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Where was Mr Cyr, 2012 ONCA 919 after the murder of Donald Woods? Cell tower records suggested that his cell phone made calls near the business of Tai Wah Trade, where goods stolen from Woods were sold cheap.
Cell phones "usually" connect to the nearest tower. But sometimes they "bounce" to more distant towers.
Police wanted to be sure that they could rely on these cell tower records. They tested the cell towers in the area. They took their own cell phones there, and made calls. Then they arranged with the phone company to check the cell tower records for their own phone calls. Although there were some variations, these tests confirmed the the general theory.
Was this test evidence admissible to prove the reliability of the cell tower records? The judges said "yes", but pointed out problems. Cell towers behave differently in when call volume and weather change. It's hard to replicate the precise conditions at the time of the crime.
For you, tests can help prove your theories, but take care to make them relevant. Consult with experts to determine how best to make the test meaningful.
Police watched Mr Wilkinson, 2013 SKCA 46 leave the residence of a known drug trafficker, so they stopped his car. He admitted possessing marijuana. They arrested him for possession of a controlled substance. They found an ounce of cocaine in his sock.
17.5 hours later, an officer interviewed him. Mr Wilkinson said that the trafficker "fronted" the cocaine for him to sell at $2,250 per ounce.
Although convicted of possession, he beat the charge of trafficking. Here's why:
It was a great confession to elicit. Too bad the investigative team didn't prepare a complete report for the prosecutor. (Maybe the prosecutor should have asked for one.)
The law requires prosecutors to "prove a negative", that no person in authority (that's you) promised or threatened or abused or tricked the suspect into giving up the incriminating information. The only way to prove a negative is by bringing the people who were present through the entire relevant time, to say "Nope. Nothing improper occurred while I was with the suspect."
When you arrest a suspect, minimize the number of officers who speak to him. Assign someone to record notes about every person who speaks to the suspect, and about what. Always take notes about what you said to an arrested person, whether or not you did the arresting. Or simply turn on a recording device.
After a robbery, Mr Grey, 2013 BCCA 232 told police how he assisted the robber by driving him to the town where it occurred. He told the officer who interviewed him that the robber intended to "jack" his auntie. But the officer never clarified what Mr Grey meant by the term. Mr Grey was charged as a party to the robbery, but beat the rap because the Court of Appeal wasn't sure what "jack" meant.
Even when you're pretty clear what the suspect or witness means by slang terms, remember that judges need proof beyond a reasonable doubt. Any ambiguity in the evidence will be interpreted in the accused's favour. Therefore, when you hear ambiguous terms like "jack", take a moment to clarify: "Q: So, did he actually use that word, 'jack' when he was talking about his auntie? What did you understand he meant by it?"
At 5:00am police executed a search warrant on an apartment and found a loaded handgun. They found three people inside. Two swore they had nothing to do with the gun. Was the third person, Mr. Turner, 2012 ONCA 570, responsible for it?
When police entered, Mr. Turner stood at the doorway the bedroom where the gun lay hidden. His driver's license lay on the floor. $1,000 cash sat on a table by the bed. The gun lacked any serial number with which to link it to anyone.
You might think it was Mr. Turner's bedroom. The court called it "bedroom one". You might think Turner's presence in the bedroom suggests his responsibility for its contents. The court found no link in the evidence between him and the bedroom.
Mr Turner beat the charges.
The perennial problem of searching residences which contain more than one person is linking the people in them to the objects you find. What seems obvious at the time falls apart at trial. Hindsight suggests some investigative angles:
Every case is different, but this problem keeps recurring. When executing a search warrant for something, you want to find it and you want to know who put it there.
Police watched Mr. Hiscoe 2013 NSCA 48 drive to a drive-in. There, he exchanged things with another driver. They watched him because they had reason to believe he dealt in drugs. After the exchange, they arrested Mr Hiscoe. They found cash in the other vehicle and a bag of cocaine between the two cars. They also seized his cell phone. At the scene an officer scrolled through some incriminating text messages. Back at the police station, he and another officer scrolled through them again, writing notes of what they saw.
A month later, technicians downloaded the entire contents of the phone onto a DVD.
Mr Hiscoe complained that police needed a warrant to search his cell phone. The trial judge admitted evidence of the preliminary examinations of the phone, but excluded the data dump.
Does the power of search incidental to arrest authorize searching a cell phone?
