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2024 Developments

2024.02.29 Making a Screening Device Demand "Immediately"

When you form the suspicion that a driver has alcohol (or drugs) on board, decide promptly whether to make a screening demand. If you don't make the demand "immediately", the moment for making it will pass.

A police officer stopped a vehicle driven by Mr McCorriston, 2024 SKCA 5. The officer ran some computer checks on the vehicle, and then spoke to the driver. When the officer realized that Mr McCorriston had alcohol in his body, the officer said "hang on a moment".  The officer returned to his vehicle. There, he ran some computer checks on the driver, and warmed up his breath testing instrument.

The officer returned to Mr McCorriston, and made a screening demand. Just under 6 minutes passed between forming the suspicion and making the demand. Mr McCorriston refused, on the basis that the officer took too long to make the demand.

The trial judge disagreed, and convicted him. Mr McCorriston appealed. The appeal judge agreed with him. The Crown appealed further, without success.

Section 320.27 of the Criminal Code merely requires the driver to provide breath samples "immediately" after the officer demands them. Courts added a requirement that police make the demand "immediately" after forming the suspicion (see para 5).

Therefore, make the demand right away, then go fetch the device from your vehicle.  If, for your safety, you need to make some checks on the identity of the driver, do them. But make a note, so that you can explain later why it took so long to bring the device to the suspect.

2024.02.29 Do You Remember the Face You Met Last Year? - Proving Identity when You Forgot

Cst Sedgewick forgot the face of a driver.

He gave Mr Wurtz, 2024 SKCA 16 a speeding ticket. Ten months later, at traffic court, he frankly admitted that he could not remember the face of the driver. The presiding justice acquitted Mr Wurtz because the evidence failed to prove that the driver who speeded was in the court room.

What an idiot Cst Sedgewick was! He told the truth!

But the local Crown had faith in Cst Sedgewick. They appealed the acquittal.

The summary conviction appeal court agreed with the Crown.

Sedgewick wasn't an idiot at all.

Mr Wurtz didn't like getting convicted. He appealed to the highest court in Saskatchewan.

They agreed with the Crown. If anybody screwed up, it was the justice who acquitted Mr Wurtz, not Cst Sedgewick.

What did Cst Sedgewick do right?

For starters, he told the truth in court. Even though it caused an acquittal, that was the right thing to do.

But that's not the main point of this case review.

When he pulled over Mr Wurtz, Cst Sedgewick asked for a driver's licence. Mr Wurtz produced one. Cst Sedgewick then did something essential: he compared the photograph on the driver's licence to the face of the driver. He saw that they matched. (I presume that he also made notes of this comparison.) Then, Cst Sedgewick did something completely ordinary. He issued a ticket to Mr Wurtz.

The big identity question in any trial is whether the person charged with the offence committed it. That's a slightly different question from whether the culprit is in the court room.  In the usual course of events, the culprit ought to be in the court room. You can expect the prosecutor to ask you to point out the person that you dealt with. But not always. For some minor offences, the accused person can appear by agent. By issuing a ticket to the person that he caught speeding, Cst Sedgewick made sure that the person charged was the same person who was driving the car. And by using identification that matched the driver's face, Cst Sedgewick made sure that the charge named the right person.

But there was more. Mr Wurtz actually did show up at the trial. He identified himself by name to the justice. He gave the same name as the name on the identification that Cst Sedgewick examined.

How would anyone know to turn up at the trial if they weren't the person who received the ticket?

Mr Wurtz's appearance at the trial also suggested that he was the guy in the driver's seat. And his name matched the name of the guy that received the ticket. Therefore, even though Cst Sedgewick could no longer remember his face, there was no reason to doubt that the driver was in the court room.

Here in B.C., we refer to the act of comparing the face of the suspect to photo identification in his/her possession as "The Schryvers Test". But the courts across Canada agree with the logic in the Wurtz case.

This concept applies to more than issuing speeding tickets. The officer who arrests a suspect, and the officer who gives the suspect a promise to appear or undertaking do the same thing. Their testimony can prove identity too. They can provide valuable testimony about identification, even if they did nothing else in the investigation. They are witnesses.

Some suspects don't have photo identification with them ... or at all.

Whether they do or they don't, I suggest that it's a good idea to photograph the people that you detain, so that you can remember their faces 10 months - or even 5 years - later in court. (R. v. Multani, 2002 BCSC 68)  If they do produce photo identification, there are several good reasons to photograph it as well.

2024.02.29 Speeding Tickets - Was the Speed Sign Official?

In the same case described above, the justice who heard the evidence gave a second reason for acquitting Mr Wurtz, 2024 SKCA 16 of speeding.

Before busting Mr Wurtz for speeding, Cst Sedgewick made sure that there was a posted sign which established the speed limit. In court, he couldn't swear that some lawfully-authorized person put the sign there.

The justice acquitted Mr Wurtz on the notion that perhaps some miscreant might have posted a realistic-looking but fake speed-limit sign.

The Court of Appeal rejected this idea. Judges (and police officers) are entitled to presume that standard speed-limit signs are lawfully posted.

I see that after Mr Wurtz's trial, but before the Saskatchewan Court of Appeal rendered their decision, the Saskatchewan legislature added s.198.1 into their Traffic Safety Act. It codifies this presumption. Perhaps Mr Wurtz's case inspired them to do so.

If some clever lawyer raises this imaginative defence in your province, you might want to tell the justice about the Wurtz decision.




2024.02.27 The Detainee's Right to Access to Counsel of Choice - Waiting for Godot

When you arrest someone at an inconvenient time of day, and he wants advice from a particular lawyer, how long should you wait for the lawyer to call back?

Smart-ass lawyers will say only "it depends". Smarter ones will tell you what it depends on. Somehow, judges expect you to figure out from all this mushy advice the exact number of minutes to wait to see whether a lawyer will call back.

In my opinion, urgency of the investigation is the biggest factor, followed at some distance by gravity of the offence. The court will also consider your diligence in trying to reach the lawyer, and whether it is realistic to expect the lawyer to respond.

Mr Edwards, 2024 ONCA 135 passed out in the driver's seat of his car around 6:00am on a Saturday morning. This annoyed early-morning commuters, because Mr Edwards stopped his car in the middle of an active off-ramp on a major highway. But he didn't wake up when they honked their horns at him.

Dumb.

But he didn't kill anyone.

It took considerable effort to wake him. His car stunk of liquor. He appeared confused when he woke. The attending officer arrested him and told him of his right to legal advice.

Mr Edwards said that his cell phone contained the number of the lawyer (actually a paralegal) he wanted to call.

I think that the attending officer would have been wiser to call that number immediately, from roadside. Even if a private consultation was impossible at that point, making the call would alert the lawyer/paralegal right away that his services were needed. (A wise prosecutor in Quebec reminded me: giving your suspect a non-private consultation at scene with a promise of a private consultation later can - if you keep your promise - assuage many complaints about access to counsel.)

Instead, the investigator took him to the police station. 18 minutes after the arrest, Mr Edwards sent a text message to the personal cell phone of his chosen advisor.

No response.

6 minutes later, the officer called the number, and got a voice mail of the right person.  The officer left a message explaining the situation and asking for a return call.

No response.

The officer asked Mr Edwards whether he would like to duty counsel instead.  Mr Edwards said he would.

12 minutes after leaving the voice mail, the officer called duty counsel.

7 minutes later, duty counsel called. Mr Edwards spent 7 minutes speaking with duty counsel.  The officer asked if he was satisfied. Mr Edwards said "sure".

The investigator took Mr Edwards to the breath testing room, where the technician asked him if he was satisfied with his call to duty counsel.  Mr Edwards said yes, "But I didn’t get a chance to call back my lawyer”.

At 7:14am, the investigator called again.

No response for another 12 minutes.

The investigator gave up waiting. Mr Edwards blew 130mg%.

The lawyer never did call back.

At trial, defence complained that the police failed to respect Mr Edwards' right to counsel of choice. The defence complained that the police:

The trial judge rejected these arguments and convicted Mr Edwards. He appealed, and won. The Crown appealed that decision to a higher court.  Mr Edwards lost. His convictions stuck.

When your suspect says he wants legal advice, and then gives up on the idea, you must tell him that you have a duty to wait a reasonable length of time for him to get the legal advice he requires.  That's the Prosper warning.

But Mr Edwards didn't give up on the idea of getting legal advice. He actually got legal advice. And when he mentioned that he wanted more, the police tried to help by calling again.

And furthermore, these officers did wait a reasonable period of time. Well, they waited for a time that was "reasonable" in the context of an ordinary impaired driving investigation. Telling Mr Edwards that he had a right to what the officers already did and were doing would have made no difference.

Would the appeal court have reached the same conclusion if Mr Edwards had killed someone? Possibly not. Considering that the day was just beginning, there was some prospect at 7:15am that Mr Edwards's chosen counsellor might wake up and respond in the next 30 minutes.

How long should you wait for counsel of choice to return your early-morning call?

In the context of an ordinary impaired driving investigation, where the subject got legal advice from duty counsel, but wanted more from his own lawyer, a reasonable period of time to wait for counsel to respond early in the morning appears to be around an hour.

Remember the context of this case? Impaired driving. Every minute that passes, your suspect metabolizes or eliminates drugs or alcohol from his/her body. Part of what made 1 hour acceptable in this case was Mr Edwards' access to duty counsel. But the other part was this urgency to preserve evidence.

In other contexts, your mileage will vary.

If he had killed someone with his driving, perhaps waiting until around 8:00am for counsel to wake up (90 minutes) might have been wiser.

If you arrest someone at 6:00am on a Saturday morning for a minor domestic assault, and you want to interview him/her, don't be surprised if the court requires you to wait until 9:00am to see if counsel of choice will wake up and call back.  No urgency means a longer wait.  If you arrest a murderer at 9:30am on a Wednesday, don't be surprised if the court requires you to wait until after lunch for his chosen lawyer to respond. The lawyer might be busy in court and unable to call before then.

Mr Edwards' lawyer made some good suggestions. If you want to hurry things along, you might want to search online for the lawyer's website or the Law Society's website for alternate numbers to call. You might want to ask the prisoner if he knows of other ways to reach his lawyer. Your diligence may impress the judge that a longer wait is futile.

Or you might even reach the lawyer. No more waiting for Godot.

2024.02.27 Investigation of Impaired Drivers

Keep investigating, or you might look like an idiot.

As I described above, Mr Edwards, 2024 ONCA 135 passed out in the driver's seat of his car around 6:00am on a Saturday morning. This annoyed early-morning commuters, because Mr Edwards stopped his car in the middle of an active off-ramp on a major highway. But he didn't wake up when they honked their horns at him.

A police officer woke him, with some difficulty. He appeared confused, and he stunk of booze.

Did the officer have reasonable grounds to demand that he supply a breath sample? You bet!

Did the officer make a demand for a breath sample? You bet!

Did the officers continue to investigate his impairment? Not that I can see.

The fact that you have grounds for breath demand does not mean that your investigation of impairment is finished.

At trial, defence counsel managed to establish that once Mr Edwards woke up, the officers noticed no significant symptoms of impairment. No bad walking. No slurred talking. Nothing indicating intoxication at all. From this, defence counsel argued that the police mistook a sleepy guy for a drunk guy. Many acquittals have arisen from this kind of argument.

Maybe there was nothing to see. But this file reads like zillions of others I have seen. So often, investigators seem to forget to investigate impairment once they make a breath demand. I get the impression from the decisions that the officers stopped looking for symptoms, and therefore wrote nothing further in their notes.

Maybe, after he got legal advice, the officers attempted to get a statement from Mr Edwards, and he refused to talk. Maybe they asked him whether he would like to try some sobriety tests. Maybe they watched him carefully in the cell block for indications of sobriety or impairment. Without access to the police file, I can't be sure. But I suspect that they stopped investigating like so many other officers who conduct these investigations.

Don't get caught out by your own complacence. Keep investigating.

2024.02.26 Grounds to Seize and Reporting What you Seized - A Killer Problem

Road rage can kill people. Sloppy procedure can kill prosecutions.

After a minor collision on the road, Mr Gill, 2024 BCCA 63, shot the other driver dead. The trial judge concluded that investigative errors killed the case against him. This morning, the Court of Appeal agreed. Let's learn from the mistakes.

The initial evidence suggested that Mr Gill shot the gun. Police persuaded a justice to issue a warrant to search his home for his phone and the car.

The ITO failed to explain what evidence police expected to find in his phone. This posed problems, but Court of Appeal didn't dwell them.

The seizures

Police who searched the residence found a messy place containing 4 people and 9 cell phones. Because they couldn't tell which cell phones belonged to which people, they took all of them.

Defence counsel argued that the warrant permitted the police to take only one cell phone. The Court of Appeal rejected that notion. The warrant sufficed to seize all of Mr Gill's phones.

Defence counsel argued that the officer didn't know whether any of the 9 phones were the phone described by the warrant. The judges agreed. The warrant did not authorize police to take all phones that might be Mr Gill's phones. The officers should have made an effort to figure out which phones were probably Mr Gill's phones.

The officers noticed a home security system, and seized it too. At trial, the officer admitted that she didn't know whether it would contain evidence or not.

That's a problem. You should already know that when executing a warrant, you can seize items not mentioned on the face of the warrant if you believe, on reasonable grounds, that the item contains evidence of the offence. s.489(1)

In hindsight, it's easy to see that the home security video would provide evidence of the offence. It would likely show who drove the vehicle back to the house after the homicide.

But the officer did not turn her mind to that question at the time of the seizure. Although it probably did contain evidence at the time she seized it, the seizure was unlawful because the officer didn't think it through at the scene.

The judges didn't like that either.

Detention order and lapse

The investigators properly reported to a justice what they seized.

Good!

But the investigation went dormant for 6 years.

During that time, the investigators did not seek extension orders.

The judges did not like that.

The homicide squad simply stopped applying for them, even though senior lawyers told them that they had to.

The judges really didn't like that.

Before searching the phones, the police persuaded a court to extend the detention order.

Smart.

You don't want to search a cell phone when you possess it unlawfully.

Damning evidence

Surprisingly, one of the cell phones contained a recording of the homicide, including Mr Gill's voice.

With that evidence, one can be pretty sure that Mr Gill shot the gun.

The home security system also confirmed that Mr Gill drove the vehicle.

Exclusion of the evidence

The trial judge hated the breaches of Mr GIll's rights so much that he excluded the evidence from the phone and the home security device.

That left the prosecution without enough evidence to prove the case.

The trial judge acquitted Mr Gill. The Court of Appeal found no significant legal errors.

Lessons learned

This case offers lessons for investigators:

  1. In an ITO, when you ask to seize an electronic device, you should explain what data you expect it will contain.
  2. The authority of the warrant empowers you to seize what it describes. Choose your descriptions carefully.
  3. If you're not sure whether the warrant authorizes you to seize a thing, investigate the thing.
  4. Perhaps, when you ask for a warrant to search a place for a particular cell phone, you might want to ask the justice for authority to turn on all cell phones that you find at the place, for the purpose of determining which one is the phone that you seek. Some phones have facial recognition lock screens. Maybe you want to ask for authority to show the faces of detainees to the cell phones. That might help you identify phones pretty quickly.
  5. When seizing things not mentioned on the warrant, think whether the things will (probably) provide evidence. Take your time to think it through. You may not get a second chance.

It offers lessons for file coordinators:

  1. Reports to justices matter.
  2. So do extensions of detention orders.

It offers a lesson for senior management:

  1. After investigators seize exhibits, investigations need to move quickly to process them all.
  2. Re-assigning investigators to other matters can cause fatal delays.

2024.02.26 Investigative Detention - How Long Can You Detain Someone on Reasonable Suspicion?

It depends.

At 8:03am, Mr R v Barton, 2024 ABCA 34 called police to attend to the dead woman in the bathtub of his hotel room. Although there was blood everywhere, police saw no injuries on her naked body. Mr Barton told police that he never touched her, except for poking her once that morning to determine whether she was alive. He told them that nobody else had been in his hotel room all night.

In most cases of investigative detention, you know there's an offence, and you suspect a person of involvement. This differed. These officers merely suspected that some kind of foul play caused the woman's death, but they knew that if there was a crime, Mr Barton knew what happened.

How long can you hold a person under these circumstances?

These officers detained Mr Barton at 8:13am, and took him to the police station. They told him his rights. He declined counsel. At 10:21am, they asked him for a statement. He started talking. They stopped at 11:27am.

It should come as no surprise that defence counsel sought exclusion of the statement. Combined with the forensic evidence, it established that he committed manslaughter.

Defence complained that "detentions" are meant to be brief. 3½ hours is not brief. It offended Mr Barton's right under s.9 of the Charter not to be detained arbitrarily.

The court concluded that in the circumstances of this case, the detention was not arbitrary.  "For a detention to fall within the common law powers of police, it must be “reasonably necessary” for the carrying out of a police duty." (para 50)

The court accepted that the police had a duty to figure out what led to the woman's death; and that they acted as promptly as circumstances allowed. They adverted to a list of factors which an Ontario court identified as helpful for determining whether a detention was excessive ("intrusiveness" of the detention, gravity of offence, complexity of investigation, safety concerns, diligence of police and absence of alternatives to detention).

I think that Mr Barton's efforts to talk his way out of the situation is what convinced the judges that this long detention was okay.  He was mostly cooperative. The detention, therefore, impacted him relatively little. The unexplained death made this situation complex.

Even still, I think your mileage may differ. Other judges might have found that this detention was too long.

You might find it useful to compare Mr Barton's case with the Ontario case, to get a feel for what judges accept and reject. A useful discussion for a watch briefing.

2024.02.17 Single Photo Identification - Getting Away with Murder

A month ago (2024.01.11), I cautioned against showing an eyewitness a single photograph of a suspect.

Yesterday, the Ontario Court of Appeal showed how this can go wrong. R. v. Shaw, 2024 ONCA 119

In 2016, three men approached a Pizza Pizza place. Two went in with guns and shot another man dead. The third man hung around at the entrance. Security video recorded the face of that third man: Winston Poyser. The camera did not capture the faces of the two shooters. Poyser and the two shooters left in a car driven by a fourth man.

Poyser worried that he would be convicted of murder or killed by the principals. Through counsel, Mr Poyser offered to assist the police in their investigation, so long as they gave him protection.

From the decision, it appears that the police handled his offer very properly. They promised not to use his statement against him in any trial, but explicitly declined to promise him immunity from prosecution.

Mr Poyser gave a witness statement. He told the officer that he knew one shooter and the driver. He said that he met the other shooter only that day. He told the police officer (and the court), that he consumed drugs and alcohol before the incident.

The interviewer carried into the interview room several envelopes that had been prepared for photo-pack identifications. For some reason, instead of asking Mr Poyser to pick out the suspects from the photos in the envelopes, the interviewer took a short-cut. He pulled out the pictures of the suspects, and asked Mr Poyser if he recognized them. He identified them as the two shooters and the driver.

Because Mr Poyser knew the two brothers for many years, those identifications posed no issue.

But the identification of the guy he met that day (while high) was a problem. A big problem.

By showing him a photo of one suspect and askin "is that the guy?", the interviewer made it impossible to know whether Mr Poyser recognized the guy, or just said what he thought the police wanted to hear. (Remember, this guy wanted police protection real bad.) At trial, the witness still identified the same guy as one of the gunmen, but his position as participant and his intoxication at the time undermined his testimony at trial.

The investigation turned up a little more evidence that suggested that he was right. That little bit of corroboration convinced the jury. They entered a conviction for murder. It wasn't enough to convince the Court of Appeal.

They acquitted him.

The case illustrates the danger line I discussed last month: does the witness know the culprit? How well? If the witness doesn't know the culprit well, then use proper photo pack if you possibly can.

Poyser wound up pleading guilty to accessory after the fact. (He destroyed evidence after the incident.) The shooters and the driver may beat the charges entirely.


2024.02.17 Burner Phone Subscriber Information 

Is there value in the subscriber information in pre-paid phones?

When investigating a murder (R. v. Shaw, 2024 ONCA 119), investigators found something interesting about a phone number in the star witness's phone. In the hours before the murder, that number communicated with the start witness.

The witness saw a murder and associated with the murderers. He knew the Shaw brothers, but there was one more guy. The witness knew him only by a street name. The police suspected that Mr Ali-Nur was that guy.

Police investigated the suspicious number. They got a production order. The phone company's subscriber information for that phone showed the name and address of the police's suspect: Mr Ali-Nur.

Great!

This match suggested that the witness was correct in identifying the suspect (named in the subscriber information) as the culprit.

Except ...

This information made it entirely possible that in the shady world where the witness lived, he knew and communicated with someone else who got a cell phone by impersonating the suspect. And the true culprit could be someone different.

If you find that last paragraph confusing, you may find it easier to follow if you appreciate the difference between two words: "culprit" and "suspect". The "culprit" is the guy who did the crime. The "suspect" is the person that police think committed the crime. I often observe junior police officers using "suspect" when they mean "culprit". In whodunnit cases, keeping that distinction clear in your mind helps you think, write and speak - more clearly.

Too bad the investigator waited 2 years to apply for production orders against the cell phone company. The phone company discarded lots of data. If investigators had applied earlier they would have got much more information.

Ultimately, Mr Ali-Nur beat the murder charge.

The trial judge called that delay in the investigation "negligent". I can't quibble. He held that the police violated the defendants' s.7 right to a fair trial by waiting so long. I found that a surprising conclusion because it appears to impose on police more than an obligation to preserve evidence in their possession, but also an obligation to seek out evidence that is not in their possession. That runs contrary to my understanding of this branch of s.7. (For interested readers, see R. v. Darwish, 2010 ONCA 124 at para 29)

Regardless whether that ruling was correct, this case taught painful lessons:

2024.02.03 Exceptions to Bail Conditions - Reasonable Grounds - Photographing a Joint

Damione Williams, 2024 ONCA 69 ended up "in the joint" because he rolled a joint.  At the wrong time, and in the wrong place.

Cops saw him in a car, rolling the joint. But nobody photographed the joint. Perhaps finding a handgun distracted them. Mr Williams possessed it in defiance of a court prohibition.

He lost his trial and he lost his appeal. Looks like he will stay in the joint. But this investigation offers some useful lessons for police officers.

It all started when Mr Williams was charged with assaulting his girlfriend Keylonna. A judge released Mr Williams on bail which prohibited him from communicating with Keylonna, except if she gave written, revocable consent.

Keylonna signed a written, revocable consent. (Maybe love conquers fear ... or good sense.)

She gave a copy to a police officer who uploaded it to a database accessible to the officers of the Toronto Police Service. Although CPIC contained the bail conditions, it didn't get updated with information about the written consent.

That set up problems for officers later.

Almost 2 months later, some plainclothes officers of the Toronto Police Service saw Mr Williams in a car. They ran the licence plate and learned of his identity. From CPIC, they learned of the bail conditions. Using the Toronto Police Service database, another officer got Keylonna's DOB, and used that to get her photograph from another database.

This information gave the officers at the scene knew:
- Mr Williams' bail prevented him from communicating with Keylonna; and
- The woman that got out of the car matched the woman in the photograph of Keylonna.

Would you arrest Mr Williams for breaching his bail? These officers did.

But while they waited for the photograph of Keylonna to arrive, the officers noticed Mr Williams rolling the joint.

The team of officers had staked out that spot partly because they wanted to enforce the Ontario Cannabis Control Act, which prohibits the possession of unpackaged or accessible cannabis in vehicles, and authorizes searches when officers believe (on reasonable grounds) that a vehicle contains cannabis.

They didn't just arrest Mr Williams, they also searched for the cannabis.  And that's when they found the gun.

At trial, of course, Mr Williams complained that the police should not have arrested him. Proving her love for him, Keylonna had given the police written consent. Before arresting him, the police should have checked the right database.

The Court of Appeal agreed.

But there was another reason to search the car.  The cannabis.

I guess that the gun got the officers excited. They got a warrant. They searched the car. They found the gun. They took pictures.

But nobody seized the joint. Very few pictures documented the cannabis. This offered defence an opportunity to accuse the police officers of inventing an excuse for the search.  Proving possession of the gun was way easier than proving lawfulness of the search.

But the trial judge found that the available evidence did prove that Williams rolled the joint while sitting in the car. The Court of Appeal found nothing wrong with that conclusion.

The end of the story for Mr WIlliams was: The search was lawful. Mr Williams stays in the joint. All because of a joint.

For police officers, the story comes with other lessons:


2024.02.01 Section 8 of the Charter is not a Breath Mint - Expectations of Privacy in Medical Situations

How close to a suspect should an officer get when medical staff attend to him/her? At what point does the police officer interfere with the suspect's privacy? Justice Doherty of the Ontario Court of Appeal threw some helpful light on these questions. He's a big name in criminal law. We should pay attention.

Mr Singh, 2024 ONCA 66 drank too much. Then he drove. Badly. He crashed his car into another vehicle, killing a mother and daughter. He suffered injuries. His infant daughter survived unhurt.

