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

2014.10.12 - Website slowly returns

From September 2013 to the end of August 2014, I worked as legal counsel for the Independent Investigations Office. During that time, I took this website off-line.  Providing legal information to police did not accord with my position in that agency.

In September 2014, I returned to Crown Counsel, which allows me to publish my suggestions on criminal law.

Much can happen in a year.  I am reviewing each page of the old site for accuracy before putting them back online.  You will find much under construction over the next few months.

New 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 2014".  Some of you may find it useful.

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New Law


2015.04.17 Impaired Drivers - Fatal Collisions


Car accidents involving fatalities and serious injuries occur sufficiently rarely that when they do, some officers do not know what to investigate.  Here in British Columbia, so many officers give drinking drivers administrative penalties that their investigative skills on impaired driving offences are withering away.

Your first duty is to preserve life. To the extent that duty causes you to lose evidence, prosecutors can not criticize your work.

But after preserving life, capture evidence.

On a summer's evening, out in the country, Mr Saul, 2015 BCCA 149 crashed his car going around a bend on Highway 1. His passenger died.  An officer attended.  Mr Saul had watery eyes, a flushed face and slurred speech but the officer did not smell any odour of liquor on his breath. Mr Saul stumbled and limped. Mr Saul told the officer he had been fishing - an activity the officer associated with drinking. There was a bottle of vodka in the car. The officer could not at first tell whether the accident or alcohol caused his symptoms, but eventually developed sufficient grounds. He demanded a blood sample.  Mr Saul went to the hospital, and got treatment. The doctor drew blood before the driver got legal advice, which prevented the prosecution from relying on that evidence. Later, by way of a production order, police obtained his medical records. It turned out that 2 hours after the accident, Mr Saul still contained over 160mg% of alcohol in his blood.

The trial judge acquitted Mr Saul on the possibility of "bolus drinking". It was theoretically possible that Mr Saul consumed a large quantity of alcohol just before crashing. After he crashed, the alcohol in his stomach moved into his blood-stream, resulting in the high readings.

The appeal court ordered a new trial. Such a speculative defence required more evidence to support it.

At a crash scene hat evidence do you investigate and preserve?

What do you do if you think he was impaired? Make your demand as soon as practicable.  Make sure the suspect gets legal advice, even at the hospital, before the doctor takes blood samples.

The law around investigation of impaired drivers may seem confusing. If you can figure it out, you will discover valuable principles of general application. Here are some basics.

2015.04.15 Impaired Drivers - Reasonable Suspicion


After police set up a roadside check stop in Saskatoon, Cst Comley saw Mr Synkiw's , 2014 SKQB 362 vehicle make a U-turn about half a mile back from the police cars.  Cst Comley pursued and stopped Mr Synkiw's car.  Cst Comley explained that the U-turn was not only illegal at that location, but also he suspected that the driver was driving drunk, and did not want the police to catch him.  Cst Comley's suspicions later proved accurate: Mr Synkiw blew 130 and 110 mg%.

Defence complained that the vehicle stop was arbitrary - Mr Synkiw might have made the U-turn because he remembered something that he left behind.  The court agreed that there were other possibilities than criminality which caused Mr Synkiw to make the U-turn; but there remained the real possibility that he was committing an offence.  That justified a detention.  Mr Synkiw was convicted, and his appeal denied.

It's just a fundamental principle that you already know: To detain a suspect, you need a real possibility that the person committed a crime.  But you don't need proof.

I don't think a U-turn, by itself, justifies a screening device demand. You'll need reason to suspect that the driver consumed alcohol. For example, Mr Synkiw provided several reasons: odour of liquor, glossy eyes, poor balance.

2015.04.14 Social Workers' Powers to Seize

When Mr R.M.J.T., 2014 MBCA 36 abused his step-daughter (see below) and made voyeuristic recordings of her, a social worker prevented him from removing the recordings from the home.  Furthermore, the social worker instructed the mother to collect the recordings and give them to the police.

Do social workers have powers of search and seizure like police?  Was the social worker acting as an agent for the police?

Because the police did not ask the social worker to do anything, the social worker was not an agent of police.

However, social workers are government agents, and therefore subject to the Charter. Social workers can't rely on s.489.1 of the Criminal Code to seize evidence; what authority did this one have to stop Mr R.M.J.T. from taking his recordings away, or to direct the mom to grab them?

The social worker testified that she had originally prevented the accused from taking the discs from the residence because she believed they contained child pornography involving the complainant. She agreed that seizing them had the effect of preserving the evidence for the police, but she said that she acted pursuant to her authority under Manitoba's Child and Family Services Act, to protect the complainant from further harm or abuse.

The court agreed. Even though the act does not explicitly spell out a power of seizure like s.489(2) of the Criminal Code, the child protection legislation allowed her to seize the objects because, in the hands of Mr RMJT, they constituted ongoing harm to the child.

Did this power to seize comply with the Charter?  The court found it did, but declined to say whether the legislation would authorize a search for child pornography.

