2019.03.16 "Retain and instruct counsel without delay"
- Section 10(b)
of the Charter
When police officers executed a search warrant they didn't expect to arrest anyone. But Mr Nguyen, 2019 ONCA 178 turned up, so they arrested him. Mr Nguyen said he wanted to talk to a lawyer.
They kept him on scene for 50 minutes because they didn't have anyone to take him to the police station. When they got him there, they forgot to tell him that they had no luck reaching his lawyer. Instead, the officers released him.
The judges didn't like the delay in providing Mr Nguyen with access to a lawyer. After a prisoner says he wants to get legal advice, there need to be good reasons why you delay it. Section 10(b) says that your prisoner has the right to retain and instruct counsel "without delay".
In this case, the police obtained no evidence during the time that the prisoner was prevented from calling a lawyer. Furthermore, the judges didn't think it was a common police practice to delay access to counsel. The appeal court judges upheld his conviction.
Don't let it become a common police practice. Bad guys will find sympathy from the judges if you routinely ignore this right.
2019.03.09 Murder by Multiple assailants - Who "Causes" Death?
Mr Hong, 2019 ONCA 170 and his henchmen planned to rob a drug dealer at his residence. When they got there, one of his henchmen hit a guy twice in the head, using a baseball bat. The victim fell to the ground, and made noises which a pathologist identified as the noises of a dying man.
Mr Hong didn't like the noises. He told someone to stop the noises. Another henchman hit the dying man on the head with the butt-end of a pellet gun. That didn't stop the dying man's noises. Mr Hong said he would show them how to silence him. He took the pellet gun by the barrel, and swing it like a golf club at the dying man's head. The impact broke his jaw, and he stopped making noises.
The pathologist didn't think that the last impact inflicted the injuries that killed the victim.
At trial, the jury found his henchmen guilty of manslaughter. Although the jurors were convinced that the henchman caused death, they must have doubted that the henchman intended to kill or inflict mortal wounds.
But they convicted Mr Hong of murder.
Considering that the henchman inflicted the injuries that killed the victim, was this a legal route to follow? Mr Hong didn't "cause" the death.
Yes. Even though the golf swing did not inflict the fatal injuries, it did accelerate death. And if Mr Hong intended that the victim die or suffer injuries that could kill, then that's enough causation for liability for murder.
2019.03.08 Impaired Driving - Breath Testing - Belches, Burps and Regurgitation
After you demand breath analysis, you must take your suspect without delay to the breath tests. And you must offer access to legal advice, and provide that access without delay.
And in the last 15 minutes before the subject blows into the instrument, you should watch in case the subject belches, burps or regurgitates.
When investigating Mr Ruest, 2019 QCCA 335, the investigating officers didn't watch for that. The breath-testing instrument recorded concentrations of 111 and 103mg% of alcohol in his blood. At trial, Mr Ruest testified that he consumed only a little alcohol. Based on his claims of alcohol consumption, an expert calculated that his blood-alcohol concentration should have been 18mg%.
Defence asked the court to find that the police failed to operate the instrument correctly because they did not watch for belches, burps or regurgitations. The judges rejected this argument - but only because it involved speculation.
If Mr Ruest had also testified that he regurgitated just before the breath tests, he might have been acquitted. According to an expert, such mouth-alcohol could really affect the accuracy of the breath testing.
Interestingly, the expert said that burps are not a big deal. If the stomach contains undigested alcohol, then a burp may bring concentrated vapours of alcohol into the mouth, but this dissipate quickly. But regurgitation can bring the alcohol itself into the mouth, and that's a problem.
I'm not an expert in these things. Don't take my word for it. For reliable science, talk to a toxicologist.
But after a breath demand, your duties include:
- giving the subject reasonable access to legal advice without delay;
- testing the subject's breath without delay;
- watching the subject to ensure s/he does not consume any alcohol nor belch or burp before the breath testing.
