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

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

- Henry Waldock

Book

My publisher collected many of the more frequently-used chapters of my books into a single (cheaper) paperback edition: "Common Canadian Criminal Code Offences and Procedures 2017-2018".  Some of you may find it useful.

New Law


2018.08.11 Warrants - ITO drafting - Conclusions and Judicial Duty to Inquire

I fell down a rabbit hole.

Ordinarily, I write about recent decisions. A paragraph in a recent decision caught my attention, and led me to Restaurant Le Clémenceau Inc. v. Drouin, [1987] 1 SCR 706. Judges sometimes refer to that case when rejecting "conclusory statements" in ITOs. Here's a loose translation of the ITO in question. Can you spot the "conclusory statements"?

  1. As an official of the Ministère du Revenu du Québec, I conducted an investigation in the "Restaurant le Clémenceau Inc." concerning evasion of a meals and hotels business tax of Québec.
  2. As a result of certain facts revealed by this investigation, I have reasonable grounds to believe and believe that "Restaurant le Clemenceau Inc." made false or misleading statements in a PR4 report for the month of August 1977 by failing to include in the said report an amount of $ 299.20 of tax collected, thus committing an offense under section 62 (a) of the Act respecting the Ministry of Revenue, RSQ, chapter M-31.
  3. I also have reasonable grounds to believe that documents, books, records, papers or other things that may be used as evidence of an offense under a tax law or regulation made by the Government under such a law, are kept in the premises and outbuildings of "Restaurant le Clémenceau Inc." located at 649, boul, Laure, Sept-Iles, province of Quebec.

Except for paragraph 1, the whole ITO was a conclusion. The Supreme Court of Canada did not like it.

When you apply for a warrant, the judge or justice who receives your application must determine for him- or her-self whether there are good reasons for your belief that a crime occurred and the proposed search will recover evidence of it. How can the judge do that if the application does not explain the "certain facts" which led the applicant to believe that the crime occurred and that the evidence sought would be in the place to be searched?

To be clear, paragraphs 2 and 3 are not wrong. Indeed, they make a fair summary or introduction. But the ITO needs to explain the evidence or information the investigator gathered or received which led him to those beliefs.

But that's not why this decision caught my eye. The court said:

In order to perform his duty of supervision, the judge had to determine whether the facts on which the informant's belief was based were such that his belief was indeed reasonable. None of these facts are disclosed by the information. The judge then had a duty to ask for further information, which he elected not to do.

The issuing judge or justice has a "duty" to ask for more information when your ITO fails to spell it out.

For justices and judges, this leads toward a danger zone. If they advise you how to draft your application, then they compromise their independence. Gray 1993 CanLII 3369 (MB CA) and Gordon,1999 CanLII 18640 (MB CA)

But they can ask questions relevant to the exercise of their powers, Clark, 2015 BCCA 488. They ought to give reasons when they reject an application, so that if you apply again, the next judge or justice can know what went wrong in the first application. Duchcherer and Oakes, 2006 BCCA 171.

If they do ask you questions, disclose what they asked and what you answered in your report to Crown. If you do apply a second time, then disclose in your second application the fact that you previously applied and the reasons the first justice or judge gave for turning you down.


2018.08.06 Plain view, s.489(2) and "lawfully in a place" - photography during the seizure

Five days ago, I worried that photographing what you seize pursuant to s.489(2) might be seen as a "search". (See the next article.) Two days later, the Ontario Court of Appeal addressed that concern. I'm grateful.

A 15-year-old girl told police that her friend's father, Mr A.H., 2018 ONCA 677, lured her using Facebook. The interviewing officer saw Mr A.H. hurrying away from the police station, and worried that Mr A.H would destroy evidence. The investigator sent police officers attended to Mr A.H.'s residence to arrest him. They did so, at the door of his apartment. Mr A.H. "told the officers he needed to get his shoes, turned around and went back into the apartment. The officers followed him in. One accompanied him into his bedroom while the other stayed in the kitchen where he observed the open computer and the cell phone. He took a photograph of the screen of the computer, which showed an open Facebook page, which displayed the appellant’s email address and read: 'Your account has been deactivated'. The officer then seized both items." (para 28)

Mr A.H. argued that the officer needed a warrant to enter his house and seize the computer.

The court disagreed. Because the officers had already arrested him, they had him lawfully in custody. When he re-entered the residence, they could lawfully follow, to keep control over him and prevent him from destroying evidence. The power to seize under s.489(2)(b) does not include a power to search, but these officers did not "search". Photographing the thing and then seizing it was not a "search" but a "seizure".


2018.08.01 "Plain view" and s.489(2) of the Criminal Code

"He's in the house, drunk. There are lots of guns laying about in there. I'm scared for my safety, and the safety of the children."

That's what she told police when they responded to her 911 call regarding domestic violence. The attending police couldn't help but notice that Mr Warren, 2017 MBCA 106, the man she complained about, came out of the house a couple of times, agitated and belligerent.

The officers arrested him outside the house because they feared he would assault her.

One of the officers went into the house, with the complainant's sister, to check on the children. As soon as he went in the front door, he saw four insecure firearms and ammunition in plain view. He seized them, and Mr Warren was charged with firearms offences.

At trial, Mr Warren convinced the trial judge that the officer should have secured the residence and got a search warrant. The judge agreed with the officer that he was entitled to enter the residence for the purpose of ensuring the safety of the children. But when the officer's purpose changed from protecting life to gathering evidence, he lost his authority to remain in the house. The trial judge felt that the common law "plain view" doctrine didn't apply, because it requires that you encounter the evidence "inadvertently". This officer knew, going in, that he would find guns.

