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

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

- Henry Waldock

Book

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

New Law

2018.05.20 Impaired Driving - Screening Device & Mouth Alcohol

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

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

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

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

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

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

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

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

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

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

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

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

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



2018.05.07 Impaired Driving - What are the Units?

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

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

The officer got the units wrong. He meant:

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

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

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

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


2018.04.23 Workplace Conduct of Police - Private or Public?

Sex is touchy. Especially in the chain of command.

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

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

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

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

2018.04.08 Arrest and Interview - Explaining the Whole of the Investigation

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

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

The interviewers did several smart things.

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

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


2018.04.12 Exhibit Retention

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

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

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

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

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

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

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

2018.03.29 Reasonable Grounds - After the Arrest

An experienced drug cop doing surveillance on someone else noticed something weird happen in the back corner of a parking lot.

Two vehicles went to a deserted parking lot. The drivers moved two bins from one trunk to another. One guy passed the other a brick-shaped object in a clear plastic bag. The side of the "brick" looked like a $20 bill. Although CPIC checks of the licence plates came back clean, the officer was sure it was a drug transaction because:

  1. two vehicles parked in a remote part of a parking lot;
  2. no markers on the vehicles that might suggest that they were connected to a legitimate business;
  3. bins of a kind that he had previously seen in clandestine chemical drug labs containing Class A CDSA precursors, being moved from one trunk to another;
  4. labels ripped off of the bins, causing Sgt. Fuhrman to believe that the bins were not involved in what he described as a “legitimate” transaction;
  5. a man emerging from a vehicle carrying a brick-like package in a plastic bag, looking similar to cash the officer himself had packaged for undercover drug deals in the past; and
  6. a noticeable $20 bill showing through the plastic bag.

Defence attacked the reasonableness of his conclusions. Only because of the officer's extensive experience could he assemble these observations into a compelling collection.

But I found what happened next particularly interesting.

The officer arrested the men and seized the money ($14,000) and the bins. Inside the bins he found 220,000 pills he did not recognize. He still believed it was a drug transaction.

He released the two guys, and told them he would get the pills analyzed. If they turned out to be drugs, they'd be charged. If not, they could get their stuff back.

Defence argued that this showed uncertainty.

If the officer no longer believed that the bins contained contraband, then he should return them. But this officer was sure. And it turned out he was right.

Naturally, defence attacked his grounds for arrest. The court found that releasing the prisoners was a reasonable exercise of discretion, and did not occur because the officer doubted his conclusions, but because it was a reasonable exercise of discretion under the circumstances.

The conviction stuck on Mr Canary, 2018 ONCA 304.

2018.03.29 Drug Analysis Certificates

When you ask for a substance to be tested for drugs, have you carefully read the analyst's certificates which come back from the lab?

Mr Canary, 2018 ONCA 304 exchanged 220,000 pills for $14,000 cash in $20 bills. A toxicologist's certificate asserted that the pills contained steroids.

After trial, the defence argued that the court could not know how much steroid each pill contained: they could contain only trace amounts.

It's a clever argument, and identifies a flaw in scientific reporting.

A $50 or $100 bill can bear tiny traces of cocaine. Some chemical tests can detect those tiny traces. But ordinary people who possess such bills should not be convicted of possession of cocaine, even if those folks know about those tiny traces.

We should criminalize only the possession of such quantities of a drug that can be used to get people high.

The judges didn't buy the defence argument in this case ... but it seems to me that honest convictions should be based upon better evidence than "there's a bit of illegal drug in that sample you sent me".  How much drug are we talking about? A tiny trace, a hit that gets the user high, or a lethal quantity?

2018.03.24 Confidential Sources - It All Seems so Simple until it gets Complicated

When someone offers you information about criminals so long as you promise not to identify them, the deal seems simple ... until a little later when it gets complicated.

If you agree to such an arrangement, your deal binds you, all other police officers, and the Crown, not to reveal to anyone - even the informant's lawyer - that he is an informant.

