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 2014".  Some of you may find it useful.

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New Law

2015.07.10 Drunk in a "Public Place" - Detention and Arrest

A taxi driver complained to police that Mr Guray, 2015 BCCA 183 would not leave his cab. The officers told him to get out of the cab. After he got out, the officers arrested him for being drunk in public. When they searched him, they found cocaine in his pockets.

Mr Guray complained that the police broke the law by

These complaints often succeed - but they didn't this time. Consider what could go wrong, and what went right.

Suppose you pluck a drunk from a private place, and put him in a public place. You would be responsible for putting him there, not him.  Courts look unfavourably on officers who put drunks in public places and then arrest them for "drunk in a public place" (DIPP).

But these judges found that the taxi cab was a "public place". It might be a private place when a paying fare occupies it. But Mr Guray wasn't a paying customer. The cabbie wanted him out.

Was Mr Guray drunk? He mumbled incoherently, he had balance issues and glossy, bloodshot eyes.  But only one of the two officers detected any odour of liquor, and it was faint. He had good posture.  Perhaps he was just ill.  The court held that a police officer need not have proof of impairment, only reasonable grounds.  This officer had other reasons to believe alcohol caused the problem.  For example, the events occurred in the vicinity of bars, after closing time, when drunks are common.

Many officers fail to appreciate that "drunk" is not enough for DIPP. Impairment must render the drunk a danger to himself or others. You must fear for safety of people or damage to property. In this case, however, Mr Guray's intoxication appeared to be depriving the cabbie of his livelihood. He appeared to lack the ability to find his way home. Mr Guray's lawyer wisely avoided arguing this issue.

Arresting someone does not give you the right to search their person for anything you might find. You must look only for items related to the offence or the arrest. These officers sought:

  1. liquor - which would provide evidence of the offence;
  2. weapons - which could endanger the officers; and
  3. identification - so that the officers could determine who they arrested.

These are all lawfully incidental to this arrest. And that's why Mr Guray lost his appeal.

2015.07.08 Expectation of Privacy

- Common Areas of a Condominium

Do police need a warrant to investigate in the common areas of a condominium or apartment?  Two similar investigations reached different conclusions.

Ontario police had reasons to suspect that Mr White, 2015 ONCA 508 sold drugs from his unit in a 10-unit condominium.  Also for good reasons, BC police suspected Mr Webster, 2015 BCCA 286, sold drugs from his apartment.

In both cases, police got into the buildings by circumventing the security system at the front door. While investigating Mr White, plainclothes officers managed to follow the postman into the building.  They discovered that the back door didn't lock properly, and entered that way on two other occasions. Mr Webster actually held the front door open for the plainclothes officers who were watching him. On another occasion, another resident let them into the building, also without knowing who they were.

These investigations led the police to seize quantities of illegal drugs from both residences.  Mr White beat the rap.  Mr Webster went down.

The Ontario courts found that by entering and looking around the building, and by watching Mr White and listening outside his unit, the officers violated Mr White's reasonable expectation of privacy in the common areas of the building. Police needed a warrant to investigate in those hallways. The BC courts found that Mr Webster enjoyed no reasonable expectation of privacy in his building's common areas. No warrant required.

Is there or isn't there an expectation of privacy in the common areas of an apartment or condominium?

The facts distinguish the cases.  Mr Webster had the misfortune of sharing his building with the lead investigator of the drug team. At least one resident of the apartment wanted the drug cops there.  Mr Webster made the mistake of holding the front door open for strangers - plainclothes police. His claim to expect no strangers to wander his hallways fell flat.

This emphasis on the facts of the individual cases leaves you with little guidance.

I think these two cases illustrate a structural problem in the law: only one standard justifies the issuance of a warrant, even though the courts recognize a sliding scale of privacy. The "reasonable grounds to believe" standard can justify intrusions into the privacy of bedrooms and psychiatric records. The common areas of apartments are semi-private at best. Why should police need to meet the same standard in order to tread the hallways where Mr White's neighbours and their friends walk?