The Court of Appeal disagreed. Section 489(2) of the Criminal Code authorized the search. It works similarly to the common law power of "plain view", but does not require "inadvertent" discovery of the evidence.

The officer lawfully seized the guns.

This scenario of domestic violence and guns in a residence arises often. But the details bedevil any effort to create a standard operating procedure. I see lots of mistakes, because general duty officers often work under too much pressure to assess all the principles which apply. Here is a list of the main ones:

  1. A police officer can not enter a private residence without one of:
    1. lawful authority or
    2. consent of a person who as authority to give it
  2. Reasonable suspicion that a person inside my in in danger of serious physical harm ("exigent circumstances") provides lawful authority to enter and put those fears to rest. However, you may not search for evidence when doing so.
  3. Reasonable belief that evidence inside the residence may be lost or destroyed if you don't enter also provides authority to enter and search. However, you should minimize the intrusiveness of this entry. Generally, the best procedure is to freeze the scene, and get a warrant.
  4. Section 117.02 and 117.04 authorize you to enter into the residence and seize the firearms where there are exigent circumstances. Generally speaking, by arresting the guy who poses the danger, you generally terminate the exigent circumstances.
  5. If you do have consent or lawful authority to enter, then you can seize evidence that you notice while inside. 489(2) But you can't search for evidence unless you have lawful authority or consent from a person who can give you that permission.

Before you seize the gun pursuant to s.489, perhaps you should document carefully where you saw it. Careful! If you photograph too much, there's a good argument that you expanded the seizure into a search for evidence. If you don't photograph, then the defendant will allege that you could not have just seen the gun, because it was stored in a hidden spot.

2018.07.29 Impaired Drivers who crash - Right to Counsel

Ms Culotta, 2018 ONCA 665 didn't drive drunk. She operated a boat.

She and her friends were holidaying at the family cottage, on an island in Lake Muskoka. They attended a social event at a yacht club, where she drank.

At 2:00am, they headed home ... in the dark, with rain pouring down. Ms Culotta went fast. The boat hydro-planed.

There are hundreds of islands on Lake Muskoka. Her boat hit one of them. The crash injured her and her passengers. Help came. A boat took them to a marina, where ambulances met them at about 3:00am. A police officer attended.

The officer asked the less-injured women "who drove the boat?" Ms Culotta said "I was the driver".

The officer saw some ambiguous indicia of alcohol consumption: Ms Culotta slurred her words - but her face was injured. She had watery eyes - but she had been out in the rain, and crying. The officer arrested her for impaired operation of the boat. The judges found that his grounds were insufficient.

The officer did not tell her about her right to counsel because he did not want to interfere with the medical treatment that the ambulance attendants were giving her. Only after arriving at the hospital did he tell her she could get legal advice. When asked if she wanted to consult a lawyer, she answered:

“No, my parents should be here soon. We have a family lawyer.”

The hospital staff took extra samples of her blood, because they expected police would need them. The officer sealed the extra vials.

At 5:30 am, after Ms Culotta received treatment, the officer released her unconditionally, but explained she was still under investigation. He explained her legal rights to her. She declined another offer to get legal advice, and gave a statement. The officer did not have recording equipment, and so he simply wrote down questions, asked them, and wrote down her answers. When it was done, he asked her to review it, and sign it. She did.

The officer investigated further. He developed good grounds for a search warrant, and with it, he obtained medical records and blood samples from the hospital.

The hospital's tests showed that Ms Culotta's blood contained more than 80mg% of alcohol. So did the police analyses.

At trial, Ms Culotta's lawyer's arguments included:

  1. The arrest breached her right not to be arbitrarily detained - s.9 of the Charter - because the officer lacked reasonable grounds.
  2. Failing to tell Ms Culotta about her right to counsel before the hospital staff took blood samples violated her rights under s.10(b) of the Charter.
  3. The investigating officer persuaded the hospital staff to take extra blood samples. That was a seizure. Sealing the extra vials of blood constituted a seizure of her private bodily fluids. Because the officer lacked grounds to believe that Ms Culotta committed an offence, this violated s.8 of the Charter.
  4. The statement should not be admitted because it was not audio- and video-recorded.

Reasonable grounds

Vehicle crashes complicate the task of determining whether you have reasonable grounds to believe that alcohol or a drug impaired the suspect's ability to control the craft. Did booze, injury, or shock cause the suspect to slur their speech or stagger? Sometimes, you can examine the crash scene for clues that suggest that bad driving caused the crash. This officer couldn't. Sometimes passengers or rescuers can tell you about bad driving or other symptoms. The decision indicates none of that.

Serious vehicle crashes arise sufficiently infrequently that many officers don't know what to do. If you're not sure, I suggest that you read the demand quietly to yourself before reading it to the suspect. The demand language contains a checklist which covers most of what you need to know:

Right to Counsel

All the judges agreed that the officer disobeyed s.10 of the Charter by failing to tell Ms Culotta about her right to counsel right away after the arrest. The judges (and the prosecutor) agreed that the police analysis of the extra blood samples should not be evidence in the trial. One judge felt that this breach of Ms Culotta's rights was so serious that the court should exclude all blood-analysis results.

The judges disagreed whether Ms Culotta's comment about her family's lawyer was a request for legal advice.

You can draw two things from this:

  1. After a detention or arrest, you want to move quickly to telling the suspect about legal rights, if at all possible.
  2. Some judges will find that quite ambiguous remarks are actually requests for legal advice. It doesn't matter what you think the prisoner meant, but what the judge thinks. Therefore, when you get an ambiguous remark, you would do well to clarify.