An ambulance took Mr Singh to the hospital. Cst Andrews went to the hospital to watch him, and update other officers on his medical condition. Nobody told that officer anything that suggested Mr Singh had committed any offence.

Cst Andrews did his best to stay out of the way of medical staff. He spoke only once to Mr Singh, to attempt to calm him down.

Cst Andrews heard a doctor ask Mr Singh if he had been drinking, and saw Mr Singh nod affirmatively. Cst Andrews saw a nurse draw blood. He saw Mr Singh enter the CAT scan room, and heard medical staff tell Mr Singh that he needed surgery for his injuries. Nobody asked Cst Andrews to leave.

Detective MacDonald went to the hospital for the purpose of interviewing the sole adult survivor of the crash.  He asked the treating physician if it was "medically safe" to speak with Mr Singh. The doctor didn't think it would harm Mr Singh, but warned that the morphine Mr Singh received might affect him. The doctor also volunteered something that Detective MacDonald didn't ask: Mr Singh had been drinking.

Detective MacDonald tried to interview Mr Singh, and video-recorded the attempt.

Detective MacDonald told Mr Singh that he had no obligation to answer questions. Mr Singh passed in and out of consciousness.

Detective MacDonald bent over Mr Singh, and smelled a strong odour of liquor on his breath. As a double-check, he asked another officer to do the same. That officer also detected a strong odour of liquor.

Mr Singh became more responsive. Detective MacDonald told him again that they were investigating the accident as impaired driving causing death, and that Mr Singh was under no obligation to say anything about it. Detective MacDonald asked him what he had to drink.  Mr Singh whispered that he "had a beer".

But he lapsed in and out of consciousness. Detective MacDonald gave up interviewing him.

Detective MacDonald applied - three times - for a warrant and production order for Mr Singh's blood samples and hospital lab tests. The first two justices refused him, but the third granted the application. The blood results showed that Mr Singh would have had between 124 and 164 mg% of alcohol in his body at the time he crashed.

Would the court admit the evidence?

Overheard Medical Consultation

The first problem arose long before trial. The justice who reviewed the first ITO rejected it because it relied - in part - on that head-nod that Cst Andrews saw when the doctor asked Mr Singh if he drank alcohol. Justice Doherty agreed with the justice.

A patient who communicates with a doctor for the purposes of getting medical advice enjoys a reasonable expectation of privacy. It did not matter whether Cst Andrews intentionally snooped on the conversation, or overheard it accidentally. The police could not rely upon that information because obtaining it violated Mr Singh's right to privacy under s.8.

Detective MacDonald rewrote the application so that he did not rely upon that detail (and very properly explained in the subsequent applications what happened in the earlier applications).

Justice Doherty approved.

Volunteered Information From Medical Staff

Justice Doherty even felt that it was okay for the officer to rely on the information that the doctor volunteered about Mr Singh's drinking.

He reached that conclusion because the officer didn't try to dig that information out of the doctor.

I feel a little nervous about that conclusion because of a pair of cases R. v. Dyment, [1988] 2 S.C.R. 417 & R. v. Dersch, [1993] 3 S.C.R. 76.

In those cases, medical staff gave blood samples and medical results to police officers. In one case, the officer didn't request it. The court found that this amounted to a "seizure".

Justice Doherty relied on two appellate court cases, which distinguished between medical staff volunteering information and medical staff handing over physical items. My skittishness arises from subsequent case law such as Reeves which doesn't draw such fine distinctions between information and physical items.

Sniffing the Breath of the Patient

Defence argued that sniffing the breath of Mr Singh as he lay trapped in a medical facility constituted a search which violated his expectations of privacy. The trial judge agreed.

But not Justice Doherty.

The Crown argued that whether a driver is at the roadside, in an ambulance or in a hospital, when the police are investigating a car crash, the driver enjoys no reasonable expectation of privacy over what his breath smells like.  Justice Doherty agreed.

That's why s.8 of the Charter is not a legal mint to conceal the boozy breath of a driver.

"Medically neutral" information

"[N]ot everything done, said, or observed in a hospital emergency room is wrapped in a cone of constitutionally protected privacy." (emphasis added)

I figure that cone was a reference to the absurd "cone of silence" from Get Smart. Justice Doherty ain't just some highbrow legal nerd.

Justice Doherty pointed out that police have a duty to investigate these crashes. There's nothing wrong with going into medical places to do so.

Although you can't ask the doctor for private medical information, some information is "medically-neutral". You can ask whether the staff took blood samples because this doesn't reveal any medical information. Doctors can tell you things that the patient told them - so long as those things do not relate to the protected area of medical treatment. It was okay for Cst Andrews to see Mr Singh go into the CAT scan room, or learn that he would need surgery.

And it was okay for the Detective MacDonald to ask the doctor whether it was medically-safe to interview Mr Singh.

Questioning the Intoxicated Singh in his Hospital Bed

Should you interview a drunk like these cops did?

If you want a voluntary statement, and the doctor tells you that the suspect is high on morphine, you might not get a voluntary statement.

But these cops investigated impairment. It makes all the sense in the world to videorecord the sobriety of the suspect. And to videorecord themselves in the process of investigating it.

Defence complained that in so interviewing him, police detained Mr Singh.

Justice Doherty rejected that idea pretty quick. Mr Singh's injuries restrained him, not the police. Indeed, Det. MacDonald took time to tell Mr Singh that he didn't have to answer any questions if he didn't want to.

Conclusions

In serious cases, assign someone to follow the suspect into hospital, and to track what happens. Watch when medical staff take blood samples. If you don't behave in ways that give the suspect reason to think they are in your custody, then their immobility on the gurney is not a detention. (Of course, if you do assert your control over them, then explain their rights under s.10, and arrange for access to counsel, if the detainee wants it.)

Do ask the treating physician if it's okay to talk to the suspect. When life or health is imperilled, don't get in the way of medical staff.

Don't ask the treating physician for information emanating from medical consultation, or for the results of medical tests.

If you overhear a medical consultation, don't rely on it for grounds for arrest or demands or warrants.  If a doctor or nurse volunteers medical information to you, you might be able to rely on it; but take careful notes about how the information came up.

If you're interested, I wrote more about this in "2023.04.03 Continuity of the Injured Suspect - Protecting Life or Invading Privacy?". See my "Old news" page for more information.


2024.01.30 Right to Counsel on Arrest and Detention - When and Where?

Seven years ago, 250 Quebec police officers arrested a bunch of people simultaneously for various drug and organized crime offences. A big operation.

At their trials, Mr Brunelle, 2024 SCC 3 and the other defendants all complained to the trial judge that the police failed to give prompt access to counsel to the defendants who asked for it. The police officers told anyone who asked that they could talk to a lawyer when they got to the police station. Defendants had to wait between 23 and 66 minutes to get legal advice. The trial judge stayed all of the charges. The trial judge complained that police officers always postpone access to counsel until they bring the suspect back to the police station. He said that's wrong. He said that police forces should supply police officers with cheap phones so that defendants can always get legal advice immediately at the scene of the arrest.

The Crown appealed. The Crown pointed out that some defendants did not want legal advice. Some didn't want it immediately. Even if there were some delays, the police scrupulously avoided asking the defendants any questions about the offences until after access to counsel was completed.

The Court of Appeal agreed with the Crown that the trial judge didn't analyze the breaches properly.  So did the Supreme Court of Canada. These folks will face their charges (8 years late).

The Supreme Court did not bless those 250 police officers with approval. The judges reviewed the law that the trial judge must apply, and clarified some duties and obligations of police officers on arrest and detention. It's a confusing read because the decision also tackles legal issues of abuse of process and standing. More on that later.  With respect to police duties on arrest and detention:

  1. Without delay, inform the detainee of his or her right to retain and instruct counsel and of the existence and availability of legal aid and duty counsel (para 80)
  2. If the detainee indicates a desire to exercise this right, provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); (para 80) and
  3. Refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). (para 80)
  4. Where the detainee asks for access to a lawyer, you may delay no more than is reasonable under the circumstances. (para 82)
  5. Police officers are not obliged to give the defendant their own personal cell phone. (para 84)
  6. Police forces are "not yet" obliged to supply cell phones to their officers for the purposes of giving access to counsel. (para 84)
  7. Logistical concerns - such has handling multiple prisoners at the same time, the problems with providing privacy, the availability of communication devices at scene - can justify longer delays (para 102)
  8. Because police officers must explain delay, the burden lies on police to make a record of what prevented instant access to counsel. (paras 82 and 97)

This case involved a planned arrest. Those are the worst for police. Look how easy it is for the defence to complain about delayed access to counsel:

Early in my career, cell phones were exceptional. Now, almost everyone carries them. Probably, even the judges on the Supreme Court of Canada use them.

Decades ago, police got the idea that if they told the suspect about the right to counsel at scene, then the law would permit the officer to take the prisoner to a police station before providing access to counsel.

True back then. Not true now.

Some supervisors (mostly the ones approaching retirement) continue to teach young officers the old rule. Senior officers might want to put this case on the agenda for discussion with the supervisors.

Management should start considering what to do when the SCC decides that you do need to equip every police cruiser with a cell phone.

Officers who arrest people should know that when the prisoner says "yeah, I want to talk to a lawyer", a clock starts ticking. The longer it takes to arrange access to counsel, the louder that clock should tick in the back of the officer's head.

If you pass the prisoner to another officer, tell the next officer about the ticking clock: "This guy wants to talk to a lawyer. Make it happen without delay."

Post Scriptum 2024.02.09 - A reader pointed out that police officers can rarely provide the prisoner with sufficient privacy for a proper legal consultation at the scene of the arrest. He asked what an officer should do to respect the prisoner's right to privacy. In his email he said that he expected me to write "it depends".  Here's my answer:

It depends.

If you can provide privacy at the scene, then you should provide privacy at the scene and offer to make the call.

If circumstances prevent you from providing privacy at the scene, then say so, but assure the prisoner that they will get a private call as well.

"You have a right to talk to a lawyer right now. We can call right now. But you have the right to a private consultation with a lawyer.  I can't give you complete privacy right now. So here are your choices: We can call right now, but I can't give you much privacy. But you can have a second conversation later at the police station, in privacy. Or we can make the call later, at the police station, where we have a private room for those phone calls. Your choice."

2024.01.30 Accumulated Breaches of Constitutional Rights - Standing

Section 24(1) of the Charter of Rights and Freedoms says: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

From those words come the idea of "standing": Only the people whose rights were infringed can complain about it. If some police officer arrests my best friend without any reason, and then holds him in custody without a bail hearing, nor any access to a lawyer. That would be a serious bunch of breaches of s.9 and 10 of the Charter. But I can't apply to court under s.24 of the Charter for an order that the police release my friend. The court must reject the application unless the person affected makes the application.  (Of course, if my friend is held incommunicado, he can't make such an application. Long before the Charter, the writ of Habeus Corpus was invented to solve this kind of problem.)

When police arrested a bunch of people which included Mr Brunelle, 2024 SCC 3 (see above), some of them wanted immediate legal advice, and some didn't. The police may have responded too slowly to the ones who asked to speak to their lawyers right away. And the police made some mistakes with warrants. For example, they had executed general warrant to "sneak and peek" into some properties. The general warrants required the officers to give formal notice to the people whose privacy they violated. The officers gave informal notice instead. And there was a warrant or two which should have been backed, but the officers executed them without backing orders.

So the police may have breached the rights of some of the defendants. But the defendants as a group asked for remedies, and, as noted above, the trial judge stayed all of the charges. Everyone beat the rap, even those who suffered no Charter breaches.

What was The reasoning For that conclusion? Abuse of Process.

The Crown appealed, complaining that many of the defendants lacked standing. The Supreme Court of Canada disagreed with the Crown. In Section 7 of the Charter, they found a back door, through which defendants who suffered no personal breach of their rights could still claim for Charter relief.

How does that work?

Section 7 reads "Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The principles of fundamental justice requires that prosecutions (and the investigations that they rely on) be fair and lawful.

The concept of abuse of process has two arms: the first one is obvious: sometimes, the trial is just unfair to a defendant. For example, it's unfair to prosecute a old defendant who's dementia prevents him from understanding the case against him. Proceeding in such a case would be an abuse of process.

Other times, the trial may be fair, but the behaviour of the prosecutor or the investigators was so icky that permitting the trial to proceed will besmirch the reputation of the court. The idea is that the public won't trust judges if judges just ignore outrageous behaviour by police or prosecutors.

In this case, the trial judge felt appalled that the officers who arrested the defendants routinely delayed defendants from contacting their lawyers. This, he felt, tainted the whole trial. And the technical failures with the warrants made it all worse. He didn't want anything to do with the case, and thew everything out.

The Supreme Court of Canada concluded that an abuse of process complaint under s.7 provides a route for all co-accused to complain of the breaches of the rights of other people involved in the case.

How can this affect regular police work?

An anonymous tipster asserts the people in 123 Main Street, Anytown, BC, sell drugs. You watch two people separately attend for short visits, as if to purchase drugs. The tip and the observations certain amount to reasonable suspicion that the two people bought drugs. Here in BC, people can possess small quantities of drugs. But you arrest them anyway, to confirm your suspicion. Sure enough, on a search incidental to arrest, you find that both possess small unopened baggies of fenanyl. Relying on this information, you apply for a warrant and bust the drug house.

At trial, the defendants can complain that the investigation is an abuse of process. The judge might agree. The "no-case seizure" might eviscerate the larger investigation.

I don't know what will happen to Mr Brunelle and his friends, 8 years after the busts. The Supreme Court hinted that the breaches in that case were not so terribly serious that the charges needed to be stayed. I suspect that their prosecutions will be more difficult to run, all these years later.

I do know what this decision means for you:

  1. Section 1 of the Charter says that everyone in Canada has rights.
  2. One of your jobs as a police officer is to uphold the law. That includes respecting and protecting everyone's rights.
  3. Therefore, as a matter of principle. you can't bank on the notion of "standing" to sweep Charter rights under the carpet.
  4. This case shows that as a matter of tactics, relying on "standing" to engage in questionable investigative techniques may backfire.  A "no case seizure" may not work for you. Trespassing on one property to snoop on another may not always work.

2024.01.17 Circumstantial Proof of Criminal Possession - Virtual and Real "Found-Ins"

Whether you find drugs in a house or child pornography in a computer, the principles of criminal possession will apply at trial. To convict someone of possessing the contraband, the evidence must prove their responsibility for it beyond a reasonable doubt.

In most cases, you figure that the resident(s) of the house or the owner of the computer or cell phone are responsible for the drugs in the house or the images in the phone. But common-sense probability doesn't meet the test.

In most of these cases. the prosecution relies on circumstantial evidence. If Jimmy lived in the house, and slept in the bedroom, and police found his wallet sitting on top of the drugs, then one may fairly safely conclude that Jimmy knew about the drugs in the bedroom, and controlled whether or not they stayed there.

But Jimmy can escape conviction if he can point out an innocent explanation for the presence of the drugs which could reasonably be true. For example, suppose that police arrested Jimmy outside the house. When they searched it, they found Denise the Drug Dealer sleeping in Jimmy's bed. Jimmy's lawyer could argue:

"The evidence certainly suggests that Jimmy was responsible for the drugs. But there is a reasonably possible alternative explanation.  Denise the Dealer deals drugs. For some reason, she slept in Jimmy's bed. We have no evidence that she normally slept there. Indeed, the bedroom contained only male clothing. It's possible she was just visiting, and needed to sleep off a binge.  It's possible that she placed her supply on the bedside table, without Jimmy's knowledge or permission. We don't know that's true, but on the evidence presented at trial, we can't say it's false either.  Therefore, you must acquit Jimmy."

The same principle applies to child pornography on an electronic device. The evidence must prove who put it there. If there's an innocent alternative possibility, then the judge must acquit.

When police searched the residence of Mr Beauvais, 2024 ONCA 22. On his computer, they found child pornography and filesharing software that would have downloaded it. The username was his nickname. The laptop was password protected.

The investigators went further. They interviewed his housemates. As we shall see, that was a good idea.

Mr Beauvais' lawyer offered three alternative possibilities to guilt:

  1. Mr Beauvais sometimes permitted his housemates to use his computer. It could have been one of them. (One testified that he didn't, and that the other only ever used Mr Beauvais' computer when playing videogames with Mr Beauvais.)
  2. There was an occasion when Mr Beauvais downloaded the contents of a housemate's SD card to his computer. The child pornography could have come from it. (This did not accord with the forensic evidence.)
  3. There was evidence of a computer virus in the computer, which would permit a stranger to execute commands on it remotely. Maybe some hacker put it there.

The trial judge dismissed these ideas as too speculative. He convicted Mr Beauvais. But the Court of Appeal said he didn't sufficiently tackle #3, and sent the matter back for retrial.

If I were the prosecutor, I'd look for a really good digital forensic technician to explain why there's no reason for the person who controls a virus to do that.

In Panko, 2010 ONCA 660 the defendant argued "maybe a hacker put the child pornography on my computer". The court properly rejected that argument because there was no evidence of any virus. In this case, they did find evidence of a virus. But nothing more. This raises an interesting question. Is the presence of a virus enough to make the alternative a reasonable one? Or should there be more evidence that someone used the access that the virus granted to mess with the contents of the computer?

That will take some careful examination of all of the evidence.

It's the same for physical cases. When searching for evidence, you want more than just the contraband. You want the evidence which establishes who was responsible for it, and the evidence that shows that nobody else could be responsible for it.

2024.01.11 Showing the Eyewitness a Single Photograph

It's easy to screw up eyewitness identification, especially in urgent, high-stakes cases. The cop who investigated Mr Odesho, 2024 ONCA 9 didn't screw up. Before you find yourself in a similar crisis, let's consider why.

Mr Odesho shot two guys in a cafe in Vaugan, Ontario. One died. The other, Mr Eyup, suffered serious injuries.

An investigator spoke to Mr Eyup at the hospital. Mr Eyup named Mr Odesho as the gunman. Then, using a cell phone, the investigator showed Mr Eyup two mugshots - one of each of the two suspects identified so far. Mr Eyup confirmed that the photo of Odesho depicted the man who shot him.  He lived to testify, and said the same thing on the witness stand.

The jury convicted him and Mr Odesho appealed.

Defence argued that the two mugshots did not constitute a fair photo lineup, and that the Mr Eyup's identification of Mr Odesho should not be trusted. By showing the photograph, the police officer may have affected Mr Eyup's memory. The power of suggestion may have caused him to believe that Mr Odesho was the shooter, even if someone else did the deed.

The judges agreed that it wasn't a proper lineup. But they pointed out that Mr Eyup had already identified Mr Odesho, a person known to him at the time. This flawed procedure would not likely have implanted false identification in the victim's memory.

Things could have gone differently.

Imagine that you attend the hospital, with a photograph of a suspect in your cell phone. You ask the injured victim who shot him. He does not give a name, but starts describing someone who looks like the guy in the picture in your phone.

The next step seems obvious. Just show the picture to the witness and ask "is this the guy that that shot you?"

Judges hate that procedure. Psychologists confirm that it can plant false memories.

If the witness has not yet identified the culprit, showing that mugshot can significantly undermine the witness's testimony in court.  Ordinarily, you should not show the photograph until you can assemble a proper photo pack. Interview the witness fully, including descriptors.

Let's push the thought-experiment one step further into the world of urgency and high stakes. Suppose your victim is dying away, despite the best effort of able medics around him.

Your conversation may be the only chance that the victim gets to identify their attacker. Justice demands that their voice be heard.

What should you do?

These dying words of the victim may be admissible in court. Turn on a recording device.

The risk of false identification arises for many reasons:
- By the power of suggestion. "Because a cop showed me a picture, my assailant must be the the person pictured." Therefore, regardless whether the victim recognizes the person in the picture, the victim may think that the correct answer to the question is "That's him."
- The absence of alternatives prevents us from knowing whether the witness is guessing or recognizing.
- A positive identification of a culprit tends to suppress investigators' curiosity. They stop asking questions they ought to ask.

Therefore, ask someone to send you other similar mug shots, if at all possible.

Before showing any pictures, ask the questions you would ask if you had no photograph. You know the drill. What happened? Whodunnit? Clothing, skin colour, hair, height, age, weight, distinctive features etc.

If you can't get other photographs, then attempt to defeat the power of suggestion. Don't ask "Is this the guy?" You want the witness to engage with the issue of mis-identification. Maybe you should say:

Someone sent me a picture. I'm worried that we might have the wrong guy. It would be really bad if we pursue the wrong person right now. Can you help me make sure?  What can you tell me about the person shown in this picture?

This is a last-choice procedure. Avoid it if you can. If your victim identifies the culprit, there will be battles in court about the admissibility and probative value of the answer. Don't rely on it to prove the case. Keep investigating identity.

This final scenario doesn't come up often. But when it does, the poor officer doesn't get much opportunity to work out the principles that apply.

2024.01.11 Asking the Suspect for a Password

Should you ask the suspect for the password to his/her electronic device? How?

Police seized two cell phones from Mr K.S., 2024 ONCA 14 during their investigation of a sexual assault, because they believed that the phones contained relevant messages exchanged between him and the complainant.

The officers got a search warrant, but they couldn't crack the security on the phones.

The officers asked Mr K.S. for the passwords, but he refused to divulge them.

When they returned the phones to Mr K.S., the phones no longer worked. He could no longer extract the messages either.

Mr K.S. complained the the police lost evidence relevant to the case, and therefore the case should be thrown out.

The judges rejected this argument: Mr K.S. refused to share his passwords. He controlled access to the data. He defeated police investigative efforts He had no right to complain of police misconduct.

Please note: the judges did not say Mr K.S. bore any obligation to reveal the passwords. Indeed, some Canadian judges have gone so far as to find that there is no way to compel suspects to divulge their passwords.

You can't generally force the defendant to tell you his password (there might be exceptions where life is in peril). There is substantial doubt whether a judge can order a defendant to reveal a password (see my post on 2023.03.29). But this case illustrates there can be value in asking.

If password security locks you out of an electronic device, and nothing else works, you could contact the defendant (perhaps in writing, through counsel), explain the problem, and ask for passwords.

Most probably, you will get a firm, clear "no".

As this brief opinion illustrates, even that answer may prove useful.

2024.01.10 Vehicle Search after a Crash - Electronic Data Recorders

You don't always know what caused a car to crash.

More and more vehicles contain electronic devices which record what happened in the moments, minutes or hours before a vehicle crashed.

Great data!  Can you lawfully access it?

In R. v Genge, 2023 NLCA 35, the court found that the owner retained a substantial interest in the privacy in a wrecked car, and in the data in a device in the car.

In 2018, Mr Genge crashed his car. One passenger died, the other suffered injuries.

Newfoundland police seized it pursuant to a provincial statute which authorized them to seize a car if they believed it was used in the commission of an offence, or if serious injury or damage occurred. At the time that they seized it, they had no evidence to suggest that Mr Genge committed a criminal offence.

They did not know whether this vehicle contained any electronic device which recorded the vehicle's activity.  But they brought a mechanic to search for one. The mechanic found one and removed it.

I infer that the officers gathered reasons to believe that Mr Genge committed an offence, because later, a justice granted them a warrant to search the device for evidence of an offence. The data in it showed that the vehicle travelled at 165km/h when it crashed.

At his trial for dangerous driving causing death, Mr Genge's lawyer complained that the police violated Mr Genge's rights under s.8 of the Charter. Even though the police lawfully seized his car, he still enjoyed privacy in the contents of the car. The police violated that reasonable expectation of privacy when they asked the mechanic to locate and remove the electronic device.

The judges agreed and excluded the evidence.

Back in 2018, one of the leading cases in this area was R. v. Fedan, 2016 BCCA 26. That case suggested that a lawful seizure extinguished territorial privacy in the vehicle. In the Fedan case, the officers seized the vehicle pursuant to s.489(2) of the Criminal Code. Those officers had reason to believe that the car was used in an offence.

The officers who investigated Mr Genge did not have reason to believe that he committed an offence. Therefore, they could not seize the car pursuant to s.489(2). They seized the car pursuant to a provincial statute.

The judges in the Genge case figured this made a big difference.

I find that logic troubling. If police lawfully seize something, then the owner can reasonably expect that the police will look at it.

I suppose that there is some reason for different expectations of privacy depending upon the authority used to seize. A seizure for a criminal case leads to an expectation that police will examine the thing for evidence of a crime.  A seizure for civil purposes leads to an expectation that the vehicle might be held as collateral to pay a debt, and that an insurance adjuster may examine the vehicle for evidence which settles civil claims.

Either way, it seems to me pretty unrealistic for the owner to expect that nobody will snoop through his vehicle. If the investigators violated Mr Genge's reasonable expectation of privacy in this case, it seems to me to be a minimal expectation of privacy.