The appeal court found that the two cursory searches were okay, but the download was not because:
Courts across Canada are reaching different conclusions on this power. The highest authorities I know of in Alberta and B.C. say searches of cell phones incidental to arrest can be lawful. Ontario and Nova Scotia appeal courts seem to think only a cursory examination of a cell phone may be done without warrant.
In a provincial court judge confirmed that in British Columbia, until a higher court says otherwise, a police officer may search a cell phone incidental to arrest. Melchior, 2013 BCPC 82.
Acting on a tip that Mr Jardines' house contained a grow operation, a police officer took a drug dog to the front door. It indicated drugs inside. Police got a warrant and found the marijuana. Was the search constitutional?
In Kokesch, [1990] 3 SCR 3, the Supreme Court of Canada rejected warrantless searches around the perimeter of residences. In Evans, [1996] 1 SCR 8, the court rejected the technique of warrantless knocking on the front door for the purpose of sniffing the air inside to confirm the tipster's information.
In Canada, the answer to the Jardines question is "no".
The Jardines decision came recently from the USA's Supreme Court. Their answer was also "no".
Mr Panrucker, 2013 BCCA 137 sat, alone, in cell five in the Fort St. John police station for 7 days. At the end of that time, a guard found a bag of cocaine under his mattress. Did Mr Panrucker put it there? What evidence would prove it?
A guard testified that he cleaned and searched the cell on the day before Mr Panrucker arrived. The same guard testified that at the end of that period, when Mr Panrucker left the cell to take a shower, he found the baggie.
The guard did not work continuously through that 7-day period.
The guard knew that nobody else occupied that cell, but only from looking at records written by others. That's hearsay, and the court won't rely on it.
Therefore, the only admissible evidence in this case proved:
But the admissible evidence did not prove who else entered the cell during that week. Mr Panrucker beat the charge.
To prove this case, the prosecution needed all the guards. Each one needed to testify that nobody else entered that cell during his watch. If others did enter that cell, the Crown needed to produce them to say that they did not stow any cocaine under the prisoner's mattress.
Proving a "negative" (what didn't happen) often requires far more witnesses than proving a "positive". This arises in many situations. For example:
In your reports, document all the people necessary to prove these negatives
If you transported the suspect to the police station after arrest, you became an important witness if the suspect later confesses. If you merely stood near the suspect, you became a witness in the voir dire into voluntariness. Take notes of the conversation (or lack thereof). If you received exhibits from another officer, who found them in the suspect's pockets, and all you did was deliver them to the exhibit officer, then you became an important witness. Take notes of the exhibits.
When Mr Nartey, 2013 ONCA 215 left a notorious strip club, patrol officers noticed him fail to come to a complete stop at a red light before making a right turn. They pulled him over. Computer checks indicated he had two PPT convictions, two firearms prohibitions, and he associated with a street gang. They said they saw him grab a black duffle bag, rifle through it, and then toss it into the back seat.
Concerned for their safety, the officers asked him to get out for a pat-down search. He complied. They found no guns, but the officer thought he felt a large wad of money in Mr Nartey's pocket.
The officers then searched the car. They found guns and half a pound of marijuana.
The trial judge figured that the whole thing was a fishing expedition. He didn't believe the officers. He excluded the evidence.
The Crown appealed, unsuccessfully. That's because the appeal court must generally accept the facts as a trial judge finds them. If the trial judge disbelieves a witness, the appeal court will too.
I didn't hear the evidence. I can not say if the judge was right or wrong in this case. But the acquittal of this drug dealer reminds us:
It doesn't always go against cops. In a similar case, Morris, 2013 ONCA 223, the police stopped a vehicle on a traffic violation, and found guns. In that case, the trial judge believed the investigating officers. This week, the Ontario Court of Appeal accepted the trial judge's findings, and upheld the conviction.
Three people complained to the kidnapping, but their statements varied wildly. DNA found at the crime scene proved the complaints were true -- but only if the DNA got there during the crime.
The police officers who dug through garbage bags at the crime scene found duct tape which bore the victims' DNA. But did the DNA get there from being stuck to the victims, or from rubbing up against innocent objects which bore their DNA? Did the officers (who wore gloves) touch objects which innocently carried the victims' DNA, and then touch the duct tape?
The science of DNA analysis is firm and clear; but the scientists are much less clear about the transfer of small quantities of DNA from one thing to another.
The defence and the Crown called experts, who, of course, differed on the likelihood that DNA transferred innocently to the duct tape. The trial judge convicted Mr Doan 2013 BCCA 123 and his friends, and the appeal court upheld the convictions.