This tension will cause trouble.  We may reasonably expect the judges will struggle with this issue for a while yet.

In the mean time, what should you do to investigate in the common areas of secure condominiums and apartments?  These two cases suggest some strategies:


2015.06.27 Expectation of Privacy

- Who Lives in a Condominium?

Can the building manager in a condominium tell a police officer who lives in a specific unit?

In B.C., legislation requires the building manager to identify owners and tenants of the building to the other owners and tenants.  Mr Webster, 2015 BCCA 286 lived in a condominium. Police asked the building manager for Mr Webster's information.  The manager provided it. That information led to Mr Webster's arrest for PPT.  Defence argued that police should have obtained a production order. The court disagreed. Anyone in the building could ask for and obtain the information. Mr Webster did not enjoy much privacy in it. The building manager could agree or refuse to provide the information sought; his cooperation did not make him an agent of the state.

2015.06.26

 Sexual Assault - What is Consent?

You may have met some people who don't understand consent. I know in my prosecutions, I have. A colleague sent me this explanatory video. Maybe you will encounter a situation in which it would help enlighten someone.

2015.06.26 Wrongful Conviction


When is your investigation "over"?

Maxime Ditchfield died on September 22, 1970. A jury convicted her partner, Mr Salmon, 2015 ONCA 469 of manslaughter, relying largely on the evidence of an expert that her brain injuries resulted from "blunt force trauma". The judge sentenced him to 10 years.

Mr Salmon always maintained his innocence. 30 years later, his lawyer found some experts who reviewed the evidence.  They concluded that Mr Salmon didn't hit her on the head.  The brain injury was more likely the result of a fall or a series of falls.  The prosecution found an independent expert, who agreed with the defence experts.

Last week, almost 45 years after the death, another court acquitted him.

Experts aren't always right.  Your investigation is never really "over".

2015.06.20 Murder & Manslaughter - Intoxication defence

If you're too drunk to understand that what you intend to do next will kill someone, should you be convicted of murder if you do it?  At law, the answer is "no".  To be guilty of murder, you must expect that someone will die as a result of your action.  Intoxicated people don't always forsee what sober people would see.  If so, they might be guilty of manslaughter, but not murder.

Therefore, investigate the suspect's impairment.  Officers who deal with the suspect immediately before or after the killing should record notes or video of the suspect's symptoms of sobriety and impairment.

Ms Arjun 2015 BCCA 273 hacked a friend to death over several hours.  She had a drinking problem, and had consumed some alcohol. Several hours after the killing, police attended.  She had no difficulty with balance or speech, but did seem shocked.  This evidence did not suffice to establish the kind of impairment by alcohol that would be required to deprive her of the understanding that hacking someone repeatedly with a large knife would kill him.

2015.06.07 Search & Seizure - Detention Orders


Mr Weatherill, 2015 BCSC 566 didn't like the new digital power meters that the electric company wanted to install in his house. Things must have turned ugly, because the police attended and gave him a promise to appear to attend court regarding an assault. That complaint ultimately resolved as a peace bond. But in the mean time, police seized his guns. Among those firearms were some prohibited handguns for which Mr Weatherill had no licence.

Once the assault charge settled as a peace bond, Mr Weatherill wanted his guns given to a properly-licenced friend - perhaps to sell on his behalf. Police wanted them forfeited.

The Crown persuaded a provincial court to order the guns forfeit, but the BCSC saw a problem with that.

Because the police never reported the seizure of the firearms to a justice ("Form 5.2"), and the justice never ordered the firearms detained, the provincial court never took jurisdiction over the firearms. When the time came to dispose of them, the provincial court lacked jurisdiction to make the forfeiture order which the Crown sought. Although the case doesn't say, I suspect that Mr Weatherill's friend got the guns in the end.

