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

2016.08.22 Detention, Arrest, and Inventory Search of a Vehicle

When can you search the contents of a vehicle?

Ontario's courts developed rules around inventory searches, based upon their legislation. The rules in other provinces differs, according to the applicable legislation available to them.

In two decisions, the Ontario Court of Appeal recently reviewed this area of the law.

Late at night, police officers driving an unmarked car watched Mr Dunkley, 2016 ONCA 597 visit a couple of gas stations. He went into the kiosk several times, he bought nothing, he came out. He drove away fast, through a MacDonald's parking lot, as if to shake someone following him. He drove to another gas station, and went into the kiosk. The officers told him to stop and tried to talk to him, but he fled, discarding his keys. He left the car unlocked. (He explained that he thought these plainclothes officers intended him harm; he did not know they were police.) An officer searched it for identification. When he found a firearm, he applied for a search warrant before searching further. The trial judge found that the search for identification was lawful, and even if it wasn't, the officers had authority to do an inventory search when they impounded this abandoned car; they would have found the gun anyway.

The court of appeal disagreed. The officers reasonably suspected that Mr Dunkley was up to no good, but did not have sufficient grounds to arrest him. Reasonable suspicion authorizes you to stop someone, and search for officer safety. But this empty car posed no risk to them. Reasonable belief - that the suspect probably committed crime - permits you to search the suspect and his vicinity for evidence. The court found that the officers' observations did not meet this higher standard.

Finally, the court considered whether the officers could do an inventory search. Section 221 of Ontario's Highway Traffic Act permits officers to impound "abandoned" vehicles. But the court observed that nothing about the way this guy parked his car indicated an intention to abandon it. The officers made him run away. This was not an "abandoned" car. Lacking any justification for the search, the court excluded the evidence.

A police officer saw two cars racing. He pursued one of them - an Acura - into a dead-end street. He found it parked in a driveway at a different address than the registered owner. A guy in an oversize white shirt walked away from the vehicle. Another officer found Mr Ellis, 2016 ONCA 598 nearby, wearing an oversize white shirt. Mr Ellis lived at the same address as the registered owner of the vehicle.

Because the computer system flagged Ellis as a gang member, an officer patted him down for weapons. Something in his pocket felt hard. The officer asked him to empty his pockets. Ellis had a cell phone and keys for an Acura. The officer returned them. After discussing these details with the first officer, the second officer arrested Ellis.

Police then searched the car for identification of the driver, and found a handgun.

The court approved of the pat-down search of Mr Ellis. There were grounds to detain, and reason to fear that he might harm a police officer.

The court held that the police lacked authority to search his car as part of the arrest. Although the officers had reasonable grounds to arrest him for "careless driving", the other preconditions for search incidental to arrest did not apply. Mr Ellis had put 50m between himself and the car - it wasn't close enough to be in his vicinity at the moment they arrested him. And there was no reason to believe that searching the car would discover evidence of careless driving.

On the other hand, the court found that this car was "abandoned", because Mr Ellis parked it in a stranger's driveway, in a position likely to block access to vehicles. An inventory search was inevitable, and the police would have found the gun. The court upheld Mr Ellis's conviction.

For Ontario officers who discover a recently-driven vehicle, this pair of decisions sheds a little light on whether it is "abandoned": if the car will be a nuisance to other drivers, then it may be abandoned. If it's parked normally, it may not. But other factors may lead judges to other conclusions.

For all officers, these decisions illustrate the limitations of search incidental to detention and search incidental to arrest. But I would add some cautions. The Ellis case does not establish a 50m limit for the "vicinity" of the arrest. Time also matters. Suppose you pull over a vehicle for an offence, and the suspect flees. If you chase him and catch him 100m from the car and arrest him, I think you can search his car incidental to arrest. But if you find him 30 minutes later, only 25m from the car, you can not.

Both cases emphasized the narrow scope of a search for officer safety. In the Ellis case, the suspect's gang associations justified police fears. The judges liked knowing that the officer who searched for officer safety returned the items immediately. This proved that the officer was not snooping for evidence. In the Dunkley case, they rejected the idea that the officer searched the empty car for officer safety: it posed the police no danger.

2016.08.09 Evading s.10(a) - Lying about why you stopped a target

Even though s.8 of the Charter guarantees everyone's privacy, judges can authorize you to intrude into the privacy of the targets of your criminal investigations.

But can you stop someone without telling them the truth about why? Section 10(a) of the Charter requires you to tell people why you detained or arrested them. But sometimes, you need to withhold the truth. Is there a provision of the Criminal Code which permits this?

Albertan police were investigating Mr Whipple, 2016 ABCA 232 and others for drug transactions. They didn't want their targets to know that a judge granted a wiretap authorization in respect of their communications. From intercepted communications, the officers knew that Mr Whipple would transport methamphetamine. They obtained a General Warrant under s.487.01 to search Mr Whipple's car. That order authorized the police to mislead Mr Whipple - if necessary - as to the reason for stopping him.

The officers actually found Mr Whipple committing a traffic infraction. They didn't need to mislead him about the reason for the traffic stop.  And they did, quite quickly, inform Mr Whipple of the drug search too.

Defence complained anyway.  They pointed out that s.487.01 creates exceptions to s.8 of the Charter, but not to s.10(a). The trial judge agreed, and ruled that the general warrant was invalid.

The Court of Appeal disagreed.

They observed that the general warrant authorized police to search Mr Whipple's car, which is a matter under s.8 of the Charter.  The fact that it authorized police do the search in an unusual way did not invalidate the general warrant.

The way they saw it, the interference with Mr Whipple's s.10(a) rights was necessary to the execution of a justified general warrant.

I dunno.  My gut urges caution. Because s.487.01 only permits police to do what would otherwise be an "unreasonable search or seizure in respect of a person or a person’s property", I still don't think that s.487.01 can be used - by itself - to authorize police to lie to detainees about why they were stopped.

In this case, if there was any authority to permit police to lie about the reason for a detention, I think it came from s.186 - the wiretap provision. If the wiretap operation required ongoing secrecy to achieve its purpose, then a judge exercising the wiretap powers could make a specific order pursuant to s.186(4)(d) ("... such terms and conditions as the judge considers advisable in the public interest") which would protect the secrecy of the authorization.

But I can think of situations in which no existing legislation could help.  Suppose a confidential source tells you that right now, a terrorist is driving to a daycare to blow up children. The source begs you to lie to the suspect about your reason for stopping him. She tells you that his colleagues know what he's going to do today, but only she knew which daycare he decided to hit. You find the suspect's vehicle on the road one block away from the daycare. It commits no traffic violations. Of course you stop the van. What do you tell the driver?

I think you should lie. The suspect has a right, protected by s.10(a) of the Charter, to know why you stopped him. You would violated that right. But the source has a right, protected by s.7 of the Charter, to life.

I think that Parliament should pass legislation by which a judge may authorize a police officer to lie about the reason for a detention. This case illustrates why such legislation makes sense. I also think that there should be an exigent circumstances exception.

I thank Cst. S.D. Smith for bringing this decision to my attention.

2016.08.05 Possession of Data in a Computer - Breadth of Search

Last year, I wrote about this case.  Last week, the Supreme Court of Canada weighed in. Although the court overturned the Alberta Court of Appeal's rulings, my suggestions for police remain the same. I repeat them here, so that you can see why.

Mr Villaroman 2016 SCC 33 brought a Macintosh computer to a computer store for repairs.  Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net.  Links in the file system suggested that someone viewed the files too.  The two people who lived with Mr Villaroman did not put the files there.  But was it Mr Villaroman?  The trial judge thought so, and convicted him.  The appeal judges weren't so sure.  The one account had no password. They said.

"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."

The Supreme Court of Canada found that the Court of Appeal erred in their re-assessment of the case by speculating about innocent explanations for the evidence in the computer. But the court also commented that a different trial judge could have acquitted Mr Villaroman based on the same evidence.

Even after reading the trial decisions (2012 ABQB 630, 2013 ABQB 279), I can't be sure I know just how much evidence the investigators actually discovered which linked the accused to the pornography.

It's clear that they sought judicial authority to search the computer for child pornography.

With the benefit of hindsight, I see that searching for probative non-criminal data might have helped.  For example, I don't think they looked for emails with similar date stamps as the pornography.  If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.

Can you snoop through the emails?  Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search.  Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant.  And the warrant should explicitly grant you that authority.

Playing armchair quarterback, I suggest that the investigator in this case could have sought authority "to search emails, stored communications and documents in the computer bearing date stamps close in time to the date stamps associated to the child pornography for evidence of who operated the computer at the times when the child pornography was downloaded, viewed or accessed."

2016.07.19 Search & Seizure - Reasonable Expectation of Privacy - Text messages in Other People's Phones

Mr Winchester bought guns. Legally. 45 guns over 6 months. Police received information that he sold them on the black market, and got search warrants for several places, and got Mr Winchester's cell phone. In it, they found text messages that proved Mr Marakah, 2016 ONCA 542 committed firearms offences. The trial court found that the police violated Mr Winchester's s.8 Charter rights during their search. Mr Marakah asked the trial judge to exclude the text messages from his trial because he still enjoyed an expectation of privacy over them. Even though the police found them in someone else's phone.