2019.02.16 Sexual assault - intoxicated victim
Ten thousand years after people started making it, humans still like alcohol. As we all know, it:
- Anaesthetises - people feel less pain;
- Disinhibits - people dare to break out of their usual behaviours; and
- Obliviates - after enough, people don't remember the things they chose to do;
- Incapacitates - after too much, people can't think for themselves at all.
We can laugh about it, but these properties cause lots of trouble in sexual assault cases.
A 14-year-old girl went to the beach with a 15-year-old boy. They were friends, but not close. His initials were C.P., 2019 ONCA 85. They stopped a liquor store and persuaded an adult to buy them vodka. The girl drank heavily. At the beach, the boy and the girl kissed for a while. They also had sex. She could not recall the sex and didn't think she consented. Was she too drunk to consent, or just too drunk to remember things she now regrets?
Another friend of the girl, E.G., testified that after the sex, the girl was intoxicated to the point of incoherence. Too drunk to consent.
Did the girl get that way before or after the sex? Did E.G. arrive immediately after the sex or a substantial time later?
If E.G. arrived much later, then perhaps the girl's intoxication increased by reason of vodka she drank just before or just after the sex.
The trial judge convicted Mr C.P. of sexual assault. He appealed. The majority upheld the conviction. What's interesting in this case is the dissent.
One judge would have acquitted him because in his view, the evidence wasn't strong enough to be sure that E.G. didn't just recklessly say "yes" to the sex, before she got too drunk to decide anything.
When you investigate cases of sexual assault where the complainant doesn't recall the sex, the prosecutor wants more from the complainant than her assertion "I wouldn't have consented to sex with that guy". It's too easy for the judge to reason "maybe not when you are sober, but what about when you were drunk?"
This case demonstrates one way to get there - gather evidence of the complainant's condition just before or just after the sex. That judge complained that there were lots of people at the beach. Why didn't they testify too? Was this a failure of the investigators to locate all witnesses, reluctance of witnesses to talk, or failure to recall because they were too drunk to remember? I don't know because the decision doesn't explain. But I do know that a good investigator would try to get the evidence of the other witnesses, and anything else that would tell how much liquor (or other drugs) the girl consumed.
2019.02.12 Voyeurism - Reasonable Expectation of Privacy
Back in 2017, I wrote about Mr Jarvis, 2019 SCC 10, a teacher who used a camera hidden in a pen. He aimed it down the cleavage of his female students, and recorded video of their breasts.
Was it voyeurism?
The trial judge felt this violated the expectations of privacy of the students, but the evidence didn't prove that he did it for a sexual purpose. Mr Jarvis bet the charge. The Court of Appeal disagreed. Of course it was done for a sexual purpose, but the teacher only recorded what the girls displayed to everyone around them -- even the security cameras. Mr Jarvis beat the appeal.
Mr Jarvis lost in the Supreme Court of Canada. They concluded that the recordings did violate the expectations of privacy of these students. They might expect that the people around them might glance down their shirts, but they didn't expect someone to walk away with video recordings of their breasts.
This decision matters for two reasons.
It expands the interpretation of the luring offence to capture surreptitious recording of people in mostly-public places. Video-recording differs from just looking at people because it makes a permanent record.
But it also shifts lawfully-protected expectations of privacy.
Last week, if you were considering setting up a video-recording system in a mostly-public place for the purposes of investigating a suspect, you had less to worry about. This week, think some more. This decision does not say that you need judicial pre-authorization for every video camera you deploy in public. But trial judges are more likely to find that lawfully-protected expectations of privacy even in semi-public places. We can expect more debate about whether you need judicial authority to install video-recorders that observe places like underground parking lots of apartment buildings or residential back yards.
2019.02.13 Preserving Evidence during Investigation
Who wants to be a terrorist? Mr Hersi, 2019 ONCA 94 did. He quit his job and bought plane tickets to Somalia. But police arrested him at the airport.
He'd been talking about his radical and violent ideas for a while, including with his new friend at work.