I noticed that the officer put Ms Culotta's health ahead of his investigation of her crime. I think he got those priorities correct. I suspect that the judges felt unsympathetic because he didn't get around to telling her about her rights for 45 minutes. The judges probably felt that the officer could have found the 20 seconds necessary to mention lawyers earlier than he did.

Extra blood samples

Don't ask medical people to gather evidence for you while they treat your prisoner, unless you have lawful authority to gather it yourself. This officer testified that he did not ask the technician to take extra samples. Nor should you.

Putting bits of tape over the hospital's vials and marking them with your initials for the purposes of continuity is not a seizure - if you give control over the vials back to the hospital. I don't know why this argument had any traction. R. v. LaChappelle, 2007 ONCA 655 at para 41.

Handwritten statement

None of the judges found that the investigating officer erred by handwriting Ms Culotta's statement - because the circumstances prevented him from recording it any other way.

But if you can video-record a suspect's statement, then do so.

If you can't, follow this officer's procedure. Write the questions. Write the answers. Ask the person to review the written statement to ensure that it is correct.

But hey! Don't you carry a smart phone on duty? Most phones - even the dumb ones - can record audio. Learn how to make your phone record audio - or even video.

2018.07.27 Informer Privilege

When someone offers you information on the condition that you not reveal their identity, it seems simple: you get information that will help you bust bad guys. It's not simple. Your obligation to protect their secret is a heavy burden, which you must carry even to your personal prejudice.

When police investigated "the Surrey Six" and their involvement in a high-profile murder, 80 people gave information to police on condition that police not reveal their identities.

Something went wrong. Sgt Brassington, 2018 SCC 37 (and several other officers) are now charged with breach of trust, fraud, obstruction of justice. Publication bans prevent disclosure of the details.

In order to make full answer and defence, these officers wanted to tell their own lawyers details about what they knew about the confidential sources. The lawyers (quite properly), asked the court if that would be okay.

Nope.

The Supreme Court of Canada required the officers to keep these secrets even from their own lawyers, unless they could show that disclosing the identities of the sources was necessary for the purpose of showing the innocence of the officers.

That's hard to do. I have not yet seen a case in which the defendant succeeded in showing it.

I doubt that any of you will find yourself in former Sgt Brassington's position. I sure hope not. But this case is relevant to any officer who receives information from a confidential source. The take-home message is: this stuff is messy and dangerous.

If you rarely handle such information, get advice and read your procedural manuals. If you often handle such information, review your procedures, read your procedural manuals, and seek advice.

Don't identify confidential sources unless you know you must.

2018.07.25 Arrest and Detention - Right to Counsel

A town north of Regina held a country music festival. Lots of people went. An experienced officer went there to help.

He caught Mr Knoblauch, 2018 SKCA 15 driving over .08.

The officer recorded in his report that after he explained the right to counsel, Mr Knoblauch declined to call a lawyer.

An in-car video camera recorded the event. It showed that the officer did explain the right to counsel, but never asked whether Mr Knoblauch wanted to call a lawyer. Mr Knoblauch never "declined".

The trial judge convicted Mr Knoblaugh. The appeal court found that by failing to ask the question, the officer breached Mr Knoblauch's rights under s.10 of the Charter.

The appeal court restored the conviction. The Charter imposes on you a duty to explain the right to counsel to a prisoner, and to facilitate the prisoner's access to counsel if the prisoner chooses to exercise the right. The Charter does not impose on you any duty to force the prisoner to choose.

But it's a really good idea to ask "Do you want to call a lawyer?" The answer helps show that the prisoner understands his or her right, and it shows the judge that you were actually interested in facilitating the prisoner's access to counsel - if that's what the prisoner wants.

The video recording proved that even an experienced police officer can make mistakes. How does one maintain the vigilance necessary to avoid making such errors? Fear of humiliation might help. I don't think this officer enjoyed discovering on the witness stand during cross-examination that his report asserted a fact which the video recording proved was false.


2018.07.24 Police investigative technique privilege

A "Stingray" (cell site simulator), helped police bust Mr Truax, 2018 ABQB 113. It assisted their judicially-preauthorized wiretap operation collect conversations that inculpated him.

At trial, Mr Truax sought technical details about the device. The trial judge ordered disclosure. Police objected on the basis of police investigative technique privilege. Basically, they argued:

"If we disclose how this device works, then the bad guys will build a device that detects or defeats it. That that will harm law enforcement efforts."

The superior court agreed with the police argument because the technique:

  1. is used by police in their law enforcement functions,
  2. is not publicly known, and
  3. if disclosed may assist offenders to interfere with or defeat police investigative functions.

However, this privilege must yield to fair trial rights. If the defendant needs this information in order to ensure that his trial is fair, then the judge will order disclosure.

This device did not intercept conversations. It identified phones. The court found that the accused's right to a fair trial did not depend upon receiving information about how it worked. Mr Truax didn't get the disclosure he asked for.


2018.07.24 Execution of a Search Warrant - Empty House

When you execute a search warrant, s. 29 of the Criminal Code requires you to bring a copy along with you, if possible, and show it to people in the place, if they ask to see it.

Do you have to leave a copy of the warrant at the place when you're done? If the place was empty, and you got the warrant by telewarrant, then s.487.1(8) requires it.

What if you applied in person to a justice, you get a warrant, and you find the place empty when you execute it? No legislation says you need to leave a copy. Some would say it's just good practice, but the judge in Boekdrukker, 2018 ONSC 266 held that it's a legal requirement too.

When you execute a search warrant, and someone in the place demands to see the warrant, then s. 29 of the Criminal Code also requires you to show it to him or her.

Do you need to show it to the homeowner if you arrest her outside the house, before the search begins?