The trial judge found that Mr Marakah had no expectation of privacy in the text messages in Mr Winchester's phone. Even though police searched Winchester's phone unlawfully, the court admitted the text messages from the phone into Mr Marakah's trial.

Two out of three appeal court judges agreed with the trial judge. They rejected the reasoning of the BC Court of Appeal in Pelucco, 2015 BCCA 370, which reached the opposite conclusion in a similar situation.

But those Ontario judges didn't say what you wanted them to say: "A person who sends text messages to another person always loses any expectation of privacy in those messages." See para 78. An explicit arrangement or guarantee of confidentiality between sender and recipient may create an enforceable expectation of privacy. But that's the exception in most cases, not the norm.

Therefore, in Ontario, most of the time, the sender of text messages doesn't enjoy an expectation of privacy in them after they arrive in the recipient's phone.

When courts of appeal disagree with each other, the law becomes confused.

Because people use text messaging so much, on phones and other communication technologies, you want clarity.

Because one Ontario judge disagreed, Mr Marakah can, if he wants, require the Supreme Court of Canada to hear his appeal.

2016.07.16 Executing DNA warrants

Take a picture

Why would an officer take DNA samples from a suspect? The answer is easy: to identify the suspect. I suggest that if you do not know the suspect very well, you will want to take a photo of the suspect's face at the same time as you take the samples, so that you can remember whose DNA you got.

In a recent case of mine, a police officer in one city assisted another officer in another city by executing a DNA warrant on the prime suspect. The officer who executed the DNA warrant had no other involvement in the case, and met the suspect for only a few minutes.

Two years later, at trial, the officer couldn't remember the face of the defendant. Considering the purpose of DNA comparison, this tended to defeat the work he did taking the sample. Fortunately, he did take care record information from suspect's driver's licence, and compare the photo on it with the face of the suspect.

Can you take a picture of the person from whom you take the bodily samples? Defence counsel might argue that doing so violates s.8 of the Charter. "If it ain't in the warrant, you can't do it." I observe that the Criminal Code makes no provision for photographing he suspect at the time you take bodily samples. Instead, s.487.07(3) requires you to ensure that the suspect's "privacy is respected in a manner that is reasonable in the circumstances".

I think you can. In B.C., the case of Multani, 2002 BCSC 68, the court approved of officers taking photos of drivers they detain for traffic offences, for the purposes of identifying the driver afterwards. I think the same logic applies to the execution of a DNA warrant.

Indeed, I would go further, and suggest that you can video-record the execution of a DNA warrant for the purpose of proving compliance with the terms and conditions of the warrant. Police did this in an old case Kanuma, 2002 BCSC 355

Read the warrant

I learned recently that RCMP recruits learn at Depot how to take bodily samples for DNA analysis. The RCMP here in BC use a kit, which contains a checklist to follow. I suspect that someone trains them to follow the checklist.


Checklists can make junior officers complacent.

When you execute a DNA warrant, your authority comes from the warrant, not the checklist. Read the warrant. If the warrant tells you to something different from the checklist, then obey the warrant.

2016.07.16 "'Ello, 'ello, 'ello. What's all this then?" - Detention at the earliest stage of the investigation

Angel Daley, 2016 ONCA 564 tried to pawn jewellery at Money Mart. Her friend Sharon Stockton, waited outside in Angel's car. The clerk the store noticed that Angel's jewellery resembled stolen jewellery depicted in a recent police flyer, so she called police.

The police who attended tried to figure out whether Angel's jewellery was the stolen jewellery depicted in the flyer. Meanwhile, they wouldn't let her go. Therefore, they "detained" her. For approximately 40 minutes.  Without telling her of her right to counsel.

From her, they learned about her car, waiting outside. An officer spoke with the friend, and saw more jewellery in Ms Stockton's possession that looked like stolen jewellery. He arrested her, searched the car, and found Angel's fentanyl, and a rather nasty knife.

At trial, Ms Daley's lawyer asked the judge to throw out the evidence: 40 minutes of waiting demands an explanation; and detentions trigger rights to counsel. They complained as well of an unlawful search.

The trial judge admitted the evidence, but the appeal court threw it out. Nobody explained why looking at some jewellery took 40 minutes. In the absence of an explanation, the detention was arbitrary. The officer should have given Ms Daley her right to counsel. (The judges agreed that the search was lawful.)

 We all know that you can overlook important evidence when you move too fast. This case suggests that you can also cause trouble by going too slowly while a detained suspect waits. I suspect that the officer stopped Ms Daley from leaving the store, and then slowly and methodically figured out what the problem was. If it looks like a detention will take a significant time, then you should talk to the suspect about lawyers. If it does take a long time, you may need to explain why.


Production Orders for Stored Text Messages

Over the last several years, judges reached different conclusions on whether you need a production order or wiretap to compel a telephone company to disclose text messages stored in their servers. Last week, the Ontario Court of Appeal weighed in. Here's the current list, by province:

I think this issue is now pretty much decided: production order, not wiretap.

Similarly, a search warrant is an appropriate tool to search cell phones for text messages. Desjardins, 2014 QCCS 6790

2016.07.05 Agents - Lawful Justification

 - Role of Police

Last week, the British Columbia Court of Appeal published a decision it made 6 years ago. R. v. Lising, 2010 BCCA 390. I don't know why it took so long. It remains interesting reading for officers who deal with confidential sources and agents.

For 10 years, Michael Plante collected debts for the Hells Angels. In 2003, after an arrest for extortion, Plante decided to work for the RCMP by infiltrating the Hells Angels. The RCMP paid him handsomely: over $1M over several years. All he had to do was help the police bust the gangsters ... while committing enough crime that the gangsters would continue to trust him.

A cop named Bob Paulson oversaw the project. He saw a problem. The public pays police to prevent crime, but this project involved paying a guy to commit crime. That participation would make the police parties to Plante's crimes. Canadian law requires police to obey the law, not break it. Police officers don't get a mulligan just because they're trying to catch bad guys.

Fortunately, a couple of years earlier, Parliament passed legislation enabling specially-designated officers to authorize a person to do things that would otherwise be crimes. s.25.1.

If you use the legislation, then these acts aren't crimes, so I'll refer to them as "acts".

How does that work?

Investigative plans take time to develop. While working with police, Mr Plante intimidated witnesses, ripped grows, and trafficked in large quantities of drugs and firearms. It took many months for police to prepare a Letter Of Agreement (LOA) which set the ground rules for Mr Plante's immunity from criminal prosecution. (There were several LOAs after that.)

Although s.25.1 and similar provisions in the CDSA justified some of Mr Plante's "acts", others were crimes.

The investigating police were parties to the crimes. Defence applied for a stay of proceedings.

But Bob Paulson did some things the court liked.

The handlers did some things the court liked.

Mr Plante did some things the court liked.

These things resulted in:

Even though the police and Mr Plante did not comply immediately nor completely with s.25.1, the court denied the defence application, and the Hells Angels who were convicted at trial lost their appeal.

And Bob Paulson got a promotion.

Despite its age, I think this decision remains worthwhile reading for police officers. It reminds officers of highest principles: police enforce the law, but are not above the law. This applies as much to traffic cops as organized crime investigators. And it demonstrates practical steps you can take when working with nasty people.


2016.07.04 Search and Seizure - Warrant drafting - Avoiding "Step 6


A confidential source told police that Mr Reid, 2016 ONCA 524 kept firearms in a specific storage locker. Relying almost entirely on what the source said, police applied for, and obtained, a warrant to search that locker. They found guns. Lots of them. Stolen only a few days earlier.

What the police found suggests that this source enjoyed a position very close to the criminals. Obviously, this source would not want to be identified.

At trial, defence applied to quash the warrant.

As required by the case of R. v. Garofoli, [1990] 2 SCR 1421, the prosecution had to disclose a copy of the original application. Before doing that, the prosecution redacted (deleted) from the application everything that tended to identify the source.

This source was too good - almost everything s/he told the police tended to identify him/her. After redaction, what remained could not justify the issuance of the warrant. Mr Reid would win the application, and beat the charges.

The prosecution moved to Garofoli's "Step 6": the prosecution prepared a summary of the confidential source's information. The summary contained too little detail to identify the source, but just enough to explain why a warrant could issue. The prosecution gave that summary and the original unredacted application to the trial judge, and asked the judge to determine whether the summary fairly explained what the confidential source told police. The judge compared them, and found the summary accurate. The prosecution gave the summary to defence.

Working from the summary, defence complained that the original application failed to spell out what criminal record the source had, whether the source faced outstanding charges, and whether the source had previously given information to a police force. Defence complained this was essential information which the first justice needed in order to decide whether to trust the source and issue the warrant.

These are fair complaints, but they didn't succeed because of the very detailed information this source gave. In other cases these issues may make or break the case. When relying on confidential informants, search for this information, and include it as an appendix. Here's what you can write to achieve this:

I searched for source A's criminal convictions in CPIC [and any other database available to you], and I attach as Appendix A1 the complete list of what I found.

I searched for source A's outstanding charges in [whatever database is available to you], and I attach as Appendix A2 the complete list of what I found.