Reporting what you seize to a justice is bothersome. Getting extensions is inconvenient. In cumbersome language, s.490 of the Criminal Code requires it. Failure to comply with that legislation can lead to embarrassing results. For example: Raponi 2004 SCC 50.

2015.06.05 Search & Seizure - Cavity Searches and Doctors


Mr Johal, 2015 BCCA 246 sold crack cocaine to an undercover officer for $100. The officer detained him, and asked him who he was. The officer arrested him and asked him if he'd like to speak with a lawyer. Mr Johal declined it for the moment, but indicated he might want to make a call from the police station.

At the police station, in a private place, police strip-searched him. They saw blood in his underwear, and what appeared to be a white powder around his anus.

The investigating officer knew that drug traffickers usually carry more than one sale of drugs, and they often hide drugs in their rectums.  He worried that drug packaging may have broken, exposing Mr Johal to a dangerous overdose.  He took Mr Johal to a hospital. He explained his concerns to a doctor, but did not direct or ask the doctor to take any particular action. He also offered Mr Johal another opportunity to talk to a lawyer, which Mr Johal declined.

The doctor told Mr. Johal, in the presence of the police officers, that Mr. Johal had to submit to an internal search.

The officers left the room, and the doctor searched Mr Johal's rectum. The doctor reported this to the police.  The doctor then X-rayed Mr Johal, and again found nothing.

Defence complained that the police and the doctor violated Mr Johal's right not to be searched unreasonably.

The trial judge and the court of appeal found that the officers acted properly. Both decisions make good reading on a variety of issues. (And the judges kept their decisions mercifully short.)

  1. Strip searches are tricky to do correctly. Notice what steps these officers took to minimize the violation of privacy in this one.
  2. Two officers saw the white powder around Johal's anus.  You should minimize the number of eyes (and videocameras) that observe the suspect's nakedness; but you should avoid leaving an officer alone and unsupervised during a strip-search. Having a second witness observe the powder provided corroboration for an important piece of evidence.
  3. Detention triggers the right to counsel. The investigating officer took a little longer than he should have to offer access to counsel. Luckily, that did not result in any prejudice to the accused.
  4. The right to counsel applies regardless where you are.  At the hospital, the investigating officer offered Mr Johal access to counsel before the doctor examined him.  That was smart. Had the doctor found evidence, it would have been excluded if the officer had not offered prior access to counsel.  Taylor, 2014 SCC 50
  5. When you ask or direct someone to help you do your work, the law calls them your "agent".  Everything they do thereafter must comply with your duties under the Charter. Even though the doctor searched Mr Johal's rectum for drugs after the police brought him to the hospital, the doctor was not a police agent because the officers took care not to tell him what to do.
  6. The court observed that Mr Johal could have declined the medical treatment.  What would you do then?
  7. The officer testified that he "suspected" that there Mr Johal's anus contained illegal drugs.  For a cavity search for evidence, you need reasonable grounds to believe that the anus or vagina in question contains evidence. Golden, 2001 SCC 83. However, this officer also had real concerns for Mr Johal's health, which should justify searching on the lower standard of belief.

2015.05.29 Spousal Privilege - Statutory Amendments July 22, 2015

Spouses are complicated.  But the law surrounding their testimony will become simpler on July 22, 2015.

Before then, with various exceptions, the prosecution could not compel a husband or wife to testify against his or her spouse nor could the court accept such testimony. Courts reached differing conclusions whether these rules applied to common-law relationships. Nguyen, 2015 ONCA 278; Legge, 2014 ABCA 213. Section 52 of the Victims Bill of Rights Act sweeps much of the confusion away by amending s.4 of the Canada Evidence Act. When it comes into force on July 22, 2015, all spouses can be compelled to testify in all cases.