Furthermore, the evidence suggests that the officers attempted to respect the law of privacy. They obtained a warrant before breaching the informational privacy in the electronic device. It appears that the officers were trying to follow the principles explained in the (then) recent ruling in the Fedan case. As you probably know, after the courts find a breach of a Charter right, they must then consider its seriousness when deciding whether to exclude the evidence. In the Genge case, the court equated the seriousness of the warrantless seizure of the device from the vehicle with unlawful examination of the data (Para 32). Eight days after the Newfoundland Court of Appeal rendered its decision, the Supreme Court of Canada explained that this is the wrong way to assess the seriousness of police misconduct. R. v. Zacharias, 2023 SCC 30. I don't see any indication on the Supreme Court of Canada's website that the Newfoundland prosecutors appealed Mr Genge's case further.

What should investigators draw from this troubling case?

If you seize a vehicle for civil purposes, then beware of searching it for criminal purposes.

If, after a civil seizure, evidence leads you to believe that it was involved in a crime, then formally seize it pursuant to the Criminal Code. Report it to a justice, and get a detention order before you examine it.

Even still, judges may say that you need a warrant to search the interior of a crashed car for electronic devices that contain data from the crash.

I thank a friend who brought this case to my attention.

2023 Developments

2023.12.29 Search & Seizure - Seizure vs. "Receiving"

What's the difference between "receiving" something, "gathering" it, and "seizing" it? In part, it depends on whether you will give it back.

A few months ago, an officer asked me some challenging questions. When you pick up a cell phone dropped at the scene of a crime, are you "seizing" it? Do you need to write a report to a justice? If you don't know whose phone it is, how can you give notice to the owner of your application to extend a detention order? I'll summarize my thoughts on those questions, because I think that this new decision explains my thinking.

In 2016, Mr Lambert 2023 ONCA 689 downloaded child pornography onto a computer that he shared with his wife. She noticed. She took the computer to a police officer, and explained why she thought it contained child pornography. The officer lacked experience with child pornography investigations. He wisely sought advice. But it took him a couple of months before he reported to a justice that he had the computer. In 2018, the Supreme Court of Canada delivered a decision in a very similar case which suggested that he should have reported it immediately. (R. v. Reeves, 2018 SCC 56.)

The defence complained that the officer breached Mr Lambert's rights by failing to report the seizure promptly. And when Mr Lambert's wife delivered a second computer to the police, with more complaints of child pornography, they made the same mistake a second time.

The prosecution argued that the officer never really "seized" the computer. In Reeves, the police officer took the computer from the complaining wife. In this case the wife delivered it to him. No "seizure".

The trial judge agreed with the Crown. Justice Paciocco agreed with the defence.

Justice Paciocco's reasoning works like this:

  1. The wife could deliver her private information to the officer. The officer could receive that without "seizing" it.
  2. But the wife could not waive her husband's reasonable expectation of privacy over his private information in the computer.
  3. When the officer received the computer, he determined that he would not give it back to the husband, because it contained child pornography.
  4. That's "seizure" - taking something from someone without their consent.
  5. In this case, just like Reeves, the officer did not seize the computer from the wife, but the officer did "seize" private data from the husband.
  6. Therefore, the officer should have reported the computer promptly to a justice.

That's a pretty expansive definition of the verb to "seize".  It captures actions by police which involve no participation, possession or even presence of the husband.

It creates some complications for police. For example, consider the question that the officer sent me. If you pick up a cell phone that you find lying on the street, are you seizing it? Do you need to report it to a justice?

Justice Paciocco's analysis tends to support the answer I gave to that officer:

Your job involves protecting life and property. If you pick up the phone with the intention of returning to the owner, then you are merely preserving it from harm. No seizure. But at the point that you decide that you will not return it to the owner, then you are "seizing" it. At that point, you must report that seizure to a justice. If you pick it up at a crime scene because you think it may contain evidence, then you're probably seizing it.  Report it to a justice and start your s.490 timer ticking.

I don't think Parliament expected the courts to give such expansive meaning to "seize" when they drafted s.490 of the Criminal Code. That section requires you to give notice to the person from whom the thing was seized any time you apply for an extension of a detention order. But this judicial interpretation of "seizure" means that you will inevitably "seize" things from people whose identities you do not know. It's hard to notify them that you've got the object if you don't know who they are. For example, if you seize a cell phone from the body of a dead dial-a-doper, it may contain the private communications of other members of the drug-dealing ring. Unless you intend to return it to "the person from whom it was seized" or the "lawful owner", you may need to report it to a justice.  Without looking into the phone, how can you tell those folks that you want to keep the phone a little longer?

Don't expect the courts to change this opinion. Justice Paciocco was a celebrated criminal law professor. His views will likely enjoy support in the Supreme Court of Canada. I don't expect that judges will vary his interpretation of "seizure" just because it's cumbersome for police officers.

Justice Paciocco sympathized at least a little with the investigating officer. He concluded that the breaches of Charter rights did not warrant exclusion of the evidence. Mr Lambert's conviction stuck.

2023.12.29 Search Incidental to Arrest - Determining Identity


Can you search a suspect's wallet incidental to arrest, for the purposes of confirming the suspect's identity?

Of course, most practical police officers would like a yes/no answer to this question. And they would prefer "yes".

The Ontario Court of Appeal says "It depends. Is that search necessary?"

Mr Sureskumar, 2023 ONCA 705 worked for a bank. He personated an elderly customer, and wired $150,000 out of the country. The customer noticed, and alerted the bank. The bank staff investigated, and prevented Mr Sureskumar from wiring another $150,000. They reported him to police.

Police arrested him after a shift at the bank. They demanded identification. Mr Sureskumar mentioned his wallet, which he left in his car. An officer seized the wallet and searched it. The wallet contained a sticky note on which was written the victim's credentials. Pretty damning evidence.

At trial, defence sought to exclude the evidence of the sticky note. They complained that the officer lacked lawful authority to search the wallet incidental to arrest.

The trial judge agreed. So did the court of appeal.

The judges did not say that you can never search for identity evidence incidental to arrest. But that you can't search for identity evidence when it's unnecessary to do so.

In this case, the police knew who they wanted to arrest. If they had any doubts, they could ask the bank staff if they got the wrong guy. They didn't need to go into Mr Sureskumar's wallet to figure out who he was.

As it turned out, the bank staff had already given the police all that they needed to persuade a justice to authorize them to search Mr Sureskumar's phone. They got the warrant and searched the phone  In that phone, they found a photograph of that same sticky note. The police didn't really need the note itself to make the case against him. The trial judge convicted Mr Sureskumar and the appeal court upheld that result.

Most of the time, when arresting suspects, general duty police officers don't receive reliable identification information from credible witnesses. Those officers may be able to explain why it is "necessary" to examine a suspect's wallet in order to identify him.

Therefore, incidental to arrest:

2023.12.07 Links in a Chain - How Judges Calculate Charter Breaches

When police officers respect Charter rights, prosecutions go more smoothly.

Starting an investigation with a Charter breach complicates things.

In R. v. Zacharias, 2023 SCC 30, the court explained how judges analyze the impact of an initial breach.

An experienced police officer pulled over Mr Zacharias' pickup truck because of a burnt-out tail light and illegal tinting. The vehicle was travelling to Calgary from BC, on Highway 1. The officer noticed:

Suspicious that Zacharias might be delivering drugs, the officer checked deeper into police databases than usual, and learned that 3 years earlier, police received an anonymous tip that Mr Zacharias trafficked cocaine and cannabis.

For the officer, that information tipped the balance. He figured he had"reasonable suspicion" that Zacharias was moving drugs. The officer detained Zacharias and called for a drug dog to sniff around the truck.

Did the drug dog find drugs? Of course it did! I would have nothing to write about if the dog found nothing.

100 lbs of marijuana in the back of the truck.

The judges concluded that the officer's grounds for suspicion were almost - but not quite - good enough.

Therefore:

When the drug dog confirmed the presence of drugs in the car, the officer arrested Mr Zacharias, and searched the car incidental to arrest.

The majority of the judges of the Supreme Court of Canada found more breaches. If the drug dog's sniff was unconstitutional, then they would exclude the drug dog's evidence from the trial. Without that information to work with they concluded that the officer lacked reasonable grounds to arrest Mr Zacharias.

Therefore:

It sounds like the officer went crazy, and violated Mr Zacharias' Charter rights every which way!

Five judges in the Supreme Court reached three different conclusions. Oversimplifying them:

Justice Côté pointed out that the officer made one mistake. And it was a very small mistake. In all other respects, the officer acted impeccably. Therefore, the size of the unconstitutional behaviour is very small. The evidence should be admitted into trial.

Justices Martin and Kasirer disagreed. The mistake might have been small, but the cumulative impacts on the defendant's rights made the constitutional breach very big. The evidence should be excluded. (I think that these two attempted to rewrite a previous decision of the court: R. v. Grant, 2009 SCC 32. I think that they effectively conflated the first two parts of the 3-part test described in that case.)

Justices Rowe and O’Bonsawin offered a compromise. The police misconduct was small but the cumulative impact on the defendant was larger. The public interest in the prosecution was large enough that excluding the evidence would do more harm than admitting it. Until the court clarifies further, we can expect their view to be prevail in future.

What does this case mean for police officers?

We often say that a chain is as strong as its weakest link. But this kind of chain is made clay, and it hangs from a hook in the ceiling.  If the first link is weak, the weight of the rest of the links may cause the chain to break. The longer the chain, the weaker it becomes.

It means that the early Charter breaches can break the case, even if you follow-up impeccably. How you get your grounds can significantly affect the rest of the investigation. Longer series of linked intrusions into Charter protected rights are more vulnerable than short ones.

Consider a typical series of links in an investigation. It doesn't matter whether the offence is impaired driving or murder:

A officer detains a suspect based on "reasonable suspicion" (s.9). The officer searches for officer safety (s.8). The officer explains the reason for the detention.(s.10(a)) and the right to counsel (s.10(b)). The officer attempts to arrange for access to counsel (s.10(b)). The officer holds the suspect for 20 minutes while investigating (s.9). The officer arrests the suspect (s.9). (s.10(a)) (s.10(b) information) (s.10(b) access) The officer searches incidental to arrest. (s.8).

That's 11 links in the Charter chain. Presumably, after the arrest, the officer will hold the suspect for a period of time, and perhaps gather other evidence as a result of these initial steps. At trial, defence now has 11 opportunities to take down the case: "The officer acted too fast in in forming suspicion. The officer lacked grounds. The officer acted too slowly in explaining or arranging counsel. etc."

For police officers who conduct simple investigations, the early steps matter. Cautious policing pays. Good note-taking of those early steps pays.

In complex investigations, some chains grow very long. Short chains are more likely to bear the weight of Charter scrutiny than long ones. When wiretap leads you to a new suspect and a new offence, consider whether you can support your next application without relying on prior interceptions. If you have the luxury of independent evidence, use it.

Postscript: The appeal judges did not reconsider whether the investigating officer had reasonable suspicion. If Cst MacPhail got the test wrong, he was damn close.  And Mr Zacharias stayed convicted.

2023.11.24 Searching Electronic Devices pursuant to a Warrant - Using the Right Words

When applying for search warrants, try to get the most recent precedents.

Way back in 2013, Ontario Police officers got information from American sources about a Canadian user of child pornography. Most recently, he accessed it using an IP address registered to Research in Motion (aka Blackberry).

They tracked Mr Neill, 2023 ONCA 765 down at a Tim Hortons. The officers feared that he noticed their surveillance. They seized his phone, in order to prevent him from erasing the incriminating data.

The appellate judges dwelt on whether exigent circumstances existed to justify the seizure. I found this odd, because s.489(2) of the Criminal Code seems to apply. It doesn't require exigent circumstances.

The investigators took 7 days to report their warrantless seizure of the Blackberry. The trial judge didn't like that. It should have been reported faster.

The investigators got a warrant to search their property bureau, and seize the Blackberry for the purposes of a forensic analysis. That warrant contained some outdated boilerplate about  the “suspected commission or intended commission of an offence”.

The defence counsel complained that police can't get a search warrant under s.487 based on suspicion. You need reasonable belief.  The judges agreed.

Fortunately, this ITO fully explained the reasonable beliefs, and the specific offences at issue. Because of that, the trial judge ignored that old language, and the appeal court agreed.

As set out in the decision, if you use out of date language, your mileage may vary. (See paras 11 and 15).

Defence counsel also complained that after the forensic analysis, the police should have made a report to the justice about the data that they found.

This is a big issue in British Columbia, because a judge here determined that police must report what data they find after such a forensic analysis.

The Ontario Court of Appeal decided not to answer that question for the police officers in that province.  They're going to wait a little longer before deciding that the answer is obvious, and all police officers should have been doing all along.

2023.11.10 Arresting Responsible Drug Users - Good Samaritans and Curious Gawkers

A drug user who overdoses becomes helpless. Only the people around them can save their lives. Usually, those people use drugs. They don't like calling for help, for fear of getting into trouble themselves.

Back in 2017, Parliament created an exception to make it safer for drug users to call for help. S.4.1 of the CDSA provides:

No one who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from an overdose is to be charged or convicted under subsection 4(1) [drug possession] if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.

Mr Wilson, 2023 SKCA 106 drove a pickup truck. One of his passengers overdosed. Someone called 911. Mr Wilson stayed at the scene. When police attended, they noticed some white powder on the ground near him. It looked like crystal meth. An officer arrested him for simple possession of a controlled substance. A search incidental to that arrest discovered lots of drugs, scales, needles, and handgun parts.

At his trial, Mr Wilson argued that s.4.1 made his possession of drugs lawful during the time that he stuck around to help someone overdosing.

Does it?

Read the words.

The court agreed with the Crown: it prohibits charges and convictions. It doesn't make possession lawful.

Regardless whether it made possession lawful, Mr Wilson argued that it prohibited police officers from arresting him for possession.

Does it?

Read the words.

This time, the court sided with Mr Wilson, but not because the words directly supported Mr Wilson's argument. They applied logic similar to s.495(2), but they applied it to s.495(1) as well:

  1. In these situations, police have a choice (a "discretion"). They can arrest, but they don't have to.
  2. Police must exercise this discretion responsibly.
  3. The purpose of arrest is to prosecute.
  4. If the officer knows that the suspect will never be charged, then there's no point in arresting.
  5. Therefore, this arrest was arbitrary. It offended s.9 of the Charter.

Does this mean you can never arrest people that you find in the vicinity of an overdose? No. The limitation applies only to possession. You can arrest people for PPT or trafficking, if you have grounds.

But notice that the limitation applies to people who "remain at the scene" as well as the people who "sought assistance".

Therefore, everyone in the crowd that hangs around the overdose victim seems to enjoy the protection of this section.

BC's decriminalization experiment makes this decision largely academic. But the section brings the harm reduction ideas to other provinces.


2023.11.07 Arresting the Passenger for the Driver's Offence

When you arrest the driver, can you arrest the passenger too?

In the absence of context, don't answer that question!

Here's a little context: suppose that a court prohibited a driver from driving, and you caught her driving again. Can you arrest her passenger?

If that's all the evidence that you have, then obviously, you have no grounds to arrest the driver.

But suppose that while you're arresting the driver, she complains "It's his fault. He said he's too drunk to drive. I told him that the judge prohibited me. But he didn't care. He told me that he would pay me $100 to drive him home." If you believe her, then her passenger counselled the commission of an offence (and abetted her). You could arrest him for that offence.

My point is that there is no rule that says you can't arrest the passenger. You can always arrest someone if you have reasonable grounds to believe that they committed an indictable offence (and s.495(2) doesn't apply).

Let's consider a real case.

Police found Mr Cudney, 2023 ABCA 279 in the back seat of a car. The driver possessed lots of identification documents in other people's names. Could they arrest Mr Cudney?

What's that? You need more information? Of course you do!

Police pulled over a Land Rover because they had a warrant to arrest the owner. They knew the vehicle had frequented a drug house. When asked, the driver gave a name but did not produce a driver's licence. An officer asked her for the keys to the vehicle, and checked her name. That officer noticed Mr Cudney fidgeting in a surprisingly nervous manner, in the back seat. Other officers attended, and asked the passengers who they were. A female passenger refused to identify herself. Mr Cudney, however, gave his name. He was so "fidgety" that one officer directed another to stay with the car and keep an eye on him. He seemed to be touching or handling bags around him.

Another officer recognized the driver as Stacey Palumbo. That's not the name she gave the first officer. The first officer got her out of the car and arrested her for obstructing a peace officer. He saw a purse in the driver's door. He grabbed it and looked inside for her identity documents.

He found lots of identity documents. But not in her name. 20 or 30. Many female. At least one male. Based on the quantity and the genders, he directed the other officers to arrest everyone in the car for possessing identity documents. When explaining why he thought Mr Cudney should be arrested, this officer pointed out that Cudney's position behind the driver allowed him to reach into the pocket in the driver's door, if he wanted.

Because of Mr Cudney's interest in the bag at his feet, the lead officer looked into it for officer safety. (I think he could have searched it incidental to the driver's arrest.) He found handguns. They arrested Mr Cudney for those guns and searched the car more fully. They found drugs, cash, and, in the trunk, another handgun with a silencer.

A handgun and silencer?

Other investigators were investigating a murder that occurred several months earlier. An unsavoury witness said that Mr Cudney did it, using a handgun and silencer.  At Mr Cudney's murder trial, he didn't want this important corroboration admitted. He complained that the police lacked sufficent grounds to arrest him for the identity documents, and therefore the search was unlawful.

What do you think? Having found the identity documents in the driver's door, did the police have sufficient grounds to arrest her passenger for possessing them?

The trial judge found that the evidence did not suffice:

The Court of Appeal reached the opposite conclusion:

The Appeal Court judges emphasized that police officers must make arrest decisions on the fly with incomplete information. They agreed that this was a good arrest.

The principles are simple:


2023.10.31 Warrantless Entry into a Residence when Providing Security for Social Workers

Do you have authority to enter a home whenever a social worker asks you to provide security? I think you may wish to exercise some caution.

Someone complained that Ms Henry looked drunk when she picked up her 7-year-old girl from school. She took a taxi home.

Some police officers saw the taxi reach her home. She went in.

The officers rang the doorbell to inquire about the complaint. Ms Henry and her partner, Mr Land 2023 ONCA 207 answered the door. Henry and Land looked drunk. They refused to let the officers in, nor did they permit the officers to speak with the girl, who appeared "teary-eyed".

The officers left the home, and contacted social services and explained the situation. A social worker asked the police to help her with a welfare check on the child.

The social worker attended the home. Mr Land refused to let her in, and "began acting aggressively" toward her. She explained the purpose of her visit. Mr Land agreed that she could enter.

When the officers tried to follow her in, Mr Land tried to close the door on them. A strategically-placed boot kept the door open. The officers got into the house; there, they arrested Mr Land and Ms Henry for obstruction. Because the police took the parents away from the home, the social worker concluded that the child should not be left alone. It took 3 months for the parents to get their child back.

The criminal charges against the parents were later withdrawn.

Mr Land and Ms Henry sued the police for trespass, negligent investigation, assault and battery and various Charter breaches.

The trial judge threw out the claims. But the Court of Appeal took an interest in some of them.

Why?

Because of the specific wording of the child protection statute, and gaps in evidence from the social worker.

Section 40 of Ontario's Child and Family Services Act includes the following:

40(7) A child protection worker who believes on reasonable and probable grounds that,
(a) a child is in need of protection;
(a.1) the child is less than 16 years old; and
(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),
may without a warrant bring the child to a place of safety.

(8) A child protection worker acting under this section may call for the assistance of a peace officer.



(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

The social worker gave evidence that before she went into the house, she believed that the child "may" have been in need of protection. The judges didn't like that. If you look carefully, you'll see that s.40(7)(a) requires a belief that the child actually required protection ("is in need").

The social worker didn't turn her mind to whether she had time to go get a warrant. The judges didn't like that either. Social workers should not take short-cuts with their power to barge into private homes, bringing an armed contingent. If possible, they should apply to court first.

The appeal court ordered a new trial at which the police may be found liable for entering without lawful authority and unlawfully arresting the parents. The police might pay, even though the social worker took responsibility for the questionable decision. (Read the decision to discover how the social worker escaped from the lawsuit unscathed.)

What does that mean for Canadian police officers?

  1. Judges interpret legislation tightly when it permits government agents to enter residences. Therefore, when you're considering entering a residence without a warrant, you want to make sure that your situation falls within the words of the legislation which authorizes.
  2. Child protection legislation varies between provinces. For example, Section 30 of British Columbia's Child, Family and Community Service Act similarly permits social workers to enter when they believe that a child needs protection and getting a court order would be inadequate to protect the child. But it gives police less discretion to decline a social worker's request for help. It says "At the request of a director, a police officer must accompany and assist the director in exercising the authority given by this section."
  3. When a social worker calls you to assist in the warrantless apprehension of a child, you may want to double-check with the social worker whether their grounds fit the language of the legislation. Don't enter a residence without lawful authority. Obviously, if you learn reasons to suspect that a child's life is in immediate peril, then you can take action yourself. R. v. Godoy, [1999] 1 SCR 311.

If the social worker's reasons to enter the residence are flimsy, then as a law enforcement officer, do you feel comfortable in assisting an unlawful entry?

 

2023.10.11 The Midnight Call to Counsel - Providing Access to Legal Advice when Everyone's Asleep

As I plumbed the depths of a rabbithole today, I encountered a decision which tackles a problem that police officers often face.

You often arrest people after their lawyers close their offices and go home. Many of your prisoners want legal advice. Drugs and alcohol often cloud your prisoners' judgment. In those situations, judges require the sober cop in the room to do the right thing. What should the officer do if the suspect asks to speak to a lawyer who doesn't answer the phone?

Chief Judge Cozens of the Yukon Territorial Court tackled the problem head-on.

I don't usually cite trial judgments on this website. As a mere trial judge, he lacks the authority of an appeal court judge. He does not work in the biggest jurisdiction. Some might dismiss him as a big fish in a small pond.

That would be a mistake.

I worked for a time in remote northern courts. I found that separation from the "sophistication" of urban centres caused the justice system to apply more common sense than I found in the cities. When Cozens C.J. tackled this problem, he demonstrated some of that northern common sense.

The case was routine: in the dead of a December night, Mr Vaillancourt's, 2023 YKTC 17 truck lacked an operating tail-light, and it made an awkward turn. A cop pulled him over. The officer made Mr Vaillancourt blow into a screening device. It registered a fail. The officer arrested him for impaired driving.

The officer offered him an opportunity to get legal advice. Mr Vaillancourt liked that idea. Using his cell phone, the officer summoned a list of lawyers from the Yukon Law Society's website.

Probably at random, Mr Vaillancourt picked Sarah Bird. This probably wasn't a good choice. According to her website, Ms Bird specializes in corporate commercial law, with a big Vancouver law firm. When asked to give legal advice about criminal law, most sensible corporate lawyers duck.

Ms Bird's answering machine said that she was out of the office for a month.

The officer found two more phone numbers for Ms Bird, and made a total of 5 calls over 20 minutes, starting at 3:00am. She never answered. Perhaps Ms Bird's labours for big business rewarded her with a tropical vacation in Fiji, where, at 10:00pm, the loud music in the nightclub drowned the ringing her phone. Or perhaps she was sleeping soundly in a chalet at Whistler.

The officer audio-recorded his conversation with Mr Vaillancourt. The decision quotes extensively from the transcript. It looks to me like the officer made a real effort to help Mr Vaillancourt get legal advice. But the judge concluded that the officer made mistakes. The judge excluded the breath tests. Mr Vaillancourt beat the charge.

Where did the officer trip up? After failing to reach Ms Bird, the officer asked Mr Vaillancourt if he would like to call a different lawyer. Mr Vaillancourt stuck with Ms Bird. The officer should have told Mr Vaillancourt what Ms Bird's answering machine said: away for a month. Maybe Mr Vaillancourt might try calling someone else. (The same sort of thing happened in the case that started me down the rabbit hole.)

This sort of thing comes up often. The routine nature of this problem inspired Chief Judge Cozens to review the law and make suggestions for police. His decision hints that he that knew that Ms Bird didn't practice criminal law (see paras 34 and 35). He suggested that police in smaller jurisdictions could assemble lists of criminal lawyers for prisoners to consider. I noticed that the Yukon Law Society's website has a cool feature that can filter the list by area of practice. The full list contains over 700 lawyers. The criminal law filter cuts that list down to 29. Paragraphs 37-39 makes me think that maybe he knew about that feature.

This is a worthwhile decision for general duty officers to read and discuss. I'll summarize some high points, but I think you'll get more out of it by reading the case and perhaps the other case.