I investigated source A's past performance in giving information to police. I understand that 7 times in the past 5 years, source A gave police information about criminal activity. Further investigation confirmed the source's information 3 times. The other times, the source's information could neither be confirmed nor contradicted. I attach as Appendix A3 more detailed explanations of the information this source provided, and how further investigation confirmed it.

Naturally, the prosecution will redact the appendices. A1 and A2 tend to identify the source. But what remains in your application shows the trial judge that you disclosed the information which the first judge needed to assess the credibility of your source.

Similarly, you can summarize the source's information in your application, and include the details for the prosecution to redact. Suppose your source says "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns." That information identifies your source. You may summarize it, and include the detail for redaction:

Source A reported that Mr Reid possessed firearms in locker 13 at the premises of Vigilant Custodian Storage within the last 14 days. Source A claimed s/he obtained this information not by gossip, but from her/her own observation or by hearing or overhearing the words of a person who claimed direct knowledge. Specifically, Source A said: "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns."

Plainly, the emphasized portion must be redacted. What remains is true, but does not point so directly to the identity of the source. It leaves open the possibility that the staff at Vigilant Custodian Storage saw the guns, or that they or someone else overheard Mr Reid and the source talking. And the remaining information explains why a warrant should issue to search the locker.

Why should you bother preparing the "step 6" summary when applying for a warrant? After all, the prosecution can do it at trial.

Step 6 is controversial. In Mr Reid's appeal, he tried to argue that it's unconstitutional. Step 6 is tricky to do. If you lay the groundwork when you apply for the warrant, then the prosecution stands a better chance of success at trial.

2016.07.02 Exigent Circumstances Search

A woman called 911. She said she heard her neighbours arguing.  The male threatened to kill the female. The female cried and pleaded, “please don’t kill me.” She heard loud banging and crashing coming from their apartment.

Officers attended, and knocked at the door. No answer. After they knocked more, a woman answered. She refused to open the door. She spoke to someone behind the door, but she told police she was alone.

What would you do?

These officers feared that a man posed the woman serious risk of harm which they felt obliged to prevent.  They sought permission from superiors to break in. Before that occurred, the woman stepped out of the apartment, unharmed. Without her permission, the officers entered and searched. They found Mr Lowes, 2016 ONCA 519 hiding under a bed. They found drugs.

The trial judge excluded all the evidence. He reasoned that the officers could have assured themselves of the woman's safety by questioning her, by questioning the neighbor who made the 911 call or by getting a warrant.

The appeal court ordered a new trial.

The neighbor's information gave reason to fear for the woman's safety.  The woman's apparent lies at the door about who was home gave the officers reason to fear that the man was controlling and directing her.

In my opinion, the trial judge correctly identified an important principle: even in exigent circumstances, where life and limb are at risk, you should not search private places if there are reasonable alternatives by which you can ensure people are safe. But the trial judge's proposed alternatives in this case weren't reasonable. The woman already told lies; questioning her wasn't a good way to ensure her safety. The neighbor was in a poor position to assess the woman's safety. And the officers lacked sufficient grounds to justify any warrant. The appeal court found that entry and search was the reasonable response to the situation.

Therefore, this case provides some guidance for first responders who encounter similar situations all too often.

I particularly liked how these officers sought a second opinion from a senior officer before entering. In the excitement of the first response, it's easy to act without second thoughts.

2016.06.23 Search and Seizure Incidental to Arrest - Genital Swabs & Fingernail Clippings

Courts across Canada disagreed whether police could swab the penis of a man arrested for a recent rape.  This morning, the Supreme Court of Canada swept away the confusion. R. v. Saeed, 2016 SCC 24.

Yes. You can. If:

BUT, the court set guidelines:

  1. Do it at the police station if at all possible;
  2. Protect the health and safety of all involved - gloves and sterile equipment;
  3. Don't act alone - ask a superior officer for authorization;
  4. Tell the suspect what you are going to do, why, and what your authority is;
  5. Let the suspect remove his own clothing and swab his penis himself; or, "if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary";
  6. Officers of the same gender as the suspect do the swab "unless the circumstances compel otherwise";
  7. Minimize the number of officers involved;
  8. Do it in a private place where others can't watch;
  9. Don't strip the guy completely naked; expose only what you need to get the job done, and minimize the time during which he is exposed;
  10. Keep a complete record of what you did and why.

These are not rules. I suspect that number 5 may cause difficulty with some suspects. If your suspect won't strip or swab his penis properly, you can help him.

Mistakes other officers have made in other cases include:

Feel squeamish? From my experience prosecuting cases like this, I can see reasons to train officers to do this kind of forensic work:

2016.06.17 Arrest and Detention - Explaining Why - s.10(a)

Dennis Guthrie, 2016 ONCA 466 assaulted someone at the Shepherds of Good Hope shelter in Toronto. He hurt the guy badly. Police arrested him that night for "assault causing bodily harm". He didn't seem drunk or high. Police let him speak with a lawyer. Next morning, 11 hours later, an officer interviewed him.  He told the officer that he had no memory of the events of the night before.

At that point the officer said some important things:

This decision is very short and to the point.  An easy read.

Lessons to draw from it:

2016.06.11 Disclosure - Liability

"Those who cannot remember the past are condemned to repeat it." George Santayana 1906.

Ivan Henry 2016 BCSC 1038 recently received an award of $8M. He spent 27 years in jail for rapes he probably didn't commit. This decision explores what went wrong.

In 1980-1982, police investigated around 20 similar sexual assaults. Mr Henry's ex-wife told police that she suspected Mr Henry. Police assembled a live line-up to which a group of complainants attended.  One of them gave a qualified identification of Mr Henry.

Mr Henry, who suffered mental disorder, fired the lawyers he retained. He represented himself - poorly - at trial, and the jury convicted him.

Years later, prosecutors noticed a striking similarity between his charges and and other offences committed around the same time by a guy named McRae. A review led to the conclusion that the evidence suggested Mr Henry didn't commit the crimes for which he was convicted.

Although there were problems with the police investigations too, the bulk of the blame for this wrongful conviction fell on the prosecutor, who failed to disclose investigative materials to defence.

What relevance do prosecutorial mistakes made 35 years ago have to current police practice?  More than you might first expect.

Cross-referencing similar files might have discovered Mr McRae earlier, and taken suspicion away from Mr Henry. Collecting, organizing and assessing relevant information was a problem then. It's still a problem today.

The methods of conducting lineups described in the decision may seem antique to you, but complacency about our methods today will lead you astray. Even today, some officers still tell eyewitnesses after the photo-lineup whether they got the identification "right".  Even today, we see photopacks containing images of the suspect which differ markedly from the other faces.

2016.06.01 Warrants - Night Search - Arresting the Occupants

A junior officer made a common mistake. A senior officer's experience saved the day. Understanding the principles involved could help your next case.

A storage locker facility renovated, and discovered that one of their lockers contained a bunch of firearms. So they called police. Police got a search warrant and found 4,000 rounds of ammunition and 1.5 kg of ecstasy in the locker along with a machine gun, an assault rifle, and sawed-off shotgun and 7 other pieces.

The junior officer drafted an application to search the residence of the person who rented the locker. He didn't think he had grounds to believe that the residence contained firearms, so the warrant asked only for authority to search for keys and documents of ownership. He got started in the morning, but didn't finish until shortly before 9:00pm.

He forgot to ask the justice for permission to search the residence "at night".

The justice signed the warrant at 9:02pm, but it did not specifically permit police to search by night.

The junior officer radioed the rest of the team, which was watching the residence.  The senior officer watched the woman who rented the storage locker leave her apartment with a man. The officer knew little about the woman, but he knew a great deal about Mr Robinson, 2016 ONCA 402, the man with her.  Mr Robinson embraced and kissed her.  The officer knew Mr Robinson to be a "player" in the local criminal underworld, a man who dealt with guns and violence. The senior officer knew who dealt in guns often kept some in their residences.

The senior officer ordered the arrest of Mr Robinson for possessing firearms. On his person, they found keys to the storage locker and the apartment. That night, they found guns and drugs in the apartment.

Defence complained that the police had no authority to search at night. The judge agreed. Night starts at 9:00pm. Police officers shouldn't execute regular search warrants at night without specific judicial authority. s.488.

Defence complained that police had no authority to arrest Mr Robinson: If the junior officer didn't have grounds to believe that there were guns in the apartment, then the senior officer had no grounds to arrest him for possessing firearms.

The judges disagreed. The logic here matters:

  1. A search warrant does NOT authorize any arrests.  A search warrant authorizes searching. If you want to arrest someone associated to the place you search, you must know for yourself why you think the person probably committed an offence.
  2. The junior officer didn't believe the apartment contained firearms. He didn't have enough information to reach that conclusion. But the senior officer had more information than the junior officer. He saw the association between the renter of the locker and the known gun dealer. From that he could infer that the gun dealer controlled the guns, and was in actual or constructive possession of the firearms.  He could arrest Robinson.

The senior officer testified that he thought the warrant authorized a search for firearms. He was very surprised that the junior officer did not ask the justice for authority to search for guns. The senior officer would have identified firearms as the first thing to look for in the apartment.

I don't think this reflects badly on the junior officer. Although he suspected guns would be in the apartment, he didn't think he could say that it probably contained them. When applying for a warrant, you shouldn't ask for authority to search for things you hope to find unless you think it probable that you will find them.