What about turning the recordings over to police? The court found that was merely appropriate cooperation between agencies.

I suspect that courts in other provinces will interpret their child protection legislation similarly.

How does this affect police officers?

Suppose this social worker called you during during her visit saying that she believes that the suspect is about to take his voyeuristic recordings away with him. What should you tell her?

2015.04.13 Search & Seizure - Using s.489(2)


Mr R.M.J.T., 2014 MBCA 36 married a refugee claimant, Ms S.  He sponsored her and her 14-year old daughter to come to Canada. But they discovered a problem with his sponsorship.  The daughter found a hidden webcam observing her bedroom.  She complained to him, but not to the authorities.  A year later, the girl complained to her mother that Mr T took sexual liberties with her.  Mom sought the advice of a counsellor, who alerted a social worker.  The social worker spoke to the girl, who complained of another webcam in her bedroom. Mom went to the police.

The police asked mom for permission to seize the computer which she shared with her husband.  She agreed.  She let them into the house and they took the computer.

Mom sought and obtained an order in family court which removed him from the house.  A social worker attended while he collected his belongings.  She stopped him when he attempted to remove some CDs.  The social worker told the mother to gather CDs and video-recordings for the police.  The next day, mom delivered a cardboard box of recordings to the police.

A couple of months later, police sought and obtained a warrant to search the computer and the recordings. They found evidence that Mr T covertly video-recorded his stepdaughter naked, and sent her emails discussing his sexual acts with her.

Defence complained that police lacked authority to seize Mr T's computer: no warrant, and no permission from him. Defence argued that Ms S's consent didn't suffice. Although Ms S told police it was the "family computer", and that she had the password, at trial, she said she knew only how to play a few games on it. She didn't use the computer to access Mr T's private information. Therefore, he enjoyed an expectation of privacy over it, and her consent to seize the computer did not suffice to overcome his privacy rights in the information in the computer.

Maybe so. Or not.  The court didn't need to decide.

Mom certainly had authority to let police into her home, and into the places in the home that Mr T shared with her.

Once you are lawfully in a place, s.489(2) of the Criminal Code says you can seize things if you reasonably believe that they were used in the commission of an offence or contain evidence of an offence.  It's stronger and broader than the "plain view" power.

The judges all agreed that the seizure was lawful.

S.489(2) only permits seizure.  It doesn't authorize search.  The officers were wise to get a warrant to search the computer.  Given what mom said at trial, her consent to search might not have sufficed. If you propose to search a shared computer relying on the consent of one of them, ask your cooperative witness how much access s/he has to the data of interest.  Record her/his answers. Explain how much you plan to search. Give the witness the freedom to say no.  Record the consent.

One more thing.  If you seize something using s.489(2), write a report to a justice.  s.489.1.


2015.04.07 Preventative Policing after a Riot - The Limits of Civil Liberties

On June 26, 2010, riots broke out at the G20 summit in Toronto. The summit continued the next day, and protesters flocked to the centre of town to air their varied concerns.

How should police respond?

On the first day, police observed the worst agitators to hid their faces with ski masks, goggles or balaclavas.  These people tended to wear black and carry backpacks.  After the violence they changed their clothes and mingled with the crowd.

On the second day some officers tried searching the backpacks of protesters approaching the downtown core.  Mr Figueiras, 2015 ONCA 208 and his colleagues carried signs and pamphlets which proclaimed animal rights.  One carried a megaphone. Mr Figueiras wore a black cap, reflective sunglasses, a black shirt and blue jeans.  He and his friends carried backpacks. The officers refused to permit Mr Figueiras to approach the protest zone unless he allowed them to search his backpack. His friends video-recorded what the police did.

Mr Figueiras complained that the officer violated his civil rights.  The officer unfortunately responded "This ain’t Canada right now" and "There’s no civil rights here in this area."

No struggle broke out, but Mr Figueiras didn't get to demonstrate in favour of animals.

Mr Figueiras brought the events to the attention of the courts.  The trial judge sympathized with the police, finding that the violence of the previous day justified taking these extraordinary steps.

The appeal court disagreed.  The judges declared that the officers violated Mr Figueiras' freedom of expression.

In doing so, they discussed two legal pathways of analysis to determine when a police officer may limit a citizen's civil liberties. An old English case R. v. Waterfield, [1963] 2 All E.R. 659 suggested that an officer may do so only when it is necessary in order to perform his or her duty, and the officer takes only the steps that are reasonable in the circumstances.  The other way to approach the question is by consideration of s.1 of the Charter, which permits limitation of civil liberties only if the limitations are "prescribed by law" and can be "demonstrably justified in a free and democratic society".  Curiously, these boil down to roughly the same thing: when doing your duty, only violate civil liberties if it's clearly necessary; and when doing so, limit civil liberties as little as possible.