Paragraph
Topic
24
Before police elicit evidence from a prisoner, section 10(b) of the Charter gives the prisoner the right to get legal advice from the lawyer of their choice. But they must exercise that right within a reasonable period of time. If their first choice of lawyer isn't available, then they need to make another choice.
25
How long to wait for a lawyer to call back depends upon the circumstances. [In my opinion, urgency is the most important. Investigations into alcohol and drug need to move quite promptly. Humans eliminate alcohol and drugs from the body as time passes.]
26, 55
When the prisoner names a lawyer, and the police control the phone and access to the internet, police need to take reasonable steps to contact the lawyer. One after hours call to a business phone number doesn't necessarily suffice. Try searching for the lawyer's home number or after-hours number, or asking the prisoner if s/he knows of another number, or another person who can reach the lawyer.
52-53
Helping intoxicated prisoner to contact counsel is the right thing to do. But don't choose their lawyer for them.
32-34; 73-75
Police must tell the prisoner about the availability of Legal Aid; but police must not steer or coerce the prisoner to call Legal Aid.
36
Late night phone calls to random lawyers' offices aren't usually going to succeed. "The right to legal counsel means the right to get legal advice, from counsel who are able to provide it, at the time that you need it."
Other case
If you get an answering machine, leave a message explaining what the time is, who the client is, what the trouble is and what number to call in order to give the legal advice. Some answering machines are monitored. You can't assume that the lawyer won't hear the message in time.
61
If you get an answering machine, tell the prisoner what the message said. Don't just say that the lawyer is unavailable.
37, 39
Police should not express opinions about the suitability or the skill of the lawyer that the prisoner chooses, but it might be a good idea to have a list of criminal lawyers available for prisoners.
64-69, 90
In the context of urgency, like taking breath samples reasonably promptly, a prisoner who persists unreasonably in contacting a lawyer who isn't responding isn't exercising their right diligently; if so, you can press ahead with your investigation. If you see there's a risk of this happening, give the suspect notice. "Okay sir. 10 minutes have passed, and the lawyer hasn't called back. We're going to wait 30 minutes more, and then we'll test your breath. Is there anyone else you'd like to call in the mean time for legal advice? You can call anyone you like, and I'll do what I can to help you reach them. Of course, Legal Aid's available too. And if your chosen lawyer calls back while you're talking to Legal Aid, I'll make sure you can talk to him or her."
71-73, 92
There is no fixed time-line that the law imposes on the taking of breath samples. [I observe that in impaired driving cases like this one, judges seem to permit the prisoner around 30-45 minutes of floundering around to find a lawyer. But expect judges to permit more time if the prisoner makes diligent and sensible efforts which, for no fault of his own, bear no fruit. In cases where there is no urgency, expect the judges to permit the defendant to wait hours for counsel to call back.]

Judge Cozens didn't specifically discuss Prosper. But you should think about it. If the prisoner says that s/he wants legal advice, and then says that s/he doesn't want legal advice, then whip out that Charter card, read the supplementary Charter warning, and explain it. Preferably with an audio-recording device on. Make sure that the suspect understands.

PS: A prosecutor friend of mine in a smaller jurisdiction says that his local police force tried to create a list of local lawyers for prisoners to call. He says it failed, because the officers didn't update it when lawyers came and went. If you do create one, date-stamp it, and set up a system which reminds you to update it regularly.


2023.10.03 Warrants and Wiretap - Individualized v. Global Belief

The Ontario Court of Appeal delivered a decision last week which explains an important theoretical point underpinning applications for authority to search.

Back in 1984, the Supreme Court of Canada explained that to justify a significant intrusion into privacy, a police officer must show the judge that there are reasonable grounds to believe that there was a crime, and that the evidence that the officer wants is in the place that the officer proposes to search. It's a constitutional requirement of legislation that authorizes searches that there must be "reasonable grounds" that the place you search will turn up evidence. What you're looking for "will" be there. "Credibly-based probability". "Might be" isn't good enough. Hunter et al. v. Southam Inc., [1984] 2. S.C.R. 145.

Seems simple enough. So I'll screw around with it. Here's an artificial example constructed to wreck the principle:

Suppose a surveillance team watches Wicked Wanda at a jewellery fair. Knowing of her larcenous ways, they watch her carefully. She arrives carrying four small empty bags - all identical - slung around her neck. Shortly after she visits the booth of the diamond merchant, they see that one of the bags now bulges, as if it contains something heavy. They ask the diamond merchant if anything is missing. Yup. A diamond encrusted watch disappeared. Wicked Wanda wanders into the gold merchant's kiosk. When she emerges, the second bag looks like it contains something too. When asked, the gold merchant complains that a necklace went missing. She hits the sapphire place, and a bracelet disappears. Her third bag now looks heavy too. She stops briefly at the pearl merchant. A pricy pearl comb evaporates. The fourth bag looks heavy too.

Before the surveillance team can grab her, she slips out the back door. Security video at her apartment shows her enter with four full bags around her neck, and leave moments later with three full bags.

She must have dropped one in her residence.

Can you get a warrant to search her place?

Obviously, you have reasonable grounds to believe that one of the stolen items is there. But which one? You can not say that you have reasonable grounds to believe that the search "will" discover the watch in the apartment. The odds are - at best - one in four. Same with the necklace, or the bracelet or the comb.

A strict reading of Hunter v. Southam suggests that you can't get a search warrant for Wicked Wanda's place.

If that were the law, it would be outrageous!

Even though you do not have reasonable grounds to believe that any one specific item is in the residence, you do have reasonable grounds to believe that one of the looted four is there.

And that's good enough to justify the issuance of a warrant.

Don't believe me? Look at Form 1 of the Criminal Code. It specifically expresses this idea. The justice can issue the search warrant if satisfied that there are reasonable grounds to believe that things sought "or some part of them" are in the place to be searched.

That's the idea behind last week's decision.

Police believed Ahmed Hafizi murdered someone. During their investigation, they persuaded a judge to let them intercept his private communications, and the conversations of his father, Temorshah Hafizi, 2023 ONCA 639.

The investigators found good evidence. They busted Ahmed, the charges stuck, and Ahmed went to jail.

But Daddy's conversations revealed something more. Daddy dealt drugs and uttered death threats. The recordings were damning.

He got charged too.

At his trial, Daddy Hafizi complained to the judge that the police lacked sufficient evidence to establish that probably, listening to his conversations would reveal anything about the murder. And he was right. The application showed that there was a possibility that eavesdropping on Daddy would discover evidence about his son's homicidal activity, but not a probability.

Unfortunately for Daddy, section 185(1)(e) of the Criminal Code actually permits snooping on people whose conversations "may assist" the investigation. Not "will" assist. "May".

Mr Hafizi's lawyers complained to the court that this language failed to meet the standard required by Hunter. It shouldn't permit snooping unless doing so "will" assist. "The legislation is unconstitutional!"

The legislation is fine, said the court. Although it sets a lower standard for snooping on specific people, it permits snooping on the group only if snooping on that group "will" assist in the investigation of the offence. [But try to protect the privacy of the minor players as much as you can.]

As the decision explains, there are significant differences between wiretap and search warrants. But the big point applies to both. "Reasonable grounds to believe" applies globally, not individually: will the search strike gold? Maybe not all the gold, but at least some gold?

2023.09.25 Dealing with Foreigners - Language Complications during Arrest

Do you have a way to communicate with people who speak foreign languages? I reviewed R. v Polusmiak, 2022 PECA 8 this week. In 2017, a Ukranian immigrated to Canada. She got a job as a housekeeper. Although she spoke Ukranian and Russian, she wasn't very good at English. She got by at work with Google Translate, and the help of Russian-speaking colleagues.

In 2019, she crashed a car. She smelled of liquor. An officer demanded that she provide samples into a screening device. The officers managed to convey the basics - that she had to blow. She blew into the device, but never enough for a proper analysis. Communication with her required the officers to go to extraordinary lengths to explain themselves.

An officer arrested her, and told her she could call a lawyer. When asked if she understood, she said "yes". When asked what she wanted to do, she gave a reply that the officer understood to mean that she would speak to her husband on the following day, and contact a lawyer after that.

The investigating officers never learned what languages she spoke. They never attempted to communicate in any language other than English.

At trial, Ms Polusmiak told the court that she didn't understand the English word "lawyer". The trial judge figured that if she understood the breath demand, then she must have understood the right to counsel.

The Court of Appeal disagreed. They found that the officers did not take sufficient steps under the circumstances to make sure that she understood. They suggested:

The court overturned Ms Polusmiak's conviction.

Because of the court's suggestions, I tried playing with Google Translate. I thought it was pretty nifty for simple conversation; but I see some risks where legal rights are implicated:

  1. To "keep a record", you'd need to run an audio recorder, and take screenshots of what Google Translate shows on its screen. A little tricky. If you're on general duty, and you do get a translation app, I suggest that you play with it a bit. Figure out how to keep a record of its translations.
  2. If you need a translation app to communicate, then you don't know the precision with which it translates your words to the suspect. Use it for short-term matters, but perhaps start again, once you have a qualified translator to work through.

2023.09.25 Expectation of privacy in a name and phone number

How much privacy is there in a name and phone number? Those things don't tell you much about the person's lifestyle. In this case, police asked two businesses for a customer's name and phone number. The target complained this violated his right to privacy under s.8.

A tipster told Winnipeg police to expect a drug courier to arrive in town, driving a red truck bearing Alberta licence plates. The tipster said that the man would arrive on October 1, and check into the Rockwood Inn, at Stonewall, just north of Winnipeg.

It was a good prediction.

The police watched that motel, and saw a man arrive in a red truck bearing Alberta plates. He then drove to a nearby gas station. He parked by a grey truck. The officers saw a quick hand-to-hand transfer of a brown satchel. The red truck returned to the motel. The driver took a duffle bag into his unit. The investigators also saw him a woman come to his motel, visit him for 9 minutes and then drive away.

Manitoba Release of Information

Rather that bust the guy, police asked the front desk for the name and telephone number of the guy in that unit. The clerk told him "Jacob Neumann", 2023 ABCA 200. The clerk gave the officer Mr Neumann's phone number. The investigators contacted Edmonton to ask whether they knew anyone by that name. Edmonton Police Service knew of someone by that name, and confirmed that he had the same phone number.

Winnipeg investigators applied for, and got, warrants to track the location of his cell phone and transmission data for its communications.

Mr Neumann travelled a lot. From Vancouver to Edmonton, Regina and Saskatoon. Lots of trips. Lots of short stays. Edmonton police watched him at the end of an alley. Someone visited him briefly, and walked away with a duffle bag. Calgary police tried to follow him, but he appeared to engage in "counter-surveillance". Calgary police got a fresh tracking warrant when the first one expired. This one tracked the truck.

At the end of December, the truck stopped moving. It was in a repair shop in Calgary. Calgary investigators asked the repair shop for the name and phone number of the person who left the truck with them. They gave the same name - Jacob Neumann - but a new phone number. Calgary police got a third tracking warrant. It showed that the truck travelled into the USA and returned to Canada in Ontario, and was heading back towards Alberta.

Figuring that Mr Neumann was delivering drugs, they got a warrant to search the truck. They stopped it. It contained drugs. Lots of drugs. 47kg of cocaine. 47.5kg of meth.

Judicial Reaction

At trial, Mr Neumann convinced the judge that the police violated his reasonable expectation of privacy when they asked the motel and the repair shop for his name and phone number. The defence lawyer pointed out that the name and phone number was the key that allowed police to track Mr Neumann everywhere he went. The trial judge threw out all of the evidence.

The appeal court disagreed. The name and the phone number provide no information about a person's private activities and lifestyle choices. The tracking information came only after the police sought judicial pre-authorization to track the phone. To determine whether the suspect has a reasonable expectation of privacy, one must consider what the police got without the assistance of warrants.

Does this mean you can ask any business for the name and phone number of a suspect?

No.

It depends on the local legislation and the contractual arrangements of the business with their customer. And perhaps other considerations besides.

Manitoba legislation governed privacy in Manitoba. But Manitoba didn't enact privacy legislation for private businesses. Therefore, the Federal Personal Information and Electronic Documents Act applied. The judges pointed out that PIPEDA provides a circular definition of privacy, which is difficult to work with. So they said names and numbers don't reveal private personal choices. It was okay for the police to receive the name and phone number without a warrant.

Lawful = "reasonable"?

In Alberta, the Personal Information Protection Act permits businesses to give information to police who are investigating an offence.  (BC's Personal Information Privacy Act, s.18(j) is similar). The judges said "Given the wording of the Alberta statute, there was nothing unlawful about the police asking for or Advantage Ford providing Mr Neumann’s name and cell phone number to the Calgary police." (para 45)

Hmm. Charter trumps statute. Even if the request and delivery of information was "lawful", the Supreme Court of Canada might say it's "unreasonable". (R. v. Spencer, 2014 SCC 43) Suppose Mr Neumann had attended a private photography studio, where he posed for nude photographs of himself. Just because Alberta legislation makes it lawful to exchange information, would he still have reasons to expect privacy in the nude photos?

That's where you might look for contractual language between the business and their customer. Or ask for less personal information.

But if your target is not a customer, there will be much less reason for the target to expect privacy. That's why you can feel comfortable obtaining security video from businesses of strangers on the street.

Must Police Dance the Two-Step?

Defence argued that the police should have got a warrant or production order to get the phone number from the motel. With that phone number, the police should then have been able to apply for a tracking warrant. Two steps are required by the constitution, they argued.

The court disagreed. At paragraph 73, the appeal court judge asserted: "Properly applied, the Charter does not require the police to get a warrant to get a warrant." Police shouldn't have to dance the two-step. If there are grounds to intrude on privacy, then a judge or justice should be able to grant that intrusion in one application, not multiple ones.

There's some appeal to this idea. Suppose that the motel's rental contract guaranteed anonymity: they'd never tell anyone who rented the room. In that case, Mr Neumann might have enjoyed an expectation of privacy over his phone number and name. If so, the investigators needed a production order. Perhaps the police could have applied for a production order for the name and phone number and a tracking order for the phone number that the motel provided. Drafting a two-step application will be trickier, but might get the tracking going faster.


2023.09.18 Identification by Comparison - Authenticating the "Known" Exemplar

Suppose I produce two different photographs of the same young woman. I point at one of them and say "That's Ashley Reybold-Trudeau, Justin Trudeau's love child with Jody Wilson-Raybould."

You say to me, "Ridiculous. Trudeau and Raybold-Wilson hate each other. I don't believe that they had a kid together. What makes you think this?"

I point at another photograph of the same person, and I tell you, "because that's a photo of Ashley Reybold-Trudeau, and it's obvious that the second photo shows the same person as the first photo."

Are you now satisfied?

I hope not. A sensible investigator would go on to ask: "How do you know who the person is in the second photograph?"

If I can't give you a compelling answer, then my claims should not convince you.

The same thing happens in court. It happens when police officers think that hearsay suffices for authentication. It doesn't.

Here's an example.

Some evidence - partly from unreliable witnesses - suggested that Mr Havyarimana, 2022 ABCA 235 participated in a home invasion.

But the police got some more evidence. Wiretap. They had recordings of a discussion about the home invasion.

A police officer testified that he recognized Mr Havyarimana's voice in the recordings.

Defence asked "How did you know Mr Havyarimana's voice?" The officer was ready for that question: "I listened to a recording of a police interview of Mr Havyarimana."

Defence counsel asked "How do you know that the defendant in the court room is the same guy as the person the police interviewed?"

The officer explained that he relied on annotations in a computer database when retrieving the recording.  No witness testified "I interviewed Mr Havyarimana. The man in the court room is the man whose voice was recorded in the interview that the previous witness relied on."

As you know, judges don't like hearsay.

What the computer told you is usually hearsay. The judge ignored the testimony about what the computer said.

That left the court with only "This voice sounds like a voice I've heard before." But nobody identified the previous voice. The voice identification evidence therefore fell apart.

This problem arises not only in voice identification, but also fingerprint identification. A fingerprint examiner can testify "Fingerprint A matches Fingerprint B". But unless the fingerprint examiner took one of the fingerprints from the person of interest, the fingerprint examiner's testimony does not prove who put the fingerprint there.

During the investigation, you can rely on hearsay. At trial, the prosecutor needs a live witness to authenticate the "known" fingerprint, voice or bodily sample, so that the judge can then conclude that the match means something.

I'll never forget a case in which an officer who took a bodily sample from the suspect for the purposes of DNA comparison. This officer didn't know the defendant, and had nothing to do with the investigation of the offence. He took a sample, but not a photograph. DNA in the sample that he took matched DNA from the crime scene. The officer forgot about the case until he received a notification to testify. By that time, he had no memory of the person from whom he took the DNA sample. He could not say whether the person in the court room was the person from whom he took the DNA sample. That made proving the case more difficult for me. (I found another officer who remembered arresting the suspect and putting him into the cell block where the DNA sample was taken.)

If evidence in the case you're investigating relies upon a comparison of a "known" to an "unknown", make sure that you provide the prosecutor with the evidence that proves the "known".

2023.09.18 Expectations of Privacy in Apartment Buildings

Where does the drug dealer stash his drugs?

All too often, surveillance leads police officers to an apartment building. Without resorting to warrants, what can an officer do to learn where the dealer stashes his drugs?

Investigation

Tips, tracking warrants and surveillance led police to believe that Mr Nguyen supplied drugs to mid-level dealers. Before meeting with suspected dealers, he stopped by an apartment complex. But which building did he enter?

A member of the surveillance team who who lost Mr Nguyen in the area visited the front desk for two buildings. He explained to the security supervisor that he was trying to identify someone who entered the buildings. He asked to see the security video for the public entrances for the two buildings. The security officer did not get approval from management, but he let the officer watch some recordings. In the video of Telegram Mews, the officer saw Mr Nguyen, 2023 ONCA 367 point an object at the security system, and then enter the building. From this, he inferred that Mr Nguyen had a key fob which unlocked the locks.

This supplied grounds for a production order, and then a general warrant to search the apartment associated to the key fob that opened the door. From the apartment, the police seized 11kg of fentanyl, 2.5kg of meth and 1kg of ketamine, along with lots of gear for packaging and diluting the pure product for sales on the street.

The police got a search warrant for Mr Nguyen's residence. There, they found a loaded handgun, more ammo, cash, a debt list, a price list for fentanyl, and key fobs for the unit at Telegram Mews.

Defence complained that by watching this video without a warrant, the officer violated Mr Nguyen's reasonable expectations of privacy.

Judicial Reaction

The trial judge agreed with defence: police need judicial pre-authorization to view security video of the common areas of apartment buildings.

The Court of Appeal disagreed. Sometimes police need warrants to view security video of the common areas of apartment buildings. It depends upon whether the defendant enjoys a reasonable expectation of privacy in the place that the video watches.

Factors which satisfied those judges that Mr Nguyen didn't enjoy an expectation of privacy in that place were:

  1. The officer asked to see only the security video for the public entrances. And that's all he saw.
  2. Glass walls surrounded the vestibule in question. The public inside and out could see what occurred there.
  3. The security cameras there were "readily visible".
  4. The apartment building that it served was large - many people would pass through that area.
  5. The information that the officer sought and obtained did not reveal personal life choices of the defendant: which building did he enter? did he use a fob?
  6. The officer did not seize the video, but just watched it.
  7. Not only could the public see into the vestibule, but the general public could access it too.

What about the next case?

How will you determine whether there will be a problem in your next case?

The judges in this case dwelt on two prior Ontario cases, White and Yu.

In White, the court found that officers breached the suspect's rights by sneaking around in his 10-unit building, snooping into the storage locker and listening in on conversations in the hallways.

In Yu, the officers got access to the parking garages and hallways of a large apartment building. The garages were accessible to the general public. The hallways were not. The court found that the defendant didn't have a reasonable expectation of privacy in the garages, but even in a large apartment building, the area of the hallway at the furthest end from the elevator was a place that the defendant could expect few people would go.

In R. v. Pipping, 2020 BCCA 104, the court reached similar conclusions. At the risk of oversimplifying, the fewer people that you would expect to find in the place, and the more that the suspect is able to regulate or control who goes there, the greater the liklihood that a judge will find that the suspect enjoys an expectation of privacy in the building.

2023.09.18 General Warrant - "Best Interests of the Administration of Justice"

To get a regular search warrant, you need to satisfy the issuing justice that there are reasonable grounds to believe that an crime occurred, that evidence will be found in the place you want to search, and that evidence relates to the crime.

General warrants require two more elements: (2) no other kind of warrant will do, and  (3) issuing a general warrant is in the "best interests of the administration of justice".

What are the "best interests of the administration of justice"?

Some officers think of it only in terms of how much it might advance the investigation. Yeah, but that's only half of the story. The other half is how much a general warrant intrudes on privacy interests of the people affected by the search. Will the investigative technique intrude too much on the privacy of the people affected by it?

Investigation (see above) led police officers to believe that Mr Nguyen, 2023 ONCA 367 stashed large quantities of drugs in a specific apartment. He met regularly with mid-level drug dealers, often after visiting this apartment. A production order compelled the managers of the building to divulge rental documents and information. Mr Nguyen wasn't on the lease. There was conflicting information whether the named tenants received 1 or 3 key fobs for the apartment, but it did seem clear that nobody lived in the apartment.

Rather than seeking a search warrant to seize the drugs, the investigators asked for a general warrant to permit them to enter covertly on multiple occasions over a period of time.

How does one justify a general warrant instead of a regular search warrant?

The affiant who applied for the general warrant pointed out in the ITO that executing a regular search warrant would alert Mr Nguyen and anyone working with him. It would effectively bring the investigation to an end.

Does that fully address the additional requirements of a General Warrant? It snuck under the wire in this case, but you can do better.

Why would a general warrant produce a more complete investigation?

1) It would permit police to monitor how much product entered and left the suite. Combined with ongoing surveillance, this would reveal who was responsible for bringing it and taking it away. A regular search warrant would not necessarily produce this evidence of control. Execution of a general warrant would result not only in the ability to take the drugs out of circulation, but also the dealer(s).
2) If other people also used the suite, covert entry would permit the police to discover their identities. A regular search warrant would scare those people into hiding.

Great. But what about privacy? Would these covert entries adversely affect the privacy of Mr Nguyen or others?

This is where the evidence of occupancy came to the fore. Searching residences intrudes on privacy more than other places. This search wasn't going to intrude on anyone's home.

The ITO didn't discuss this part. But the judges sure did.

They concluded that there was enough evidence in the ITO to satisfy the issuing judge that the general warrant was necessary, and in the best interests of justice.

Your ITOs for General Warrants, will, of course, contain paragraphs which addresses all of these issues.

2023.09.11 Holding Off Eliciting Evidence Until the After Suspect Gets - or Declines - Legal Advice

I remain surprised by how often this fundamental concept gets overlooked.

A confidential source gave police information suggesting that they would find handguns and a shotgun at the residence of Mr Hamouth, 2023 ONCA 518. They got a warrant, searched the place and found the guns (unlocked and loaded) in his bedroom, and in other places in the house. Mr Hamouth had no right to possess such things.

Although their main target was Mr Hamouth's son, they also arrested Mr Hamouth. He told the arresting officer that he wanted to get legal advice from Alan Gold, a particularly famous defence lawyer.

Then, the officer said to him:

“…do you wish to say anything in answer to the charge, you are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence”.

Mr Hamouth made some incriminating remarks.

Until your prisoner declines to get legal advice, or gets legal advice, you must hold off eliciting information from him or her. During that time, don't ask questions like the underlined part of the quotation above.

Unsurprisingly, the famous defence lawyer complained at trial that the police officer should not have asked that question. Because the officer did, the lawyer asked the judge to throw out all of the evidence.

Maybe this investigator used out-of-date tools. In some provinces, the standard-issue "Charter card" used to contain this phrase. The Supreme Court of Canada rejected the underlined phrase in February 2018. R. v. G.T.D., 2018 SCC 7. This arrest occurred in June 2019. The officer should have used an updated card.

If you've been working as a police officer for 5 years or more, maybe you want to check your Charter card, to see if it contains this dangerous phrase.

And even if your card doesn't contain this dangerous phrase, make sure that you and your team understand this fundamental concept: you can't start asking the suspect about the offence until the suspect declines - or exercises - the right to counsel.

Are you wondering what happened in the case?

Okay. I'll tell you. But only if you make the following promise:

I promise that after I - or my colleagues - arrest or detain people, I will never question the prisoners about the offence until after they decline or exercise their right to counsel.

2023.09.11 Possession - Paupers and Valuable Contraband

Can someone be too poor to possess a million dollars?

Mr Daponte, 2023 ONCA 572 and his wife lived on a farm. She owned it. Police officers watched that farm because they suspected that it contained drugs.

They only saw the wife doing domestic tasks. They saw Mr Daponte stay in the house. They saw him enter and leave various buildings in the farm. They also saw Mr Colpaert, a farm labourer, stay in a shed on the farm on weeknights. That shed lacked electricity and running water. They never saw Mr Colpaert enter the house.

When the police executed a search warrant on the place, they found $800,000 worth of hard drugs cleverly hidden in a different shed. And $80,000 cash. Packaging for the drugs matched items in the house.

At trial, defence argued that Mr Colpaert could have hidden the drugs without Mr Daponte's knowledge. If that was a realistic possibility, then the court had to acquit Mr Daponte.

The trial judge rejected this argument, in part because it made no sense to live in such poverty while possessing such wealth. The Court of Appeal rejected Mr Daponte's appeal (but agreed that the evidence failed to prove that his wife possessed the drugs.)