Mr X made such a deal with officers of a Source Handling Unit in Alberta. (R v Named Person A, 2017 ABQB 552) Those guys kept their end of the bargain. They didn't even tell other officers about him.

Later, other police officers busted Mr X for a criminal offence. They asked Mr X to talk about the offence. He did. And he talked about being a confidential informant.

Clever.

If the prosecution discloses his statement to his defence lawyer, then the prosecution violates the deal. That would be a gross breach of their duty, and a significant violation of Mr X's privacy. The judge should stay the charges. If the prosecution fails to disclose the statement to defence counsel, then the prosecution violates Mr X's right to full disclosure. Again, the court may stay the charges.

It's a get-out-of-prosecution-free card.

Too clever.

The prosecutors applied to court for a solution. They suggested that Mr X's criminal defence lawyer can automatically be told about the privilege.

The judge said "no": sometimes, the same lawyer will defend a source and the guy he ratted out.

Instead, the Crown may apply to a judge for a hearing at which the defendant/informant may tell the court whether he wants his lawyer to know about his status, and the prosecution may seek direction on how to disclose the investigative materials.

In this case, Mr X wanted his lawyer to have full disclosure. That judge's decision was relatively easy. I'm not sure how a court will solve this when the source says he does not want his lawyer on the criminal trial to know that he is a confidential informant.

Sources are more complicated than it seemed when you first met them.


2018.03.20 Interviewing Children - Instructions and Promises

Adults find children make challenging witnesses. Understanding what works with children helps you interview them better.

Today, I read this research paper which identified several interesting patterns among children aged 4-9:

  1. Asking the older children to promise to tell the truth tends to elicit more accurate evidence, but only when they're old enough to understand what a promise is.
  2. Asking the children yes-no questions about the offence tends to elicit more information, but at the risk of eliciting more false allegations.
  3. The way to elicit the most true allegations - without eliciting false ones - is to tell the child that the suspect has already told the interviewer everything that happened, and wants the child to tell the truth.

The third technique raises interesting issues. Suppose Mommy says Daddy sexually abuses their child. You really want the truth. Can you tell the child, "Your daddy has told me everything that happened, and he wants you to tell me the truth about it too"?

Suppose he never said anything of the sort. When the parents are betraying each other, is it ethical for a police officer to lie to their child?

Suppose Daddy comes in for a full interview, and denies ever doing anything to his precious daughter. Suppose he tells you that he wants to do everything in his power to prove his innocence. According to this research, you might give Daddy a script to read to a video-recorder:

"Tina: I talked with Constable Careful. I trust her, and you should too. I told her everything that happened, and I want you to tell her the truth too."

You play the video for the child at the start of the interview, and then (if the child is old enough) ask the child to promise to tell the truth. Then interview the child about the allegations.

According to this research, if there are sordid secrets, this would be a better way to start the interview with the child.

Don't take this one research paper as gospel. It reviews past work, and then describes one experiment involving 217 children. It is not definitive, and may even be wrong. But it gave me ideas about how you might interview children.


2018.03.19 Continuity - Paperwork or Essential Evidence?

She said she got drunk. She said she was raped. She didn't know who did it. Forensic examination of her underwear produced profiles that seemed to match Mr J.S., 2018 ONCA 39.

Mr J.S. testified that he had been biting his nails. He heard the complainant crying out, and went to help her. According to him and his girlfriend, he picked up the complainant's underwear after the incident, and gave it to her. And that must be how his DNA got onto her underwear.

The "match" was not very precise - there was very little DNA to work with. The Crown's case worked partly by process of elimination - the other guys in the house either didn't touch the underwear, or their DNA could be excluded.

Therefore, strict continuity of the underwear, from the time of the offence to the testing actually mattered.

Because DNA transfer can happen innocently, continuity really matters.