The same judge concluded that you do.

Because the officers in that case failed both requirements (and strip-searched her in a room which had no door), the judge excluded evidence of drug trafficking.


2018.07.24 Expectations of Privacy - Hallway in an Apartment Building

Hallway cameras in apartment buildings will usually require judicial pre-authorization.

Mr Batac, 2018 ONSC 546 complained that police video-recorded the hallway leading up to an apartment where police found lots of drugs. He asked the judge to exclude evidence because the video-recording violated his expectation of privacy.

He didn't own the property, but he did have a key. It was a large apartment building, which recently installed lots of surveillance cameras and electronic locks. Police didn't get a warrant to record who came and went from the apartment. When the door to his apartment opened, the camera could record activity as far as 10-12' into the apartment.

The trial judge agreed with Mr Batac: the police did violate his expectation of privacy. The judge did not say that all hallways in all apartment buildings enjoy an expectation of privacy. It depends upon all the circumstances.

If you want to use electronic equipment to watch such areas, you might want to read this decision and the decisions it refers to, to see what factors persuade judges whether people in the apartment enjoy a reasonable expectation of privacy in those areas.

Mr Sandhu, 2018 ABQB 112 complained of pretty much the same thing, for pretty much the same reasons. This camera did not view any of the interior of the apartment. None-the-less, the judge excluded evidence of the drugs found in the apartment in question.


2018.06.29 Three Ways to Identify the Felon - Recognition Evidence

Two men took a taxi to the Surrey Central Inn. Shortly after the taxi arrived, two men in masks robbed a clerk inside. Next, just outside, two men attempted to car-jack a car. Evidence suggested that the two men in the taxi were the robbers.

The big question was "whodunnit?"

At trial, the taxi driver and the victim of the car-jacking pointed at Mr Field, 2018 BCCA 253 in the dock and told the court that they recognized him as one of the two men in question.

The judge ignored the identification evidence from the two eyewitnesses. The judge knew that eyewitness identification of strangers often goes wrong. He had good reasons. The taxi driver meets way too many customers for these guys to make any real impression on his memory. The car-jacking victim saw two masked men, under highly stressful conditions, for only a short time. Both of these guys came into a court room and saw one prisoner in a dock. It was easy for these witnesses to believe that the guy that looks like a criminal was the criminal.

The in-court identifications didn't prove the case.

But there was more evidence.

A video-recording system inside the taxi captured images of the two men who went to Surrey Central Inn.

The trial judge compared Mr Field to the taxi security video. Although he probably noticed some resemblance, he also knew from other testimony that Mr Field's appearance changed between offence and trial. Therefore, he refused to rely on his own impression of the similarities between the robbers and the defendant.

Showing the video to the judge didn't prove the case.

But there was one more kind of evidence.

Early in the investigation, police suspected Mr Field. They sent pictures from the security video to probation officers who knew him, but they didn't say who they suspected. One probation officer recognized Mr Field. That probation officer forwarded the picture to another probation officer, again not naming Mr Field. The second probation officer also recognized him.

That persuaded the court beyond a reasonable doubt that Mr Field committed the robbery.

Mr Field's appeal failed.

The court noted the three ways to prove identity:

  1. Eyewitness identification of a stranger.
  2. Judge's comparison of the defendant to images of the offender.
  3. Recognition by people who know the defendant.

The eyewitness identification would have been much stronger if the eyewitnesses picked Mr Field from a photo pack shortly after the offence. Showing a witness one person and asking "is this the man?" can have the effect of telling the eyewitness "this is the man." This kind of eyewitness identification formed part of many wrongful convictions. Judges don't trust it. As an investigator, you want to show eyewitnesses lots of faces to choose from, not one suspicious one.

If security cameras capture really clear pictures of the felon, then the judge can compare the defendant to the culprit. Beware. Some defendants change their appearance while in jail. To prevent that problem, take good pictures of your suspect, and supply them to Crown as part of your report.

As this case demonstrates, recognition evidence can prove the case, if you do it correctly. When you send images to the person who knows your suspect, don't supply the suspect's name. And ask that witness not to name the culprit to any other potential recognition witnesses.

As Steve Jobs used to say: and one more thing....

In some police reports, when describing video of the offence, officers will write a summary of what the video captured "the accused" or "the suspect" doing.

Sloppy thinking!

Security video captures "the culprit" or "the felon" or "the robber" or "the assailant" or "the exhibitionist" committing the crime. "The suspect" is the person you think did it. "The accused" is the person on trial. Don't mix 'em up. The big question in an identification case is whether they are the same person. Even if you believe that they are, use different words for "the felon" and "the suspect", to show that you understand the issue.

2018.06.16 Impaired Drivers - Serving Documents

Mr Fitzpatrick, 2017 CanLII 85809 (NL SC) drank too much to drive. Police busted him. After he blew into the instrument, the technician who analyzed his breath prepared a certificate which could be filed at trial, proving how much booze was in him at the time. The investigating officer served him with a copy of the breath technician's certificate ... or at least ... the officer thinks he did, based on his "usual practice".

Section 258(7) of the Criminal Code prohibits the court from accepting such a certificate "unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate."

The trial judge refused to accept the certificate because the officer didn't give sufficiently persuasive evidence that Mr Fitzpatrick received a copy. The appeal court agreed.

Routine events are easily forgotten. Some officers routinely swear an affidavit of service of the certificate. Doing so - or at least making notes of the event - may help you when such a case comes to trial.