I found the Crown's argument interesting. You may encounter other cases in which a henchman lives in poverty while a boss possesses contraband of great value. Proving the henchman's poverty may assist in showing who possesses the contraband.

But it might also prove motive. Many people willingly endure poverty and privation for a short time, in the hope of handsome rewards.

Therefore, your mileage may differ.

The appeal decision is short. Drug investigators might find it interesting. Unfortunately, as I write this, the trial decision is not yet available. It may become available after a few weeks - now that the appeal ended.

2023.08.23 "Good Defence Counsel - Bad Counsel" - a confidential source too well placed to be used

What do you call a defence lawyer who rats on her clients?

A disaster.

I read today the story of Nikki Gobbo on Wikipedia. It's already old news, but I hadn't noticed the story until now. She was a lawyer to Australian gangsters ... and a confidential source for Australian police for over 15 years. She sought out police officers to give them information.

Maybe her tips saved some lives. Certainly, her tips helped Australian police to seize drugs and bust people.

Many of the culprits were her own clients. This violated her professional obligations of loyalty and confidentiality. When she told police what her clients told her in confidence, then she revealed privileged communications too.

Things eventually turned sour between her and the police, and the truth bubbled out. A commission of inquiry examined the history, and concluded that her conduct shook the foundations of the justice system. Police officers who worked with her and kept her misconduct secret were complicit. Protection of the identity of a source is not the only goal of a human sources unit. The integrity of the justice system relies on defence counsel doing their job. The officers should have sought legal advice early. When they finally did get legal advice, they acted very slowly on it. Thousands of convictions were impugned. Murderers were set free.

The case illustrates the easy slide into "noble cause corruption". The job of police - to serve and protect - seems so simple: if you enforce the law energetically, society becomes a safer place. But sometimes, to catch big fish, you need to let some little fish go. You overlook minor misconduct in order to protect society from bigger threats. To catch murderers and drug lords, it seemed justifiable to ignore Ms Gobbo's lack of ethics. But by working with her, police participated in her subversion of the justice system.

In your professional life, defence counsel are often your adversary, but they should never be your enemy. You should definitely try to maintain a respectful - and even cordial - working relationship. On the flip side, don't get too close. Defence counsel can sometimes even assist you to do your job; but beware of letting them become your partner or agent in your investigations.

If the next Nikki Gobbo comes to you offering tempting tips about her clients, run, don't walk to the senior people in your source handling unit. Seek out legal advice.


2023.08.22 "Good Cop - Bad Cop" - How Bad is Okay?

I missed this decision when it first came out. I think it's an interesting read because it explores the limits of how aggressive you can be when interviewing a suspect, or investigating generally.

Mr Z (MJ), 2022 MBCA 61 sexually assaulted his partner's nephews, when those nephews were kids. After many years, the nephews complained to police, who investigated.

Mr Z was gay - his partner was male. The partner took exception to the police investigation. He reported the investigator to disciplinary authorities. He called the investigator a Nazi, and published his name on social media. The partner posted comments on social media which could be viewed as threatening or harassing to two of the victims and their families. The investigator formed an impression that the partner was aggressive in his communication style.

The officer interviewed Mr Z twice. For the second interview, the officer decided to mimic the communication style of this aggressive partner.

While doing so, the officer disparaged the accused and his partner. The officer made remarks suggesting that he was prejudiced against the accused by reason of his sexual orientation. See para 26 for a list of the remarks of concern.

In that second interview, Mr Z made no confession.

At trial, defence used the officer's tactics against the prosecution. They complained that the discriminatory language constituted an abuse of process; they asked the judge to stay the charges.

Although the trial judge did not like the officer's language, the trial judge did not think that the discriminatory language amounted to an abuse of process.

The court of appeal disliked the discriminatory language even more than the trial judge:

"The jurisprudence undoubtedly allows a police interrogation to be tough and aggressive.  Nonetheless, in my view, the approach taken here exceeded permissible boundaries.  Applying the correct legal test to the interview, I would find that it was conducted in such a manner as to be an abuse of process constituting a section 7 breach." (para 64)

Those judges agreed with the Crown that the case was too serious to be stayed by reason of this display of prejudice against gay people. Mr Z's conviction stuck.

Notice the first sentence of the quotation. The Court of Appeal judges recognized that interrogations aren't always nice, cozy, comfortable conversations. And this investigator had some reasons to criticize Mr Z's partner.

The danger zone highlighted by this case is expressing discriminatory language - whether you actually believe it or not - while wearing (or carrying) your badge. Mimicking the partner's communication style might have been a good idea: it might have made Z feel "at home". But lacing it with anti-gay comments put the officer in a bind at trial. Civil servants like you will have a hard time justifying the use of discriminatory language. As an undercover officer, you could pretend to be a bigot for the purpose of infiltrating a criminal organization of bigots. I expect judges would accept that as an ugly necessity. But was such language necessary or even desirable in the case of Mr Z?

To be fair to the investigator, he attempted to separate his display of aggression from issues of sexual orientation. He said: "...it has nothing to do with your sexual preference as adults, so don’t get that in your mind." Unfortunately, he ended the interview saying: “You fucking sicken me, I’m done with this.  Don’t even have the balls to apologize.  Classic.  I would say enjoy jail, but you probably will.” This resonated with negative connotations. The defence complained. The judges agreed.

I doubt these remarks reflect the investigator's actual thoughts. He was playing a role, and ad-libbing as he went.

Those of you who will role-play in future investigations may wish to set mental guards against bigoted language. Use it if you must; avoid it if it's unnecessary.

2023.08.19 The Liberty of Witnesses

Witnesses have Charter rights too. This case explores how investigators should treat witnesses in the course of serious investigations. I thank an investigator for bringing it to my attention.

Keenan Corner, 2023 ONCA 509 called police. He reported that several men came to his house to rob him and his friend Shabir of their marijuana. One of the strangers shot Shabir in the head, killing him.

Police attended very quickly; and there was a reason. Police already suspected that Mr Corner dealt drugs. One officer had just set up to watch Mr Corner's house when the call came in. He responded very quickly to the scene. Sure enough, Shabir's body lay on the floor of the garage.

Would you take precautions for your safety when entering the scene of a recent shooting? These officers did. Even though Mr Corner was speaking on his phone to the 911 dispatcher, the two officers who first dealt with him approached with guns drawn, patted him down and directed his movements. Once they had relieved him of a knife, they invited him to sit in a police car to explain what had occurred.

He repeated his story about the robbery, adding more detail.

Police took him to the police station, and questioned him extensively. But at the police station, was he a prisoner or a witness? The investigators neither confirmed his liberty to leave nor suggested that he could get legal advice.

Other evidence led police to believe that Mr Corner's story was false, and that actually, Mr Corner shot Shabir. Indeed, they discovered that Mr Corner himself called in a false CrimeStopper's tip about the group of assailants. The Crown wanted to use that information to prove his story was false.  That triggered a question that only the Supreme Court of Canada could answer. R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45.

At Mr Corner's trial, his lawyers complained to the trial judge that the police detained him without giving him his legal rights. All of his false stories about the attackers should be excluded from evidence.

The trial judge agreed that when the police first took charge of the scene, they did detain Mr Corner without giving him his legal rights. But the trial judge found that the initial detention (when police first took control over the scene) lasted only seconds. It ended too quickly to justify offering legal counsel. No evidence should be excluded because of that.

The conversation in the police car couldn't be a detention. It was, after all, Mr Corner who called police and asked them for help. The officer did no more than what Mr Corner asked: they took his statement about an attack in his residence.

But after that initial statement, the officers took Mr Corner to the police station for further interviewing. There, he continued to talk about the three (or four) assailants.

The defence lawyers argued that even though the police considered Mr Corner to be a witness, they "detained" him. Because of that, they should have told him about his right to counsel.

The trial judge found that the first couple of hours at the police station did involve a detention. The appeal judges disagreed. The facts that they identified which turned this witness interview into a detention included:

The appeal court ordered a new trial.

I had some trouble with the appeal court's conclusion:

  1. Mr Corner's deliberate and serious deception contributed to the confusion about his custodial status. Why should the court reward Mr Corner for deceiving police officers?
  2. In  R. v. Grant, 2009 SCC 32, the Supreme Court of Canada identified factors that distinguished between mere delays of citizens, and detentions that triggered the right to counsel. One of the key factors was focus: a suspicion that the individual a committed a crime. But in Mr Corner's case, the initial questioning at the police station was focussed on the guilt of other people, not Mr Corner.

My quibbles don't count for much. The judge who authored the appeal decision is one of Canada's foremost authorities on criminal law.

I can find no fault with the broad-stroke take-away from this case. When you deal extensively with a witness - particularly a suspicious one - you can avoid this kind of trouble if you communicate clearly with them whether they are free to go.

Ordinarily, you have no power to detain a witness. I can imagine situations in which arguments can be made that police can lawfully detain a witness, but they would occur only in extreme situations such as imminent loss of life or evidence. If you must deprive an innocent person of liberty for any significant period of time, then s.10 of the Charter compels you to explain why and to give them access to counsel.

In most situations, you must rely upon the cooperation of the public in your investigations, obtained by persuasion, not coerced. Remember the Peelian Principles of Policing.

PS: something similar occurred in R. v. Beaver, 2022 SCC 54. First responders detained witnesses at a suspicious death scene. That caused trouble.

2023.07.08 Executing Warrants to Search Cell Phones

A warrant issued under s.487 authorizes an officer to enter a place or open a receptacle, and search for something inside.

The justice says: "I authorize you to open it up, go in, and search."

In R. v. Vu, 2013 SCC 60, the Supreme Court decided that a police officer who wants to search an electronic device needs specific authority to do so. As a result, after seizing cell phones during a warranted search, police officers often apply for a second warrant authorizing them to search the phone for specific relevant data.

As I discussed back in April 2019, many officers have been trained to draft the warrant to allow them to search their exhibit locker for the device, rather than to search the device for the data. They were also trained that if they reported the seizure of the device to a justice ("Form 5.2"), they didn't need to report what data they found after the search of the device.

Some judges here in BC take the view that you must report both the seizure of the device, and the seizure of the data. Two different reports, (or two different lines in one report). R. v Bottomley, 2022 BCSC 2192; R. v Bottomley, 2023 BCSC 603.

In the Bottomley case, the investigator got a warrant to search the contents of a phone. Actually, the officer drafted it to authorize police to search an exhibit locker between 7:00pm and 9:00pm on a particular day for a cell phone. On that day, he never went to the locker. That evening, he merely signed the back of the warrant, and issued directions to other officers to deliver the phone to the tech crimes unit. Delivery occurred on a later date.

The judge didn't like that because the officer did not do what the warrant authorized. The search of the phone for the data it contained actually started at a later date and time than what the warrant authorized.

I don't like it either, but for different reasons:

Therefore, I suggest that you draft Vu warrants to authorize you to search receptacles for data. I suggest as well that you ask for wide windows for the search. Because justices are accustomed to tight windows for residential searches, your ITO may need to explain something like this: "I ask for a wide window for this search because (1) unlike a residential search, the time of day when the search commences will not affect anyone's property or privacy rights; (2) unlike physical exhibits in private places, the data in the cell phone is not at risk of loss or degradation; (3) the process of searching electronic devices is slow meticulous work, which sometimes requires re-examining the device, as discussed in R. v. Nurse, 2019 ONCA 260. I also ask for an endorsement pursuant to s.488 permitting this device to be searched at night. I ask for that because the interests protected by that section are not engaged by the proposed search and because the limitation in that section should not prevent technicians from working on that phone at night."

I suggest that you draft your Vu warrant to authorize you to do what you will actually do. If you're going to arrange for the delivery of the device to technicians who will copy its contents and search them for the data of interest, then perhaps that's what the warrant should say.

2023.07.08 Breath Screening and Legal Advice - "Immediately" and "Without Delay"

Section 10(b) of the Charter requires a police officer who detains or arrests someone to offer them legal advice "without delay".

Section 320.27 of the Criminal Code permits an officer to screen a driver's breath "immediately", or to perform field sobriety tests "immediately".

When both are at play, which one takes priority?

Police Constable Lawrie solved this problem. He stopped a speeder on a busy highway in Hamilton. Dispatch told him that the car was stolen. He arrested the driver, Ms Haist, 2023 ONCA 465. He noticed an odour of liquor on her breath, and so he demanded that she blow into a screening device.

She refused. Three times.

He arrested her for refusal as well. Because he didn't have a suitable vehicle for transporting prisoners, he called for another officer.

He searched Ms Haist, but he didn't explain her right to counsel until after placing her into the other officer's vehicle.

Ms Haist wanted legal advice, but it took a while to deliver that advice. When they arrived at the police station, they had to wait in line for other officers to deliver their prisoners to the secure bay. I guess it was a busy night.

At her trial, Defence complained that the police took too long to explain the right to counsel. 12 minutes passed between arrest and the offer for legal advice.

Back in April, I wrote about Mr Davis. In his case, the Ontario Court of Appeal said that 8 minutes was too long. In June, the same court concluded that 12 minutes was okay. How did Cst Laurie get more sympathy from the court than the officer who investigated Mr Davis?

P.C. Laurie gave good reasons for the delay:

The court agreed. In the ordinary course of investigations, getting a breath screening done takes priority over explaining rights to counsel. Safety comes first.

Defence had more complaints: they said it took too long to deliver on that promise of legal advice "without delay". It took almost 3 hours to start calling for legal advice.

P.C. Laurie had answers for that too:

The judges accepted these explanations.

How did P.C. Laurie have so many good answers for the judges? I suspect that he put answers in his notebook at the time of the investigation because he knew that promptness was an issue.

When you arrest people, do you worry about getting them legal advice "without delay"? When things move slowly, do you take notes about why? When you plan to arrest people, do you try to plan ahead to solve that problem?

2023.07.08 Processing Exhibits

Every day, young officers learn procedures that solve problems they never knew existed. Processing seized property is one of them. A tedious task that doesn't matter ... until it does.

When police searched Mr Rocha's 2023 ONSC 1573 house, they found drugs and cash.

At trial, Mr Rocha accused the police of stealing his money. The officers denied it. Despite Mr Rocha's history of crime and dishonesty, the judge trusted him more than the officers who handled the exhibits. The judge concluded that a police officer stole money from exhibits. The judge disliked the idea of a crooked police officer so much that he stayed the serious drug charges that Mr Rocha faced.

I don't know whether the bad apple was an officer or Mr Rocha. Whether or not an officer stole money from the exhibits, I do think that police can learn from this case.

What are the procedures for? Accounting. So that after the fact, everyone can know exactly what the officers found, where they found it, what it looked like, and how much of it they found.

Why does it matter? Convictions stand on evidence. If the court doesn't trust the evidence, then the prosecution fails. Proper handling and documentation proves that the exhibit in the court room really did come from the crime scene, and explains whether anyone changed the exhibit in any way between the time it was seized and the court room. And every so often, someone (or some rodent, or flood or fire) does steal from exhibits. When that happens, good procedures and documentation make it easier to identify the felon, and know what the exhibit looked like when it was first found.


Problem
Solution
Notes
One of the searchers made no notes at scene. By the time he got back to the police station, he could no longer remember the time at which he found the drugs. This turned out to be important.
Another officer found bundles of money. At the scene, that officer put the money down somewhere, but made no notes about where he put it. If one of the other officers stole the money, a note would have helped determine who had access to it.
Make notes on scene. What, when and where. And continuity.
Scene photography
Photography can sometimes fill the gaps in an officer's notes.
Not this time.
Someone gathered the exhibits together on a table, and photographed them as a group. This mixed exhibits before the officers bagged them.
Photographs can supplement notes, if you take enough of them, and at the right moments.
If possible, photograph the exhibits In the spots where you find them. You may need to take several photos, showing the process of removing the item from its hiding place.
Photograph the exhibits again when processing them.
Continuity
The officers who found interesting exhibits put them in bags. They did not close or seal those bags before transporting the exhibits to the police station for processing.

Premature sealing of exhibit bags can complicate processing later, but failing to seal exhibit bags risks contamination and a loss of continuity.
If you're going to lose personal possession of the exhibit bag, maybe you should seal it.
If the bag contains items of great value, maybe you should seal it.
If the exhibit is sensitive, for example, the thing might bear fingerprints or DNA or gun shot residue, then seal it to protect the contents.
Continuity
Police seized several bundles of money. The officer who counted them mixed up the money from separate bundles. This caused confusion. Mr Rocha's claims about the money became difficult to contradict.
Handle exhibits separately and one at a time.
Labelling
The officer who counted the money used a system which required him to create a "property report", a "property receipt", a "property bag" and an exhibit tag. Naturally, the receipt, the bag and the tag each had a different serial number. Unfortunately, the officer recorded the wrong property bag number into the report. Because of the theft allegation, this flaw in the documentation made the officer look less trustworthy.
Exhibit handling produces a bewildering variety of identifiers. Understand what they mean, and record them carefully.

Good exhibit handling takes time and diligence. But it rarely wins anyone any accolades. Bad exhibit handling often goes unnoticed ... until disaster strikes. 4 years passed between this search and the judge's decision. Lots of time for other problems to accumulate.

Junior officers should learn not only how their exhibit procedures work, but also why, so that they can fully account for exhibits, and prove their own honesty when challenged.

Supervisors might consider checking how their junior officers are doing. If you praise the diligent ones, exhibit handling won't be a "thankless task".



2023.06.12 Interviewing the Suspect - A Standard Practice

Here's another example that illustrates why a police officer should ask the suspect what happened.

Four men told police that Ms Guillemette, 2022 ONCA 436 drove from the bar drunk. One of those men tried to stop her by reaching into the car and taking her keys. While his body was partly in the car, she drove the car in reverse, which caused his body to collide with a post. He suffered a broken pelvis.

Another man called 911 to report her intoxicated driving.

A police officer drove to her residence, and caught her as she arrived. The officer investigated her driving. Breath tests recorded 180mg% of alcohol in her blood.

At trial, she explained that one of the men was harassing her, touching her thigh and her breasts, and demanding that she spend the night at his place. She intended to take a cab, but faced with this unwanted sexually aggressive conduct, she felt that she had no choice but to drive in order to escape.

The trial judge didn't believe her. But the trial had not proceeded well. The prosecutor made the mistake of demanding that she explain why she didn't run to the officer and complain about the aggressive man. That's a legal error. The right to silence means that she has no obligation to complain to police, and furthermore, judges are not permitted to draw the rather obvious inference "if she really had been scared, she would have run to the cop".

When I read the judicial summary of her testimony, I didn't believe her story. But I'm in a poor position to judge.

But her story reminded me of many other cases I've seen in which people committed criminal acts by reason of worse threats that they faced. Battered spouses, low-end drug dealers and victims of familial sexual abuse often take desperate measures. The cop who investigates only their offence sometimes traps a rabbit, but leaves the wolf.

The cop who encourages a felon to talk sometimes receives a tall tale.

Assuming Ms Guillemette told lies about her misadventures, would it have been a waste of an investigator's time to attempt to interview her that night?

I say "no", because there would be little risk of harm, and opportunity for important discovery:



2023.06.12 Impaired Drivers - Mandatory Alcohol Screening ("MAS") - Constitutional

Back in 2019,  I urged officers to use the new Mandatory Alcohol Screening power ( s. 320.27(2) of the Criminal Code) cautiously, because I anticipated controversy. I expected that defence counsel would challenge this warrantless search provision.

They did. McLeod v British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325; R. v. Day, 2022 MBPC 2; R. v. Blysniuk, 2020 ONCJ 603, R. v. Brown, 2021 NSPC 32, R. v. Kortmeyer, 2021 SKPC 10, R. v. Labillois, 2020 ABQB 200, R. v. Morrison, 2020 SKPC 28, R. v. Switenky, 2020 SKPC 46

To my surprise, I have found no decision in which defence persuaded a judge that the section is unconstitutional.

That suggests that you could start using this power more often. The BC decision of McLeod provides compelling reasons to do so. The court heard evidence that Canada still has one of the worst rates of impaired driving fatalities and injuries in the developed world.

If you'd like to help reduce that carnage, then you need to use this power properly. The section says:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

That tells you:

  1. You gotta have a screening device with you. But if you're thinking of using a screening device, the Supreme Court of Canada already decided that you must have one with you. R. v. Breault, 2023 SCC 9
  2. You gotta know how to use it. Don't look here for instructions. I'm just a lawyer. I might know some law, but I've never operated one of these things. Reread your manual. Get the details right.
  3. You gotta be "in the course of the lawful exercise of powers..." Generaly, that means a traffic stop for some reason or another. Can you stop a car just to do a MAS demand? One judge said "yes". (R v Labillois, 2020 ABQB 200) I think legally, you're on more solid ground if you pull the vehicle pursuant to the vehicle legislation of your province or territory, for the purposes of ensuring driver safety, licencing and insurance.
  4. You require the person who "is operating" the vehicle. This part makes car MAS demands at car crashes troublesome. You usually arrive after the driver stops driving. There are some old cases based on a prior version of the legislation which might justify a shortly-after-the-fact demand (R. v. Lacovic (1988), 1988 CanLII 7075 (ON CA), 45 C.C.C. 3d 80 and R. v. Campbell (1988), 1988 CanLII 4932 (SK KB), 44 C.C.C. 3d 52) If your find reason to suspect that the driver has alcohol in their body, use the reasonable suspicion demand instead.
  5. You gotta move fast. The section says "immediately provide samples of breath". In the context of a trraffic stop, the reason that the MAS demand survives constitutional attack is that using it should delay the driver for only a very short time. If you delay the driver for 5 minutes to figure out whether to make the demand, and then another 5 minutes to test the driver's breath, a judge may find that you did not comply with the section.
  6. On screening devices generally, I would add:

  7. Demands are not requests. Don't ask the driver whether they will blow. That suggests that they have a choice. They don't. Failure to comply is a crime. Tell them to blow. If they equivocate, proceed. Produce the device and tell them to blow.
  8. Failure to blow is a criminal offence. Preventing crime is your job. When someone resists your demand, it is right and proper to urge them not to commit a crime.
  9. Don't give bad legal advice. Police officers sometimes tell drivers "the penalty for refusal is the same as the penalty for impaired driving." Before 2018, that was true. Not any more. In some cases, the penalty for refusal is worse.
  10. Give the reluctant driver many opportunitites to blow. Because they can't get legal advice, a screening device demand puts them in a tough position. Judges are sympathetic.
  11. Document the breath testing process in notes or on video. Judges won't convict drivers for refusal unless except when satisfied by compelling evidence. The question isn't whether you're satisfied that the driver has now refused, but whether you have enough evidence that a judge will be convinced beyond a reasonable doubt.

2023.06.05 Identification - When to Show Photo Lineups to Officers

Officers in Saskatoon responded to a call of domestic violence. When they attended the house, Cst Willard checked out the back yard. Cst Willard saw someone on a back deck pointing a gun at him. He heard the racking of a firearm, and a man said "Get the fuck out of here." The officer retreated fast and called for backup.

As officers arrived, they took positions around the house. An hour after the incident, two people came out of the house: Mr Lachance, 2023 SKCA 48, and his girlfriend, who told police that he had assaulted her. Inside the house, police found nobody else, but they did find a sawed-off .22 rifle.

Mr Lachance faced charges of assault and firearm possession.  He beat all of them.

Don't blame Cst Willard for Mr Lachance's aqcuittal. The decision suggests to me that he is a man of integrity. He told the truth, even when it hurt.

At trial, the girlfriend got cold feet, and left the court house before testifying. The Crown tried to work around that problem. But the follow-up that they attempted did not satisfy the trial judge.

And even though Cst Willard testified that the man in the court room - Mr Lachance - pointed the gun, the judge harboured a doubt that perhaps someone else could have been the culprit.

Why did the judge doubt? It seems so obvious that Mr Lachance did it. He was the only man in the house. Cst Willard heard a man's voice when the gun was pointed at him.

Because reasonable doubt rests upon innocent possibilities:

  1. The police did not surround the house immediately. In the first few minutes before other officers arrived, it was possible that a different man with a gun could have left without the house without being seen.
  2. The officer that saw the gun said he saw a shotgun. Nobody found a shotgun in the house. They found a .22. This gave weight to that possibility. If the officer actually saw a shotgun, then some other person must have taken it away from the house.
  3. Alternatively, it was possible that the woman pointed the gun, and the man said the words. Cst Willard didn't see who said the words.

It was only in the court room that Cst Willard identified Mr Lachance as the person who pointed the gun. Cst Willard had never seen Mr Lachance before.

Judges hate that kind of identification evidence. It's called "stranger eyewitness identification evidence".

Under stressful situations like this one, where a witness gets only a brief opportunity to see a face, people often make mistakes. Especially when they don't know the felon.

One can understand why the investigators thought that identification was solid. The first clue should have been the contrast between Willard saying it was a shotgun, and only a .22 showing up in the house. Probably, stress and danger made the gun look bigger than it was. Understandable. But the prosecutor needed a stronger answer.