Continuity of the exhibit starts at the time of the offence and ends when court proceedings are over. Documenting your handling of exhibits is only part of the story. Often, you seize exhibits after other people had opportunities to touch them (ambulance and firefighting personnel are notorious for this). When you interview witnesses, you don't know what the lab will detect. When the lab finally reports its findings, re-interviewing witnesses about the exhibits may come too late for them to remember with clarity.

Therefore, not only should you track what you did with each exhibit you seize, but you should consider asking each witness what they and the suspect handled before and after the crime.

The jury convicted Mr J.S.. The court ordered a retrial. His girlfriend will doubtless give the same testimony at the next trial. We'll never know what she would have said if asked about this underwear when police first investigated.

2018.03.09 Expert Testimony - Fingerprint Comparison - Articulating Evidence

On important issues, Judges don't like to be told: "just trust me, the answer is X".

If the question is "Was the driver's ability to operate a motor vehicle impaired by alcohol?", the judge wants you to explain more than a strong smell of booze about the driver. The judge wants you to explain why you thought that the driver couldn't drive a car safely. An odour of liquor doesn't cause a person steer badly, but coordination problems do. Bloodshot eyes don't cause collisions, but delayed reaction times can. You can link such observations together, to explain a conclusion: "The odour of liquor and bloodshot eyes made me think that the driver drank a lot of alcohol. His lack of coordination when locating his driver's licence made me concerned he might not be able to steer accurately. His slow, drowsy responses to my questions made me think he would not brake quickly in response to a sudden danger. Because these observations suggested he drank a lot and could not safely operate a car, I thought alcohol impaired his ability to drive."

It's the same when explaining expert testimony. You need to go beyond "just trust me". You need to show the judge why you reached your conclusion.

A fingerprint examiner told the court that a palm print on a plastic bag matched a palm print from Mr Campbell, 2018 ONCA 205. That plastic bag tied Mr Campbell to a loaded sawed-off shotgun in his residence. Mr Campbell's counsel attacked the fingerprint examiner's opinion.

There were similarities between the known print and the print from the bag. There were differences too. A single significant difference in ridge features would result in Mr Campbell's acquittal. The defence lawyer urged the court to find that the differences between the print established that they were made by different hands. But the expert carefully explained why he thought that the differences did not come from a different hand touching the bag. For example, he explained away a difference from the known print by observing that the plastic bag was "crinkly" in that spot, and left a different line than the known print. After explaining the differences, he pointed to the similarities and concluded that there was a match.

Fingerprint examiners may find the testimony of the other expert in this case interesting.

Explaining your inferences differs from explaining your observations. I suggest that you break down your explanation into little steps, and blame the evidence for each inference. Here's my formula for articulation:

Repeat often: "<<observation>> made me think <<minor conclusion>>."

Finally: "Because  <<minor conclusion>> + <<minor conclusion>> + <<minor conclusion>>, I thought <<major conclusion>>."


2018.03.07 Nomenclature - "Suspects" and "Culprits"

When we don't think clearly enough, we use the wrong word to describe the right idea. Everyone does it once in a while. But clarity of thought helps clarity of language, and vice versa.

When applying for a warrant to search the residence of Mr Stewart, 2018 BCCA 76, the officer who drafted it described what eyewitnesses said about a targeted killing. One of the "suspects" was taller and the other "suspect" was shorter. (para 62)

Wrong.

A "suspect" is a person whose identity you know, and who you have reason to think may have committed the crime.

A "culprit" (or "felon", "rapist", "killer", "offender" or "thief") is the person who actually did the crime.

The more strongly you believe that the "suspect" is the "culprit", the more likely you are to forget that identity of the culprit is the very question you are investigating. If you use the wrong words, you'll never notice when you've developed tunnel vision.

Choosing the right word helps you think clearly about what you're investigating.

If you think I'm being pedantic, I sympathize. Like you, I once thought that such precision was unimportant. There was a time I used "suspect" and "culprit" interchangeably. I was wrong. Experience and a lot of research taught me to express myself more accurately.