The senior officer made a quick decision to arrest Mr Robinson. It was the right decision because he knew the underlying investigative facts.

At the time of the arrest, the senior officer didn't know what the warrant authorized. From the judgment, it appears that defence counsel suggested this fact mattered. I disagree. The practicalities of getting the warrant from the justice to the scene prevented the senior officer from reviewing the warrant at the time of arrest. That didn't matter ... as long as the senior officer knew the underlying investigative facts, he would actually have reasonable grounds to arrest.

But communicating the contents of the search warrant to the scene does matter. Members of the search team needed to know what searching the warrant authorizes. Bringing a copy of the warrant to the scene does matter. Section 29 requires you to do so "where feasible", and to show it to people who want to see it.

The judge forgave the night search as an inadvertent error. The judge convicted Mr Robinson of possession of firearms and drugs in the apartment. The judge acquitted him of the guns at the storage locker because the evidence wasn't clear which locker the guns and drugs came from.

In conclusion:

  1. Never arrest someone just because you have a warrant to search their place.
  2. Arrest if you have grounds.
  3. Night starts at 9:00pm. Warrants under s.487 require separate justification.
  4. Officers on teams that execute search warrants should know what the ITO says.
  5. Bring the warrant to the scene.
  6. Officers who search should read it.

2016.05.27 Hard Arrest & Isolating the Prisoner

Police received a tip that marijuana grew inside a house at 24 St. Claire Avenue. Hydro records tended to confirm it, but those records identified the house at 21 St. Claire Avenue as equally suspicious. Both houses smelled of weed. FLIR showed strange heat patterns coming from both.

Just before executing search warrants for the two residences, officers saw Ms Pino, 2016 ONCA 389 carry a box from number 21 St Claire Avenue. She put it in the trunk of her car and drove away. They followed her. She drove to Value Village, where she got into the passenger seat, and a man took the wheel.

Two officers arrested Ms Pino and her companion. One officer drove an unmarked car. He wore black clothes and a black mask over his face. Only a police vest identified him.

The box contained 50 clones.

To prevent Ms Pino from tipping off her neighbors or others who might destroy evidence, the officers did not permit her to call a lawyer until after the search. It uncovered a large grow operation in her house.

At trial Ms Pino complained of excessive force used during the arrest. She and her friend testified that the masked officer drew his gun and pointed it at her. He terrified them unnecessarily.

The masked officer denied drawing his gun. The other officer "couldn't remember" whether or not his partner drew a gun.

The judge believed the defendants over the officers.

Ms Pino complained that police did not properly advise her of her right to counsel. The arresting officer recited the s.10(b) warning for memory at the scene because he didn't bring his duty book, which contained the standard card. At court he could not remember the wording.

Ms Pino complained of unnecessary delay after the search in permitting her to speak with a lawyer. The search started at about 3:30pm, but she didn't get to talk to a lawyer until 6:40pm (when most lawyers have left their offices). Once the police arrived at St Claire Avenue with all the vehicles and people necessary for the searches, there was no longer any point in keeping the investigation secret.

Although the trial judge admitted the evidence, the court of appeal found there were too many serious breaches of Charter rights, and excluded it. Guilty as she was, Ms Pino beat all the charges.

The full truth about this investigation can not be determined from reading the decision. Maybe the defendant lied to beat the charges. Maybe the officer never drew his gun. If so:

Maybe the officer did draw his gun. If so, then:

Aside from use of force, the arresting officer garbled his recitation of Charter rights in the court room. If you're gonna explain the rights by memory, then make sure you can always recite them accurately.

And finally, giving your prisoner prompt access to counsel always matters. You can suspend access to counsel if you fear that the prisoner will foil a police investigation.  But after you enter the property, it's time to let prisoners call their lawyers.


2016.05.17 Investigative Detention

 - How Long can you Hold a Suspect in Investigative Detention?

Doherty J.A. didn't like what the police did after they stopped Mr McGuffie, 2016 ONCA 365. Doherty is a respected judge whose words will inspire defence lawyers to criticize lengthy investigative detentions. This decision is worth reading.

Someone told police that a group of men down at the bar were passing a handgun around. When officers attended to investigate, bouncers pointed out Mr McGuffie, who was walking away in a hurry as one of the group.

An officer stopped him. And handcuffed him. And patted him down. The officer found nothing at that stage, but put him in a police car with another police officer, pending further investigation. The officer said nothing about access to lawyers.

It wasn't a very good pat-down search. Half an hour later, the officer searched him again. This time, he found a package of cocaine, for which the officer arrested him. Mr McGuffie said he wanted to speak to a lawyer. Half an hour later, the officer took him to the police station - several blocks away, where he arranged for a strip-search. By this time, other officers had already found the gun they were looking for. They found more drugs in his clothes and between his buttocks. After the strip-search, Mr McGuffie finally got to talk to a lawyer.

The judges agreed that the officer had sufficient reason to detain Mr McGuffie, but criticized him for not advising Mr McGuffie that he could talk to a lawyer. The judges agreed that the concerns about firearms justified the initial pat-down search.

But they didn't like what followed.

They didn't like the half-hour of sitting around. They didn't like the hour that passed before Mr McGuffie got access to counsel. They didn't like the second search. If it was really for officer safety, why was it okay to leave him in the police car with an officer for half an hour?

It's easy to see how events distracted the main officer in this case. When he first arrived on scene, he probably felt pressed for time. He wanted to secure one suspect, and then make sure others did not escape the area. He likely gave the initial safety search short shrift, figuring he could return to Mr McGuffie later. And then he got busy with other matters.

But constitutional rights are assessed from the perspective of the claimant. When the handcuffs clicked around Mr McGuffie's wrists, he couldn't go anywhere. He was detained, and he knew it. Section 10(b) says that on detention, he has the right to counsel "without delay". But he didn't get to speak to a lawyer for over an hour.

Police may search a detainee for officer safety. The first search was okay. But the second one looked an awful lot like a search for evidence. And until you have grounds to arrest, you can't a detainee search for evidence of crime.

It's easy for first-responders to fall into the traps that caught this officer. For that reason, it's worth discussing. How would you avoid the pitfalls?

2016.05.08 Group Attacks

 - Who Done the Damage?

The bouncers didn't like Mr Ukwu. After they threw him out of the bar, one bouncer, Mr Taing knocked him down with a punch. Mr Ukwu got up, and then the other bouncer, Mr Brouillard, 2016 ONCA 342 knocked him down again. He stayed down, because this time his head hit a curb. He suffered life-changing head injuries.

Sure, Mr Brouillard could be convicted of aggravated assault.

What about Mr Taing? His punch didn't cause the head injury.

Yup: Mr Taing was also guilty of aggravated assault. But only because he acted in concert with Mr Brouillard.

When a mob attacks, the evidence often fails to identify who caused the injury or death. If you can't find that evidence, look for evidence which determines whether they acted together.

2016.05.02 Reasonable Grounds and Confidential Sources

Was the information three confidential sources gave police sufficient to justify arresting Mr Dhillon, 2016 ONCA 308? Judging whether you have reasonable grounds for an arrest based on confidential source information requires a gut feeling for what judges will do. This case helps.

All three confidential sources told police officers that Mr Dhillon dealt drugs. Two told police that they bought drugs from him. None had given information to police before; but none were anonymous.

Police watched Mr Dhillon, and saw him meet several people for short periods of time. When they attempted to arrest one of his visitors, that person fled. That guy carried $3,000 when they caught him.

Fearing that word of that arrest would get back to Mr Dhillon, police arrested Mr Dhillon.

Did they jump the gun?

Defence attacked the independence of the confidential sources: did police know that the sources were all different people?


The officer who decided to arrest Mr Dhillon knew that two sources were different people, but couldn't be sure that the last one was not the same person speaking to two different officers.

Defence suggested a conspiracy: at the time of deciding to arrest Mr Dhillon, could the officer be sure that the sources did not make up a story together just to get Mr Dhillon into trouble?

Officers handling these sources told them that giving false or exaggerated information would result in non-payment, or even criminal charges. They dealt with these sources personally.

The defence arguments persuaded the trial judge, but not the appeal court.

This decision highlights communications between source handlers and the officers who rely on source information. Independence of sources, and their personal knowledge took the appeal court half of the way to the point of finding that there were reasonable grounds for the arrest. Confirmation by way of observing suspicious transactions carried them the rest of the way.

2016.04.27 Voluntariness and Confessions - What the Judge may Think

Police arrested Mr Donard, 2015 SKCA 83, and told him they were investigating him for an aggravated assault. But the officers also asked him about some rumours going around that Mr Donard murdered someone named Yooya.

The officer who interviewed him suggested that a judge would want him to be truthful and if Mr. Donard told the truth, he might not have to sit in jail as long.

That's a problem. Judges don't like it if you link the idea of confessing to the hope that the justice system will give the suspect a break. It puts unfair pressure on the suspect. Don't raise that idea yourself. If the suspect asks, avoid it. "I can't tell you how a judge is going to feel, or what a judge is going to do."

After that conversation, Mr Donard admitted killing Yooya. The officer immediately arrested him for murder, and told him his Charter rights. But the officer did not tell him the secondary warning.