2018.06.16 Youth Statements

After consuming ecstasy, 16-year-old N.B., 2018 ONCA 556 went for a walk with his cousin to a convenience store. He returned without his cousin, and got changed. He went to a friend's residence where he told everyone that his cousin was in trouble and needed help. Someone "told" him that his cousin had been attacked and dragged into "Lackie's Bush". He took some friends and relatives there, and found his cousin, dead. He freaked out, and hugged the body.

Police were called, and they attended.

N.B. pestered one of the officers for information, interfering with his efforts to investigate. The officer punched him and arrested him for causing a disturbance. A different officer took N.B. back to the police station for questioning about the death of his cousin. They put him in a locked interview room.

When they started a witness statement, N.B. asked if he was arrested. The officers told him he was arrested for breach of the peace, and he would be released. They knew that the cousin died, but they did not tell N.B., for fear of upsetting him.

N.B. gave conflicting statements about what happened. At first, he told police that he and his cousin split up at the convenience store. When the officers told him (falsely) that there was security video, N.B. changed his story. He said he went to Lackey's Bush with his cousin to smoke pot, and a group of guys attacked his cousin, and N.B. ran away.

The change of story led the officers to arrest him for murder. The trial judge convicted him, but on appeal he got a new trial.

Why? The officers didn't follow the requirements of s.146(2) of the Youth Criminal Justice Act. At no time prior to the interview did the police tell N.B.:

The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.

The appeal court made several main points.

The officer who punched N.B. was later convicted of assault causing bodily harm and obstruction of justice. Those events occurred in the execution of his duties on some other occasion, but his explanation of that event resembled his description of events with N.B.

What lessons emerge?

2018.06.16 Statements & Corroboration - Exception to the Rule against Hearsay

General duty policing teaches young officers some bad habits.

In the daily rush from file to file, the duties of an officer who first responds to a call for service make it seem that an investigation ends when all the witnesses give statements.

When a suspect or an important witness reveals what happened, that's not the end of the investigation, but the beginning. The good investigator asks "What parts of these statements can further investigation confirm or refute?"

Corroboration matters.

Mr Larue, 2018 YKCA 9 and his girlfriend Christina didn't like Christina's previous boyfriend Gordon Seybold. Gordon Seybold died when fire consumed his grow-op. The forensic pathologist couldn't say what killed him - heart attack, fire or violence? But his blood on the business end of a baseball bat tended to suggest violence. Mr Larue's blood turned upon the handle of that same bat.

Christina found a great new job with an organization run by Mr Big's sister, Ms Big. She told Ms Big that she and Mr Larue killed Mr Seybold. Mr Larue fought with Seybold first. Then both of them hit Mr Seybold on the head with a baseball bat.

Mr Seybold also got involved in the organization. He told a similar story.

Mr Larue and his girlfriend underwent separate murder trials. At Mr Larue's trial, the girlfriend refused to testify. Could the Crown use the girlfriend's statement?

The trial judge said "yes". Then the Supreme Court of Canada gave its decision in Bradshaw, 2017 SCC 35. To admit hearsay statement of an accomplice, generally the courts will need corroboration of "material" parts of the accomplice's statement. Was there independent evidence that confirmed her assertion that Mr Larue participated in the assault?

Yup.

His DNA on the handle of the bat, and his admissions of involvement to Ms Big made the difference.

You only find corroboration if you look for it.

A uninterested investigator merely interviews witnesses. A biased investigator tries to find evidence which matches the complainant's version (and ignores anything that doesn't). An interested investigator makes a real effort to capture all the evidence, and ask the suspect what happened. A good investigator reviews what the witnesses and suspect said searches for evidence which confirms or rebuts their various versions.

That takes more time that general duty likes to give. Rarely does general duty teach young officers to become good investigators.

2018.06.16 DNA - secondary transfer

The remarkable sensitivity of forensic DNA testing becomes a curse to police.

When police officers examined the crime scene in Larue, 2018 YKCA 9, they seized some guns and a baseball bat. The officer who handled the exhibits did not change gloves. That opened the door for defence to argue that police transferred the suspect's DNA from one exhibit to another during exhibit processing. That mistake caused one judge to dismiss the value of a forensic discovery of Mr Larue's blood on the handle of the baseball bat that killed the victim. Other judges took a different view.

Have you recently checked your supply of disposable gloves?

2018.06.15 Entrapment - Confirming Tips about Dial-a-Dopers

A tipster gives you the phone number of a drug trafficker. You call it, arrange a purchase, and bust the guy. Simple.

Not so simple.

Your job as a police officer is to prevent crime, not encourage it. If you persuade someone to commit a crime that they would not otherwise have committed, then the courts call your behaviour an "abuse of process".

Except.

Where you have a real reason to suspect that a person, or place, or phone line is involved in the commission of crime, you may create an opportunity for someone to commit a crime, and then bust them if they do.

Doesn't the tip give you real reason to suspect a phone line?

It depends a bit on the quality of the tip, and the conversation you have with the person who answers when you make your call.

Separately, police got tips about Mr Williams and Mr Ahmad 2018 ONCA 534. Investigators did minimal investigation of the Williams tip, and no investigation of the Ahmad tip. The trial judge in Williams case found that the police entrapped him, and stayed the trafficking charge. The trial judge in Ahmad's case relied upon the conversation during the call to find that the police used the phone call to investigate the tip, found no entrapment, and convicted.

The loser in both cases appealed.

The Ontario Court of appeal analyzed what makes for entrapment in dial-a-dope cases. They found no entrapment in either case. But the judges disagreed on the analysis.

If you engage in such operations, you need to read this decision, because it highlights the ground rules.

After you get a tip, and before you make the call, consider investigating the tip:

If, after that effort, all you have is a bare suspicion, you can still make the call, but you need to let the person who answers establish that there are drugs for sale.