That guy was an undercover police officer, who started working there after Mr Hersi's employer alerted authorities to Mr Hersi's scary ideas.
Mr Hersi even encouraged the officer to join the Jihad. The officer took careful notes.
Mr Hersi sent him text messages. The officer deleted the uninteresting ones.
At trial, defence complained that the missing text messages contained the key evidence that showed that Mr Hersi wasn't serious about terrorism. Because the police officer destroyed them, Mr Hersi wasn't getting a fair trial. Defence asked the judges to stay the proceedings.
The argument did not succeed. Mr Hersi got 10 years. But the judges agreed that the undercover officer should have preserved all the text messages.
Preserving innocuous text messages seems like a waste of time and effort.
Not if it's evidence.
Is this case relevant to you? Most of you aren't working in undercover operations. But minor communications are often relevant. For example, many of you arrange to meet defendants for non-custodial interviews. Your communications arranging such interviews can become central evidence in a voir dire to determine voluntariness of the accused's remarks. Those text messages should be preserved because they will tend to show what wasn't said.
Just like in Mr Hersi's case.
2019.02.10 Evidence of Intoxication - Video-recordings
"How drunk was he at the time of the offence?"
The question arises often. In an impaired driving case, was she too drunk to drive? In a murder case, was he so drunk that she did not realize that by stabbing someone, he would probably kill them?
Mr Williams, 2019 BCCA 49 stabbed someone, and the victim died. At his murder trial, he said he could not remember the night: he was too drunk.
Homicide detectives obtained his bar bill, which showed he drank heavily up until 9:30pm. The stabbing occurred at around 11:00pm.
Nobody knew whether he kept drinking. Was he too drunk to form the specific intention to kill the deceased?
The officers that arrested him shortly after the stabbing took him to the police station. Security video showed him walking fairly normally. But security video doesn't capture everything.
A jury convicted Mr Williams of murder. The appeal court found errors with the judge's instructions to the jury, and ordered a new trial.
You can bet that at the second trial, the prosecution will play the security video again. But they'll wish they had something more. And the defence will wish they had more evidence to prove that Mr Williams drank lots more booze after leaving the bar.
In cases like this, first responders have too much to think about: "Who did what to who? Is everyone safe? Does the suspect need medical attention? Legal advice? Is the scene secure? Is there other evidence that needs capturing or preserving right now?"
In a case like this, the lawyers want reliable evidence of the accused's sobriety. Video-recordings of the suspect walking and talking can help.
Even the judges wanted more. The court observed "Unfortunately, no post-arrest investigative steps were taken to obtain a breath or blood sample from the appellant."
The court made it sound as if that was an investigative failure. If the accused is uninjured, getting those breath or blood samples is pretty tricky: if he's really drunk, he's in no position to consent; if he's sober enough to understand what's going on, he'll likely follow legal advice, and refuse to permit you to take them. Except in drunk driving investigations, the law does not permit you to compel him to produce breath or blood samples.
That doesn't mean you shouldn't try. But you'll need to step very carefully to get bodily samples by consent.
But you don't need consent to video-record your prisoner. For the purposes of documenting sobriety or drunkenness, can you video-record the suspect's conversation before access to counsel?
You can certainly do so for the purposes of documenting how you treated the suspect, how you explained the right to counsel, and the right to silence. During the period before the suspect gets access to counsel, you must be scrupulously careful not to ask the suspect for evidence about the offence. Even asking how much he drank is out of bounds until he has had access to a lawyer. But it's clear that even the judges appreciate good evidence which measures intoxication.
Do you whip out your video camera only when the suspect looks drunk or stoned? No. Immediately after a killing, evidence of the accused's intellectual functioning matters to all parties. The Crown wants to prove that the accused was sane and sober. The defence may hope that it shows him to be intoxicated or insane. Immediately after the suspect blows a "fail" on the screening device, the respective lawyers will hope for the opposite. Your job, as neutral investigators, is to capture the evidence, whatever it may be.