In this case, the officer claimed to be searching the packs for weapons.  The events of the previous day showed that the violent protesters did not bring weapons, but seized and hurled loose objects around them, like stones and mailboxes. The court opined that a search for weapons wasn't going to do much good.  (But finding balaclavas might have changed the conversation.)  Turning people back from this point did little good because so many alternate routes to the protest were available. It found that the means chosen to protect the public violated civil liberties more than necessary, particularly considering how ineffective they were.

This case and the videos provide plenty of fodder for armchair quarterbacks to discuss.  Here are some basic principles.

2015.03.21 Production Orders for Stored Text Messages


Last year, I reported that in Croft, 2013 ABQB 640, police obtained a production order against a telephone company to get text messages that the company stored in its servers after they were sent.  The court found that this constituted "interception of communication", and therefore is unlawful.  In January, I observed that a different judge reached the opposite conclusion: Carty, 2014 ONSC 212.

This week, in Belcourt, 2015 BCCA 126, the BC Court of Appeal agreed that production orders may lawfully compel telephone companies to divulge stored text messages. The officers who drafted this production order took care to include conditions on the order: messages protected by solicitor-client privilege should not be disclosed; nor should text messages which were still "in transit" and not yet delivered.

Because this decision comes from the appeal level, it will likely persuade most judges in Canada to agree - except those in Saskatchewan, who may well side with Croft.

2015.03.21 General Warrant - "Sneak 'n Peek" or "Wait 'n Take"?


General warrants may authorize a "sneak & peek" - a covert search for information about the offence.  If that's what the judge authorizes, then when you're done looking, you must leave.  Sometimes, waiting for someone to walk in may give you more information.  You can do that, even in a residence, if the judge grants you authority.

Good information suggested that drug dealers stashed their drugs in an apartment on Leslie St.  Some information suggested that the apartment belonged to Mr Shin, 2015 ONCA 189. The investigators sought and obtained a warrant authorizing them to sneak into the apartment and search for and seize the drugs.

They were right.  When they snuck in they found and seized drugs and evidence of trafficking.  And the place looked like nobody lived there.  When they finished searching and seizing, the officers decided to wait to see who might turn up.  Half an hour later, at 9:01pm, within the time allowed by the general warrant for the covert entry, Mr Shin unlocked the door and walked in.  The police arrested him.

At trial, Mr Shin complained that the police overstayed their authority.  By staying longer than permitted they breached his rights under s.8 of the Charter.  The judge agreed.  But the judge let the evidence in anyway: Mr Shin didn't live there - nobody did.  The general warrant authorized police to enter the apartment for the purpose of gathering information about the offence. Staying a little longer allowed the police to gather valuable proof that Mr Shin had access to the stash house.

If you want to stay and arrest after your covert entry, ask the judge for authority to do that.  Many warrants "authorize and require" peace officers to do what the warrant specifies.  You might want the judge merely to "authorize" this latter technique, but not "require" it, so that you have the choice to stay or leave after the sneak and peek.

2015.03.20 Immunity & Sweetheart deals in exchange for Testimony


Beware of offering immunity or light sentences to criminals in exchange for evidence against your primary target. Some recant.  If they do, they will accuse you of threatening or intimidating them into making false allegations. In the robbery-kidnapping prosecution of Alexander, 2015 ONCA 167, in exchange for their testimony the prosecution dropped charges against one witness and agreed to a reduced sentence against another.  Both recanted during the trial and blamed police and prosecutors for making them lie.

Sometimes, these deals are unavoidable. Engage in them only after consultation with management and Crown.

2015.03.19 Possession of Data in a Computer

- Breadth of Search

Mr Villaroman, 2015 ABCA 104 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."

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."

2015.03.18 Search & Seizure - Production Orders, Tracking Devices

Production orders changed, starting March 9.  The sections numbers changed, and the Criminal Code provides standard forms for the orders and the ITOs.  If you write applications, read the new legislation!

Here is a summary.  You can find more detail on the warrant toolbox page.

Order Basics Reasonable grounds to...
Preservation demand
487.012
A peace officer may require a person or organization to preserve computer data.  In most cases, the obligation lasts only 21 days, after which you must get a production order, or the data will be destroyed.  You can't extend your order.

If you want your target to keep your investigation secret, you need
Suspect
487.013 A justice or judge may require a person or organization to preserve computer data.  This obligation lasts 90 days, after which you must get an extension or a production order. Believe
487.014 A justice or judge may grant "General production order" - In the past, a production order could get original documents.  Now it produces only copies, but the copy is deemed as good as the original. Believe
487.015 Production order to trace a communication from relay to relay through the devices of people or corporations whose identities will only be discovered as you go.
Suspect
487.016 Production order to known persons for transmission data - if you do trace a communication, you will probably start with a known recipient.  You'll apply for orders under 487.016 & 487.015 together. Suspect
487.017 Production order for tracking data - to find things or people, not communications. Suspect
487.018 Production order to identify accounts in a "financial institution": to produce the name if all you have is an account number; or to produce an account number if all you have is a name. This section differs only a little from the old s.487.013. Suspect

No 5.2s

Section 487.0192 exempts all but the tracking production order from the obligation to write a report to a justice.  This makes logical sense: s.490 addresses returning property to owners.  Information differs because the order doesn't deprive the owner of anything.  However, the legislation does not require officers to inform those people whose privacy the order affected that their information is now in the hands of the police - and may fall into the hands of defendants. Expect defence counsel will attack the legislation on this basis.  I suggest that you notify the people whose privacy the order affected, and disclose to defence that you did so.