The sloppy thinking became an issue at trial and on appeal. That's something you'd like to avoid.


2018.03.07 Experiments - Test Drives

When you have information about where the prime suspect was shortly before or after the offence, then you can test whether the suspect could travel between known location and offence location.

Mr Jones was living in a half-way house. One day, after Mr Jones signed out of his half-way house, two men shot Mr Soomel dead just outside another half-way house. Twenty minutes later, Mr Jones signed in at his half-way house. Did he and Mr Stewart, 2018 BCCA 76 pull the triggers?

Police drove the route between the two half-way houses twice: once in the early afternoon, and again at mid-morning. The two trips took 12.5 and 14 minutes - easily within the 20-minute time-frame.

Defence attacked this evidence:

The appeal court did not find these arguments compelling enough to undermine the jury's guilty verdict. But these complaints should make you think about how you should go about test-driving routes in similar situations. Make the experiment as similar as you can to the event you're investigating.

2018.03.07 Search & Seizure - Examination of Electronic Devices


If you ask a judge for permission to search an electronic device like a phone or a computer for all evidence it contains, the judge should generally refuse your request. Unless you can establish that all the data in it is likely relevant, such a request is over-broad.

Beware also of requesting too little.

If you ask a judge for permission to search the device for only a certain kind of evidence, then that's all you can look for. If you only search for text messages between William and Mary, then you can not look at text messages from Edward. If you ask only to look for child pornography, then that's all you can search for.

Last week's decision in the case of Dan Akenna, 2018 ONCA 212 illustrates how probative a broader search can be.

Police found child pornography on his computer system. He claimed he did not put it there. Forensic analysts looked for more than child pornography, and found some good evidence:

Despite other flaws in the trial, Mr Akenna was convicted, and after appeal, stayed convicted.

Key ideas you should draw from this are:

  1. Even if the suspect owns or possesses the electronic device at the time of arrest, that does not prove that the suspect used the electronic device at the time of the damning evidence. That goes for drug dealers, robbers and killers as much as child pornographers.
  2. You want to search for more than the child pornography, or the communications which made the deal or planned the heist.
  3. You want to search for non-criminal evidence which establishes who used the device before, during and after the criminal evidence.
  4. To do such a search lawfully, you need to get a judge to permit you to search for these kinds of non-criminal data. That requires some explaining in your ITO.

2018.03.05 Voluntariness - Promises or Threats

When persuading a suspect to speak, if you make explicit promises or threats, you will render the statement you get inadmissible. For example:

"Johnny, tell me what happened, and I'll put a good word in for you with the prosecutor."
"Johnny, if you don't tell me what happened, I'll make sure the judge knows you're a cold-hearted killer."

But implicit threats have the same effect.

Mr Wabason, 2018 ONCA 187 participated in a home invasion, during which one of the robbers stabbed a man to death.

The officer that interviewed Mr Wabason repeatedly told him he did not think that Mr Wabason stabbed anyone, but that the appellant should not take the blame for something he did not do. But unless he spoke up immediately, he would “go down” for first degree murder. At first, Mr Wabason insisted on silence, but eventually broke down and told his story.

That story helped convict him of manslaughter.

The officer didn't purport make any deal with Mr Wabason, but the themes he developed contained both a promise and a threat. Out goes the evidence.

When talking with the suspect about the offence, avoid discussion of the court consequences of conviction, and especially avoid discussing the legal pros and cons of confessing. It's okay to talk about how "people" will think of a guy who "mans up", but not okay to talk about how the judge would feel.


2018.02.22 Right to Counsel - Eliciting Information after Arrest or Detention

Back in September, I wrote about Mr G.T.D., 2017 ABCA 274. This week, the Supreme Court of Canada unanimously affirmed the main point of that case. I'll repeat what I wrote, and add some comments.