Whether you investigate an ordinary impaired driver, or a murder suspect, if you catch the suspect immediately after the offence, consider making a video-recording which documents the suspect's symptoms of alcohol or drug intoxication. Or at least preserve the security video from your police station.
2019.02.07 "Did you Detain my Client?" - Testifying about an
The defence lawyer asked Officer Stratton whether he "detained" the defendant. It was a dangerous question. Officer Stratton said "yes". It was a dangerous answer.
A police officer who "detains" a person triggers duties under the Charter. But the courts give a different meaning to the word than people in ordinary conversation. R. v. Mann, 2004 SCC 52 at para 19:
‘Detention’ has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
The question was dangerous because the answer would determine whether Mr Reid 2019 ONCA 32 went to jail.
Was Officer Stratton correct? Was it a detention?
Officer Stratton went to public housing complex with other officers. The management of the complex invited them there because the crime problem in the area. Strangers would come and cause trouble.
Officer Stratton and another officer were talking with some children when two men approached them. The officers engaged the two men in conversation. One was Mr Reid. Officer Stratton talked with him.
The officer asked Mr Reid whether he lived at the property, his name, whether he had been in trouble in the past, and his purpose for being there. Mr Reid gave his name and volunteered his date of birth and home address. He said that he did not live on the TCHC property, but that he had family in the “area”. He also said that he had been arrested a long time ago and that he was at the property to produce music and help children to not go down the “same path” as he once had.
"Officer Stratton used his portable radio to run a record check on the appellant’s name. The appellant could hear Officer Stratton speak into the radio, and the replies he received. Officer Stratton thinks that he told the appellant that he would be “on his way” once the record check was complete. Officer Stratton said that the purpose of the check was to determine whether the appellant was subject to any court-imposed conditions forbidding him from being on the TCHC property. As the check was being done, Officer Stratton recorded the appellant’s name, date of birth, and address on what was referred to as a 208 card."
Then the radio blurted out that Mr Reid had a weapons prohibition. Mr Reid turned, tapped an object on his hip and ran. He threw away a loaded handgun. The entire encounter lasted 5-7 minutes.
The trial judge found that that the interaction wasn't a "detention" within the meaning of the Charter.
The defence appealed: "Hey! It must have been a detention. Even Officer Stratton called it a detention!"
The Court of Appeal responded:
I agree with the trial judge that little weight can be placed on Officer Stratton’s use of the term “detention”, particularly in light of the officer’s qualification about what he meant by detention: “I was talking to him. If that’s ‘detain’, then, yes, then I was”. Clearly the officer was not using the legal definition of detention.
Officer Stratton was wise to qualify his words like that.
Because the legal meaning of "detention" differs from the everyday meaning of the word, you want to be careful answering the legal question with everyday language.
2019.02.01 Facebook Fact or Fiction - Authenticating Digital Evidence
Who set fire to Mark's house and garage? A girl named Carmen showed police some Facebook communications from Jonathon Ball, 2019 BCCA 32, in which Jonathon claimed responsibility.
Did she fake them?
Mark's rock band practiced there. Jonathon - a member of the band - had a complicated love life. He had an on-and-off again relationship with Carmen. Without telling Carmen, he was also seeing a young woman named Brooklyn. But Brooklyn was Mark's ex-girlfriend. Jonathon's dalliance with Brooklyn broke up the band.
Jonathon got most of his equipment back from Mark's place, except an amplifier.
And then someone set fire to the place.
Two weeks after the fire, Carmen - the deceived girlfriend - told police that Jonathon admitted setting it. She showed them some Facebook messages:
"I was at Marks. There’s nothing left of the garage. I broke in the basement of the house and looked for anything of value, couldn’t find anything so I lit the basement on fire."
The timestamp was 2 hours after the fire - at a time when only the police, the firefighters and the arsonist could have known those details.
She showed the police those messages by signing onto her account from a computer at the police station. A police officer photographed the messages.