Destruction of Data

Curiously, s.487.0194 requires the people who have data of interest to police to destroy their copies "as soon as feasible" after complying with the order.  Suppose a cell phone provider normally kept cell tower logs for 30 days.  A week after a significant offence, you demand that the company preserve the logs for that day.  But you fail to get your production order within 21 days.  After 21 days, they may destroy the data, but for sure, after 30 days, they must destroy the data, despite your interest in it.

Even more curiously, if you do get a production order for that data in time, and they comply, they must destroy their own copy.  Don't lose what you get with a production order.  It may be the only copy.

Nationwide jurisdiction

Parliament finally fixed a jurisdictional issue: production orders are now effective across Canada, even if only a justice of the peace issues them.

Still no Telewarrant

My sources tell me that the legislators intended to include telewarrants for production orders, but they "forgot".  Grrr.  They hope to include it "next time".

Preservation Demand

Police officers can now demand that organizations (or people) who possess computer data preserve it if the officer suspects that the data may assist an investigation.

Transmission data recorder

The old DNR warrant 487.092 is replaced by a new "Transmission Data Recorder" warrant - which does the same thing for a wider array of communication devices.  Emails, texts, chats may all be captured by this.  You don't get what the target says, but you do discover to whom they say it.

Tracking devices changed

Tracking device for objects and vehicles - 492.1(1) an offence has been or will be committed, and tracking the location of one or more transactions or the location or movement of a thing, including a vehicle will assist in the investigation of the offence Reasonable grounds to suspect
Tracking device for apparel and cell phones - 492.1(2) tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence Reasonable grounds to believe

As before, tracking orders last 60 days, except in criminal organization and terrorism investigations in which you can get a full year.  The section now provides for a 90-day supplementary order to remove tracking devices covertly after the original order expires.

Dialled Number Recorder becomes a Transmission Data Recorder

Now, a judge or justice can order any telecommunication provider to tell you who your target communicates with, whether by phone, internet or other telecommunication technique.  It's not just telephones.  The section remains the same: 492.2.


2015.03.09 911 Calls - Power to Enter - Power to Arrest

At 4:00am, someone called 911 but hung up before the operator could talk. Nobody answered when the 911 operator called back. Two officers went to the address associated to the phone, to investigate.  They saw and heard, through the living room window, Mr Alexson, 2015 MBCA 5 screaming at a woman and a child, that he was “pissed off.”  The woman and child clung to each other as if terrified.  The officers immediately banged on the window and door.  The woman let them in, saying “please take him away.”  Without asking her whether she had authority to let them in, the officers entered.  The man smelled strongly of alcohol and looked drunk. Wearing only underwear, he became verbally abusive to both the officers and his wife.

At the officers' request, the woman brought the man some clothes. He continued to swear at the officers while dressing. The officers urged him to calm down, but he clenched his fists and stood ready to fight. The officers arrested him, and he fought back, injuring an officer.

Did the officers lawfully arrest Mr Alexson, or did they unlawfully assault him in his home?

As far as these officers knew, Mr Alexson committed no offence before they arrived.  The trial judge found that they lacked reasonable grounds to believe that he was going to commit an offence, and therefore acquitted Mr Alexson of assaulting a peace officer.  The summary conviction appeal judge agreed.  The Court of Appeal saw it differently.

It wasn't the 911 call that got the officers lawfully into the house, but the possibility of a person in peril.  A 911 hangup call can reasonably raise that concern, even without evidence of an angry drunk yelling at a woman or child.  The judges said: "there can be no question that the officers in this case had the authority to enter the home to investigate the reason for the 911 call, irrespective of whether the person that let them in had the authority to do so."

Having entered to prevent harm to people, the officers found an unreasonable man who got angrier as time passed.  As an ordinary civilian, I can walk away and think of better ways to solve the problem.  But you peace officers swore to serve and protect. You must act in the heat of the moment.  The trial judge thought the officers could have waited to see if the man would cool down.  The appeal judges said "Second-guessing is not helpful."

These officers arrested.  They could do so lawfully only if they had reasonable grounds to believe that an assault or a breach of the peace was about to occur.  (A breach of the peace involves someone or something getting hurt or broken, not just an unhappy argument.)  The lower court judges didn't think the police had such grounds.  The Court of Appeal saw clear reason to arrest.

In such cases, you must explain afterwards what perils you feared and why. (Take good notes, even after the guy kicks or punches you.)  The judge discusses the legal reasons why the officers acted correctly, and that's what makes this decision a worthwhile read.