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

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

When an officer arrested Mr G.T.D., 2017 ABCA 274 for sexual assault, the officer dutifully advised him of his right to counsel. Yes, Mr GTD wanted legal advice. Next, the officer recited that warning.
 
Mr GTD responded that he "did not think it was rape", because he and the complainant had a prior relationship.
 
That comment hurt him at trial.  He appealed. He complained that the officer asked him to talk about the offence before he got a chance to get the legal advice he required. That violates his right under s.10(b) to legal advice without delay.
 
All three judges of the Alberta Court of Appeal agreed. So have all 5 of the judges of the Supreme Court of Canada.
 
The history behind the Albertan card is interesting. Long before the Charter, judges recommended that police ask the suspect if he had anything to say, just in case the accused had something exculpatory to say about the offence, like "no no, I wasn't there. You need to talk to my twin brother Harold" or "Sleasy Simon lent me this car. I didn't know it was stolen."
 
That was then, this is now.
 
Right after you arrest someone, avoiding discussion about the offence is like not discussing the rhinoceros in the room. It's hard to find some other subject of conversation.  After arresting a person for a crime, many an officer has asked "why did you do it?"

If the suspect wants legal advice, that's a bad idea.
 
Lots of people want to start talking about the crime. But if the suspect wants legal advice first, then the police officer can't ask about the crime until after the suspect gets legal advice.
 
Opinions vary whether you need to shut down a guy who just keeps talking on his own.  Some argue: if you didn't ask him questions, then you didn't breach his rights. Others say: to show the judge how fairly you treat the suspect, you should stop him from talking about the offence until after he gets legal rights.
 
I think both answers have merit. To help you decide which choice is the better one, you might appreciate knowing how this case turned out. Two of three judges of the Alberta Court of Appeal thought that the officer's question wasn't a terribly serious breach, and they said the remark was admissible. All five of the Supreme Court of Canada judges felt the question was a serious breach, and excluded the remark.

I suggest that you choose your path depending upon how vulnerable the suspect is. If she's a seasoned offender with lots of experience with cops, let her talk if she wants to. If he's a rookie, or suffering a mental disability, or drunk, maybe remind the suspect that he needn't say anything before getting legal advice. Whichever you do, take abundant notes (or audiorecord) what the two of you said.

2018.02.18 Impaired driving - Screening Devices - One for the Road

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

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

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

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

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

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

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

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

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

2018.02.17 Investigative Techniques

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

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

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

Police found his DNA on the gloves.

Case closed? Well, that makes it much stronger.

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

Ahh. That's better.

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


2018.02.17 Trespass and Reasonable Expectations of Privacy

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

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

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

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

But did the police violate his Charter rights?

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

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

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

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


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

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

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

He won.

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

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

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

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

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

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

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

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


2018.02.10 Detention & Delay

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

It depends.

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

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

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

They called for a drug dog.

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

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

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

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

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

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

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

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


2018.02.10 Disclosure & Delay

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

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

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

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

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

Nope.

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


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

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

You need another way in.

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

Can a judge make him decrypt it?

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

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

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

The case of Marakah returns to visit us already.

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

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

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

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

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

What does this mean for you?

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

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

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

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

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

2018.01.23 Noble cause corruption - Letting your job get you down

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

Not any more.

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

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

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

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

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

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

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

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

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

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

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


2018.01.20 Whodunnit - Third Party Suspects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2018.01.06 Whodunnit - Third Party Suspects

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

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

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

Naturally, your attention would turn toward Roger.

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

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

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

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

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

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

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

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

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

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

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

"Why didn't you investigate these alternatives?"


2018.01.04 Weapon - When is a Knife a Weapon?

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

It depends.

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

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

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

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

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

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

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

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

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

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

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


2018.01.01 Search & Seizure - Warrantless Search - Third Party Consent


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

It depends upon the expectations of privacy as between them.

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

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

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

That was complicated.

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

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

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

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

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

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

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

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

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

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

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

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