A photo-lineup might have solved the problem. But only if someone presented it to Cst Willard before Cst Willard saw Mr Lachance arrested or in custody.

Cst Willard's notes might have saved the day. They would be most compelling if Cst Willard could record unique features of the gunman before seeing those features on Mr Lachance.

The decision makes for interesting reading. Mr Lachance was a gangster. Between the incident and his arrest, he sent a Facebook message to his gangster friends to "hit up" his girlfriend. This suggests that there were reasons to make extra efforts to investigate the case and to support the witness.


2023.06.01 Safety Search - Searching a Vehicle

The power to search in order to assure your safety - or the safety of the public - is not strictly limited to frisking the person that makes you nervous. When you have sufficient reason, you can search their immediate vicinity. Whether you can, and how widely you can search, depends heavily on the circumstances.

Mr Buakasa, 2023 ONCA 383 caught the attention of Cst Sinclair by driving at 140km/h on the 401 Highway in Ontario.

Cst Sinclair pulled him over. Mr Buakasa produced invalid insurance. His car contained two children. One of them was not properly seatbelted.

Cst Sinclair decided to impound the vehicle, and arranged for it to be towed.

Simple, so far.

But it got more complicated. A computer database alerted Cst Sinclair that police were surveilling Mr Buakasa, and that officers who arrested him should contact an officer in Waterloo.  Although Cst Sinclair did not arrest Mr Buakasa at that point, he called the Waterloo officer for more information. That officer told him that Mr Buakasa had "deep gang involvement", and there was a "good probability" that Mr Buakasa possessed a handgun.

Cst Sinclair called for backup.

When another officer arrived, Cst Sinclair searched the car for firearms. He noticed a loose panel on the passenger side console. When he touched it, it fell off.

This exposed a handgun.

It was loaded, and with it was a sock containing more ammunition.

At Mr Buakasa's trial, his lawyer argued that the officer had no lawful authority to search the car.

The prosecutor argued three reasons for the search:

The trial judge rejected the first two reasons, but agreed with the last one. The Court of Appeal judges declined to reconsider the first two questions; but they agreed that Cst Nickerson could search the interior of the car, for his own safety, and for the safety of the public.

Only because the circumstances of this case justified it. Here's how the appeal court analyzed it:

[47]      The trial judge noted the following constellation of circumstances:
  1. once the ticket was issued, the appellant would no longer be under police control;
  2. the appellant and the children were presumably going to travel with the tow truck operator;
  3. a gun is a valuable commodity, giving rise to a real concern that the appellant might take steps to retrieve it;
  4. it would be reasonable to expect that the tow truck operator would need to access the interior of the car as part of the towing process, and that the tow operator would reasonably expect that police “would not expose him to a known risk of travelling with a person who had a gun that he might try to retrieve from the car”;
  5. the Waterloo officer, an officer involved in intelligence, had told Cst. Sinclair that the appellant had “deep gang involvement” and details of two prior incidents in which the appellant had been involved in or present at shootings in the past several months;
  6. Cst. Sinclair was able to form a “high level of suspicion” that the appellant had a firearm; and
  7. Cst. Sinclair came to a consensus with the Waterloo police officer that there was “a good probability” that the appellant had a gun in the car.

[48]      While Cst. Sinclair testified that he did not have reasonable grounds to believe that the appellant was in possession of a firearm, he did have, on the totality of the circumstances, a reasonable belief that the safety of the tow truck driver, the children present and the public was at stake, because he believed that there was “a good probability” there was a gun was in the car. That threat to safety was imminent because that “present danger of harm” had not been dispelled at the road side: see Lee, at para. 59. I adopt the observations of the trial judge:
If Mr. Buakasa did have a gun in the car, the public safety concerns were immediate and serious. Cst. Sinclair was faced with making a choice between Mr. Buakasa’s expectation of privacy and the safety of the tow operator and anyone else whom Mr. Buakasa might encounter in a quest to regain control of a gun. I have concluded that Cst. Sinclair was correct to give priority to the safety concerns.

The trial judge considered the danger to the tow truck driver to be so acute that the officer would be negligent if he failed to make the car safe to tow away. The appeal court judges agreed that a search was lawful.

Travelling to that destination took the judges over a rough trail through the jurisprudence of officer safety searches.

In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the judges found that for the purposes of staying safe, police officers could frisk detained suspects for weapons, if there were reasons to suspect that the detainee possessed weapons and posed the officer some danger.

In R. v. MacDonald, 2014 SCC 3, the judges considered whether police could - for the purposes of safety - search someone who wasn't detained. They agreed that you can, but most of the judges said that you needed reasonable grounds to believe that your safety is at stake.

That kicked off a judicial and academic debate which hasn't yet settled. Reasonable suspicion is a lower standard than reasonable belief. Just how much evidence of danger do police need before they can intrude into people's privacy? For you police officers, this can raise a life-and-death question. Even the Supreme Court's subsequent decisions in the area of safety searches failed to clear up the confusion. Read the decision to follow the debate.

In this case the court ducked answering the question. They said that whatever the test is - reasonable belief or reasonable suspicion - Cst Sinclair had sufficient grounds.

I don't blame them for ducking. They lack jurisdiction correct the Supreme Court of Canada.

For you, on the street, this case provides an example of common sense:

In expressing it this way, I avoided the language of the legal debate. You need good reasons for this kind of search. They must be grounded on real risks that you can't avoid. Alternatives to searching didn't exist in this case.

Don't play games with this power to search. Safety searches are for keeping police officers safe. They're not for discovering evidence. Judges worry that making the power too broad will unnecesarily intrude on civil liberties. If the judges get the idea that police officers abuse this power, they will restrict it. That will put cops in more danger.

2023.05.30 Reasonable Grounds - Sgt Mortenson's Rule of Three

Here's a short decision which teaches the importance of understanding the whole judicial process, including how building grounds for an arrest sometimes requires some patience.

Sgt Mortenson supervised a drug enforcement team that busted Mr Fong, 2023 BCCA 196. He did something smart that you can learn from, but he articulated it in a way that you might want to avoid.

Members of his team saw Mr Fong engage in three brief interactions that looked like a dial-a-doper in action.

After the second transaction, Sgt Mortenson was sure his team found a trafficker. But he waited for a third transaction before authorizing an arrest.

And sure enough, his team found drugs.

At trial, defence counsel asked Sgt Mortenson why he waited for the third transaction before authorizing the arrest. Sgt Mortenson explained that three transactions was his "rule of thumb". It was a practice he followed because “the Crown is [generally] satisfied after three … decent observed short-duration meets that [this] fits the criteria for reasonable and probable grounds with some other criteria involved”.

At trial and at the appeal, defence counsel pointed out that Sgt Mortenson's team members did not see anything change hands. Defence proposed innocent alternative explanations for the short meetings. Maybe Mr Fong was just picking up a friend. If one of the incidents could be explained away, then there weren't enough brief transactions to amount to reasonable grounds.

The judges rejected those arguments, and rightly so.

If you read the decision, you will see that Sgt Mortenson had more than three brief transactions: file information suggested that Mr Fong's car was involved in drug-related incidents; and the transactions started in a drug-infested neighbourhood.

What I liked about Sgt Mortenson's approach was the care and patience he took to build a solid case for arrest. He was right to testify that he didn't need three transactions. What he needed was enough information to satisfy himself, and enough information to satisfy the court that his belief was reasonable. Generally, in the kinds of investigations he does, three brief transactions - along with some supporting background information - suffices.

Although I liked Sgt Mortenson's candour about his "rule of thumb", I think that he could have expressed a longer view of the file. Your job when gathering grounds is not to satisfy the prosecutor, but to satisfy the court that you are obeying the law. When assessing such cases, some prosecutors require police to show very strong grounds for their arrests. Those hard-nosed Crown Counsel do so only from painful experiences in the court room. If I were the prosecutor at Mr Fong's trial, I would have preferred Sgt Mortenson to explain that two transactions convinced him that his team found a trafficker, but he asked his team to keep watching, "so that the evidence would satisfy the judge that my belief was well-founded".


2023.05.30 Using Force - Adrenaline, Training and Safety

Police arrived - en masse - to the scene of a gunfight. By the time they arrived, the shooting had stopped and the shooters scattered. About 40 minutes after the shooting, an officer in a helicopter spotted someone suspicious on the ground, and alerted other officers.

That guy was Mr Brar, 2023 ABCA 63.

Mr Brar hid under a deck. A police officer shone a flashlight under the deck, but could not see Mr Brar. The officer stood in the vicinity of the deck for 7 minutes, waiting for a police dog to arrive.

The dog arrived. At the moment that the handler released the dog to search for people under the deck, Mr Brar said “All right, I’m coming out now."

The dog bit him and dragged him out from under the deck, face down. His hands were empty, and up around his head.

Four officers received him.  One stood over him pointing a rifle at him. One knelt at his right shoulder, grabbing his hand. The dog handler stood by. And one more officer kicked and punched Mr Brar repeatedly in the head - as a distraction.

The punching broke Mr Brar's nose and orbital bone. (That's the bone that supports the eye.) He required surgery, and suffers lasting eye problems. That's common with orbital bone injuries.

After arresting him, police found a handgun in a bucket under the deck. The trial judge convicted him of possessing it unlawfully, but reduced his sentence by reason of the injuries he received during his arrest.

Mr Brar appealed his conviction. He complained that the arrest involved unreasonable force.

At trial, the officers explained that Mr Brar's actions justified the force that they used: one of Mr Brar's hands moved as if to reach for a weapon.

The trial judge felt that the fast moving event gave the officers no time to choose less violent means. The appeal court judges didn't like that explanation.

Considering that a dog was biting Mr Brar's leg, was the punching necessary? With the luxury of hindsight, the judges identified less-injurious alternatives. Instead of punching him, an officer could have stood on his shoulder.

I see irreconcilable conflicts between the law, human psychology and risk management.

The law seems straightforward. Even the guilty felon enjoys a right to be arrested with no more force than is reasonably necessary. The police officer arresting him also has rights.  After each shift, every officer should go home alive and uninjured. The officer should be permitted to use reasonable force to protect himself or herself from harm. Canadian law permits the officer to use "reasonable force" - force which is objectively justified by things that the police officer knows about.

Risk management operates by identifying possible harms, and taking steps to prevent them. When facing Mr Brar, an officer who does not know whether he possessed a gun should assume that he does. Good risk management requires us to assume the worst, and take steps to prevent it. When approaching potential gunfighters, prudent officers will assume that the subject has a gun and may use it.

That's fine ... until you start to use force. You can approach with caution. You can choose tactical positions which defend you. But when it comes to applying force, the law permits you no luxury of assumptions. Unless you have positive information that someone poses you danger, you can't use force.

When testifying why you used force, do not use risk management language ("I didn't know whether he had a gun, therefore I believed it was necessary to take immediate control of Mr Brar..") Instead, you must use the language of reasonable grounds ("The dispatch information and the information from the helicopter made me think that he likely possessed a gun and was desperate enough to use it. That made me think I needed to take immediate control of Mr Brar.")

These officers had some evidence. They attended the scene of a gunfight, and located a potential gunfighter, hiding. Wasn't that enough to justify the force that they used?

When determining whether force was "objectively reasonable", judges must consider all of the information available to the officers at the time. When the dog dragged Mr Brar from under the deck, his hands held no firearms. The appeal court judges suggested that the officers should have modified their response based on that new information.

I take the view that police officers on the ground can not consider all of the evidence in real time.

Our human brains respond to acute danger by narrowing our focus to the threat. These officers knew that they were responding to a gunfight in a public place. They had reason to believe that they found one of the shooters. When he emerged from under the deck, the officers had little time to assess what dangers he posed to them. But they had reason to think he was a killer.

Research suggests that greater training tends to create officers who adapt better to changing circumstances. Top-flight members of tactical squads might have been able to re-assess Mr Brar's risk so quickly that they might have determined that beating him wasn't necessary. But not every officer who attends such a scene gets advanced training in the use of force. Not every officer can act so coolly in the face of possible death.

Some would suggest that the law should adapt, to account for human frailties of police officers. Don't hold your breath. Part of the job of the courts is to hold police to high standards of conduct, even when arresting bad guys.

The lessons to draw from Brar include:


2023.05.09 Confirmation Bias - Traps Everywhere

Confirmation bias affects all humans. If you're not sure what it is, you can read a formal explanation in Wikipedia. Or you can listen to the profane and irreligious Tim Minchin. I find the latter more amusing.

I don't know whether either of those links inspired the lawyer who represented Mr Ogden, 2023 ONCA 324. But s/he made an argument based upon that concept.

During a home invasion, one of the felons ripped a phone off the wall. Police found a fingerprint on that phone. Did it belong to Mr Ogden?

The first expert, Sgt Cuff, compared the print from the phone to fingerprints on file. Sgt Cuff found a match with one of Mr Ogden's fingers.

A supervising officer arranged for a "blind verification". The supervising officer found another fingerprint expert, D.C. Young. D.C. Young received the telephone print, three unrelated sets of fingerprints and a copy of the fingerprints of Mr Ogden that Sgt Cuff saw.  D.C. Young also concluded that Mr Ogden's finger matched the print on the phone.

As a result, Mr Ogden was charged with the home invasion.

Unfortunately, the first expert, Sgt Cuff, left the forensic identification unit.  His qualifications lapsed. But the prosecutor would need a qualified expert to testify at trial.

D.C. Young got a new set of fingerprints that had been taken from Mr Ogden after the charges were laid. D.C. Young compared the new prints to the print from the phone, and again concluded that there was a match. This, of course, was not a blind identification. This time, D.C. Young knew who was charged, and who he identified during the "blind verification".

The supervising officer "verified" D.C. Young's results. That is to say that the supervising officer himself compared the print from the phone to the new prints, and agreed that there was a match.

At trial, the prosecutor presented the testimony of D.C. Young's second fingerprint comparison, but not the earlier comparisons.

Defence cried foul.

At the time that D.C. Young did the second comparison, D.C. Young expected to find a match because of the earlier work on the file. That pre-existing belief could blind him to differences between the print on the phone and Mr Ogden's fingerprints on file.

The judges didn't buy the defence argument.

D.C. Young showed the court some compelling similarities between the print at issue and Mr Ogden's file fingerprints. A good chart of comparison points can be very persuasive.

I feel no sorrow for Mr Ogden. As I understand the state of fingerprint science, good quality fingerprints provide compelling and reliable evidence of identity. The 14 points of correspondence in this case provided compelling evidence of his guilt.

I feel some sympathy for Mr Ogden's lawyer. The forensic procedure was messy. If D.C. Young already believed that he knew the "right" answer, it may well have been harder to view the second fingerprints objectively. The lawyer made a smart argument which might succeed in other cases.

This problem arises everywhere in police work. If the first three witnesses tell you that they saw Jimmy assault Mary, you will likely have reasonable grounds to arrest Jimmy. Suppose you meet Mary, injured and bleeding.  Suppose she begs you for help to get away from Jimmy. Only people with hearts of stone would feel unmoved by Mary's plea. When a fourth witness - perhaps Jimmy's sister - tells you that Jimmy did not assault Mary, you may not trust the witness. Some officers may even disregard what the witness. Beware. Confirmation bias is already creeping into this investigation. The last witness should be interviewed at least as carefully as the first.

The officer who denies that s/he suffers from confirmation bias is an officer who denies his or her own humanity. We all suffer from it. We can control it only when we know it's there.

The procedure of fingerprint comparison causes problems. Unless one is careful, it's difficult to prove that confirmation bias did not affect an identification. Wise fingerprint examiners try to use "blind" identifications and verifications; they usually avoid following the messy procedures like the one followed in this case.




2023.04.30 Exhibit Retention - The Appeal Period

Your exhibit locker is full to overflowing. When the judge sentences a defendant, can you get rid of the exhibits related to that investigation?

Yeah, but wait a month, and ask the defendant (or counsel) whether there's going to be an appeal.

Three weeks after the judge sentenced Mr Zanolli, 2023 BCCA 163, police destroyed or disposed of all exhibits in their possession related to his case.

It took Mr Zanolli a year to file his appeal from conviction. Neither he nor his lawyer told the prosecutor that there could be another trial.

The missing exhibits might make it harder to prove the case next time around.

Ordinarily, a defendant in BC has 30 days to file an appeal. But the Court of Appeal can permit them to launch their appeal late - even years after the sentencing.

In this case, the court permitted Mr Zanolli's appeal to proceed.

Part of their reasoning worked this way: Police wouldn't destroy exhibits before the appeal period expired unless those exhibits didn't matter. Because police did that, we infer that the missing exhibits don't matter. It won't be a problem to run the trial again.

Did the officer who authorized destruction of exhibits really think it through?  I don't know. I do know that the trial exhibits stayed with the provincial court. Those were obviously important. I don't know how important the other ones are.

If they were important, the officer ducked a bullet.

Mr Zanolli's reasons for wanting a new trial did not impress the appeal court judges. They rejected his appeal. There won't be a new trial after all.

While it is important to clear your exhibit locker after the trial is done, you can protect the prosecution's prospects in a retrial if you:


2023.04.24 "Is THIS the Culprit?" - How to Poison a Photo Lineup

Two different drug dealers visited a customer. A dispute broke out between them. One shot the other in the leg and in the stomach.

The injured dealer told police what happened.

The customer identified the shooter. She bought drugs from him 10-20 times in the preceding 3 years. She picked Mr Graham, 2023 ONCA 273 out of a photo lineup.

Unfortunately, before she saw the lineup, she saw media coverage of the shooting which included an image of Mr Graham. Did she recognize him from prior dealings or from the media release?

Why did the investigators prepare a media release which included Mr Graham's photograph?

Probably because Mr Graham was a very dangerous man, and the investigators wanted to protect the community by apprehending him as soon as possible. I drew that inference from the fact that the trial judge had no difficulty concluding that Mr Graham met the Criminal Code definition of a "dangerous offender". I can't say whether the investigators in this case made the right or wrong call in releasing Mr Graham's photograph. They had to balance short-term public safety against long-term success of the prosecution.

It would have been much better to present the photo lineup to the eyewitness before she saw the media release.

Fortunately, the procedural slip did no damage. Because she knew him, the media photograph did not undermine her recognition.

Your mileage may vary, depending upon factors beyond your control. Lessons from this case include:

  1. Media releases which include mug shots of your suspect can sometimes produce new witnesses; but they can also undermine identification evidence. That can be a hard call.
  2. Prompting an eyewitness with a single photograph of a suspect undermines the evidentiary value of a photo lineup. Don't let your witness see such a photograph unless you are certain that you don't need a photo lineup.
  3. Beware. Witnesses like this one may seem clear and certain when you investigate, but their information often deteriorates. At trial, this eyewitness claimed that she could not recognize Mr Graham in the court room because she left her glasses at home. The prosecutor was lucky. I've had similar eyewitnesses point at the defendant and declare "that is not the man". A couple of my witnesses even admitted, after court, that they lied on that point for fear of reprisal. In those two cases, both defendants were convicted none-the-less, thanks to good evidence of identification.
  4. Photo lineups are best done promptly after the offence.


2023.04.17 Cannabis in a Car

This case isn't "new". It's a year old. I paid greater attention to it today because a police officer recently asked me what I know about the federal Cannabis Act. Truth is, I don't know much, and I ought to know more. So I paid attention to this case, to see where it led me.

Mr Santos, 2022 SKCA 50 used a rental car, a CRV, to drive a kilo of cocaine from Calgary to Winnipeg. Perhaps to make the trip more enjoyable, Mr Santos put a baggie of marijuana in the centre console, along with a can of Red Bull energy drink.

In Saskatchewan, a police officer pulled him over to check his licence and registration.

Mr Santos had trouble locating the documents that the officer requested. He seemed flustered or panicked. He explained that he rented the car for 4 days because his own car was in the shop. The officer saw the Red Bull, smelled the smell of fresh marijuana, and saw fast food wrappers on the floor behind the passenger seat. The officer noticed that a stock cargo cover concealed the back area of the vehicle from view.

At roadside, the officer found a database entry from 9 years earlier in which officers in Lethbridge noted some information which suggested that Mr Santos might have been selling drugs from his home.

Even though possession of 30g of marijuana had become lawful, the officer arrested Mr Santos. What the officer saw, combined with his experience with traffickers and the database entry, made the officer believe that Mr Santos was transporting more than 30g of marijuana, likely for distribution in Winnipeg, contrary to s.9 of the Cannabis Act.

At trial, defence complained that the officer lacked reasonable grounds for this belief. The trial judge sided with the police officer. The Court of Appeal agreed with defence. The court of appeal judges agreed that the officer had reasonable grounds to suspect that Mr Santos was moving drugs illegally. But the database information was so old. The smell of marijuana didn't help distinguish between legal and illegal quantities of drugs. And all of the remaining observations were consistent with lawful activity.

Then, the court observed:

Unlike the Cannabis Act, however, s. 2-10 of The Cannabis Control (Saskatchewan) Act makes it an offence to “possess, consume or distribute cannabis in a vehicle”, unless the cannabis is in the vehicle “for the purpose of transporting [it] from a place at which it was lawfully obtained to a place where it may be lawfully had, kept or consumed or from that place to another place where it may be lawfully had, kept or consumed”. As with the Criminal Code and the Cannabis Act, a police officer who makes a lawful arrest under The Cannabis Control (Saskatchewan) Act for any one of these offences has the common law authority to conduct a search incidental to the arrest.

Under the provincial legislation, if the baggie of weed was open, then the officer had an offence to enforce. If the officer had investigated the baggie, a lawful arrest and search might have followed. And maybe, the officer would have lawfully found the cocaine.

Even though the judges considered this one a fairly close call, they decided to exclude the cocaine. Mr Santos beat the charge.

This case provides two lessons. First, for reasonable grounds to believe, you need some reasonably compelling information. 9-year-old tips don't usually deliver much punch.

Second, your provincial Cannabis legislation may be worth studying for offences and powers of search. Look not only at the relevant Act, but also the associate regulations.

BC
Cannabis Control and Licensing Act
Alberta
Gaming, Liquor and Cannabis Act
Saskatchewan
Cannabis Control (Saskatchewan) Act
Manitoba
Liquor, Gaming and Cannabis Control Act
Ontario
Cannabis Control Act
Quebec
Cannabis Regulation Act
New Brunswick
Cannabis Control Act
Nova Scotia
Cannabis Control Act
Prince Edward Island
Cannabis Control Act
Newfoundland and Labrador
Cannabis Control Act
Yukon
Cannabis Control and Regulation Act
Northwest Territories
Cannabis Products Act (see also amendments to the Motor Vehicles Act)
Nunavut
Cannabis Act

If you read your legislation carefully, you may learn more than I know about the subject.

2023.04.17 Disclosure - A Dark Pit of Despair

In 2014, a little girl, only 19 months old, drowned in a bathtub.

How could this happen? Ms Bouvette, 2023 BCCA 152 should have been watching her, along with 2 other children whom she babysat.

The Albertan forensic pathologist who examined the little girl's body noticed injuries which made him think that somebody injured the little girl before putting her into the bathtub. The girl was fine when her mother dropped her off in the morning. Either Ms Bouvette or the other children hurt her. The pathologist didn't think these injuries could be inflicted by children.

Did this babysitter kill a child entrusted to her?

A different pathologist disagreed with his conclusions, not just in this case but in others. She caused a review of the first pathologist's work generally. The Alberta prosecution service lost faith in the first pathologist entirely. They would not use his opinions in their prosecutions.

At first, the prosecution charged Ms Bouvette with murder. These troubles with the pathologist's opinion and reputation weakend the case. The prosecutor offered defence a deal. Defence took it: Ms Bouvette pleaded guilty to criminal negligence. The judge sentenced her to a year in jail.

Years later, long after she served her sentence, a special prosecutor discovered that the defence had not received full disclosure.

Although defence knew that there was some disagreement about the forensic pathologist's opinions, the police and Crown possessed full documentation which revealed how much disagreement there was. Defence never received it.

And there was more. It turned out that the little girl suffered a brain disease when she was younger. Perhaps left-over effects of that ailment caused her to fall in the tub and drown. Although defence had a little information about this prior medical condition, the police possessed much more.

All these years later, Ms Bouvette learned that her lawyer could have had more information with which to defend the case. She applied to withdraw her guilty plea. She explained that if her lawyer had received full disclosure, she would never have pleaded guilty. The missing information would have given the defence ways to undermine the first pathologist's opinion, and an alternate theory to raise at trial.

The court permitted her to withdraw her guilty plea.

But should the trial proceed?

Even though there remained substantial evidence on which Ms Bouvette could be prosecuted for murder or criminal negligence, the court stayed further proceedings. The Court wanted to make the point that failure to disclose relevant evidence is a serious matter.

Disclosure sucks.

It adds to the load of paperwork that first responders must complete as they hurry from call to call. Busy investigators 'waste' precious hours gathering, organizing and documenting the evidence that they find. Supervisors can't always follow up. M

Most investigators and prosecutors find no excitement or glory in the task of making full disclosure. It involves data entry, and inventories and re-reads of known material. When done well, nobody notices your hard work. When done wrong, guilty people can beat charges, innocent people can get convicted, and confidential sources can be identified.