I thank James Paulson at the Pacific Regional Training Centre for bringing this decision to my attention.


2015.03.05 Third Party Suspects

Blaming someone else is a great way to avoid responsibility, especially when the identity of the perpetrator isn't clear.

Someone abducted a 13-year-old girl, tied her up and left her in a shed to die in the cold of a Manitoba winter.  Decades later, police accused Mr Grant, 2015 SCC 9, based on small traces of DNA.  At his trial, he tried to present evidence of a similar assault on a schoolgirl, committed when he was in jail.  He wanted to argue that the similarity suggested that the same guy committed both offences, but because Mr Grant was in jail at the time of one of them, he couldn't be that guy.  The trial judge wouldn't let him.  The appeal judges held that the jury should have heard this evidence, and granted him a retrial.

For police officers investigating "whodunnit" cases, this reminds you that alternate suspects matter. To prove that your main suspect did the crime, you must investigate alternate suspects thoroughly.

2015.02.21 Search Warrants - When to get Another Warrant

Police got a warrant to search Mr Galbiati's, 2014 BCCA 5 residence for a marijuana grow operation. What they found suggested that they arrived in the nick of time. The grow rooms were empty and the marijuana was packaged for sale. They also found an arsenal of firearms and ammunition - some of which was unsafely stored. They found income tax returns which suggested that Mr Galbiati could scant afford the lifestyle his residence suggested.  They saw what looked like stolen property.

They started investigating proceeds of crime and stolen property. That breached Mr Galbiati's rights, because the warrant authorized a more limited search.

The officers should have got a warrant.

Interestingly, the trial judge felt that the officers could lawfully examine the serial numbers of apparently stolen property in plain view, and check those numbers on a database, even though the warrant itself did not authorize this. But examining his tax returns to assess his income went beyond the search for "documents of residency" which the warrant authorized, because the focus went beyond residency and into income.

When searching pursuant to a warrant, you may search for what the warrant describes. In so doing, if you encounter evidence of other offences, you may seize it.  But you can't change your investigation, and start searching for items not described in the warrant. If you want to search for other stuff, get a new warrant.

2015.02.19 Impaired Driving - Drug Recognition Evaluations - Right to Counsel

Mr Fogarty, 2015 NSCA 6 crashed his Crown Victoria into an oncoming Mustang. The occupants of the other car died. An investigating officer figured that drugs impaired Mr Fogarty's ability to drive.  That officer made a DRE demand, and told him about his right to counsel. He called a lawyer and got advice. After the evaluation, the DRE officer demanded a blood sample, but didn't offer him any further opportunity to call a lawyer. Mr Fogarty complained that this breached his rights: any time an investigation changes, police should give the suspect fresh access to legal advice.

The trial judge disagreed.  Consider the legislation:

An officer who forms reasonable grounds to believe that drugs impair a driver's ability to operate a motor vehicle may demand that the driver undergo an evaluation by a Drug Recognition Evaluation. s.254(3.1)  If that officer reaches the same conclusion, that officer may demand a blood sample for analysis. s.254(3.4).

Because a lawful DRE may logically lead to a blood demand, the court held that the blood demand was not a new or unexpected investigative tactic.

The appeal court judges agreed with the trial judge.

But they sounded a cautionary note: "Mr. Fogarty said nothing to indicate that his initial legal advice was inadequate or to request a re-consultation with counsel."

What if your suspect complains that his initial legal advice didn't cover what to do if the officer demands blood?  I suggest that you give the suspect an opportunity to get further advice.

2015.02.12 False Complaints to Police

Sometimes, people report crimes that never happened commit.  If they do it with intent to mislead, and you act on it, then they commit public mischief (Criminal Code - s.140).  People like me can prosecute them.

But can they be sued?

Apparently, police investigated Mr Caron 2015 BCCA 47 because young Miss A. told police that he raped her.  He sued her for defamation.  His claim explained that the police investigation proved he was working in another province at the time of the alleged rape.

Her lawyers asked the court to dismiss the lawsuit without hearing evidence. They argued that allowing such a lawsuit might frighten true complainants.  Who wants to complain to police about being raped if you might get sued for it?

The court allowed the trial to proceed: she could be found liable if the evidence showed that she acted maliciously, but not if she made an honest mistake.

I am not an expert in civil law. There may be nuances in this decision which I missed.

But the decision does identify dangers in sexual assault complaints.

Sometimes people make false complaints.  Such allegations can do terrible harm, especially sexual complaints. Be wary of our natural human tendency to sympathize with complainants.

Sometimes, true complaints come from vulnerable, inarticulate people who omit parts of the story because of shame or fear.  Ignoring, dismissing or lecturing them can do terrible damage too.  Not long ago, I worked with a woman who deeply distrusted police.  She had good reason.  Officers ignored or dismissed her complaints both times she was sexually assaulted. The jury believed her second complaint. But she won't ask police again to investigate the first one. Beware of dismissing a complaint too quickly.

Damned if you believe her.  Damned if you don't.  Investigate sensitively. Keep in mind the possibility of innocence.