DNA on a suspicious object packs a punch in the court room. Defence will challenge how it got there. Avoid contraversy, by minimizing the opportunities for DNA to travel from exhibit to exhibit. If you're searching for objects which may be tested with DNA, it seems to me that you should:
Your forensic people may have other good suggestions on other techniques.
Mr. Desarmia cashed a cheque at Money Mart. He walked down the street with a "friend", who greeted, and then walked away with, a stranger. A few minutes later, the stranger walked up to Mr Desarmia, put him in a headlock, and demanded the cash. Desarmia gave him all of it - about $450. The stranger said he would cut off Mr Desarmia's head if he told police.
Mr Desarmia lived at a Salvation Army shelter, but after the robbery, he left town for a couple of weeks. He suffered schizophrenia, and was off his medication. When he returned to the shelter, encountered someone he believed was the robber. He asked around, and learned that guy was Mr Gough, 2013 ONCA 137.
Five days later, he reported what he knew to police. Police arrested Mr Gough, and charged him. At trial, Mr Desarmia pointed out Mr Gough in the court room as the man who robbed him. The trial judge convicted him.
The Court of Appeal ordered a new trial, hinting that the Crown should not bother to prosecute.
What's the problem?
Eyewitness identification of strangers tends to be unreliable, especially when the interaction between them is brief. Stress doesn't help either.
When the robber stole the money, Desarmia had little opportunity to get to know his face. When Desarmia saw Gough at the Salvation Army, he had a better opportunity to observe, particularly because he believed that Gough was the robber. At court, he had no difficulty recognizing Gough (because of the encounter at the shelter). He honestly believed Gough robbed him. But how do we know he was right? The encounter at the Salvation Army was effectively a 1-person lineup.
I observe that the investigators couldn't fix this investigation by presenting a photo-lineup to Desarmia. He would recognize Gough from the Salvation Army. But the "friend" who greeted the robber could make all the difference.
Mr B, 2013 SCC 9, committed lots of crime with bad folks. When his relationships with them turned sour, he informed on them to a police force.
Those officers treated him as a confidential source. But what he told them related to crimes outside their jurisdiction. They handed him over to Quebec's provincial police force, Surete du Quebec ("S.Q.").
The S.Q. officers arrested him for various crimes. Mr B continued to cooperate, confessing to crimes, and giving statements implicating others. Before most statements, the S.Q. officers promised not to use the evidence he gave against him in any trial, but warned him that they would prosecute him if they obtained independent evidence of his involvement.
The S.Q. officers coded him as an informant. The information proved useful, and charges were laid against other felons. As trial approached, things came to a head. Was he a confidential source, or a compellable witness against the felons he ratted out?
Mr B wanted the anonymity of a confidential source. The police wanted a witness. Which was he?
A judge held a special hearing to determine the question. Mr B's lawyer argued that he was a source. The judge disagreed: Mr B was an opportunist, who sold his information for maximum personal profit. The S.Q. never explicitly promised him confidentiality. He's a witness.
A majority of the Supreme Court of Canada ordered a re-hearing. Maybe the S.Q. never made an explicit promise of confidentiality, but they may have given him that idea by their behaviour. The judges sent the matter back for re-trial: was there an implied promise of confidentiality?
The lesson for police is simply said, but difficult to apply. If you promise confidentiality in exchange for information, it's a promise we can't retract. When the relationship with the source/witness begins, explicitly state whether or not they get anonymity. And beware: "material witnesses" don't enjoy privilege. Tell them if they were part of the crime that they will be compellable witnesses.
This makes the early exchanges difficult: "Q: Am I a confidential source or not? A: It depends on what you tell me."
Two teenage girls decided to kill the mother. Another youth, J.F., 2013 SCC 12 chatted with them on MSN about their plans. He offered suggestions, and wrote "Iā€™m involved this much, Iā€™m willing to help you out with any of it". The girls succeeded, and were convicted of murder. Was he guilty of conspiring to commit murder with them?
The Supreme Court clarified two unresolved questions about conspiracies.
The crime of conspiracy occurs when people agree to commit a crime. They need not do anything after the agreement to be found guilty. (To prove they were serious, it sure helps to have evidence that the conspirators took steps to complete the crime they discussed.)
That means the only way to be a "party" to a conspiracy is to help people agree to commit the crime. Someone who helped the conspirators commit the crime afterwards, but did not participate in the agreement, is just a criminal, but not a conspirator.
The court found this youth plainly conspired with the girls. He was therefore a party to the conspiracy. Helping them after the conspiracy would have made him guilty of murder.
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More and more legal knowledge is expected of police 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.