But spousal communication privilege continues. The Canada Evidence Act will still provide:

4.(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

This protects an accused's person's spouse from revealing communications made in private.  If the communication were overheard (or read) by some third party in circumstances where the couple could not expect privacy (such as overtly recorded jail cell conversations), then the third party can come to court and testify about what he or she overheard the accused say to his wife.  Siniscalchi, 2010 BCCA 354; Meer, 2015 ABCA 141.

So the Crown can compel the wife of the accused to testify about the events of the crime - what she saw - but the Crown can't compel her to reveal what her husband told her in private about the murder. If the Crown does ask her what the accused said about the murder, she can decide to answer the questions if she wants.  If she and her husband discussed the crime in places where they expected to be overheard, the Crown can ask her to repeat those remarks in court without her consent.  Meer, 2015 ABCA 141 at para 69.

In Nguyen, 2015 ONCA 278, the accused's common-law partner was near the murder when it happened.  The partner told a friend some things that the accused said before the murder. As admissible hearsay, the Crown asked the friend to repeat the partner's remarks. Whether or not s.4(3) of the Canada Evidence Act applies to common law spouses, it didn't apply to this testimony because the Crown did not compel the partner to testify about the communication.

As pointed out in that case, s. 189(6) of the Criminal Code creates another exception.  The prosecutor can't tender electronically intercepted private communications between husband and wife. But the prosecution can tender the intercepted communications of common-law spouses. Nero, 2014 ONSC 1896

Spousal privilege does not extend to common-law partners. Martin, 2009 SKCA 37.  But in Ontario, it does.  Masterson 2009 CanLII 36305 (ON S.C.).

2015.05.28

 Identification by Acquaintances

Over a couple of months, three Tim Hortons stores in Oshawa suffered four robberies.  In each, the robber held out a Tim Hortons cup, and required the clerk to put money into it. In each, the robber covered his face and hands. In each, the robber wore generally similar clothing.

Police prepared a poster which showed images from the store security videos.  A woman who worked at Tim Hortons believed that she recognized the robber as Mr Olliffe, 2015 ONCA 242, a former boyfriend.  Police got a search warrant for his house, and found several things which generally resembled what the robber wore: blue hospital gloves, sunglasses, bandannas, and shoes. None clearly matched the clothing of the robber.

Because of the generic nature of the items found in his house, the case depended upon the strength of her identification.

She did not recognize his clothing, only the style.  At trial, she conceded that she would not have believed that the robber was her ex-boyfriend if she had been told that the poster showed robberies in Alberta.  This evidence showed the robber appeared similar to Mr Oliffe, but that she did not specifically recognize him from the photographs.

This kind of identification evidence won't support a conviction all by itself.

Witnesses don't always articulate this difference.  You can always ask:

Are you saying you know that the guy in this picture is your ex-boyfriend, or are you saying the guy this picture looks like your ex-boyfriend?

2015.05.24 Street Checks - Detention


Street checks walk the fine line between conversation and detention.  Try to stay on the right side.

Police in the area knew Mr Fountain 2015 ONCA 354 and his brother to be involved in crime and to carry guns. When a constable saw this Mr Fountain walking on the street, he remembered learning not long before of a warrant for the arrest of one of the brothers, but he did not know which brother this was, nor whether the warrant had yet been executed.  A recording device captured the conversation:

Officer: "Fountain, come here, Guy? What's going on, man? Which one are you?"
Fountain: "What do you want?"
Officer: Which one are you?
Fountain: Fountain.
Officer: I know. Are you -- there are two brothers. Keep your hands down. Which one are you? What's your first name?

It's worth reading the decision for the rest of the conversation.

The conversation continued until a stranger intervened. Mr Fountain reacted to the stranger by blading his body and pressing his left arm to his side as if he possessed a gun.  Suspecting a firearm, and believing himself at risk, the officer touched Fountain's left side, and felt something hard like a gun. He yelled "gun!"  Fountain fled, and dropped a handgun. Police later caught him and charged him with firearms offences.

At court, the officer conceded that he did not believe that he have sufficient grounds to detain Mr Fountain. The judges found that he did detain Mr Fountain, and he did so arbitrarily.