2015.02.05 Testifying about the Law


Professional witnesses, particularly police officers and experts witnesses, usually know some of the law which applies to their field.  Sometimes these witnesses know the applicable law better than the lawyers who question them. Pride can lead to a fall - exercise some humility.

Dr Steven Hucker knows more about mental disorders than most folks. He's a smart guy.  Ms Campione, 2015 ONCA 67 murdered her children.  At her trial, the defence presented evidence that she was "Not Criminally Responsible by reason of Mental Disorder" (NCRMD).  Dr Hucker disagreed. While explaining to the jury why he disagreed, he discussed the complicated legal rules which determine whether a person qualifies for this defence.

The jury found Ms Campione guilty.  Evidently, they accepted Dr Hucker's opinion.

Defence appealed, complaining that Dr Hucker got the law wrong, and therefore he misled the jury.

The appeal court rejected this complaint. Dr Hucker got the law right. It's good to know the law that pertains to your work.

But Dr Hucker did another clever thing which you can emulate.  When he testifying, he claimed no authority in interpreting the law.  When discussing the leading case, he explained it "... as I've understood it".  He emphasized that law is not his area of expertise: "That's obviously using my lay professional’s understanding of what the case law tells us."  He left the job of explaining the law to the judge.

Smart.

When testifying, never tell the judge, the lawyers or the jury what the law is -- even if you know more about it than anyone else in the room. Instead, qualify your testimony: "As I understand the law...".  Law is the judge's job.  Take the humble path: "Well, you're the experts on this, but I understand that..." If it turns out you're right, you look brilliant and unmotivated by ego. If you're wrong, your humility earns forgiveness.

The law changes too. For example, the rules around searching cell phones incidental to arrest changed. If it changes between investigation and testimony, you can say "As I understood the law at the time of this search..."

2015.01.29 DNA needs Context


In the women's washroom of a restaurant a black guy quietly peered over the wall between one stall and another, so that he could watch a woman use the adjoining toilet.  When she noticed him, she ran screaming from the washroom. Police attended.  They found a pop bottle on the tank of the toilet in the stall where the man had been. A swab of the mouth of the bottle contained DNA matching Mr Mufuta, 2015 ONCA 50. Case proved, right?

Nope. Not with the DNA alone.

Maybe Mr Mufuta drank from he bottle, and someone else moved the bottle from his table to the washroom.  Maybe the felon took his drink.  Maybe a waitress took a detour from clearing his table, and left something behind in the washroom.

An officer watched the restaurant security video and saw three black men attended the restaurant.  One black man entered the washroom area minutes before the woman, and left three minutes later. Too bad the officer didn't get a copy of the security video right away. Within three weeks, the system overwrote the video.  The recording was unavailable for court.

The trial judge convicted Mr Mufuta, and the appeal court upheld the conviction, not because of the DNA alone, but because of the DNA in the context of other evidence, including:

This case offers several lessons:

2015.01.26 s.10(a) of the Charter - Should you Name the Victim?


When you arrest a suspect, you must identify the offence, so that the suspect can decide whether to cooperate with your investigation, or keep silent.

The law does not require you to provide detail. Quite often, at the early stages of an investigation, you don't have much information. Quite often, the suspect knows more than you. Therefore, it generally isn't wrong to arrest for "murder" without identifying the victim. (2005 ABCA 430)

How much information should you give a suspect about the offence? As a matter of tactics, giving the bare minimum can produce evidence.  For example suppose you tell your suspect "You're under arrest for murder", and the suspect replies "Mabel's dead?" Whether or not you were investigating the death of Mabel, you now know that your suspect knows something about harm that came to her.

But there's a downside to being coy. It can look cheap and unfair.

In W.L., 2015 ONCA 37, the investigating officer arrested the suspect for "sexual assault". The officer did not identify the complainant - the suspect's step-daughter - until long into an interview.  In that interview, the suspect admitted touching the girl, but at trial, he explained that he did so only to check her for pinworms. Why didn't he tell police that explanation during the interview? He blamed police. By arresting him for assault, and keeping him in the dark, the officer scared and confused him, so that he did not think to give the exculpatory explanation.

I have not watched the interview. I can not say whether the investigating officer actually treated the suspect unfairly. The appeal court focussed on a lawyer's issue. When choosing tactics, remember that it can look unfair if you don't identify who you say the suspect hurt (MacLean, 2013 ABQB 60) or what the suspect did (J.S.W., 2013 ONCA 593)


2015.01.24 Fingerprint Experts

 - What to Expect when the Attack Comes

When stealing plastic-wrapped dolls from a residence, a burglar left a single fingerprint behind on the plastic. Ripples in the plastic distorted the print.  Whose finger matched the print?

At first, AFIS - the Automated Fingerprint Identification System - produced no potential matches for the prints.  But almost a year later, the people at AFIS reported a possible match with fingerprints taken from Mr Bornyk in 2006 and 2010.  Curiously, those prints would have been in the system all along. Something made this match difficult.