At trial, the prosecutor asked Carmen to explain how she received the messages. Carmen was no expert. She looked at the photographs of the computer screen. She remembered the messages, but could not confirm the timestamps. Nobody explained how the Facebook worked. Nobody checked Carmen's computer, to see if she had signed on as Jonathon, and faked the messages. Nobody got records from Facebook to discover what device signed into Facebook on the date and time the messages were made.
The Court of Appeal ordered a new trial. They the prosecutor, the defence lawyer, the police and the trial judge all made errors.
The primary mistake everyone made was to assume that an exhibit speaks for itself. A photograph of a computer screen showing Facebook messages proves nothing. People establish exhibits by testifying about them. Testimony proves that the exhibit is "authentic". Testimony explains what the exhibit means.
The photographer can testify "this is what the screen looked like on the day I took that photograph". But that doesn't prove how the timestamps came into existence, or who put the messages there.
Someone familiar with Facebook needed to testify "Facebook creates the timestamps you see beside each message. They specify when the messages were posted onto Facebook." But that doesn't prove who typed the messages.
Carmen's testimony in this case was central ... and suspicious. She had reason to hate Mr Ball. She might have had access to his Facebook account - particularly if he ever used her electronic devices to sign onto it. She could have typed the messages, and framed him.
The appeal court said that the investigation needed to go a bit deeper - to confirm her allegation about who typed the messages. (I understand that the defence counsel made admissions, so the prosecutor told the investigators not to worry about that sort of investigation.)
This idea applies to all exhibits. If you have data, or a picture or an exhibit, don't just send it to the prosecutor. The prosecution needs witnesses who can explain the continuity and meaning of the thing.
2019.01.29 Ion Scanner - Unjustifiable Snooping or Electronic Dog?
If you swab a surface, an ion scanner will report whether it detects specific drugs. Is it lawful for a police officer to swab the door handle of a suspected drug-dealer's car, and submit the swab to an ion scanner? Two judges recently disagreed.
In both cases, the cars were in public places. In both cases the police had reasonable grounds to suspect that the drivers dealt with drugs.
Both judges agreed that testing a car for traces of drugs violated the driver's expectations of privacy. But the Ontario judge went one more step. She found the technique analogous to deploying a drug dog.
The Supreme Court of Canada held that deploying a drug dog to sniff for drugs intrudes on privacy, but when the officer has a reasonable suspicion that there are drugs to be found, the search is lawful. R. v. Kang-Brown, 2008 SCC 18; R. v. Chehil, 2013 SCC 49.
She felt that swabbing the exterior and using the ion scan violated Mr Wawrykeiwycz's privacy less than deploying a drug dog. Because the officers had reasonable grounds to suspect Mr Wawrykeiwycz of dealing in drugs, this search was lawful.
With respect to both judges, I prefer the reasoning of the Ontario judge. The B.C. judge did not consider the drug-dog case law.
I am aware of no decision in BC which overrules Wong. It states the law for the time being. Until this decision is overruled or clarified, police officers in BC who want to use ion scanners in this manner should seek legal advice.
I thank Jason Anstey for drawing these two decisions to my attention. Usually, I don't comment on trial decisions. But the Wong case has some impact on police investigations, not only on this topic, but also the deploying of cameras in public places.
2019.01.13 Drug Recognition Experts - Rolling Logs - Disclose your
With the legalization of marijuana came increased enthusiasm for drug recognition experts (DREs).
Are they any good at recognizing drug intoxication?
DREs keep logs of the evaluations they perform.
When a DRE concludes that someone's impaired by drugs or drugs and booze, section 320.28(4) of the Criminal Code requires the DRE to "identify the type or types of drugs in question". Testing of bodily samples thereafter may confirm or rebut their opinion.
Naturally, defence will want to learn how many times a DRE got it wrong. Crown wants to emphasize how many times they got it right.
So the lawyers want copies of the DRE's log. Not only at the time of the initial disclosure, but also updated close to trial. The Ontario Court of Appeal says that the defence is entitled to a copy of the DRE's log. Stipo, 2019 ONCA 3.