Was the gun admissible?  The court held it was. Even though police discovered it during an arbitrary detention, the police did not create the circumstances which caused the officer to discover the gun.  The stranger did. The search was lawful, for officer safety.

The Crown and defence agreed that the officer arbitrarily detained Mr Fountain, but they disagreed when the detention became arbitrary. Factors which turned this conversation into a detention included:

  1. the officer focussed on identifying Mr Fountain for a warrant (instead of general conversation);
  2. the officer ordered Mr Fountain to talk to him, giving him the impression he had no choice but to comply;
  3. even after they identified him, they kept pumping him for information without telling him he could go; and
  4. the officer used coercive words "keep your hands down".

The appeal decision and the trial decision discuss the differences between a lawful and an unlawful street check. You may find them helpful, in order to walk on the right side of the line.  There's an even clearer discussion in Papilion, 2014 SKCA 45

2015.

05.22 Child Pornography - Exploitative Relationship

When is recorded consensual sex with a young person child pornography, and when is it "self expression"?

Mr Barabash 2015 SCC 29 was over 60.  Mr Rollison was 41. They recorded videos of explicit sex with two runaway 14-year-old girls.  The girls, motivated no doubt by the food, shelter and drugs these men provided, consented to the activity, and never asked the men to destroy the recordings.  Because the age of consent at the time was 14, the trial judge found that none of the participants committed any offence.  The Supreme Court pointed out that the sexual activity might have been unlawful under s.153 of the Criminal Code if the relationship between the men and the girls was "exploitative", and ordered a new trial.

Making and possessing child pornography is lawful "where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted."

2015.

05.22 Child Pornography - Undoing Youthful Indiscretions

What should you do if a young person repents of her sexting? The answer appears to be that she should request that the recipient(s) return or destroy the images. If he/they don't, he/they may be committing an offence.

Can you arrest her abusive ex-boyfriend for possessing videos of their passionate sex together? Perhaps you can, if he persists in retaining them after she demands their destruction. And for sure, you can, if the abusive ex-boyfriend threatens to embarrass her by showing the recordings to others.

In an aside, in the Barabash 2015 SCC 29 case, the court suggested that young persons might be able to demand destruction or return of the child pornography they created. This may terminate the consent necessary for lawful possession of the child pornography.  The abusive ex-boyfriend who fails or refuses to comply with the young person's demand may then be committing the offence of possession of child pornography.

Mr Dabrowski, 2007 ONCA 619, aged 28 video-recorded himself having sex with his 14-year-old girlfriend.  Sometimes his friends attended and helped.  After they broke up, he threatened to show the videos to her family and friends.  If he did, then he no longer held the recordings for private use, and could be convicted of possessing child pornography.

Parliament could act. They wouldn't need to write much. How about this:

"163.1(8) Lawful possession of child pornography which depends upon the consent of a person recorded or depicted in it terminates when that person withdraws his or her consent."

2015.05.18 Bail - Tertiary Ground

 - Public Confidence in the Justice System

Busting crooks resembles fishing for steelhead in B.C.. Mostly, it's catch-and-release. That's because s.11(e) of the Charter guarantees people charged with offences reasonable bail except where detention can be justified.

Most people understand the "primary" and "secondary" grounds for detaining a suspect.  If buddy won't return for court, or if he will likely commit more crime, then the justice should detain him.

But the tertiary ground confuses people. Even the appeal courts across the country disagreed about when to use it. The Supreme Court of Canada explained that the legislation means what it says.  Section 515(10)(c) provides:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:
(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject‑matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Mr St-Cloud, 2015 SCC 27 and his buddies attacked a bus driver. A video security system recorded it. The bus driver suffered serious long-term injuries. Even though Mr St-Cloud's family posted sufficient bail to ensure his return to court, and he proposed plans which would remove him from criminal conduct, the judges agreed that he should remain in jail pending trial.