Mr Donard made several more statements about killing Yooya.  The trial judge found most of them inadmissible.

If you arrest someone for an offence, and you want to investigate him for another offence as well, you should mention both offences when offering him access to counsel. "Jimmie: I'm arresting you for aggravated assault, but I'm also investigating the disappearance of Mr Yooya, and I suspect you might be involved. You have the right to retain and instruct counsel without delay..."

If an interviewing officer does stray into linking confession with lenience in the court room (or maintaining silence will aggravate the judge), then as soon as possible, someone needs to give the suspect the secondary warning.

The big problem for you is how to start afresh without tainting the second statement with anything discussed in the first statement.  If you identify the improper inducement, you may re-emphasize it. It's better if a different officer takes over, and starts afresh. Read the secondary warning, but discuss it too. "Jimmie: Cst Mistake made a mistake in his interview.  Everything you told him before is off the table. I'm starting fresh. I don't know what you told Cst Smith, but anything he told you, anything you guys talked about, it's off the table. If he said anything that made you think you should tell police officers about what happened to Mr Yooya, just ignore what he said."

Really start afresh. Do not refer to admissions obtained in the earlier statement (unless they arose before any improper inducement).

In Mr Donard's case, the police arrested Mr Donard a month later for the murder. They gave him an extensive opportunity to consult with counsel. He gave a further confession. The court admitted the last statement into evidence, but not the earlier ones.

2016.04.23 Search & Seizure - Exposing your Sneaking and Peeking

Informants and tipsters told police that Mr Coderre, 2016 ONCA 276 dealt drugs from his residence. But when would the drugs be there? Instead of simply knocking on the door and searching the place, the officers got a general warrant which permitted them to sneak in and snoop about, without telling him. The case doesn't say why they needed such permission, but I suspect that they wanted to arrest him when he actually possessed drugs.

Section 487.01(5.1) requires "sneak and peek" warrants to include a notice requirement. The judge must order the officers to return later, and inform the person whose privacy they violated about what they did.

This sneek-and-peek order properly included a notice provision.  It required the officers to tell Mr Coderre about their covert entry into his house. They had 6 months.

The officers didn't find drugs when they snuck in. But their source information made them pretty sure they would catch him some time soon.

Around 6 months later, they got more information.

What should you do? If they told Mr Coderre about the first search, then he'd make sure they never caught him.

Days after the 6-month mark, these officers applied for a new search warrant. In the ITO they explained that they had failed to comply with the notice requirement. And they asked for permission to search his place again.

They got it. They searched. They found drugs. They busted him.

At trial, he complained that they breached his Charter rights by failing to comply with the notice requirement.

The court agreed.  But the judges liked how honest the police were about this. The evidence went in anyway.

Don't expect they'll always forgive this breach.

If you have a deadline, diarize it, and make sure get the notice done before the deadline.

What if you find yourself in the same position position as these officers? Giving notice would wreck your ongoing investigation. One thing these officers did right was to confess their mistake right away. That honesty paid. There's another solution: apply to court for an extension on the deadline for notice.

And that's where a little planning could save you some grief. If you're drafting a "sneak-and-peek" warrant, you might want to slip a little extra language into the terms and conditions:

Subject to further order of this court, the peace officers who execute this warrant shall, no later than (date), notify (names of persons whose privacy will be affected) of the warrant and its execution.

Those magic words turn an application for an extension into something the original judge contemplated and permitted.

2016.04.13 Search & Seizure - How to "Fix" Broken Warrants

Officers investigating internet luring needed a warrant to get Mr Craig's 2016 BCCA 154 information from Nexopia's servers in Alberta. Although the ITO properly identified the username of the account of interest, the draft warrant misspelled it. The judge granted the warrant.

A police officer learned of the problem and asked Nexopia to produce information using the correct username. Another officer added words to the warrant, so that Nexopia would search not only their servers but also "compact discs or digital video discs (DVD) containing" the interesting data.

That was a problem.

As a peace officer, you have no authority to change a judicial order. If judge orders the wrong search, then get a judge to fix the order.

The officers' "little" corrections led to problems.

2016.04.13 Search & Seizure - Reasonable Expectation of Privacy - Private electronic communications

Mr Craig 2016 BCCA 154 sent Nexopia messages to a 13-year old girl. She said they met once. Then his messages became more sexual. The second time they met, he had sex with her knowing she was underage. Eventually, word of this reached police, who sought warrants to get data from his Nexopia account ... and her account, as well as the Nexopia accounts of two of her girlfriends.

As set out above, there was a problem with the warrant.

After charges were laid, the prosecutor tried to circumvent the problem. Rather than relying on the messages from Mr Craig's account, the prosecution relied only on the messages from the girls' accounts. The prosecutor argued that Mr Craig could complain about unlawful searches of his data, but he can't complain about the unlawful searches of other people's data.

It worked at trial, but the Court of Appeal disagreed.

In a fully considered judgment which I expect will re-appear in the future, the court concluded that Mr Craig enjoyed an "expectation of privacy" in the messages he sent to the three girls, even if the police got that data by searching the girls' accounts.

How can this be?

The court explained that Mr Craig knew that only the girls would receive the messages he sent. He knew that everyone on Nexopia had password-secured accounts. Therefore, he reasonably expected that he enjoyed privacy in the messages, even after they arrived at their destination accounts. He could expect that the government would require warrants (or other lawful authority) to get at the messages he sent.

The court gave a preview of these conclusions in a case I mentioned last year: Pelucco, 2015 BCCA 370. In that case, the police searched a drug dealer named Guray pursuant to an illegal arrest. They found text messages from Pelucco on Guray's phone which suggested that Mr Pelucco was selling him large quantities of drugs. Using Guray's phone, police communicated with Pelucco, and used the messages they received to bust him. At that trial, defence complained of the illegal search of Mr Guray's phone. The prosecution argued that Mr Pelucco enjoyed no expectation of privacy in text messages he sent to another person's phone therefore he had no standing to complain of the police search of that phone. The court found otherwise.

What does this mean for police in B.C.? If some witness or victim received messages by some private communication system (text message, email, private Facebook conversation) from the target of your investigation, then you need lawful authority to get those messages from the victim's account

In my opinion, "lawful authority" may come from the informed and voluntary consent of the account holder. Or a warrant.  Or even a search pursuant to exigent circumstances. Others disagree.

In murder cases, unless you obtain consent from the victim's lawful heirs, this suggests that you need a warrant to search the deceased's computer or cell phone for messages from the suspect.

What about police in other provinces? I can't predict what your courts will do. I can say that getting consents and warrants for this kind of information will protect your investigations against arguments of this sort.

2016.04.13 Search & Seizure - Report to A Justice

The officers who investigated Mr Craig 2016 BCCA 154 used a warrant to get data about him from Nexopia. They forgot entirely to report to a justice what they got.

The court concluded that this breached Mr Craig's rights.

Unfortunately for Mr Craig, despite finding all these breaches of his rights, the court concluded that the evidence against him should be admitted into trial anyway.

Don't gamble on your investigations. Report what you seize to a justice. Get into the habit of completing Form 5.2.

The new production order section could have saved them some embarrassment. See 487.0192(4).

2016.04.09 Inventory Searches

Under some motor vehicle legislation, when you impound a vehicle, you have the authority to conduct an inventory. The law permits police to do this to protect officers and police forces from civil liability.

An officer found Mr Harflett, 2016 ONCA 248 driving without a valid licence. He needed to pay some fines, and he could drive again. The traffic stop occurred on a busy highway. The officer arranged to tow Mr Harflett's vehicle to a hotel. Mr Harflett would pay his fines, and then be free to drive away. But before the tow-truck driver hauled the car away, the officer did an inventory search.

That's how he found the "large quantity" of marijuana.

The officer testified that he "always" did "an inventory", and claimed this was not a "search".

The trial judge bought this explanation, but the court of appeal did not. The officer did not impound the vehicle. Mr Harflett was going to stay with it all the way to the hotel. The officer had no need to make an inventory of its contents.

"... the power to detain an individual under the HTA does not inevitably include the power to detain or impound a vehicle, nor does it include the power to conduct an inventory search in every situation."

Calling a search an "inventory" won't make it legal unless it's really an inventory search.  You need:

Using "inventory search" as an excuse to snoop through a suspect's vehicle violates the suspect's s.8 Charter rights.

2016.04.05 Arson Investigation - Circumstantial Cases

Most arsons are hard to prove. Often, the arsonist hopes to recover money from insurance policies, and therefore plans and executes the crime.

Ms Nguyen, 2016 BCCA 133 ran a nail salon in rented premises. The trial judge found her guilty of setting it on fire. The appeal court found no error. Let's see what the investigators did right:

I suspect that these investigators did a good deal more work than the points identified in the decision.

Arson investigation takes imagination, luck and diligence. Arson arises rarely enough that most investigators don't get to learn on the job; but arson occurs often enough to defeat investigators who lack training or experience. Therefore, it may be worth investing some time preparing for the next arson investigation.

2016.04.01 Too Much Evidence

, or Not Enough?

Somebody stabbed Ricardo Kelly to death in an apartment building hallway.


Security video recorded who went where in many parts of the building. Investigators obtained lots of it.