Read the decision to see how that's done.

2018.06.14 Cupid's arrow in the Workplace - Stinchcombe and the Secret Affairs of the Heart

Police suspected Mr Biddle, 2018 ONCA 520 of three rapes committed in 1986. By 1987, he was convicted of all three. He successfully appealed two convictions: the Supreme Court of Canada ordered new trials. That process took so long that by the time the court ordered the new trials, one complainant didn't want to proceed again, and the other case was too weak to go on its own. The prosecution gave up.

Mr Biddle's third conviction depended upon the complainant's identification of Mr Biddle. That wasn't done very well. A police officer took her to a courthouse where he was appearing on his other matters, and asking her if she recognized him.

Not exactly a great lineup.

He lost the appeal on that conviction in 1993, but he never gave up fighting.

In 1999, the complainant and the officer who showed her Mr Biddle revealed that through the course of the investigation and prosecution, they fell in love. They married, and later, divorced. But they never revealed their blossoming relationship through the course of the prosecution.

Both swore up and down that the officer did not reveal information about the investigation to the complainant. But there are hints in the proceedings that he did. Those hints could have been used effectively by defence counsel to create doubt.

And so, 25 years later, the Ontario Court of Appeal ordered a new trial.

I can not imagine that it will proceed.

There are some tough lessons here.

Identification: It seems simple to show the suspect to the victim and ask "is this the culprit?" If the incident happened months before, you create a suggestive event which may cement a false identification. Even if the identification is correct, the evidence looks weak.

Disclosure: The defendant is entitled to know all information which may assist in the defence of the case. The existence of a romantic relationship between an investigator and a key witness is something defence needs to know.

In the early stages of a romance, the lovers rarely know where the relationship will go. It seems like a fragile flower - the chill of outside criticism might kill it like a late frost. It seemed offensive to these two new lovers that professional obligations should require disclosure of such a personal matter.

And yet the court ruled that they did. The professional obligations of a police officer intrude into personal life.

2018.06.03 Note-taking - Never enough

A police officer stopped Mr Lotfy's 2017 BCCA 418 pickup-truck because it speeding between Whistler and Vancouver. The cab stunk of air-fresheners, and the driver was nervous. A computer check indicated that other police officers arrested Mr Lotfy with a large quantity of marijuana a few months earlier. Then the officer smelled the smell of fresh marijuana. He arrested Mr Lotfy, and found lots of marijuana in the truck.

At trial, defence challenged the officer's grounds for arresting Mr Lotfy.

The officer wrote in his notebook only one of the things that made him think Mr Lotfy's truck contained marijuana: the odour. No note about the nervousness. No note about the air fresheners.

Defence attacked: if the officer didn't write a note about these things, then they may not have happened. Maybe the officer is making up observations after the fact to justify jumping to conclusions at roadside.

The attack failed: the officer could point to notes he made about these topics in the report to Crown Counsel. He wrote that within days of the incident.

But I bet he wishes he made more notes.

When your investigation moves from innocent interaction to search to discovery of contraband, what you observed at the beginning of the interaction makes all the difference. After the excitement of arrest and discovery, you need to take your mind back to the beginning, and record all the observations which led you to take action.

2018.06.02 Loose lips sink ships - Revealing evidence to Witnesses

On July 26, 2005, someone murdered Mauricio Castro. At trial, the Crown argued that it was a killing related to drug trafficking. One of the witnesses was Mr Khananisho.

Mr Khananisho told police that he put Mr Deleon and Mr Restrepo in touch with Mr Allen, 2018 ONCA 498.

On the witness stand he was pretty reluctant.

Years after the conviction, after a meeting with Mr Allen's girlfriend, Mr Khananisho recanted.

He claimed that the police told him enough detail about the killing that he could invent a story that matched. He said police told him to tell "the truth" (meaning their truth), or he would be charged with conspiracy to commit murder.

On the strength of this recantation, the defendants appealed a second time. Had Mr Khananisho been a more important witness at trial, or a more consistent witness on appeal, the court might have permitted a second appeal.

Several lessons for officers flow from this case:


2018.05.26 "Person of Interest" - What does it mean?

At the morning briefing, four officers learned of a homicide that occurred the night before. They saw images from security video of people of interest. Although one officer thought he recognized someone, he did not identify that person at the briefing.

The four officers went to the crime scene to pick up more security video. On their way back they talked with two guys who looked like the people in the video.

Those two guys were later charged with murder. They asked the judge to exclude the evidence that those officers obtained during their conversation. They said that they were "detained", and did not receive information about access to counsel.

The four officers testified poorly. They did not make notes at the time. They reconstructed events. They contradicted each other.

All of them tried to assure the court that this was not a "detention" because the defendants were only "persons of interest", not suspects.

It didn't work.

The judgment is pretty clear: "Person of interest" isn't a magic phrase that turns a detention into an innocent encounter. (R. v. Jama, 2017 ONSC 470 at para 47). These officers were investigating a homicide. The judge found that these four officers stopped these two guys and talked to them for quite a while. The officers did not tell them why, nor did they offer an opportunity to get legal advice.

I think this case provides a good example how routine work can go wrong quickly, when done in a "routine" fashion. General duty officers, read and beware!

2018.05.24 One-party consent to prove Lack of Consent - Date Rape - Sexual Assault Invevstigation

Date rape allegations arise often. Proving them is hard because:

When an 18-year-old woman complained about Mr Colling, 2017 ABCA 286. She said that when she told him she didn't want to have intercourse right away, he told her he would wait 14 dates. Investigators encouraged her to call him in a recorded conversation, and discuss the incident. The conversation went like this:

Her: I don’t know. I’m just . . . I don’t know. I’m kind’a upset. I said no. It has been bugging me. I said no. Why did you do it?
Him: Yeah, there’s a difference between no, don’t and no, okay, go ahead.
Her: I didn’t say no, okay, go ahead. I just said no, don’t. And you said we wouldn’t. You said we’d wait for the fourteen dates or whatever.
Him: Yeah. So it happened. I wasn’t really thinking. It was in the moment. I’m sorry.