Don't use the tertiary ground for protecting the victims from a future violence. Although the prospect of releasing such a suspect undermines the victims' confidence in the justice system, concerns that your prisoner will retaliate against the complainant are good secondary ground concerns.

The tertiary ground solves the problem of releasing a suspect when everyone knows that after trial, he will return to jail for a long time. The court proceeded on the assumption that Mr St-Cloud would commit no more crime, and would return to court for trial. Use it when the evidence of guilt is overwhelming, the offence is really awful, and the accused is looking at many years in jail for the crime.

2015.05.17 Search & Seizure - Consent Search


"Would you permit me to search your vehicle?"

Mr Sebben, 2015 ONCA 270 had just passed a roadside screening test, but the officer had concerns that he might be carrying drugs.  The officer asked Mr Sebben to consent to a search.  Mr Sebben replied:  "You can look in the back if you want, 'cause all I've got is tools and Christmas presents."

The officer did not accept that as sufficiently informed consent.  Instead, he remarked, "I'm looking for things like drugs or marijuana."

At that, Mr Sebben produced a bag of marijuana.  The officer arrested him, and found more marijuana in the car.

At trial, Mr Sebben's lawyer argued that the question was effectively a detention and a search.

Because the officer intended to explain consent more fully, but got cut off by the presentation of the bag, the court found that the officer's question wasn't a search, and therefore did not breach Mr Sebben's rights under s.8 (unreasonable search), s.9 (arbitrary detention) or s.10 (right to counsel after detention).

It won't always be this easy.  When asking for consent to search a car, make a habit of explaining what you want to do, and give the suspect a real choice to say no. After you find interesting things, defence will challenge the consent.

2015.05.14 Exigent Circumstances


Around 4:00pm, a crying woman called 911 from a cell phone and asked for an ambulance.  She didn't complete the call. Police investigated.  The owner of the phone told them that she gave it to her daughter. The mom called her daughter's employer, who reported that the daughter didn't show up for work.  Mom speculated that her daughter might be in the nearby apartment of her boyfriend, Mr Paterson, 2015 BCCA 205.  Mom told the police that Mr Paterson had a shotgun, and there was "previous history" between him and her daughter.

The officers inquired at the apartment building.  The manager told them that an ambulance took the girl from Mr Paterson's apartment to hospital with unknown injuries. No other officers were available to investigate at the hospital.  The officers wanted to make sure nobody else in the apartment was hurt or in need of assistance.  They testified that after 911 calls, they often found more than one victim .

Mr Paterson didn't answer the door when they knocked. They could see a light under the door, but could hear no sounds inside.  Eventually, they obtained a master key from the apartment manager.  As they slid it into the lock, Mr Paterson opened the door.

He was fine, but the air around him smelled of raw and smoked marijuana.  His cell phone rang continuously. When the officers commented about the smell, he denied that there was a smell of marijuana.  Then he said he smoked some.  Then he said that the still had some roaches lying around.

The officer had several choices:

  1. Do nothing about the marijuana.
  2. Leave Mr Paterson there and, get a search warrant.
  3. Arrest Mr Paterson for possessing a few roaches.  Get a search warrant.
  4. Detain Mr Paterson temporarily, enter the residence, and seize the roaches.

He testified that #2 wouldn't work, because he believed Mr Paterson would destroy the evidence.  He believed #3 wasn't practical, and besides, he had no intention of charging Mr Paterson for possession of a few roaches. He still wanted to ensure that nobody in the apartment needed help. He chose #4.

He entered the residence with another officer.  They saw a handgun, a bullet-proof vest, and lots of drugs and cash. They arrested Mr Paterson, got a warrant, and seized the evidence. But they forgot something: for several months, the investigation team neglected to file a report to a justice (Form 5.2) listing what they took.

Defence complained that the warrantless search of the residence was unlawful: there weren't exigent circumstances. And if there were, the police created them.

