacy

Democracy thrives when the public knows the truth about how the government exercises power. The courts understand this well. They try to avoid publication bans except when necessary, and try to accommodate the press. CBC v. Canada (AG), 2011 SCC 2

Police are also an arm of government. Police should also want the press to explain to the public how and why officers act as they do.

It appears that senior officers at the York Regional Police understand this principle. They permitted news reporters to watch officers operating Ontario's "RIDE" programme.

The officers stopped Mr Gautam, 2017 ONCJ 577.

The reporters video-recorded the interaction. Mr Gautam failed the screening device. The officers took Mr Gautam into a breath-testing van, and offered him access to counsel. Mr Gautam talked to a lawyer in a phone booth. The reporters aimed a camera through the window and recorded that too. They recorded him providing breath samples at 152mg% and 146mg%. And they interviewed him afterwards. He explained that he had only one drink. (I guess it was a really big one.)

A few days later, the local TV station aired a story starring Mr Gautam.

At trial, the judge threw out the evidence and acquitted him.

Why? Mr Gautam complained that he could not speak frankly with the lawyer while the camera recorded him. The judge believed him. The judge felt that broadcasting the interaction violated Mr Gautam's privacy rights. The judge did not blame the officers on the street, but their management, for permitting unrestricted recording and publication.

I sympathize with both sides.

In this era of "fake news" and anti-police rhetoric, the public benefits from learning the truth about what police officers do. The senior officers had a good idea. But they should have set limits.

Legally-speaking, the worst part was how the camera interfered with the privileged conversation with the lawyer. That's an obvious breach of s.10(b) of the Charter.

But there's another problem. Our new media make privacy a precious commodity. "The internet never forgets"  Mr Gautam did not consent to the video-recording. Police compelled him out of his car and into the baleful gaze of the camera. The journalists were not assisting the officers to investigate, they were making a story for public consumption which affected Mr Gautam's privacy.

You should welcome the press and let them see how law enforcement is done. But set limits on the journalist which protect the privacy of the people under your control. Although the distressed citizens make great stories, you can only consent to aim the camera at yourselves, not the citizens. "No. While we execute this search warrant, you can't come in. We wish you could, but the judge granted permission only to us." "Yes, you can video-record the officers at this roadblock, but you must not air anything that identifies the people we stop." "No, that guy is conferring with his lawyer. Turn off the camera and give him privacy."

I thank Louis-Philippe Theriault for pointing out this interesting case to me. But for him, I would have paid it no attention.

2017.09.01 Right to Counsel - Eliciting Information after Arrest or Detention

What can you say to a suspect after the arrest but before you give him access to the lawyer from whom he wanted advice?
 
For good - but now historical - reasons, the standard police warning used in parts of Alberta contained this language:

You may be charged with <offences>. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

When an officer arrested Mr G.T.D., 2017 ABCA 274 for sexual assault, the officer dutifully advised him of his right to counsel. Yes, Mr GTD wanted legal advice. Next, the officer recited that warning.
 
Mr GTD responded that he �did not think it was rape�, because he and the complainant had a prior relationship.
 
That comment hurt him at trial.  He appealed. He complained that the officer asked him to talk about the offence before he got a chance to get the legal advice he required. That violates his right under s.10(b) to legal advice without delay.
 
All three judges of the Alberta Court of Appeal agreed.
 
Two of the judges reviewed the history behind this language. I found it interesting. Long before the Charter, judges recommended that police ask the question, in case the accused had something exculpatory to say about the offence, like "no no, I wasn't there. You need to talk to my twin brother Harold" or "Sleasy Simon lent me this car. I didn't know it was stolen."
 
That was then, this is now.
 
Right after you arrest someone, avoiding discussion about the offence right after you arrested someone is like not discussing the rhinoceros in the room. It's hard to find some other subject of conversation.  After arresting a person for a crime, many an officer has asked "why did you do it?" Bad idea.
 