Kelly's girlfriend saw the assailant, but didn't get a very good look. She gave several statements which described the assailant. Months after the killing, investigators showed her security video recordings of the four most likely suspects. She rejected two of them because she knew them. She picked one of the other two, Mr McCracken, 2016 ONCA 228 as the assailant. 

Some might think that her identification solved the case. But it was fraught with problems. Her initial descriptions of the assailant differed from the man she picked. One wore a hat, the other didn't. Watching the video did not put her in a position of identifying a person she recognized. Instead, she identified the most suspicious person. And furthermore, before seeing the video people in the apartment told her things which might have caused her to choose McCracken, whether he was guilty or not.

However, careful analysis of the video and phone records led to strong circumstantial evidence which independently supported this identification. Mr McCracken's conviction withstood review on appeal.

The victim, Mr Kelly, sold marijuana in the building. Someone in apartment 1610 called him for a dime bag. A Mr Stevens, who frequented that suite, agreed that he made the call. But when Mr Kelly failed to turn up, Mr Stevens never called back.  Why not?  Perhaps because he knew what happened.

Phone records established a close relationship between McCracken and the people in apartment 1610. The security video put Mr McCracken in or near apartment 1610, along with the other suspect. And the other suspect had a beef with the victim.

The other suspect didn't look at all like the assailant.  That left only McCracken.

Courts do not trust eyewitness identification of strangers, particularly from events as frightening as this one. Therefore, these investigators wisely searched for other ways to identify the assailant. The security video established more than who was in the hallway at the key moment. Because the officers secured more video than the just the killing, it told them what the relationships were between the various people in the apartment building.

Telephone records established more than who called for the drugs. Mr Stevens, for example, denied knowing Mr McCracken. But his telephone records showed that Mr McCracken called him 4 times that day.

When you apply for a production order or search warrant you must collect only information relevant to an offence. However, the relationships between key players in an offence may prove important. And evidence of relationship may occur long before, and even after the incident you investigate.

A warrant which seeks unnecessary information is overbroad. A warrant which seeks too little may leave you without the background evidence.  How do you balance this?

As the next case suggests, you can sometimes focus your requests.  Do you want all phone calls made by the suspect's phone in the month prior? Perhaps that's too broad.  Maybe you want all phone calls between the suspect, and people who live in the apartment over that time frame.

If you need a warrant to obtain security video, how much of it can you say is probably relevant?  If you ask for video which shows only the short time around the attack, you will miss video which shows relationships between the parties in the days or weeks prior to the attack. Do you have reason to believe that identifying relationships will solve the case? If so, you can ask for more video.

One other thing emerged from this decision: the police audio-recorded the eyewitness as she reviewed the hallway video. But they did not video-record her. That hampered review of what occurred. If court can't see the security video at the moment that the witness exclaims "that's him", then the court doesn't see who the witness identified. If you're going to show security videos to an important witness for the purposes of identification, try to set it up as much like a photo lineup as possible. Videorecord the process if possible.

2016.03.26 Production Orders - Cell Tower Dumps

 and Database Dumps

In cities, cell towers serve tens and even hundreds of thousands of people each day. Cell phone companies record which phones used their towers. Those people enjoy some expectation of privacy over their locations.

Some investigations rely on combing through all the cell tower information. For example, in the Mahmood 2011 ONCA 693 case, robbers with guns stole $500,000 worth of product from a jewellery store. Without much to go on, police got a warrant for a dump of records of cell towers in the area. Later investigation led them to a phone that they could connect to the purchase of a disguise used in the robbery. And that led them to the robbers and some of the jewels. In that case, the court found that the police violated s.8 by asking for too much information.

Rogers Communications, 2016 ONSC 70 complained to court about production orders police sought for the purpose of investigating a string of jewellery store robberies. The officers wanted all the records from the towers nearest stores for the days of the robberies. Around 40-50 towers. And the police wanted the subscriber information for every caller. And billing information, including credit card numbers.

That's a lot of data.

Nothing in the orders indicated how the subscribers' privacy would be protected.

The court identified some principles.

Minimal intrusion - you should seek orders which intrude only as much into other people's privacy as you need to get the job done. In this case the officers didn't need the billing information until they found a phone of interest.

Incrementalism - rather than demanding everything that could eventually be useful, request information step-wise, so as to minimize the violation of privacy. For example, officers may have been able to narrow their investigation significantly by examining the cell phone numbers first. When they found a couple of phones of interest, they could then seek an order requiring the phone company to identify the subscribers of only those phones.

The court made seven suggestions for officers who apply for orders which affect the privacy of lots of people:

  1. An application should explicitly assert that the officer understands the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind. (And if you don't build your investigation that way, you'll get crucified at trial.)
  2. Your application should explain why all the towers and date ranges are relevant to the investigation. "This obviously flows from what is now the s. 487.014(2)(b) Criminal Code requirement that there be reasonable grounds to believe that the documents or data requested will afford evidence respecting the commission of the offence."
  3. For the same reason, your application should explain why you need all the types of records you seek. Do you really need all that banking and credit card information?
  4. Narrow your search to match the information you have. For example, if the evidence indicates that a robber made a series of calls lasting less than one minute this detail might permit the target of the order to narrow the search and reduce the number of records to be produced.
  5. Instead of demanding all the records, and sifting through them yourself, ask for an order which requires the phone company to collect the records and sift through them, and issue you a report of what they found. "For example, in this case a report on which telephone numbers utilized towers proximate to multiple robbery locations would contain identifying information concerning only a small number of robbery suspects and not the personal information of more than 40,000 subscribers which the Production Orders sought."
  6. If you need the raw data instead of a report, explain why.
  7. Confirmation that the types and amounts of data that are requested can be meaningfully reviewed. Spell out what kind of data you expect to get, and how you plan to make use of it.

Counsel for a phone company suggested that if you do obtain vast quantities of data from cell phone dumps, that you should soon destroy what you determine to be irrelevant.


If you do that, defence may complain that the records you destroyed may contain the very data required to establish an alibi, or otherwise defend the case.

Do not take this decision as gospel. It is a trial-level decision. Appeal courts tend to give more authoritative answers. The only parties were the police, the Crown and the phone company. Nobody to represent the defence interest.

But these seven ideas have legs. Don't ignore them.

2016.03.26 Search & Seizure - Officer Safety

How much can you search to protect yourself?

I noticed this case last summer. I should have commented on it then. Better late than never.

Police officers attended an apartment in response to a 911 call. The dispatcher told the attending officers that a neighbor called in the complaint. A domestic. The woman was crying and screaming "stop hitting me".

A woman came to the door. Police entered.  Mr Ahmed-Kadir, 2015 BCCA 346 emerged from the bedroom. An officer arrested him for assault. Another officer walked through the apartment, and saw nothing of concern.

After 15 minutes, one officer noticed drugs on top of the refrigerator. Then she realized that she stood with her back to a closet that nobody had checked for people. She looked inside. It was full of shelves - no room for a person to hide. But a shopping bag sat on one shelf. An officer looked in the bag and found a handgun.

The officer who looked in the closet said she was looking for people, and for officer safety.

The court excluded the gun from evidence.

On entry, the officers were entitled to look around for people, for officer safety. The officers knew only of a man and a woman; and they found a man and a woman. The judges didn't think, after 15 minutes, that the officers had reasonable grounds to fear that another person might be hiding in the closet, nor that the person would pose them any danger. And the bag on the shelf posed no obvious danger either.

They judges did not complain about the the drug seizure, the drugs were plainly visible.

The lessons to draw are simple and obvious:

  1. When you "clear a residence", you need to be able to give reasons why you needed to walk through it.
  2. Safety of victims and officers can give you reasons; but you need to be able to identify why, in each situation, those concerns arose.
  3. If you need to search for officer safety, do it properly, right away.
  4. If you do a haphazard job in the beginning, you expose yourself to unnecessary dangers.
  5. If you wait too long to search a residence "for officer safety", it will look like a search for evidence, which in many situations be unlawful.

2016.03.21 Right to Counsel - Counsel of Choice

After you demand breath samples from a driver pursuant to s.254(3) of the Criminal Code, you must test his breath "as soon as practicable". No sitting around waiting.

However, for the purposes of s.10 of the Charter the demand "detains" the driver. The driver enjoys the right to retain and instruct counsel without delay, including the right to seek advice from any counsel of choice that may be reasonably available.

An officer made such a demand on Mr Vernon, 2015 ONSC 3943 at 6:45pm on a Sunday evening. They reached the police station at 7:23pm. Mr Vernon said he wanted to talk to a particular lawyer. At 7:30pm, the investigating officer called that lawyer, but one minute later, unbidden, he placed a call to Legal Aid. The duty lawyer called back at 7:44pm, and Mr Vernon spent 12 minutes getting advice from him.  At the time, he expressed no complaint about the quality of legal advice.

He waited until the trial to complain.  There he said that he would rather have spoken with his own lawyer.

The trial judge agreed that the police breached his right to counsel.  So did the summary conviction appeal court and the Court of Appeal.

The judges agreed that the officer should have told Mr Vernon that he "had a right to wait a reasonable amount of time for his counsel of choice to call back."

This puts you in a difficult situation. If you wait too long, then you fail to take the breath samples "as soon as practicable". If you don't wait long enough, then you fail to respect the driver's right to counsel. The judges don't say what a "reasonable amount of time" would be.