The court found that there was reason to believe that evidence would be destroyed.  This justified immediate action.  The judges observed that #2 was impractical: arresting Mr Paterson and holding him for the preparation of a warrant would have significantly deprived him of liberty; a quick search was more practical.

The judges didn't say it, but I suspect that concern for public safety probably helped tip the balance.

The judges did not, in this case, find that late filing of the report to a justice necessitated exclusion of evidence.  Don't forget in future to submit these reports promptly.

2015.05.13 Experiments as Evidence


In the Schertzer, 2015 ONCA 259 case (see below), a key question was whether an accused police officer could receive a search warrant in his office, drive across town in 13 minutes and deliver it to at the door of the 14th floor apartment, and then return in 9 minutes.  The officer in question claimed to have driven the trip at high speed in an unmarked car, without lights or siren.

An investigator made the trip twice, driving at the speed limit, and walking.  He took 27 minutes the first time and 20.5 minutes the second time.

At trial, defence objected because driving conditions must have changed in the 14 years between the event and the experiment.  Defence complained that by driving the speed limit, the investigator did not replicate what the accused officer did.

The court admitted the evidence anyway, because it measured the distance and approximated the driving time.  It wasn't perfect, but it helped understand timing.

Travelling time is difficult to replicate.  If you need this kind of evidence, not only should you travel the route yourself more than once, but you should map it, and identify any features which will affect travel time. If it's really important, you might consider  investigating traffic patterns at the time of the incident under investigation. There are limits on how hard a vehicle can accelerate, brake or turn. Engaging an engineer might, in some cases, establish a more rigorous maximum and minimum travelling time.

But sometimes, just going for a drive answers many questions.

2015.05.11

 Noble Cause Corruption - Every Lie Leads to Another

Most of you will nod your heads, and say "I know this already". But a few of you may find yourselves pulled off course by the desire to succeed in your investigations. This piece is for them.

Last week, five members of Toronto's drug squad lost their appeals.  17 years ago, they busted a heroin dealer and searched his apartment.  But they lied about when they got the warrant. Did they get the warrant first, or did they search first? To make the lie work, they wrote false notes. Those notes didn't jive with other time-stamps.  They claimed that an officer rushed from the police station to the scene in an unmarked police vehicle to deliver the warrant in time. If it were true, this story suggested hopelessly irresponsible behaviour.  But the jury found it was false too.  Schertzer, 2015 ONCA 259

A much bigger controversy swirls around the case.

The rules which constrain your ability to catch criminals may cause you endless frustration. But it's your job to obey the law while upholding it.  To stop crime, these officers apparently got used to bending the law. Temporarily, it may have worked, but in the long run, it undermined public respect for police and the justice system.

After decades of studying it, I think criminal law is complicated. For police officers, obeying the law is complicated, but telling the truth is simple. Bending the rules may seems simpler, but the lies and moral relativism are more complicated.

But for the protection of the law, police commit crimes all the time.  Seizure of property without lawful authority is theft.  Arrest without lawful authority is kidnapping. Even if you commit these offences for a noble cause - like catching criminals - you're committing crimes yourself. Lying in an ITO or in the court room is perjury.  I don't think that's why you signed up.

The public pay you to take the high ground. It may be slower and less efficient, but their political system chose the laws that you uphold. 
Stay on the high ground.  It's harder work, but the view is clear.

2015.05.01 Disclosure - Civil Liability for Prosecutors

Prosecutors became more vulnerable to getting sued.  The Supreme Court of Canada decided today that:

"a cause of action will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence."

Say what?

Okay.  Here's what happened.  In the early 1980's, women in Vancouver complained of similar rapes. Police suspected either Mr McRae or Mr Henry, 2015 SCC 24.  Some victims picked Mr Henry out of an awful photo lineup.  (Mr Henry was shown as the only guy engaged in a struggle with a police officer.)