And it's easy to do wrong.

Late Disclosure

All through my career, rookie officers would come to court to testify, bringing previously undisclosed materials. Photographs. Notes. Documents that mattered. They thought that they were doing a good thing: providing the evidence that would be needed at trial. What they didn't realize is that late disclosure triggers adjournments. The day of trial is too late for material disclosure. The lawyers need to prepare long before the trial begins. When new documents or photographs change the way the trial will go, judges grant adjournments so that the lawyers (usually defence) can prepare a response.

Delays kill prosecutions. You don't want to be the one responsible by revealing something important close to trial.

Whether your case is large or small, always strive to deliver disclosure promptly.

Assessing Relevance

I can understand why the police may have thought that the little girl's childhood illness was irrelevant. The evidence that they collected made them think that the defendant assaulted the child and left her in a bathtub to drown. On that theory, the earlier illness had no bearing on the case.

I can understand why a police officer might fail to disclose the full depth of the disagreements between the pathologists. Although an Albertan pathologist rejected the key opinions of the examining pathologist, several American pathologists agreed with him. If one accepted the theory that Ms Bouvette beat up the child then put her in the tub, then the second pathologist was just a trouble-maker in a personality conflict.

But defence had another theory to pursue. The defence needed the dissenting opinion.

This is the misery of the dark pit of disclosure: when you're reviewing documents that don't fit your theory of the case, it's hard to notice that they're "relevant".

When in doubt, disclose.

Disagreement between Experts

If the theory of guilt depends upon an expert opinion, and other experts disagree, look out! Full disclosure about the experts matters much more.

Conclusions

Investigators and general duty officers: your report to the prosecutor is not complete until it accounts for all of the evidence that you gathered. Learn your documentation systems, and make them work for you.

Supervisors: help the people you work with understand that disclosure covers more than the evidence that supports the investigator's theory of the case. Help them get all the relevant material to the prosecutor.

Managers: disclosure systems matter. Do your people have the tools and training that they need? Do they know the importance of using them?

2023.04.13 Impaired Drivers - Breath Screening Demand - No Delays - Pack an ASD or Use Other Investigative Techniques

When a driver smells of booze, many officers demand that the driver blow into a screening device. What do you do if you don't have one with you?

Before today, the case law suggested that the demand remains valid if you can get a screening device within about 10 minutes.

Not any more.

Don't make a breath screening demand unless you have a screening device immediately to hand.

Here's what happened.

Back in 2017, in response to a complaint that a drunk was driving an ATV, police attended and stopped Mr Breault, 2023 SCC 9. Mr Breault denied driving, but other people in the area assured the investigators that he did indeed drive.

An officer demanded that he blow into a screening device. Mr Breault refused immediately, repeating that he was not driving.

If the officer has reason to suspect that the boozy driver did drive, then the claim "I wasn't driving" does not provide a lawful reason to refuse to blow into a screening device. The officer properly told Mr Breault that refusal was a criminal offence.

But the officer didn't have a screening device with him. He radioed for one to be brought.

Mr Breault continued to refuse, and demanded to speak with a lawyer.

The officer refused to permit him to speak with a lawyer. Mr Breaul made it clear he would not blow. In the face of the clear refusals, the officer gave up trying to test Mr Breault's breath. He cancelled the request for the screening device (which did not arrive for 15 minutes). Mr Breault was charged with refusal.

At trial, Mr Breault argued that the demand was invalid because the officer did not have an ASD with him at the time of the demand.

The Supreme Court of Canada agreed. They overturned decades of lower court decisions which held that the demand would be okay if the device could be delivered within a short delay (up to around 10 minutes).

Back in 2017, s.254(2)(b) used the word "forthwith" to describe how quickly after a demand a driver had to blow.  The new version, s.320.27(1)(b) says "immediately". The court says that their new interpretation applies to both sections -  see para 44.

The court's logic depended partly upon the right to counsel. Ordinarily, if you detain someone for an offence, you can't get elicit evidence from them without first giving them an opportunity to get legal advice. But back in 1988, in the case of R. v. Thomsen, [1988] 1 SCR 640, the court found that the police could refuse to let the driver call a lawyer because the screening process happens so quickly.

That logic breaks down if you have to wait 10-15 minutes for a device to arrive.

35 years later, the court now explains that your demand is valid only if you can screen the driver immediately after making the demand.

The judges allowed for several exceptions:

This list isn't exclusive. The judges figured that other reasons might arise which justify delaying the breath testing; but they weren't prepared to guess what those reasons would be.

This decision has repercussions that officers on the road should consider.

  1. You can't make a screening demand if you don't have a device handy. If you stop a driver, and you suspect that the driver has booze in them, you must use other means to determine whether to make a breath analysis demand. If you know the standardized field sobriety tests (SFST), then make that demand, and apply that skill. If you do not, all you can do is observe and ask questions. Study the driver and record carefully what you see.
  2. An interesting question arises whether you can radio for a device, and delay making the screening device demand until it arrives. Before Breault, such a tactic was improper, because s.254 required the officer to make the demand "forthwith" upon forming grounds. Because this new ruling prohibits making a demand without an ASD handy, lower courts may revisit that rule. Stay tuned.
  3. British Columbia's administrative driving prohibition scheme depends upon screening device demands. This ruling makes that scheme harder to operate.
  4. The new screening demand section applies the same language to the SFST demand as the breath screening demand. I think this decision applies equally to SFST. If you make an SFST demand, you'd better be trained, or have a trained officer on hand, ready to proceed with the test immediately. You can't make a demand, then radio for someone to meet you to do the test.

This decision has repercussions that police managers need to consider.

  1. Do you have enough screening devices?
  2. Do you have enough officers trained on SFST?


2023.04.10 Qualities of a Police Officer - Thick of Skin and Tender of Heart

 - Duty to Care for Prisoners

I encountered this decision today. I missed it last summer when it first came out. Better late than never.

It illustrates the importance of caring for the health of your prisoners.

Cst  Doering, 2022 ONCA 559 dealt with lots of drug addicts. Most of them just needed to sober up.

One of his colleagues picked up Ms Chrisjohn because members of the public complained that she'd been running in and out of traffic. The colleague called an ambulance, which took her to a hospital. Another police force had a warrant for her arrest, but they wouldn't come pick her up. The first officer left her at the hospital. She left, against doctors' orders.

The next day, Ms Chrisjohn made another scene at Petro-Canada. Someone grabbed her, and held her. Someone else called 911.  Cst Doering attended. Knowing of the warrant, he arrested her.

She was agitated, aggressive, and sometimes delusional. Cst Doering figured that she was "very high" on meth. In his experience, such people didn't need medical attention. An EHS looked into the window of the police car, and then told Cst Doering that if he took Ms Chrisjohn to the hospital, they would do nothing more than monitor her.

Cst Doering contacted the other police force. They said they'd take her, if he drove her to a specific Tim Horton's - about an hour away.

On the way, Ms Chrisjohn went from responsive to unresponsive; from sitting up to lying down; from combative to limp, moaning and shaking. At the exchange, she did kick out at the officers once, but otherwise did not acknowledge them. She couldn't walk properly.

The other officers took her. Cst Doering told them that EHS had "looked at" her, and she didn't need to go to the hospital.

Two hours later, she died. The methamphetamine stopped her heart.

Cst Doering was charged, and convicted, of failing to provide the necessaries of life.  Instead of giving her to the other officers, he should have arranged medical treatment.

Poor Cst Doering. He had reasons to feel unsympathetic to Ms Chrisjohn, and annoyed by the whole situation:

Cst Doering wasn't a trained medical professional. How could he know that she was going to die?

The judges' answer shows you how careful you must be with the health of your prisoners:

"The question was whether the changes evident in her condition would have caused a reasonably prudent police officer to seek out the advice and assistance of those with the necessary medical training to properly assess the significance of the observed changes and provide any further needed medical response."

The changes in Ms Chrisjohn's condition triggered that obligation to seek out advice and assistance.

The fact that other officers would take her from him did not relieve him of the duty to care for his prisoner.

In my career as a prosecutor, these people tested my patience. Your job as a police officer is even harder.

Emotionally, how do you remain "reasonable" and compassionate when your prisoner treats you (and everyone else) with disrespect, abuse or violence? Here are two suggestions that might help:

2023.04.10 s.10(b) - "without delay" - how long is too long?

Section 10 of the Charter reads:

Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
(c) ...

How long is "without delay"?

Mr Davis, 2023 ONCA 227 drove with too much booze in his bloodstream. A cop noticed his bad driving, and busted him. But Mr Davis beat the charge.

Why?

Because the officer took too long to tell him about his right to get legal advice.

How long was too long?

8 minutes.

The placement of the phrase "without delay" immediately after "retain and instruct counsel" suggests that issues arise only when you delay someone from speaking with a lawyer.

Judges in Canada disagree. They say that you need to tell the prisoner very promptly after the arrest (or detention) about the right to get legal advice.

This officer didn't tell Mr Davis about it for 8 minutes. That would have been okay if the officer had been busy dealing with other urgent matters. You don't need to start reading scripts about the rights to silence and to legal advice before ensuring your own safety, and the safety of others around you.

At trial, this police officer couldn't explain what he was doing over those 8 minutes. Indeed, some evidence contradicted his memory of what occupied him over those 8 minutes.

The trial judge hated the delay so much that he excluded the evidence. All the appeal judges agreed.

One might reasonably ask "8 minutes of delay? So what? The delay caused Mr Davis no harm. The officer did get around to telling him about his right to counsel. Mr Davis got legal advice before the instrument analyzed his breath."

The appeal judges relied on technical procedural issues to skirt this apparently reasonable argument.

For police officers, this case illustrates the high importance judges place on prompt explanations of the right to counsel to detained and arrested people.

Good habits may protect you from this trap. For example:


2023.04.03 Continuity of the Injured Suspect - Protecting Life or Invading Privacy?

Two stories start the same, but end differently. The recent one creates some challenges for police who monitor injured suspects.

In 2001, an off-duty police officer named Chris LaChappelle, 2007 ONCA 655 drove drunk. He crashed into another car, killing the driver. LaChappelle also suffered injuries. When paramedics loaded him into an ambulance, a police officer climbed in too - with the consent of the paramedics. That officer watched and listened as the paramedics asked LaChappelle about his condition. LaChappelle gave one-word answers which did not probe the offence.

In 2019, a 17-year-old youth, S.S., 2023 ONCA 130, crashed a car after drinking, killing his passenger. Like LaChapelle, S.S. suffered injuries. Paramedics loaded S.S. into an ambulance. A police officer climbed in to maintain continuity over the suspect - again, with the consent of the paramedics. Young Mr S.S. did not know she was there. She listened while paramedics asked S.S. how fast he drove and how much he had to drink. Unlike LaChapelle, S.S. gave incriminatory answers.

Both defendants complained that the police violated their expectation of privacy: they needed medical attention; they needed to speak frankly with the medical experts; they needed (and expected) privacy during that communication.

The judges in LaChapelle's case felt no sympathy for him because the police obtained no confidential information. No harm, no foul.

The judges in S.S.'s case found that the police officer in the ambulance violated his expectation of privacy by listening in on his communications with the paramedics.

On its face, this creates a conundrum for police investigators.

Whether or not you have arrested or detained an injured suspect, you will probably need to maintain continuity. You need to learn what injuries the suspect suffered. If the crime involves intoxication or mental illness, you need to know whether the paramedics administer mind-altering medications. If the crime involves firearms, you'll want to know if the suspect cleaned his hands of any potential gunshot residue. And you'd sure like to know what the suspect says about the crime under investigation.

On the other hand, you don't want to endanger the investigation by gathering evidence in violation of the suspect's rights under s.8 of the Charter.

The difference between the two cases offers a partial solution.

Nobody told Mr S.S. that the officer was in the ambulance. He couldn't know that what he said might be used as evidence against him. That made the officer's "interception" of private communications a problem.

So perhaps an officer who climbs into an ambulance with a suspect needs to tell the suspect of their presence ... and give the police warning.

I see this as an incomplete solution because it may infringe the suspect's rights under s.7 of the Charter to life and security of the person.

First, if the paramedics need to give immediate life-saving care, the investigator should not interrupt. Second, if you warn an injured suspect against speaking about the incident, you may discourage the suspect from telling the paramedics frankly about his medical condition. If he can't tell them about the drugs in his system, they may administer medication which hurts or kills him.

The only solution that occurs to me is telling the suspect: "If you need privacy to talk about medical stuff, let me know, and I'll cover my ears." Not every investigator will have the opportunity to say this to the suspect in the ambulance; but if you can, then you create a clear path between the suspect's rights under s.7 and s.8 of the Charter.

2023.03.29 The Password Conundrum - Search Warrants for Computers and Electronic Devices

Password protection can render computers and cell phones impossible to search. What should a peace officer do to get passwords, when executing a warrant which authorizes police to search an electronic device?

With the present state of the law, I'm not sure I can tell you what you can do; but the case of Mr O'Brien, 2023 ONCA 197 provides some examples of what not to do. How do you avoid the mistakes described there?

The officers had good grounds to believe that someone at Mr O'Brien's address downloaded child pornography. The investigators got a warrant and went to execute it at the reasonable hour of 9:00am.

Accountability - Note-taking

The officers who executed the warrant made insufficient notes about what happened. When they came to court, they couldn't account for all of their behaviour during the search. They didn't think they had detained the occupants.

But Mr O'Brien and his wife had lots to say. But at 9:00am, Mr O'Brien and his wife were still in bed, sleeping. They complained of being woken and separated from each other. The officers treated them so gruffly that they felt detained. They said that the officers demanded passwords for all of the electronic devices. Mr O'Brien and his wife didn't know that they could refuse. They didn't know that they could get legal advice. So they gave the passwords.

The officers denied treating Mr O'Brien harshly or separating them. The officers remembered telling them that they were free to leave. But the judge didn't entirely trust their evidence. Too many gaps in the notes.

Compelled Passwords

The officers who dealt with the occupants didn't remember asking for any passwords. But the officers who searched the electronic devices on scene had passwords to work with.

Unsurprisingly, the judge concluded that the officers intimidated Mr O'Brien and his wife, causing them to feel detained. The judge concluded that the officers asked for passwords without telling Mr O'Brien and his wife that they didn't have to give them.

Some officers testified that they routinely asked for passwords when executing warrants to search electronic devices.

The judges hated that. Compelling someone to provide such a password, they found, violated s.8 of the Charter and the right to silence. Compelling it after a detention, without giving the suspect access to counsel made the police action even worse. (Another judge came to the same conclusion in R. v. Musara, 2022 ONSC 3190)

As I read the decision, I kept wondering when someone would mention s.487(2.2) of the Criminal Code. But nobody did. You'll see why when you read it with me.

Compelled Access

The Criminal Code does not provide authority to compel someone at the scene of the search to give up their password. But it does compel people at the scene to permit access to the device:

487(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search
(a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;

(b) to obtain a hard copy of the data and to seize it; and

(c) to use or cause to be used any copying equipment at the place to make copies of the data.

Access at the scene isn't as convenient as possession of the password for later use. But at least this subsection exists.

Pursuant to that subsection, perhaps the officers could have required Mr O'Brien and his wife to unlock their computers and phones. Imaging of the devices would have to occur on scene. Your search team would require some computer forensic expertise.

If you use this provision, I anticipate that some suspects will get legal advice, and then refuse even to unlock the electronic devices. Many defence counsel will say that the provision violates the suspect's right to silence, because it compels them to assist the state in gathering evidence against them.

Back in 2018, I pointed out that arguments of this sort enjoyed some success when police sought assistance orders which compelled suspects to divulge passwords. Boudreau-Fontaine, 2010 QCCA 1108; Talbot, 2017 ONCJ 814. I expected to see more case law on this topic. There has been a little. R. v. Shergill, 2019 ONCJ 54 repeated the view held in Talbot. In Peel Regional Police Service v. Grant, 2022 ONSC 287, the court upheld an assistance order which compelled a witness to divulge her password.

I see problems with these analyses. The Peel v. Grant case distinguished the Shergill and Talbot decisions on the basis that Ms Grant was just a witness, and therefore innocent. I dunno. At the investigative stage, isn't everyone presumed innocent?

But I have a deeper philosophical problem with these decisions.  In the physical world, people who put locks on their warehouses can reasonably expect privacy. But where lawful reasons justify it, a judge can make an order which allows the police to enter any place within the judge's jurisdiction, regardless how many padlocks secure it.

In the virtual world, people who put passwords on their phones can also expect privacy. No police entry without prior judicial pre-authorization. But these rulings create something stronger than privacy. All of the data in the device enjoys something akin to privilege. (see my comments from March 21, 2023)

As a matter of sovereignty - national jurisdiction - it seems odd to me that the simple act of placing password protection on a phone creates a private zone that no judicial order can penetrate.

I think that privacy in digital devices is important. I don't think that they merit the protections of privilege.

If privilege applies, then Canada abdicates sovereignty over password-protected digital spaces. The digital world is a wild place, rife with crime. I think abdicating jurisdiction over that space is a problem.

Therefore, I expect some officer, someday, will test s.487(2.2) as a way to compel a suspect to open a digital device. I expect the trial judge will declare that compulsion to be unconstitutional. I hope that a thoughtful prosecutor somewhere in the country pushes the issue higher, because I remain very uncomfortable with this extraordinarily high level of protection judges are granting to password-protected digital devices.

If you are that officer or that prosecutor, I would be happy to discuss this with you.

2023.03.29 Random Vehicle Stop - Ontario and Elsewhere

Mr McColman , 2023 SCC 8, stopped at a gas station. Police officers noticed his vehicle, and followed it for 200m, intent on stopping it for a sobriety check, pursuant to s.48 of the Highways Traffic Act. Before they turned on any lights or sirens, Mr McColman turned into his private driveway. The officers pulled in behind him.They approached him, and noticed a remarkable absence of sobriety. Although he drove just fine, Mr McColman had trouble walking. He stunk of booze.

At his trial for drunk driving, he complained that the police had no authority to stop him. The Ontario Highway Traffic Act authorizes police to stop drivers who are driving on a "highway" for random sobriety checks. These officers could have stopped him when he was driving on the road, but they didn't. At the time they stopped him he was no longer driving on a highway, but on a private driveway. The Crown pointed out that the officer decided to stop Mr McColman before he reached private property, and argued that once the decision was made, the stop could occur on private property. The trial judge agreed with the Crown, but the Court of Appeal agreed with Mr McColman. So did the Supreme Court of Canada.

I wrote about the case two years ago, when the Court of Appeal gave its decision. I emphasized the importance of reading the legislation that operates in your province, because your power to stop vehicles may differ from the ones in Ontario.

Please forgive me for gloating. The Supreme Court of Canada reached the same conclusion. They examined the precise wording of Section 48(1) of Ontario's Highway Traffic Act and concluded that it only permitted police to perform random vehicle stops on drivers who were driving on public highways at the time that the officer turned on the emergency lights. They made it clear that they might come to other conclusions in other provinces.

This decision is limited to random stops. Ontario officers who have a reason to believe that the driver is committing a criminal offence may stop the driver even on private property. R. v. Lotozky 2006 CanLII 21041 (ON CA)

You should look at the precise wording of your statute to appreciate what your powers of random stop are.

To help you, I did a quick search for case law. I don't guarantee that the table below identifies the best cases for explaining your powers in your province. If you know of a better case which discusses police powers to stop drivers, please let me know. I can add it to the table.

Province
Act and section
Explained in
British Columbia
Motor Vehicle Act s.73
R. v. Simon, 2011 BCPC 345
R. v. Kroot, 2021 BCPC 139
Alberta
Traffic Safety Act s.166
R v Dhuna, 2009 ABCA 103
Saskatchewan
Traffic Safety Act s.209.1
R v Lux, 2012 SKCA 129
R. v. Nolet, 2010 SCC 24
Manitoba
Highway Traffic Act, s.86.1
R. v. Desjarlais and Malcolm, 2018 MBQB 135
Quebec
Code de la sécurité routière, s.636

New Brunswick
Motor Vehicle Act, s.15
O’Kane v. R., 2008 NBCA 58
Nova Scotia
Motor Vehicle Act

Prince Edward Island


Newfoundland & Labrador
Highway Traffic Act, 201.1
R. v. Kean, 2017 CanLII 26893 (NL SC)


2023.03.22 Similar Fact - Crime Statistics

The downtown area of Hamilton suffered a strange rash of random attacks of strangers between March and December 2011. Each victim was walking alone at night when they were stabbed by a black male wearing dark clothing, who then fled. The stabbings were deep, serious, and life-threatening.

Whodunnit?

Some pretty strong evidence suggested Mr Café 2023 ONCA 10 did one of them. But what about the others?

Some soft evidence suggested that Mr Café might have been the guy who did the others. But that wasn't enough.

A police analyst found that random stabbings of this sort were very rare in that area: there weren't any that didn't match this pattern. The judge admitted this evidence, which tended to show that nobody else was running around Hamilton at the time stabbing people. That tended to identify Mr Cafe as the perpetrator.

The jury found him guilty. The Court of appeal rejected his appeal.

Statistical evidence isn't usually accepted in Canadian criminal courts. This illustrates the kind of case in which it might help: statistics can show that a pattern of offences is unusual and distinctive.


2023.03.21 Privilege - How to Figure Out When it Applies

You know - or at least you ought to - that the communications between your suspect and his/her lawyer when the suspect seeks legal advice are "privileged". Equally "privileged" is the identity of your confidential informant.

"Confidential" means that the information should not be shared.

"Privileged" means something more.

For example, medical records are confidential. You can't get a suspect's medical records just by asking medical professionals for them. But a judge or justice will issue a warrant or production order for them if you supply adequate grounds in a properly-prepared written application. If you lawfully obtain confidential information, it becomes admissible in a trial. And the prosecutor can send a subpoena to the medical professional, and compel them to testify at trial.

But the judge or justice will baulk if you ask for a lawyer's records of what the client said when seeking legal advice. Even if the prosecutor got a subpoena for the lawyer, the lawyer won't  testify about those "privileged" communications, and the judge won't compel the lawyer to discuss it (unless someone's life is in peril).

If you obtain privileged information, you can't use it in court.

People who obtain privileged information can't be compelled to produce it to others, nor can a subpoena compel those people to reveal that information in a court room. A defence lawyer cannot be compelled to reveal what the defendant told him or her about the offence unless someone's life is at stake. Equally, a police officer cannot be compelled to reveal the identity of an informer (again subject to very rare exceptions).

But how do you tell which confidential information enjoys privilege?

Mr Chatillon, 2023 SCC 7 confessed to a counselor that he sexually-abused a 4-year old child. He confessed entirely voluntarily. He did so in the process of seeking help to beat his substance addictions. He explained that he also wanted help for his sexual deviance. The counsellor referred him to experts. He told them everything. The psychiatrist told him that he would only get better if he was completely honest. The psychiatrist referred him to group counseling. The group therapist told him that there were limits to confidentiality, and that she must report the offences to the police. She obtained his consent to disclose the counsellor's notes to the police. Those notes sunk him.

Once facing criminal charges, Mr Chatillon complained of the unfairness of the prosecution. He was diligently trying to cure himself of addiction and sexual disorder. Society should encourage him, not punish him, for trying to make himself safe. He complained that he turned to professionals who, he expected, would keep his problems confidential.

Of course, once police lawfully obtained confidential information, the prosecutor could use it in court.

Mr Chatillon's lawyers argued that it was privileged, and could not be used in court.

The test in Canada comes from a revered American legal scholar named Wigmore. Wigmore's formula for how communications become privileged goes like this:

  1. The communications must originate in a confidence that they will not be disclosed.
  2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
  3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
  4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

The Supreme Court of Canada agreed with that formula. See, for example, R. v. McClure, 2001 SCC 14 at para 29.

The trial judge didn't think that items 1, 2, or 4 were satisfied. Two of three judges in the Quebec Court of Appeal disagreed. [Decision in French] They were particularly concerned about the unfairness of busting a guy who earnestly wanted to control his offending. They said that triggered #4: it is more important for society that sex offenders seek help than it is to convict them.

But the third judge of the Quebec Court of Appeal pointed out that regardless whether the four conditions for privilege were made out, Mr Chatillon consented to the disclosure of the confession to the police. That terminated the privilege.

Most of the judges of the Supreme Court of Canada agreed.

They did not say that all - or none - of the communications between the sex offender and the therapists were privileged. They left that thorny question for another day.

I focused this discussion on how communications become privileged. Beware of this concept of waiver of privilege. That concept can get tricky. Don't assume that privilege ended just because your confidential source says "I don't care any more about confidentiality".

If your investigation leads you to evidence in a therapist's confidential notes, beware of privilege. You'll want to be very careful to document how the evidence came to you. Consent matters, whether from the suspect or from the victim.