The judges agreed that the officer should have taken more steps to try to contact the lawyer of choice.

The cross-examination suggested that the officer should have looked up the lawyer's home number, and checked the Law Society's webpage for other phone numbers. In many cases, these steps will be futile; but taking those steps would make a show of good faith.

This area of criminal practice has been litigated frequently for 30 years, and yet no standard procedure emerged for satisfying a detainee's s.10(b) rights. Although the judges in this case all agreed that the officer did it wrong, they did not say what would have been "right". If asked, most criminal practitioners will come to different conclusions.

I think the answer to these conundrums emerges by considering a police officer's duties under these circumstances:

I suggest that the solution to this conundrum of investigating the offence "as soon as practicable" while waiting for a lawyer who never calls is done by asking person who enjoys the right how he chooses to exercise his rights. Refuse his requests only when they become unreasonable.

This case may revive debates in your office about how to deal with difficult demands for counsel of choice. Good. Beware of anyone who claims to have a fool-proof procedure that works every time. In my view, Charter rights are respected by understanding the principles, not by following blindly a standard procedure which works in most cases.

2016.03.17 Right to Counsel - Eliciting Evidence

Mr Sabados, 2015 SKCA 74 gave police reasons not to like him. They arrested him for robbery. He got bail after 450 days in custody. I guess Mr Sabados had a substance abuse problem: the judge imposed a term that he provide police with breath samples if an officer formed reasonable grounds to suspect that he consumed alcohol.

Mr Sabados didn't stay out on bail for long. 3 months later, police attended to a new complaint. They arrested Mr Sabados for death threats, assault, and breaching his bail by possessing drugs and alcohol.  They offered him access to counsel.

He wanted to talk to a specific lawyer.  He called, and left a message for the lawyer to call back.  Knowing this, an officer interviewed him about the new offence before Mr Sabados got legal advice.

That was a mistake.

Police must hold off eliciting evidence until after the prisoner waives or exercises his right to counsel. Asking questions about the offence is "eliciting".

During the interview, the officer noticed an odour of liquor. Knowing of the bail condition, the officer demanded that he provide a breath sample. He said he would not give samples until after he spoke with a lawyer.

So they charged him with refusing, contrary to his bail order.

That was another mistake.

Demanding bodily samples is "eliciting".

Mr Sabados won.

Even though the recognizance required Mr Sabados to blow, he still had a right to get legal advice before incriminating himself.

If you arrest a suspect, and the suspect wants legal advice, arrange for that legal advice before asking that suspect to provide evidence against himself. You can search incidental to arrest before the legal advice, but you can't ask him for bodily samples, statements or re-enactments of the crime until he exercises or rejects his right to legal advice.

This principle arises most often with serious motor vehicle cases. Drunk drivers who crash often go to hospital. When you demand blood samples from the driver who caused a serious accident, you must give that driver the access to counsel he requests before you take his blood. It's more complicated to do in a hospital, but the principle still applies.

2016.03.09 Gathering Evidence - How much is Too Much Evidence?

A troubled young man on a reserve complained that Mr Hume, 2016 BCCA 105 molested him. The young man said he arrived at Mr Hume's residence drunk. Mr Hume gave him more booze. He passed out. He claimed that awoke naked on the living room floor and found Mr Hume shaving his testicles. He complained to police and showed them that all his body hair was gone. By the next evening, a police officer executed a search warrant on Mr Hume's place.

The officer found no pubic hair on the living room floor. But the vacuum cleaner contained a large quantity of short curly dark hair. The officer dumped the contents of the vacuum cleaner into a bucket, photographed it, and took a small sample.

The DNA lab said that the sample was not suitable for DNA analysis.

At trial, the judge did not permit the police officer to testify whether this hair had fallen out naturally or had been cut.  The judge felt this opinion required expert opinion.

In submissions to the jury, the defence explained away the hair: this was a home on an aboriginal reserve. Lots of people there would shed dark hair. And the home had pets.

I invite you to consider with the perfect vision of hindsight what you would do to get the most out of the evidence in the vacuum cleaner. Would you ...

  1. Keep all the contents of the vacuum cleaner?
  2. Spread the contents of the vacuum cleaner out on a white paper sheet before photographing it?
  3. Find an expert to assess whether this hair was cut.
  4. Examine the hairs under a microscope, and compare them to cut human hair.
  5. Photograph the hairs under a microscope.

It turns out that the police officer did enough in this case to satisfy the jury. They convicted Mr Hume. Next time, it might be different.

2016.03.08 Implied Invitation to Enter Private Property

If you suspect someone of committing an offence, you can't walk onto their private property for the purposes of searching for evidence. But you can walk onto private property for the purpose of communicating with them, even if you know about the offence. It's a peculiar line, which is difficult for judges to assess.

Police officers in rural BC arrested Mr Parr, 2016 BCCA 99 under the Mental Health Act. He was speaking incoherently about his fiancée. They towed his vehicle and took control of his dog.

Knowing that a team of officers was investigating Mr Parr for growing marijuana at his residence, Cst Jenkins went there to tell Mr Parr's fiancée where he was. Perhaps she could take back his dog.

Cst Jenkins found nobody, but noticed odours of marijuana on the property, and equipment for growing it. He told the team. The team got a warrant, and took the operation down.

If Cst Jenkins went there to investigate the marijuana grow operation, then he intruded unlawfully on the land, and his observations could not be used to support the warrant.

Defence argued that Cst Jenkins went there to investigate: Cst Jenkins didn't phone, he went there in person. It was a long drive from the police detachment to Mr Parr's place. After failing to find her, Cst Jenkins took no further steps to locate the fiancée.

The trial judge believed Cst Jenkins when he said his purpose was simply to speak with the fiancée.

This case makes for good reading, not just for the teams, but also the general duty officers those teams communicate with. What's your purpose when you go into private property? Did someone actually invite you? Can you rely on the implied invitation, because they would want you to communicate with them?

Don't rely on my summary.  Read the decision, to understand how the judges analyse this subtle distinction.

2016.03.07 Objective Investigating and Reporting

Police arrested Mr. Laing, 2016 ONCA 184 in a mall parking lot. They found two loaded handguns in his possession. As part of the investigation, some officers obtained and watched mall security video of the take-down. They took no notes if its contents. Between investigation and trial, the DVD which contained that video recording went missing.

Mr Laing's counsel asked the trial judge to drop the case by reason of the lost evidence. The trial judge refused. At trial, defence accused police of planting the guns. He suggested that they destroyed the DVD as part of a cover-up.

According to the officers, the cameras pointed the wrong way, and captured none of the take-down. Too bad they took no notes.

The jury convicted Mr Laing, and the appeal court upheld the conviction.

I think that there's a lesson in here. Human beings tend to notice evidence which supports their beliefs. I suspect that this tendency affected this investigation:

Could anyone fault the officer for thinking that Mr Laing carried a gun? Of course not.

During the take-down, officers found guns. Naturally, they recorded information about that. It was obviously important.

After the take-down, the officers who watched the security video saw no information about the guns. It seemed obviously unimportant. Therefore they took no notes of the video's contents. The DVD seemed unimportant. They took less care in lodging it into exhibit storage.

Perfectly natural human behaviour. But it formed the foundation of the defence attack. And I doubt any of the officers enjoyed having their integrity attacked.

An objective investigation seeks out all reasonably available sources of evidence. An objective report accounts for every investigative angle pursued. It was a good idea to look for the video. It captured nothing that the officers wanted to see

2016.03.06 Conspiracy, Aiding and Abetting - The Marijuana Growers' Supply Shop

What's the difference between aiding and conspiring?

Mr Nguyen, 2016 ONCA 182 and his son-in-law ran a garden supply store in an unusual way. For accountability and marketing purposes, most vendors track which customer bought what. Mr Nguyen's store accepted only cash. He kept no records of customers and what they bought. Most shops sell their products in packaging which advertises the source. Mr Nguyen wrapped his products in plain bags. Customers could load their purchases at a loading bay hidden from view. Like some vendors, Mr Nguyen's store had a van to deliver the goods to the customer. Unlike most vendors, Mr Nguyen let his customers drive the company van away to undisclosed locations.

The store stocked only products useful for growing marijuana. It stocked unusual garden supplies, such as electrical circuit panels and ductwork. He sold nothing that was illegal to possess.

Police followed four customers, each of whom led police to grow operations.

The trial judge convicted Mr Nguyen of the charge of conspiring with his son-in-law and the purchasers of their products to aid and abet the production of marijuana.

That was a mistake. The purchaser and vendor of an illegal product don't conspire, because their objectives differ: the vendor wants money; the purchaser wants the product. Had the charge accused only Mr Nguyen and his son-in-law of conspiring to aid others in the illegal production of marijuana, that charge might have stuck.

But he was guilty of actually aiding others in the illegal production of marijuana. But that required more than merely following the customers, and finding grow operations where the products went. It required evidence that Mr Nguyen was involved in the sales of the products to those customers, or otherwise assisted the purchasers.  That's what aiding is. Nguyen himself helping the customer.

2016.03.05 Possession - "What's in the Gun?"

Section 95(1) of the Criminal Code creates a specific offence of possession of a loaded restricted/prohibited firearm.