If you are a DRE with a good track record, defence will then challenge your record-keeping. Is there any way that you could doctor your log to cover errors revealed by testing of bodily samples? Your log better be something more permanent than a word processor file.
If you are a DRE with a bad track record, consider getting out of the business.
If you are a beginner DRE, to conserve your reputation and protect your log from an accumulation of mis-identifications, you might want to make your assessments carefully.
2018.12.31 Strip Search in the Field
Mr Pilon, 2018 ONCA 959 tended to carry drugs in his crotch. And police who knew him knew of this tendency.
Those officers executed a CDSA warrant to search for drugs in a room at a motel. In the room, they found Mr Pilon and two other guys. The officers arrested the three men - I gather they had grounds. The other two guys put up no resistance, but Mr Pilon struggled and resisted. He kept trying to put his hands down his shorts, even after the officers handcuffed him.
An officer pulled his waistband away from his body. To his surprise, he saw that Mr Pilon wore no underwear, but a rubber band was attached to his penis.
A pat-down search did not discover any weapons. To prevent Mr Pilon from concealing evidence, the officer decided to search him at the motel. He put on gloves, and in the bathroom, away from the observation of anyone else, he searched Mr Pilon, and recovered drugs.
At trial, Mr Pilon complained that the officer who searched him violated his s.8 rights by strip searching. The trial judge rejected this complaint, but the appeal court found a breach.
Even if Mr Pilon had been wearing underwear, pulling his waistband away from his torso to look into his groin area constituted a "strip search". Police must not do so except according to the strict limits of such searches (read the decision to remind yourself). That was a breach of Mr Pilon's rights.
You can pat someone down for weapons. At the scene, you can search under clothing if you have reasonable grounds to believe that there are weapons that pose you or others a risk. But you can't search for evidence unless there are strong reasons to expect it will be destroyed or hidden before you can get the suspect to the security of your police station.
This officer didn't believe Mr Pilon had weapons. He knew Mr Pilon carried drugs in his crotch, and Mr Pilon was acting like he had drugs in his crotch.
The judges felt that a handcuffed suspect would have great difficulty concealing or destroying drugs in his crotch. Therefore, there was no urgency to searching him. He should have been carefully watched until he arrived at the police station, and there, searched for the evidence he was carrying.
But the judges also agreed that the breach of rights was not outrageous. After the initial breach, the officer did take steps to limit the intrusion on Mr Pilon's privacy. They found that the drugs could be admitted into trial. Mr Pilon's conviction stuck.
I found this case interesting because many officers may think "strip search" means taking off clothing. But it includes less overtly embarrassing searches. It includes pulling away outer garments to look at underwear.
2018.12.13 How Sharing affects Privacy in Computers and Privacy in
Houses; Oh yeah, also Form 5.2
Every so often, the Supreme Court of Canada delivers a decision which declares broad principles that affect police work. This is one. It expands upon the idea that nobody can waive the privacy rights of another person. That idea can complicate police work. I recommend that you read this decision and debate it.
Mr Reeves, 2018 SCC 56, and his common-law Ms Gravelle owned a house together. Ms Gravelle and her sister complained that he assaulted them. As a result of his charges, a "no-contact" order prevented him from entering the house without Ms Gravelle's permission. She revoked that permission, and she told a probation officer that a computer she shared with Mr Reeves contained child pornography.
A police officer came to the house to ask her about the child pornography. She welcomed the officer in. She signed a consent which permitted the officer to take the computer away, which he did. He did not report to a justice that he took the computer, but 4 months later, the officer persuaded a justice of the peace to issue a warrant to search the computer for child pornography. And it did, indeed, contain child pornography.
At the time that he took the computer, the officer did not believe he had sufficient grounds for a warrant.
The first judge decided that the police officer violated Mr Reeves' rights three ways:
- Although the officer entered the home with Ms Gravelle's permission, he did not have Mr Reeves' permission. Therefore, he violated Mr Reeves' reasonable expectation of privacy in the residence.