That proved pretty compelling at trial. Even though he said she consented, this recording persuaded the judge that she didn't.

The decision doesn't say much about the work that went into setting up this conversation. I infer from the phrase "lawfully intercepted telephone call" (para 82), that the police applied for an authorization to intercept ("wiretap") the conversation, based on her consent.

If she had recorded the conversation of her own accord, it would be admissible. s.184(2)(a) of the Criminal Code. But when police suggested that she make this call, they turned her into an agent of the state. When an agent of the state records a private telephone call, the state needs judicial pre-authorization. R. v. Duarte, [1990] 1 SCR 30. You get that if you ask a judge for it pursuant to s.184.2 of the Criminal Code.

This sort of evidence can a huge difference - if you can get it. Many "date-rape" complaints come from minors.

Getting consent from an adult to record her conversation with her rapist is one thing. But there are legal and ethical impediments to involving a minor in a criminal investigation. Don't embark on such an investigation without getting legal advice from your lawyer.

(The Supreme Court of Canada upheld the conviction. The legal arguments did not relate to 1-party consent.)


2018.05.21 Search of a Residence - Exigent Circumstances - Mental Health

Mr French, 2018 BCSC 825 possessed a restricted handgun, a prohibited assault rifle, a silencer for the handgun, and some prohibited magazines. Police found them in his apartment, but at trial, the judge excluded all the evidence. Why?

Police first attended Mr French's apartment in response to a 911 call that people broke into his apartment, and someone got punched in the face. Officers who attended discovered that there was a party next door; the neighbors were drunk. One of them explained that Mr French sent suicidal texts. A group of partiers broke into his house. Mr French punched one of them in the face. Another neighbor also told police that Mr French suffered from mental illness. A police database confirmed that at some time in the past, Mr French had been diagnosed with a mental illness.

Police asked Mr French to come out and talk with them. He did. Although sweating profusely, he denied feeling suicidal.

Police searched the residence for the safety of anyone who might be in it, and for officer safety.

The trial judge found that they lacked sufficient reason to go in:

Efforts to justify the intrusion into his residence under s.117.02 or 117.04 foundered. The officers had no reason to believe that the residence contained guns, nor that Mr French's current condition endangered anyone.

The trial judge's decision highlights many common failings of police responses to ambiguous situations:

This situation became complicated. These officers made common mistakes.

I recommend that general duty officers and their supervisors read this decision. It's  a good decision to discuss and consider. Ask themselves: "How should I handle a similar situation if it came up?"

This decision does not give you answers for every possible situation that will arise. Your next mental health call differ from it. But the decision does help you identify when you should enter a residence to check on the safety of people inside, and when you shouldn't.

2018.05.21 Impaired Driving - Drugs

Mr Jackson, 2018 ONCA 460 fell asleep in his car with his foot on the brake pedal. He left the engine running and the transmission in drive. His vehicle was at an intersection.

Police officers tried to wake him up. It took considerable effort. When he woke, he couldn't put the transmission into park. Mr Jackson's car rolled forward and bumped into the police cruiser. When they got him out of his vehicle, he moved slowly, slurred his speech, and stood and walked unsteadily.

Drunk driver?

Nope. He consumed no alcohol.

But on the passenger seat were several bottles of prescription pills.

He told one of the officers that he had ingested Diazepam and Benzodiazepine, but had not consumed alcohol.

Lengthy delays in giving him access to counsel and conducting a DRE exam resulted in exclusion of significant evidence of his drug consumption. Even his remark about drug consumption was excluded because he had not received access to counsel before he made it. Defence pointed out that nobody tested the pills in the bottles to see if they matched the labels.

But the judge convicted him anyway.

Why? Because:

If you delay access to counsel, or delay DRE exams, you won't always be so lucky. If you suspect impairment by medication, perhaps you should get the medication tested.

What led to this conviction was careful observation of the suspect's symptoms, and the match to an expert's description of the effects of the drugs.

If drug-impaired driving is on the rise, then you should get into the habit of making careful observation at roadside of all the symptoms and behaviours of the driver. And as time passes, continue observing and recording those symptoms. And interview the suspect after he gets access to counsel. The judge will generally not admit evidence of what he told you at roadside before access to counsel. Video cameras are your friends. Security video cameras in police detachments continuously create disclosable evidence.


2018.05.20 Impaired Driving - Screening Device & Mouth Alcohol

Is the possibility of mouth alcohol a detail which you must "eliminate" before you can rely a "fail" result from a screening device?

No. But you should go slow when mouth-alcohol is a real concern.

Three months ago, I wrote that some judges give the defendant some surprisingly favourable treatment relating to mouth-alcohol.

Judge Paciocco of the Ontario Court of Appeal brought some common sense back into this area of the law.

An officer stopped Mr Notaro, 2018 ONCA 449 at about 2:10. She smelled the odour of liquor in his car. Mr Notaro admitted drinking in a bar. The bar was 2-3 minutes' drive from their location. The officer suspected he had alcohol in his body, and demanded that he blow into a screening device. He did. At 2:18, it registered a fail.

She never turned her mind to the possibility that he drank just before leaving the bar, and that mouth alcohol affected the reliability of the result. She didn't think to ask what time he last drank. And at the trial, when defence challenged her, she agreed that it would have been prudent to ask that question.