Lots of people want to start talking about the crime. But if the suspect wants legal advice first, then the police officer can't ask about the crime until after the suspect gets legal advice.
 
Opinions vary whether you need to shut down a guy who just starts talking on his own.  Some argue: if you didn't ask him questions, then you didn't breach his rights. Others say: to show the judge how fairly you treat the suspect, you should stop him from talking about the offence until after he gets legal rights.
 
I think both answers have merit. I suggest that you choose your path depending upon how vulnerable the suspect is. If she's a seasoned offender with lots of experience with cops, let her talk. If he's a rookie, or suffering a mental disability, or drunk, maybe slow the conversation down. Whichever you do, take abundant notes (or audiorecord) what the two of you said.


2017.09.01 Privacy - Can you Ask a Corporation to Snitch on its Customers?

No. But they can snitch if they want. If their privacy policy permits it. Maybe.

It's complicated.

The Personal Information Protection and Electronic Documents Act (PIPEDA) tells corporations to use customer information for business purposes, but not to pass it around in ways the customer wouldn't expect. Corporations should publish privacy policies which tell their customers how much customer information the corporation will share with other people or agencies. And that helps set the customers' reasonable expectations of privacy over their data.

s. 7(3)(c.1)(ii) PIPEDA seemed to say that if a police officer told a corporation that they were involved in a criminal investigation, and ask for information about a customer, the corporation could - if they wanted - disclose information about their customer. Nobody was quite sure because PIPEDA was drafted badly. Some of its provisions are circular.

The confusion ended after R. v. Spencer, 2014 SCC 43, when the Supreme Court of Canada noticed that the provision required that police have "lawful authority to obtain the information". The court said that means police needed a warrant before they could rely on this provision. I found that interpretation weird because a different section already permitted corporations to comply with court orders. Besides, when police have judicial authority to get information, the officers don't have to ask a corporation to comply, and the corporation can't refuse. Essentially, with their strange interpretation, the court erased s.7(3)(c.1)(ii).

PIPEDA is a Federal act, and it applies only to Federal corporations. What about provincial ones?

Many provinces created similar legislation which achieves similar goals. The provincial legislation was drafted more clearly.

In R. v. Orlandis-Habsburgo, 2017 ONCA 649, the court considered Ontario's Municipal Freedom of Information and Protection of Privacy Act. (MFIPPA)

Basically, an Ontario electric company shared information with police about Mr Orlandis-Habsburgo's power consumption on request. That led to a bust. Mr Orlandis-Habsburgo complained that it was unlawful for the power company to share information with the police when they asked. What do you think? MFIPPA says:

An institution shall not disclose personal information in its custody or under its control except,

(g) if disclosure is to a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

I thought that's pretty clear. The judges didn't.

They came to the conclusion that the power company can give information if they choose, but the police can't ask for information unless they get a warrant.

I find that a troubling conclusion. Historically, police work relies upon the consent of the populace. A "good citizen" cooperates with investigators by telling what he or she knows about the offence under investigation. But it's all by consent. Citizen enjoy the right to decide not to tell what they know. If they don't like the investigation, they can stay silent. But a citizen doesn't make that decision until a police officer asks.

The court's interpretation prevents police from asking corporations to be "good citizens".

I may have over-simplified the logic of the decision. But as I read this decision, it blocks police investigations.

Suppose there's a murder in the parking lot of a building, and you think the killer may have walked in or out of the lobbies of nearby buildings, then you need a warrant or production order in order to persuade the management to let you review the security videos of their lobbies.

Of course, if all you have is the possibility that the killer walked through these lobbies, then you lack sufficient grounds to justify the warrant.

No security video to assist your investigation. Whether it catches the guilty or clears the innocent, apparently, you can't have it.

I still don't believe it. I procrastinated several weeks before writing about this case because I'm still not certain I fully understand it. The logic in the decision is more complicated than I have described it in this description. I've got more thinking to do. I may modify this post later.