- The officer "seizure" of the computer, and failure to report it to a justice, as required by s.490, violated Mr Reeves' expectations of privacy in the computer.
- The application for the search warrant gave a falsely strong impression of the evidence that the computer contained child pornography.
1. Consent of a Resident isn't Enough?
The first finding should frighten you: if a resident invites you into a shared house and you accept, you may be violating the Charter rights of other residents.
Most of the judges of the Supreme Court of Canada realized that this idea was complicated. They'd worry about it some other time. This wasn't the right case for them to express an opinion.
Côté J. - all alone - suggested that consent of one resident lawfully permits you to enter the common areas of a residence.
Moldaver J. - also alone - said it might be okay to enter a residence to take a witness statement if:
- you give the resident an alternative to inviting you in,
- the resident invites you in anyway,
- for the purpose only of talking to the resident or getting a statement,
- in a common area or an area private to the resident who invite you in, and
- you stay only as long as you are welcome.
The judges may have the luxury of time to decide what's proper for a police officer. You don't have that luxury.
I can't accurately predict what rules the judges will ultimately set for you.
Even before this decision, you required clear authority to enter a residence without the permission of the residents. After this decision, you should be thinking twice about entering shared residences, even with the permission of one of the residents. Your obligation to save lives obviously overrides privacy concerns. But this decision gives greater force to the complaint of the other residents "I didn't let that cop into MY HOUSE. My rights are violated!!"
2(a) Taking the box without looking into it affects reasonable expectations of privacy
Because this officer did not believe, at the time of the seizure, that the computer contained child pornography, he could not seize it pursuant to s.489(2). His idea of asking the woman to sign a consent was a good one, but it turns out that step was not good enough.
Most of the judges agreed that one computer owner/user can't give you permission to take away a computer that contains the private data of another owner/user. Even if you don't look at it until later, with the authority of a warrant.
The officer didn't seize the computer from the woman. She gave it away freely. But by taking the computer away from her, he also took the computer and its data away from Mr Reeves without his permission. But for the officer's actions, maybe Mr Reeves could have made his peace with Ms Gravelle, and deleted the data.
2(b) Report to a justice and detention order
A seizure happens when you take something without consent. After you seize something, you must report it to a justice. This officer probably thought he received the computer from Ms Gravelle, and therefore, he "seized nothing". A reasonable thought. But the Supreme Court of Canada says there was a seizure -- from Mr Reeves. That's why the officer should have completed a Form 5.2.
So get used to filling out form 5.2. When in doubt, fill it out.
3. Warrant Drafting
It's really easy to exaggerate the strength of the evidence justifying a warrant. Any officer pursuing a lead should be enthusiastic, but enthusiasm generates confidence. Overconfidence can cause one to state inferences as facts.
The investigating officer learned that the women saw files that they believed were child pornography.
The officer who wrote the ITO:
- forgot to mention in the ITO the history of conflict between Mr Reeves and Ms Gravelle and her sister. The women might have exaggerated their information. (It turns out one did.)
- said the women watched videos of concern. (They didn't)
To ensure that your application is correct, return to the source material, and check what it really says, instead of the conclusions you draw from it.
I posted no new material over the last month. I promise I will, but not for a couple more weeks. I've been busy. The new impaired driving legislation comes into force in 3 weeks. I worked up a presentation for lawyers. This week and next, I'm preoccupied with a lengthy trial.
I have lots to tell police on the topic. Here's a tidbit for today:
Police officers used to tell drivers that the penalties for failing the breath analysis are the same as the penalties for refusal. That's not true any more. After December 18, 2018, for first offenders, the fine for refusal is higher than the fine for impaired driving, and depending on whether the Blood-Alcohol Concentration is double the legal or lower, the fine is the same or lower if the suspect blows into the instrument. But the penalties for repeat offenders are the same.