A fingerprint examiner manually compared the print from the plastic with a photocopy of the prints taken from Mr Bornyk.  He concluded they matched. According to standard protocol, he passed his work to a peer for "verification". She reviewed his work, and looked at the fingerprint to see if she agreed with his conclusion. She did.

The trial judge acquitted Mr Bornyk, 2013 BCSC 1927.  He researched scholarly criticisms of fingerprint analysis techniques, and asked the lawyers to comment on the articles he found. During arguments, the defence lawyer pointed out differences between the known print and the print on the plastic. Without asking the fingerprint expert to comment on the articles or discrepancies, the judge concluded that they raised more than reasonable doubt about the fingerprint identification.

The Crown successfully appealed. Mr Bornyk 2015 BCCA 28 faces a new trial. But the appeal court did not vindicate current fingerprint analysis techniques. Instead, it criticized the trial judge's procedure. The trial judge was not a fingerprint expert, and a little research does not make him into one. He should have asked the expert for his comments. Could the expert answer the complaints of the scholars? Could the expert explain the discrepancies which defence counsel identified?  Because the trial judge trusted his own expertise more than the expert, the appeal court found that the trial judge erred.

But this litigation points the way forward in fingerprint litigation. Fingerprint experts should prepare to respond in future trials. They should read the trial judge's list of concerns. Some will return to a court room near you. I think that the important points in that list are:

  1. By RCMP policy, if any two fingerprint experts ever disagree, the one who turns out to be wrong loses his or her job. This policy was intended to make fingerprint evidence reliable. But the community of fingerprint experts is small. Their collegiality raises concern that the verification process will lack rigour. Who wants to get their workmate fired? The policy also prevents experts from keeping open minds when presented with challenges to their opinions. Who wants to admit they made a mistake, if doing so gets you fired? Finally, the verification process looks unscientific: it's not a double-blind test nor even blind to the expected answer.
  2. Disclosure of bench notes of the fingerprint analysis can easily break down because:
If you have more than one set of known prints, you should disclose them all to defence.
  1. Some known errors in fingerprint identifications came from partial prints and prints with poor detail.
  1. On difficult matches where you have multiple 'knowns', consider using the other knowns to confirm your opinion.

2015.01.22 Tactics for Prosecuting Multiple Accused

Prosecuting several people at once is cheaper than running separate trials against each one.  But the law requires us to prosecute youth separately from adults.  Indeed, the Crown may choose to prosecute adults separately too.  This leads to interesting legal and tactical considerations for prosecutors and police.

The Crown can require one defendant to testify at the separate trial of another defendant.

But section 13 of the Charter and section 5 of the Canada Evidence Act prevent the prosecution from using the accomplice's testimony against him at his own subsequent trial.

For example, Mr P.C., a youth, helped several adults beat a man to death.  The Crown served him with a subpoena to testify at the adults' preliminary hearing.  His lawyers didn't want him to give his version of the event before his trial. They argued that the subpoena violated his right to silence. The court disagreed, because of the legal protections he enjoyed. P.C., 2011 ONSC 1824.

After his conviction, Mr P.C., 2015 ONCA 30 complained again that at his trial the prosecutors cross-examined him on topics they had asked him about at the other defendants' preliminary hearing. The appeal court accepted the prosecutor's explanation: at Mr P.C.'s trial, they only cross-examined him using information they got from other sources than his testimony at the prelim. For example, at the prelim he said he knew in advance that there would be a beating. At the trial, the prosecution suggested that same fact to him. But the prosecution already knew the answer, because they knew he previously told his sister that fact.

There are limits to this strategy. The Crown can not use this tactic directly or indirectly to develop the case against the witness. In R. v. Z., 2001 CanLII 8539 (ON CA), the prosecution used the same general tactic. The Crown called Mr Z at the preliminary inquiry of other defendants. Later, defence counsel called a witness B. During the cross-examination of B, the prosecutor pressed him to explain Z's behaviour during the offence, and used Z's testimony to push B into incriminating Z. Then Mr B. testified at Mr Z's trial, and repeated the incriminating testimony. Mr Z successfully appealed. Because the prosecutor used this Z's testimony indirectly against him, the prosecutor violated Mr Z's rights.

If the Crown chooses to proceed like this, your investigation against the witness must be complete.

If - after the Crown compels the accomplice to testify - you produce new evidence against the accomplice, it will appear as though you used his testimony at the preliminary inquiry to identify investigative leads against him.  And that could cause problems at his trial.

2015.01.19 Testifying - Dos and Don'ts

 - Credibility Assessments

At a trial, the judge or jury decides whom to believe. Not the witnesses. For this reason, avoid expressing opinions on whether or not you believed what witnesses told you, unless specifically asked.

Evangeline Billy drowned in the Yukon River. Her sister and another woman told police that Alicia Murphy, 2014 YKCA 7 confessed to killing her.