Mr Hunter, 2016 BCCA 94 possessed a loaded handgun, cocked and ready to fire, in a storage compartment under the seat of a scooter he sometimes drove. Did that make him guilty of the offence?


Not if the Crown can't also prove that he knew it was loaded.

Sometimes, the circumstances make it obvious. For example Mr Francois, 2014 ONCA 234 took a handgun with him to complete drug transactions which involved threatening to kill people with it. When police arrested them, they found it contained bullets. The circumstances allowed the court to infer that he must have known it was loaded.

But Mr Hunter's circumstances differed. Police found him in a park talking with friends, near the scooter. These circumstances did not lead to any clear reason to say he knew about the bullets in the gun.

That means finding someone with a loaded handgun is not the same as proving they knew the bullets were in the gun. Because courts acquit if there is any doubt, keep investigating. Sometimes they load the bullets with their bare hands, and leave fingerprints. Sometimes, they have more bullets in their pockets, or somewhere nearby. Sometimes, if you ask the right questions, the prisoner, or someone who knows him, will talk.

2016.03.05 Possession - "What's in the USB stick?"

What kind of "circumstances" persuade judges that a suspect had guilty knowledge?

When police arrested Mr Arsabekov, 2016 ONCA 169 in his car, they found a USB stick and a credit card reader.  The USB stick contained lots of credit card information.

Could the judge convict him of possession of the credit card data? Only if the judge could find beyond a reasonable doubt that he knew about the data inside the USB stick.  The presence of the credit card reader (and some efforts to evade police) persuaded the judge that he knew.

The Appeal Court agreed.

It's not illegal to possess a credit card reader. But having one along with a memory device containing stolen credit card information suggests that you know about the credit card information.

2016.03.03 Production Orders and Search Warrants - Reasonable Grounds to Suspect an Offence

We all know that a judge can't issue a search warrant or production order unless the officer provides reasonable grounds to believe that the warrant or order should be granted.

Except, s.487 also uses the word "suspect" in relation to how sure the judge should be that an offence occurred.  And before March 9, 2015, so did the former general production order section.

Does this difference mean anything?

In Nero, 2016 ONCA 160 at para 62, the court said it does.  They said that the judge doesn't need belief, only suspicion, that an offence occurred.

I observe that Parliament removed the word "suspect" from the current general production order section. If Parliament thinks suspicion is too low a standard for production orders, then a judge may conclude that suspicion is too low a standard for search warrants too. When applying for search warrants, rely on this difference at your peril.

But Parliament deliberately chose "suspicion" for many other kinds of searches, such as number recorders and preservation demands. I see less risk there.

2016.03.03 Production Orders - Evidence "Respecting" an Offence

Police suspected Mr Nero, 2016 ONCA 160 of organizing a major drug trafficking operation.  Initially, they sought cell phone records, to find out who he called, and which cell phone towers he was nearest when he called. 

Production orders get you evidence "evidence respecting the commission of the offence". It's often difficult to explain why you think specific records fit that description. At trial, defence argued that these records would establish only that he talked to people, but not that he was guilty of any offence.

At para 83, Watt J.A. observed:

"The records need not be conclusive proof of guilt."

The production orders were good.  When you apply for a production order, you needn't explain why the records will prove guilt, only how they might provide evidence about the offence.

2016.02.29 How much evidence is Too Much Evidence?

In the basement of their house, Mr Walchuk, 2015 FCA 85 beat his wife unconscious. The house caught fire and burned. An expert told the trial judge that someone poured gasoline (or some other accellerant) at the top of the stairs. The trial judge convicted him of murder, on the theory that he set the fire.

After he exhausted his appeals, Mr Walchuk found different experts who concluded that the first expert was wrong. No accellerant on the stairs started this fire: it started somewhere else. There was some evidence to suggest that his wife started the fire by crashing her car into the house before the beating in the basement. He asked the Minister of Justice to review the case: was this a wrongful conviction?

The Minister didn't think so. Nor did the Federal Court Judge, nor the Federal Court of Appeal.

Why not? Among other reasons:

Read the decision for all the circumstances.

The prosecutor could prove those circumstances only because investigators, with active curiosity, looked into questions like "where did that matchbook come from?"

The defence challenged the expert after the trial and the appeals all passed. This conviction stood because the investigators gathered (and the prosecutor presented) more than evidence than necessary to prove Mr Walchuk's guilt.

So when is your investigation complete? After you have attempted all that is reasonably possible to gather all the evidence available.  Don't quit investigating just because you become satisfied of the suspect's guilt. Keep gathering evidence until all the available evidence is collected.

The smaller the case, the harder it is to do a complete investigation. But the burden of proof in a domestic assault is the same as murder: proof beyond a reasonable doubt. So many of those reluctant spouses recant, it hardly seems worth any effort. But if you bust enough wife-beaters, you may prevent a murder. Like Mr Walchuk.

2016.02.28 Arresting and Releasing Foreigners

When you arrest and hold a foreigner, one of your obligations under Art. 36(b) of the Vienna Convention on Consular Relations (1963), is to inform the person concerned without delay of his right to contact consular officers from his home state. (Only a few countries in the world are not parties to this convention.)

Failure to do so does not usually breach Charter rights (Walters, 2013 ABCA 204).

After arresting a foreigner, are you obliged to bring him or her before a justice of the peace? Nope. Provo, 2015 ONCJ 311. You can release him or her yourself. But you should turn your mind to whether the suspect will return to court.

Sections 498(1)(d) (and s.503(2.1), by reference) of the Criminal Code, permit you to release the suspect on recognizance (Form 11) with or without conditions.  You can even take up to $500 cash on deposit, to make sure that the suspect attends court.

You might want to consider how you to account for the deposit. Do you seize it and place it in exhibits, and report the seizure to a Justice, or do you deposit it with the court?

2016.02.14 Sexual assault

Mr Edgar, 2016 ONCA 120, a big man, grabbed a woman outside her apartment, and made her let him in.  He kept her captive there for an hour, making various non-sexual demands: he needed to use her phone.  He wanted water. At the end, he made her sit and watch him masturbate. For a few minutes, she did. He touched only himself, and not her. She then fled, leaping off the balcony. She broke both ankles in her effort to escape him.

Did he sexually assault her, even without touching?



Read the definition of "assault" in s.265 of the Criminal Code.  It includes more than touching. Assault includes a threat of force, accompanied by the immediate means to carry it out.

She only sat down because he had threatened her. She watched only because he demanded it. He had her under his control. The whole confinement was an assault, and he rendered it sexual when he compelled her to watch him.

Why do you care?

Because we often forget that second part of the definition of assault.

The man who raises his fist to a woman assaults her even without striking, if he does so in a manner that causes her to believe that a blow was imminent. At your next domestic call, the complainant may say that no blows were struck before you got there. When the reluctant complainant says "he never hit me, he only threatened", you should follow up: "Did he make it look like you were about to be hit? Did you think that was going to happen?"  If you get "yes", then she described an assault. If you believe her claims are probably true, and arrest is necessary in the public interest, then you can arrest him for assault.

If you do, he may express bewilderment "I never touched her, man."  If so, have some sympathy for the blighter. Maybe you should take him to an interview room, and explain why you arrested him. Video-record it. Who knows, he might even show you how he held his fist.

2016.01.30 Press Conferences - Prejudice to Fair Trial

When you make a big bust, holding a press conference tells Canadians that police are effective, and crime doesn't pay.

But tread carefully. 

After police busted Mr Pedersen, 2016 BCCA 47 and his accomplices for importing one tonne of cocaine they told the world. At trial, Mr Pedersen asked for a stay of proceedings. He complained that the publicity robbed him of a fair trial.  The jury would be prejudiced against him.

The judges denied his application.  But they commented:

"care must be taken to avoid prejudicing the accused, particularly where the trial will be held before a jury."

What do you avoid showing and saying in such a press conference? I have little skill in media relations; I won't tell you how to talk to reporters. But your prosecutor would fear press coverage of:

In this case, the trial judge disliked the "trophy" or "self-congratulatory" tone of the press conference, but she liked the fact that press conference revealed no detailed personal information about the suspects.

Therefore, despite your excitement after the biggest bust in your career, you should take a deep breath before the press conference, and calm down.  Remind yourself that what you say there will be used to cross-examine you, and attack the case. When the reporter presses you for information about the defendants and their individual roles, avoid saying anything exciting enough that a juror would remember it a year later. "Giving too many details at this early stage could undermine the accused's right to a fair [jury] trial."

2016.01.29 Citizen's Arrest - Civilians don't need Charter Cards

 ... unless you organize them

After Mr Nguyen, 2016 BCCA 32 attacked another man at a bar, bouncers grabbed  and held him until police arrived. During the wait, Mr Nguyen told them things that his lawyer wished he hadn't said. At trial, Mr Nguyen complained that the bouncers failed to tell him his rights under the Charter, and asked the court to prevent the jury from hearing what Mr Nguyen said about the fight.

The judges concluded that the Charter does not require private citizens acting on their own to explain Charter rights.

They would have to explain Charter rights if you instruct or enlist private citizens to arrest or detain miscreants as some organized initiative.

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. (2016.04.06 Yup: McKay is under appeal.)

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.

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

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