Mr Henry was charged.  During the trial, the prosecutor disclosed few of the witness statements that police collected, and no information about the alternate suspect.  The trial judge convicted Mr Henry and declared him a dangerous offender.  The rapes continued for 6 more years after Mr Henry went to jail. 14 years later, further investigation into those rapes found that DNA identified Mr McRae as the culprit. Finally the Crown disclosed all it knew to Mr Henry's legal team. He appealed his conviction, and finally beat the charge.

Could Mr Henry sue the prosecutor for failing to disclose all of the police file? The answer turns out to be more complicated than one would think. If the answer were "sure", then every convicted criminal would immediately sue the prosecutor in the hope of finding some shred of evidence that wasn't disclosed. Prosecutors would spend more of their time defending nuisance civil claims than actually proving guilt.  For that reason, the court said that the convicted person can only sue if they say they can prove:

Does this matter to police?

If prosecutors can get sued for non-disclosure, then police can too.  Make sure you disclose all relevant evidence.

And there's another lesson: the alternate suspect turned out to be the real culprit. The lineup should have contained both suspects.  In most cases, the alternate suspect is innocent.  Investigating his guilt feels like a waste of your time.  But it isn't.  Investigating the alternate suspect makes the case.  Last week I prosecuted a case in which there was an alternate suspect. I needed (and eventually received) clear evidence which proved that the alternate suspect was in another province at the time of the offence.

2015

.04.29 Confessions - Non-custodial Interviews

In the 1970's, Richard Bach's story "Jonathon Livingstone Seagull"  preached that you can be anything you want to be.  Some people thought it was brilliant.  Some people called it banal.  It inspired one man to change his name.

Maybe you can be anything you want to be, but law sets limits on what you can do.

Mr Jonathon Livingston Seagull, 2015 BCCA 164 had sex with his ex-girlfriend's sons.  At the time, the boys were close to 14, the legal age for consent at the time.  But if he were in a position of trust or authority, then the age for consent would have been 18.

Years later, the boys, now men, complained to police.  An officer invited Mr Seagull to the police station for an interview.  Mr Seagull accepted.  When he arrived, the officer told him he could leave any time; he was not under arrest. She told him what he said could be evidence against him.  She did not offer him any opportunity to speak to a lawyer.

Mr Seagull played dumb.  He admitted some sexual activity, but mostly, the conversation went in circles.  The officer pressed him with questions.  He asked what would happen if he answered them.  The officer explained that three things could happen: nothing, more investigation, or court.  He asked what was most likely.  She said "very likely a charge of sexual exploitation".  But still she didn't arrest him.  She kept explaining that she needed to know about what happened.

Eventually he raised the idea of getting a lawyer.  She asked "do you wanna speak with a lawyer?"  He replied "no".

She kept questioning, but he answered few of his questions. He said he knew that he had a right to silence.  Eventually, he decided the interview was over.  She let him leave.

At trial, the defence complained that the police deliberately avoided arresting Mr Seagull, in order to avoid the dampening effect legal advice would have on the conversation.  The officer partly agreed: she wasn't entirely sure she had reasonable grounds.  Defence complained that the discussion of possible outcomes was the same as holding out a promise: it implied that no charges would follow if Mr Seagull would just answer the questions.

The trial judge and the appeal court rejected these arguments. The officer never suggested by words or actions that Mr Seagull was ever detained or arrested, and therefore she never triggered the right to counsel. She never prevented him from getting legal advice. And the way she explained the possibilities (charge, more investigation, or no charge) held out no promises of better treatment if he answered her questions.

The "non-custodial interview" still lives. But be careful trying it.

And one more thing. If you're going to invite someone for a non-custodial interview, expect to field lots of questions in court about the invitation. Because it's the only part of the conversation which isn't video recorded, 0take lots of detailed notes.

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 Alberta, who may well side with Croft.

PS: the BCCA re-affirmed its view in Webster, 2015 BCCA 286

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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