2018.10.27 Identification Evidence - Showing a Single Photo
Mr Ali was talking on his cell phone with his cousin, when someone shot him. At the hospital it looked like he might die, but Mr Ali survived.
Mr Ali told police that the shooter was "Gucci" from Jamestown, a guy he recognized from high school. Police looked up this nickname in their files, and found Mr Jimaleh, 2018 ONCA 841 used it. Fearing that Mr Ali would die, police sent a single photo of Mr Jimaleh to an officer at the hospital, and that officer showed it to Mr Ali. Mr Ali confirmed that this was "Gucci".
Mr Jimaleh was charged with attempted murder, and convicted.
Defence appealed: those dumb cops should have used a proper photo lineup procedure!
The judges rejected that argument.
When the victim does not know the culprit, then showing a single photograph can cause the victim to remember the face in the photograph instead of the face of the culprit.
But when the victim knows the culprit well, showing the victim a photograph of the wrong person won't change the victim's memory.
Only because Mr Ali knew Mr Jimaleh did the judges find no fault with this police procedure.
2018.10.25 Non-Custodial Interview of a Suspect - Do You Have to Say "you're a suspect"?
You don't always know who dunnit. When you have some strong suspicions, do you have to tell them?
Police interviewed Mr Campbell, 2018 ONCA 837 about a missing person. He told them the deceased did not come to his house. That was a lie. He told them he was concerned about people driving by his residence.
Then the officers found the victim's body. Dead in his car. Four bullet holes in his upper body.
They went back to interview Mr Campbell some more.
Like Mr Campbell, the officers didn't tell the whole truth. They suspected him of killing the deceased, but they didn't say "you're a suspect in a murder". They told him that they wanted to talk to him because they were having trouble reading the notes of the first officer who interviewed him. They said they wanted to ask more questions about the people driving by his place.
And then the officer gave this stumbling explanation:
Um, I am a police officer. Um, I am investigating a murder. Um, so anything that you say to me could be used. If your were gonna be charged ... for murder. .. what you'd tell me I could use. Um, and I can use that in court. Um, and then the other thing is, is that if you spoken to any police officer or anybody in authority that says you know, if the police come by you have to talk to them ... don't pay any attention to that, okay?
It was a horrible way to say something simple:
I'm investigating a murder. If you were charged with that murder, what you tell me now could be used as evidence in court. You don't have to talk to me. And if any other officer told you that you have to talk to me, they're wrong. You don't."
The officer did not offer him an opportunity to get legal advice. The officer did not give him any document to sign explaining that he understood his rights.
The officer just asked him more about the victim. And Mr Campbell said some things that helped get him convicted.
Defence appealed. They pointed out that the police lied about their motives. And they never told Mr Campbell he was a suspect. The trial judge should have excluded the second statement.
How did the appeal court judges respond to these complaints?
Right you are! Surprise! The judges thought differently from you.
The judges said:
"While the words used by the interviewing officer were not particularly elegant, they conveyed the salient points to the appellant. In particular, the interviewing officer told the appellant that the police were investigating a murder and that, if the appellant was charged with murder, anything he said could be used against him. The appellant was, in our view, given the requisite information to allow him to make a meaningful choice whether to speak to the police. Nothing more was required."
"Further, the appellant’s effort to characterize the failure of the police to tell the appellant that he was a suspect as 'trickery' does not succeed."
You can use some mild tricks and deception when investigating crime. What's permitted depends upon whether:
- the suspect is detained
- the deception diminishes the someone's legally-protected rights - such as the right to counsel or the right to know what he's detained for
- the deception would create unreliable evidence - for example, during the interview of an impressionable suspect, presenting fake but convincing evidence of the suspect's guilt
Don't make a habit of lying. It diminishes public trust in police. But if your suspect isn't detained, then you don't have to tell him exactly how much you suspect about his guilt. On the other hand, it was wise of this officer to say that Mr Campbell's remarks could become evidence in a murder trial. That permitted Mr Campbell to decide whether to talk.