At trial, the prosecutor asked the officers who interviewed them to describe their demeanour:

Q         What was her -- what sort of shape was she in when you got there?

A         She was very emotional.  I would say under the influence of alcohol, but not to the point where she wasn’t -- and she was giving a story that was credible, with detail, believable.  She was emotional.  She -- she was quite -- quite emotional and somewhat under the influence but not heavily so.

...

Q         And could you describe her demeanour during that interview?

A         Again, she -- she was upset by the whole situation.  But she was much more composed, less emotional than the previous evening, and she gave a pretty coherent and detailed statement

As you can see, the officers went beyond demeanour, and into credibility.  After the jury convicted, the appeal court overturned the conviction, and ordered a new trial.

When testifying, listen to the question asked, and answer it.


2015.01.17 RCMP Labour Relations


Here are links to the SCC's decisions yesterday on the RCMP members' challenges to existing labour relations and remuneration structures. Because I know I have no expertise in labour law, I am not foolish enough to express any opinions about them.

Meredith v. Canada (Attorney General), 2015 SCC 2
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

2015.01.13 Search & Seizure - Detention

At 2:30am, someone called 911, but hung up before speaking to the dispatcher. The call came from a troubled part of town. Police attended and knocked, but nobody inside responded. Fearing that the occupants may have suffered harm, they called building security to let them in. As they waited, police saw Mr Peterkin, 2015 ONCA 8 walk along the street, into the fenced back yard of that unit. There, he used his cell phone. The officers approached him and asked him what he was doing, and whether he knew the occupants of the residence.

He looked startled to see police.  No, he didn't know the residents.  He was waiting for a ride, he explained. And indeed, his girlfriend shortly arrived.

The officers found this odd. If he expected someone to pick him up, surely he would stand nearer the street, where the driver would see him, rather than duck into a yard near a house.  One officer detained him, but made incomplete notes as to why. Nor did he explain to Mr Peterkin all his reasons for detaining him.  The officer's testimony in prelim on this point conflicted with his testimony at trial. The officer did tell him about a right to counsel, but did not mention immediate free legal aid.

Mr Peterkin stood strangely. He held his right arm against his chest, and stood sideways to the officers. The officers called this "blading". They obtained his driver's licence from him, and gave it back. He accepted it in his right hand, but did not extend his arm.  Instead, he turned his body so that his arm remained against his chest.

The officers suspected that he carried a weapon, and told him they wanted to search him. He attempted to flee. The officers stopped him, searched and found money, drugs, a loaded handgun and ammunition.

Defence complained that the officer:

In his reasons trial judge admitted the evidence because the officers gave good reasons for detaining and searching Mr Peterkin. Failure to explain the reasons for the detention and the right to counsel did not cause the discovery of any evidence.

Mr Peterkin appealed unsuccessfully.  Meanwhile, a majority of the Supreme Court of Canada muddied the law of safety searches in a case called MacDonald, 2014 SCC 3.  The majority seemed to say that you need reasonable grounds to believe that the suspect posed you a danger before you could search for officer safety.  The minority identified flaws in their logic, and concluded all you need is suspicion that the suspect possesses a weapon that poses a risk to you or the public.

The Court of Appeal relied on the officers' clear explanations for why they suspected Mr Peterkin carried a weapon, and upheld the conviction.

The defence arguments identify the important issues for police:

  1. Identify and record the reasons why you suspected or believed someone did something wrong.  It often feels like instinct, but if you take time immediately after the event to record your observations of the scene and suspect, you can explain logically why your suspicions arose. Defence counsel will pounce on gaps in your notes, and accuse you of making things up on the witness stand. You'll be glad in court that you wrote a full explanation in your notes.
  2. Explain to the suspect why you detained / arrested him. At trial, this officer offered two reasons for the detention. At the preliminary inquiry, he offered only one. On the street, he didn't really explain at all. I imagine the cross-examination wasn't fun. Some traffic cops like to ask speeders "Do you know why I stopped you?" It's a cute tactic to elicit an admission of speeding. But it violates s.10(a). You must tell people why you stopped them. You are not obliged to explain every reason, but you must explain at least one lawful reason for detention.
  3. On "detention", your suspect is entitled to counsel, and the full explanation of the right to counsel.

2015.01.07 Search & Seizure - Text Messages - Production Orders or Wiretap? - Update

A few months ago, I reported that in Croft, 2013 ABQB 640, police obtained a production order against a telephone company to get text messages that the company stored in its servers after they were sent.  The court found that this constituted "interception of communication", and therefore unlawful.

This suggests that you should stop using production orders to get text messages from Telus.  If you have a case that did, let your prosecutor know about this decision.  The judge extended the reasoning in R. v. Telus Communications Co. 2013 SCC 16 beyond what the SCC decided.

However, a recently-published decision suggests otherwise. In Carty, 2014 ONSC 212, the police did the same thing - several times in a row. The judge reached the opposite conclusion. Production orders for stored text messages are a lawful method to obtain them.

Judges disagree. Get advice before choosing the easier route.


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