At roadside, she made a breath demand. Mr Notaro went to the police station. There, analysis of his breath showed he was over the limit.

The trial judge convicted Mr Notaro because the possibility of mouth alcohol was just a mere possibility. The officer knew of nothing that raised it to a likelihood or a strong possibility that mouth-alcohol produced a false "fail".

The summary conviction appeal judge and the Court of Appeal agreed with the trial judge. They all agreed that an officer who screens breath should consider any information which suggests that the screening device would give an unreliable result. But they all agreed that you don't have to wait for mouth alcohol to dissipate unless you have a real reason to think that mouth alcohol is there.

The simplest way to solve that problem is by asking the driver.

You don't have any legal obligation to ask. If you do ask, the driver has no legal obligation to answer.

Section 254(2) also requires you to proceed with breath screening "as soon as practicable". No unnecessary waiting. But you should wait if there's evidence of a real risk of mouth alcohol affecting the result.

Some of you always wait for mouth-alcohol to dissipate, even if you have no information suggesting recent consumption of liquor. That's a bad idea. S.254(2) requires you to test breath "as soon as practicable". You should wait only when the circumstances of the particular case suggest the screening would be unreliable if done immediately.


2018.05.07 Impaired Driving - What are the Units?

At roadside, Mr Charest, 2018 ONSC 1719 blew into a screening device. It registered a "fail". Mr Charest provided breath samples at the police station. That went badly for him too.

The investigating officer told the judge that the screening device he used registered a "fail" at .100 milligrams of alcohol per 100 millilitres of blood. If that were true, his screening device was 1000 times more sensitive than it should have been.

The officer got the units wrong. He meant:

In s.253, Parliament chose the third way of expressing the lawful concentration.

The judges in this case convicted Mr Charest, because they figured they knew what the officer meant, despite what he said. As set out in the judgment, other officers have made similar mistakes, and other judges have not been so generous.

Units matter. Would you rather receive a milligram or a kilogram of gold?

Learn Parliament's way of expressing the concentrations of alcohol, and you won't look silly on the witness stand.


2018.04.23 Workplace Conduct of Police - Private or Public?

Sex is touchy. Especially in the chain of command.

The Chief Constable of the Victoria Police exchanged some racy Twitter messages with a police officer. It became public and turned into a disciplinary nightmare. He resigned. Elsner v. British Columbia (Police Complaint Commissioner), 2018 BCCA 147

Flirtation between married people isn't a problem - if they're married to each other. These two were married, but not to each other. The officer wasn't under the chief constable's command, but her husband was. The Chief Constable could - if so inclined - use that power to facilitate the affair.

People who carry heavy responsibilities, and who work under pressure need a time and place to laugh and develop camaraderie. That describes every police officer, even the most lowly. But people in positions of power fall into conflicts of interest very quickly when the jokes become intimate.

Part of being human is sexuality. We carry it with us everywhere. But where we work, freedom of expression comes with limits.

2018.04.08 Arrest and Interview - Explaining the Whole of the Investigation

You can't arrest someone for an offence unless you have reasonable grounds to believe that they did it. When you arrest a target, sometimes you have reason to suspect that they committed another offence too. What do you tell them?

Microsoft reported to the authorities that someone was storing child pornography on their servers. They provided the physical address of the account involved. Based on the complaint, police believed Mr. Watson, 2018 BCCA 74 possessed the images, and they suspected he might be distributing it.

The interviewers did several smart things.

  1. Before giving him access to counsel, the investigator told him he was under arrest for possession of child pornography and under investigation for distributing it. Part way through the interview, Mr Watson asked to speak to the lawyer again. Because he had full information of the offences under investigation, his jeopardy never changed through the interview. Because his jeopardy never changed, he had no right to a further discussion with counsel.
  2. Mr Watson told the police officer that the lawyer told him not to talk about the offences. The police officer told him words to the effect “that was fine” but he, the police officer, would continue talking. The judges saw nothing wrong with this response: it did not undermine the legal advice, it did not compel the suspect to speak, and yet the officer could continue to investigate.
  3. The officer spent 4 hours talking with Mr Watson, and drew out of him all essential admissions:
    • he was the owner and only user of the computer the police had seized,
    • on the morning of the search he had been looking at pictures on a USB the police had found inserted into his computer desktop tower,
    • he knew the images he collected were illegal but that he could not stop himself from looking at them,
    • the only reason to keep such a collection was for sexual gratification.

Reading between the lines, I see some good police work:


2018.04.12 Exhibit Retention

How long after a brutal rape do you keep the exhibits?

It happened in 2001. After the rape, the victim underwent a "rape kit" exam. Police seized her clothing. They cut fabric out of the crotch of her jeans. The lab found a man's DNA in that fabric, but his profile didn't match anyone in the DNA database.

A year later, to make room in the exhibit storage area, the investigator directed that the clothing be returned to the victim, and the rape kit destroyed. In 2008, the DNA databank received a profile from Mr Garnot, 2018 BCCA 107, which matched.

At trial, he argued that destruction and return of the exhibits prevented retesting them for DNA, and that undermined the strength of the evidence. The trial judge agreed that this breached Mr Garnot's right to full answer and defence.

Mr Garnot asked the judges to stay the charges. They all disagreed. It wasn't necessary because the loss of the evidence hurt the case for the Crown plenty.

Don't think that the judges approved of the destruction of the evidence. This conviction was a near thing.

Most of the exhibits languishing in your exhibit storage system have little forensic value. Some of them matter deeply. The decision to destroy exhibits comes with a risk. Make that decision carefully.


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