2023.03.03 DNA Ain't Proof (By Itself)

Three or four masked intruders invaded Mr Iten's home, and robbed him violently. They took his truck.

11 hours later, police found that truck, abandoned and locked.

Under the driver's seat, they found a cigarette butt bearing a single DNA profile which matched Mr Metzger, 2023 SCC 5.

Was Mr Metzger one of the intruders?

The trial judge thought so. So did the majority of the Court of Appeal.

A majority of the Supreme Court of Canada felt that there was too much opportunity for an uninvolved person to have dropped the butt in the car.

They pointed out that the victim often left the car unlocked, implying that Mr Metzger might have got into the car some time before the offence.

They pointed out that 11 hours passed between crime and recovery of the vehicle, implying that perhaps the felons picked up an innocent passenger after the crime.

There was another shred of evidence. The victim believed that heard the name "Metzger" mentioned during the crime. Considering his head injuries, and the risk that he heard the name later, and formed a false memory, the majority did not think that it could rely on that evidence.

As a prosecutor, whenever I had a case that relied solely on DNA or a fingerprint to prove who did the crime, I always felt uncomfortable. I wanted something more, such as evidence that:

Whenever you get this kind of case, you should always attempt to get a statement. If there's an innocent explanation for the DNA or fingerprint, you want to know what it is at the earliest opportunity. If it's true, then maybe someone else committed the crime. That's something you really want to know.

2023.02.19 Warrant Drafting - Reciting the Circumstances of Previous Investigations that Led to Acquittals

Don't mention unconstitutionally-obtained evidence in an ITO unless you need to; and don't rely on unconstitutionally-obtained evidence to justify the issuance of a warrrant.

Back in 2017, police found lots of drugs in the possession of Mr Shah, 2023 ONCA 103. He beat the charges by complaining that the police obtained evidence in violation of Mr Shah's Charter rights. The judge agreed.

In 2019, police received new information that Mr Shah was dealing drugs. They sought a warrant to search his place.

In the ITO, the affiant mentioned the 2017 drug investigation, and the fact that Mr Shah was acquitted at trial by reason of a Charter breach. The affiant did not mention that the evidence was obtained unconstitutionally.

Defence cried foul: the issuing justice should not have been told about the drugs in Mr Shah's possession back in 2017.

Defence counsel was right. Inclusion of that information led to lots of litigation, but Mr Shah was convicted anyway of the new matters.

It may be that the affiant never knew the exact reason for Mr Shah's acquittal for the 2017.

If your application doesn't need to mention an investigation that led to an acquittal, then omit it. Judges treat acquittals as evidence of innocence.

If your application must mention the details of an investigation that led to an acquittal, then if those details reflect badly on the defendant, you must mention the acquittal.

If you don't know whether a prior investigation led to a conviction or an acquittal, then find out.

If the prior investigation led to an acquittal because a judge determined that police obtained evidence in breach of your suspect's rights, then avoid mentioning that evidence if at all possible.

If the obligation of full disclosure compels you to mention:
- circumstanes discovered in an investigation that led to an acquittal, or
- evidence obstained unconstitutionally,
you can mention the details, but in the same paragraph, ask the justice of judge not to rely on the information in that paragraph.

Don't use this technique just to hint to the justice that the defendant is a bad person. Tempting though it may be, that could trigger the result defence hoped for in this case.

2023.02.19 Search of Electronic Devices - What to Do when you Find Unexpected Evidence

Does discovery of unexpected evidence during the execution of a search warrant oblige you to stop searching, and obtain a new warrant?

No.

But continued searching creates a trap which you must take care to avoid. Getting a new warrant is a good idea.

Cpl. McGregor, 2023 SCC 4 creeped out a work colleague. The colleague discovered recording devices in her home. She suspected Cpl McGregor. Her complaints led to an investigation. The investigation discovered good reason to think that Cpl McGregor installed the devices in the woman's home, and that searching Cpl McGregor's home would discover evidence of voyeurism and interception of private communications.

Cpl McGregor worked for the Canadian Armed Forces at Washington DC. He lived in the USA. No Canadian court could issue a warrant to search his place. The investigators asked local police to apply for a warrant there.  Cpl McGregor enjoyed diplomatic immunity. No American court could issue a warrant to search his house without consent of the Canadian government. Canadian military police obtained a "diplomatic note" which granted that permission.

Washington police got a search warrant to search for electronic devices and to analyze them in the residence. A team of local police and Canadian military investigators searched Mr McGregor's house. They found electronic devices. They started triaging them. They found evidence of child pornography and a video of Cpt McGregor committing a sexual assault. They did as much triaging as they could, seized relevant devices, and left the residence within the time frame permitted by the warrant.

The Canadian investigators wound up with the devices. (The decision does not explain how they did this lawfully. I wonder how they did that.) They obtained Canadian warrants to analyze the devices for evidence of all four offences that they now knew about: voyeurism, interception of private communications, sexual assault and child pornography.  They found evidence which led to his conviction on all of those offences.

Cpl McGregor complained that during the first search, when the police hit evidence of offences that did not appear on the face of the warrant, they had an obligation to stop searching, and to get a new warrant.

"Rubbish!" said the court.

Um.

Okay, they didn't actually use that word.

Here's what  they really said:

"the discovery of unforeseen evidence does not invalidate the authorization to conduct a search for the purposes outlined in the original warrant." (para 36)

"Discovering evidence of an unrelated offence neither authorizes police to begin searching for evidence pertaining to that unrelated offence nor requires them to entirely cease their search as to what the warrant authorized them to search for." (para 89)

As long as you keep looking for what the warrant authorizes you to seek, you can continue the search.

But that creates the trap.

Suppose you started by looking for evidence of voyeurism, and you discovered evidence of child pornography. If you continue searching for evidence of voyeurism, you might find more child pornography. If so, it looks like you started searching for child pornography. If the warrant didn't mention child pornography, then it looks like your search went beyond the lawful parameters of the warrant.

For that reason, stopping the search and obtaining a broader warrant is a good idea. It shows the court you tried hard to get lawful authority to search. It ensures that your investigation is complete, because you got authority to search for all of the contraband that the device might contain.

But sometimes, you don't have time to stop your search and get a new warrant.  In this example, the warrant that the American judge granted only permitted the officers to occupy Mr McGregor's residence for a short time. It only permitted the investigators to analyze the devices in place to determine what to seize. These investigators couldn't stop and get a new warrant.

When you have lawful authority to search for evidence of offence A, and you encounter evidence of offence B, definitely seize and document the evidence you found about offence B.

It doesn't matter whether you're searching a house or a cell phone.  If you decide to keep searching, you would be wise to document how you continued to search only for evidence of offence A. But in my opinion, you need scrupulous clarity when continuing a search of an electronic device.

2023.02.17 Leaving Home - Conduct of Canadian Cops on Foreign Soil

The case of Cpl. McGregor, 2023 SCC 4, described above, spends lots of time discussing what rules apply to Canadian investigators who work abroad.

The majority of the court ducked the question.

The minority wanted to revisit a previous decision called Hape. For those of you who investigate abroad, the judicial comments hint that the Charter does not confer Charter rights on people outside Canada, but it might continue to limit a Canadian investigator's behaviour even when they leave the country.

I think that means that the Canadian that you investigate in a foreign country does not enjoy a Charter right in that foreign country to get legal advice after some foreign agency arrests him. But it may permit a Canadian court to exclude evidence obtained from your target if you treated the suspect unfairly, or if you took unfair advantage of local laws or treatment of the suspect to get incriminating evidence.

Regardless of local custom, you must remain squeaky clean for Canadian courts.

This topic didn't come up much in my career. Those of you who do travel might want to tackle the minority decision. It's pretty abstract, and it doesn't reach a clear decision. It does hint at the direction that the court will go.

2023.02.15 Identity - So Basic But So Essential

Three guys beat up Mr Houle over a drug debt. They confined him in his house, and demanded that he sign the house over to them. A neighbour noticed trouble, and called police.

When police arrived, they found Mr Houle and three guys in the house. Mr Houle was in bad shape. One of the blows broke the right orbital bone in his face.  That's the bone that supports the eyeball.  Mr Houle couldn't see very well.

Mr Houle named two of the attackers - they were Neil and Stephan Cantrill. But he didn't know the third guy that attacked him.

The police found Neil and Stephan Cantrill in the house, along with Mr Lowry, 2023 BCCA 60.

Was Mr Lowry the third attacker, or had that guy left, and someone else entered?

Mr Houle's description of the third man didn't entirely line up with how Mr Houle appeared.

The investigators did some good work. They photographed the three men that they arrested at the scene. They noticed blood on Mr Lowry's jeans. The DNA lab matched it to the victim.

Defence complained that the officers should have done a photo lineup, to confirm that the police arrested the right guy.

Defence suggested that the Mr Lowry in the court room might not be the man that the police arrested at the scene.

These arguments didn't work on this case, but they might in other cases.

When you arrest someone for committing a crime against a stranger, identity is always in issue. Sometimes, that notion seems odd. In this case, the officers arrested Mr Lowry in the victim's house, during the offence. Even still, defence raised arguments that the police got the wrong person.

One way to keep this straight in your head is to distinguish between "culprit" and "suspect".

The "suspect" is the person you arrested because you believe that he/she committed the crime. But the "culprit" is the person who actually committed the crime. Because the difference between belief and proof is evidence, keeping this distinction clear in your head reminds you to gather evidence which proves accuracy of your belief.

Basic steps, such as photographing the appearance of the person (not just his/her face) helps identify the culprit. Only when you keep that distinction in your mind do you realize that you sometimes need to go deeper. Like presenting photo lineups or ordering DNA tests.


2023.02.03 Warrant Drafting - Innocent Possibilities Don't Supplant Guilty Probabilities - Insecure WiFi

Here's a deck of cards. You can shuffle it as much as you like. Let's make a bet. If I draw the 2 of clubs, you pay me $100. If I don't, I'll pay you $100.

Would you take that bet? I expect most of you would. (Except for the kind ones, who don't want to take unfair advantage of a simple guy like me.)

There is a possibility you will lose. But there is a higher probability that you will win.

When asking a justice to issue a search warrant, it does not matter that there is a possibility that the crime never happened, or that the search will come up dry, so long as the evidence establishes that probably the crime happened, and probably evidence will be where you propose to search.

A judge convicted Mr Illa , 2023 ONCA 75 of accessing and possessing child pornography. He complained to the Court of Appeal that the warrant that the police obtained should never have been granted. He tried to confuse the court into thinking that a possibility defeats a probability. He tricked the trial judge, but the appeal court figured it out.

The decision also illustrates the importance of articulating why you think that the evidence is there.

In 2015, investigators learned that an IP address linked to Mr Illa's mother downloaded child pornography through an email account linked to Mr Illa. For reasons not mentioned in the decision, no investigation led to searches or arrests.

In 2018, investigators learned of further downloads of child pornography to an address linked to Mr Illa's mother's business. Officers watched him and his mother going to their shared home and to her business.

They applied for and obtained warrants to search both locations for child pornography. They found child pornography.

At trial, the defence lawyer asked the investigator whether the IP addresses served data to a secure or an insecure WiFi router. The investigator didn't know. The investigator agreed that if an insecure router were connected to the IP address, then anyone in the vicinity with a smart phone could download the child pornography. The fact that pornography arrived at that IP address therefore did not mean that pornography would necessarily be found in the building.

The trial judge agreed. But because the ITO described the 2015 investigation, the trial judge found that the ITO explained why, probably, the Illas were responsible for the 2018 downloads.

The Court of Appeal disagreed with the defence suggestion.  Just because there might be an insecure WiFi router at the IP address does not mean that there was an insecure WiFi router there. Even without the 2015 information, the evidence available to the officers established a probability that the Illas were responsible for the downloads.

Curiously, the officer who drafted the ITO omitted any link between the 2015 information and his belief that the Illas downloaded the child pornography. The judges relied on it anyway. It would be wiser to include such information when justifying your beliefs. For example:

"The downloads of child pornography to an IP address at the Illa business at the times described above makes me believe that computers in that location or the Illa's residence will contain digital copies - transient or permanent - of the child pornography, and information tending to identify who was responsible for downloading it.

The 2015 information linking the Illas to similar downloads strengthens my belief that the Illas or someone close to them has an interest in such material, and therefore that digital devices in their business or home will contain the data mentioned above."

This distinction between possibility and probability can arise in every context, not just routers with insecure WiFi.

I see no harm - and much good - in mentioning the possibilities which undermine your ITO:

"Confidential Source A confessed to lying to his/her handler on one of the 5 previous occasions that s/he gave information. While it's possible that Confidential Source A lied this time about the drugs in the residence, I believe it is more probable that s/he didn't because the hander changed the agreement between them. After the lie, the handler stopped paying for tips unless subsequent police investigation confirmed them. And thereafter, police confirmed each of the three tips that Confidential Source A gave." (emphasis added)

2023.02.03 Business Records are Valuable Hearsay

When a witness looks up their bank records or phone records to answer your questions, they introduce a complication to the evidence. When those records contain the key evidence, you want those records, not just the statement of a person who looked at them.

Mr Li, 2023 BCCA 47 worked at a massage parlour.  Three female clients independently complained that a 50-year-old Asian male fondled intimate parts of their bodies without first obtaining their consent. Some of them said he went by "Tom".  Mr Li's given name was not "Tom".

A police officer went to the massage parlour and asked the staff to produce records of the visits of the complainant, and Mr Li's work schedule. She produced them on a computer screen. The officer photographed the screens that showed his work schedule, two of the complainants' bookings.

The third complainant figured out what date she attended the massage parlour by looking at her financial records for the payment transaction.

At trial, the photographs of the business records established that Mr Li worked at the massage parlour on the days that two of the complainants attended.

But the evidence that the third complainant worked on a day that Mr Li worked was too thin. It relied on hearsay. Because the prosecution did not tender the banking record, the court did not receive reliable evidence of the date on which the third complainant attended for her massage. That gap caused problems in proof of the third woman's complaint.

I thought that the investigator was wise to photograph the computer screen as a way of preserving the evidence. Some employers might destroy evidence to protect their employee and their reputation.

However, I worried that photographing the computer screen might affect the privacy of other people who attended the massage parlour.  I thought that a production order might have been a more prudent way to get the evidence of when Mr Li worked at the massage parlour, and what dates the complainants booked their appointments.

Most of all, it struck me that this illustrates the importance of drilling down to the key evidence. If a date or transaction really matters, and a witness needs to refer to a document in order to give you that date or transaction, then get the document. That's the evidence.

2023.02.02 Keepin' safe and Carryin' Cell phones - Safety Searches and Prompt Access to Counsel

When I started reading about Mr Dhillon, 2023 BCCA 38, I got the wrong idea. Mr Dhillon took off when cops showed up, I thought this case would travel the same legal path as Wilkinson (see 2023.01.08). Arbitrary detention. Inferences cops can or can't draw when people act skittish.

Wrong.

Like Mr Wilkinson, Mr Dhillon lurked in the worst part of town. When two cops drove by, he took off in the opposite direction.

Unlike Mr Wilkinson, Mr Dhillon drove a car. He drove it too fast. The speed limit in the laneways of downtown Vancouver is 20km/h. That gave the officers a reason to stop him.

But speed wasn't what interested the officers.

Mr Dhillon stopped his car in a car lot where the officers had encountered many stolen vehicles. Mr Dhillon, in his early 20's, could not be the registered owner, who was 68. And when Mr Dhillon looked at the officer in the passenger seat of the patrol vehicle, he looked alarmed and surprised.

The computer also reported to the officers that the vehicle had been taken without consent on a prior occasion, and turned up in a recent call involving an assault with a weapon.

Mr Dhillon did stop the car when signalled to do so. But his hands shook when he produced the insurance documents. He could barely hold his cigarette. His eyes darted back and forth. One of the officers thought this meant he would soon run or attack.

The officers got him out of the car. He continued to show nervousness.

The officers searched him. He "bladed" his body to block their view of or access to the man-purse that hung from his side.

They put him in handcuffs, and checked his bag. That's where they found the handgun.

This case turned into a discussion about safety searches.

At trial, defence complained that the officers lacked grounds to search Mr Dhillon's man-purse. Defence pointed to a confusing Supreme Court of Canada decision which said that police can do a safety search only when they have "reasonable grounds to believe" that their safety is at risk.

But we travelled this legal path before in the case of McKenzie, 2022 MBCA 3 (see my comment from last summer 2022.08.27)

The BC Court of Appeal reached the same conclusions as the Manitoba Court of Appeal: The confusing Supreme Court of Canada decision didn't really set an untenable standard. Police can do safety searches for weapons when the specific circumstances suggest that the detainee may possess a weapon and may use it against the officer or some other person.

I won't repeat the analysis I gave of that decision. However, the Dhillon provides you with another opportunity to challenge yourself and your fellow officers to articulate why these particular circumstances justified a reasonable concern that Mr Dhillon possessed a weapon. Don't just recite the facts and then conclude "I think it's reasonable to fear that Mr Dhillon possessed a weapon that he might use against police." Try to articulate why each little detail pushes you closer to that conclusion.

But wait. There's more!

After the officers found the gun, they arrested him. He wanted legal advice. The officers carried only their personal cell phones. They did not want to give Mr Dhillon their personal phones to make that call. And besides, downtown Vancouver isn't a very private place to get legal advice. They called for a paddy-wagon to take Mr Dhillon to the police station.

Mr Dhillon complained that the police failed to give him access to legal advice sufficiently promptly.

In the circumstances of this case, the judges gave the officers a pass. The judges agreed that officers shouldn't need to share their personal lives/phones with suspects. They observed that when police expect to arrest people, they need to plan ahead for it by arranging ahead of time for prompt access to counsel at the scene. (see para 108). They accepted that these officers did not expect to arrest Mr Dhillon. They accepted that if officers can quickly send someone to a cell block to get legal advice, they don't need to provide access on the street. Vancouver patrol officers may find some comfort in this decision. I suggest that they read it.

I dunno. The logic at the end of the decision left me with a queasy feeling in my gut.

Isn't the purpose of a patrol vehicle to supply officers with the equipment that they need in their daily duties? Don't officers driving patrol vehicles expect to arrest people in their daily duties? If so, then in places with good cell service, like Vancouver, patrol cars ought to carry phones that can give prisoners access to legal advice.

In the long run, I would hope that senior officers work out how they can provide prisoners access to legal advice from a patrol car. If it can't be done for reasons other than money, then the senior officers should explain clearly to patrol officers why. When defence counsel complain, as Mr Dhillon's lawyers did, that police failed to provide immediate access to counsel, patrol officers can explain to judges why cell phones in patrol cars don't work.


2023.01.23 Waldock's (semi) Retirement

At the end of this week, I will retire from the BC Prosecution Service.

I have an abundance of projects, legal and otherwise. I intend to continue to research and write about criminal law. Therefore, this website will continue for a few more years, and I will continue to be interested in your emailed questions.

Thank you, to my many colleagues in the BC Prosecution Service over the years. You have been great friends and supports.

2023.01.18 British Columbia's Justice Centre has New Rules for Telewarrants

Last week the Chief Judge of the British Columbia Provincial Court announced some new rules for applications for search warrants, telewarrants and other judicial pre-authorizations.

These respond to the Criminal Code amendments in Bill S-4 that I mentioned back in December.

The court wants telewarrant applicants to submit materials by secure file transfer ("SFTS"), instead of FAX.  Expect some growing pains at first; but in the long run this should improve the experience of applying for and receiving warrants and production orders.

Oaths and affirmations are now optional. When making your application by telewarrant, the Criminal Code now permits you, instead of swearing an oath, to make a statement in writing: "all matters submitted in support of this application are true to my knowledge and belief".

2023.01.08 Flight from Cops - Does it create Reasonable Grounds to Suspect?

Can cops detain people just for being skittish of cops?

Mr Wilkinson 2023 BCCA 3 and a friend walked late at night in the hot zone where most of the town's crime occurred. They wore dark clothes, and Mr Wilkinson carried a backpack. They "looked around a lot", giving the impression that they were "skittish".

Two plainclothes officers in an unmarked police car drove by, and looked at them.

The two men fled in opposite directions. Wilkinson ran into a vacant lot.

The officer driving the car turned it around and aimed the headlights at Mr Wilkinson. He started to run out of the lot. The officers got out and yelled "stop, police", but he kept running.

Mr Wilkinson turned and ran back into the lot. He tripped over a fence and fell down. When told to stop, he replied "okay", but kept running. He lost his shoes and his backpack as he fled.

When the officers caught him several minutes later, they handcuffed him.

And asked him why he ran.

He said he feared getting shot.

An officer backtracked, found the backpack, and searched it.  It contained lots of drugs and cash.

4-6 minutes after the detention, the officers arrested him and explained his rights to him.

At his trial, Mr Wilkinson complained that the police breached his rights:

  1. They had insufficient reason to detain him because they had no specific crime in mind when they chased him. The trial judge agreed.
  2. They had no right to search his backpack. The trial judge disagreed.
  3. They should have giving him his legal rights before asking him questions. The judges agreed, but didn't care much about it.
Inferences from Flight from Cops

The Court of Appeal found that in these circumstances, the officers did have reasonable grounds to suspect that Mr Wilkinson was engaged in crime. They disagreed with the trial judge that the officers needed to identify a specific crime. They noted that fleeing from police provides a very strong clue.

They did not say that every time someone flees police, the officers automatically have reasonable grounds to suspect that he is committing a crime.

Some folks, as a result of unhappy experiences in the past, will avoid police regardless whether they are involved in crime or not. You probably know some folks for whom this is a vicious circle. If every time they walk away from a cop, they get harassed some more, they won't ever trust police.

Therefore, exercise the power of detention considerately. Look for reasons why, in this situation, why you think crime is afoot. If you have trouble identifying a specific crime, then think twice: what class of crimes do you think are happening?

Absence of knowledge does not get you there. The judge won't like it if you say: "I didn't know what he was up to, and so I stopped him."

Explaining your Inferences

In this case, the officers testified that "everyone" in this town knew that the unmarked car belonged to police. They believed that Mr Wilkinson and his friend recognized the police vehicle.

The trial judge didn't buy that testimony. He complained that the officers provided no evidence to explain why Mr Wilkinson in particular would recognize the car.

With respect, I don't think that the trial judge fairly interpreted this point. The question isn't whether Mr Wilkinson recognized the vehicle, but whether the officers had good reasons to think that the men on the street recognized the vehicle.

To be fair to the officers, it looks like they tried to explain to the judge why their belief was reasonable. They recounted its long use in the town, and how sometimes, they heard people on the street identify it as a police car. I suspect that they could have explained this point with a more focussed assertion. Instead of saying "everyone" recognized the car, I think that they would have done better by saying that they believed that many people involved in criminal activity in that town now recognized the car.

Blame the Evidence

I sometimes use this soapbox to promote my idea of "blaming the evidence". When explaining your inferences, identify how each observation or detail, individually or with others, forced you to the conclusion you reached.  Try using phrases like "X suggested to me" or "Y made me think". For example:

  1. Most of the crime committed in town occurs in that area. And most of that crime occurs at night. That made me interested in all the people I saw there.
  2. Drugs and property crime are among the most frequent; but we also find a fair number of people packing weapons. Mr Wilkinson's backpack made me think that he might be involved in such crime because backpacks are so convenient for - and so often used - in carrying drugs or stolen goods.
  3. Mr Wilkinson's skittishness - looking all around him as he walked - made me think that he feared some kind of adversary.
  4. Many innocent people would feel skittish there - it's a bad part of town.
  5. But when we identified ourselves as police, Mr Wilkinson fled. The people who fear muggings gravitate gratefully towards police officers who talk with them at night. But Mr Wilkinson fled. That made me think that Mr Wilkinson did not fear criminals, but police.
  6. That fear of law enforcement made me think that his skittishness arose from doing something that was illegal. I didn't know exactly what, but the backpack made me suspect it involved drugs or stolen property.
Legal Rights on Detention

When you detain someone, you must explain why, and offer legal advice. You can't question the suspect.

These officers gave the most vague explanation for the detention: "Why did you run away?"

Under these circumstances, where you act on suspicion, and you don't know the specific offence, what should you say?

Perhaps it's a good time to spell out your observations. After all, s.10(a) requires you to explain the detention:

"I stopped you because you look like you've got something to hide from police. You ran away when you saw us. This is the area and time of day when people deal drugs and steal stuff. Your backpack looks like the kind of thing that would carry drugs or stolen stuff."

Some folks will volunteer an explanation. Beware.  You haven't dealt with s.10(b) yet. The judges all agreed that there was a technical breach of that section in this case.

Searching the Backpack

If Mr Wilkinson had not dropped the backpack, the officers would have had no authority to search it for evidence. You can't search for evidence incidental to a detention.

But the trial judge found that he "abandoned" it. Therefore, he lost his expectation of privacy.

"Abandonment" does not occur when the suspect drops the object by accident, or in response to a police command.

As for searching the backpack for officer safety, that's different.  Look for what I wrote on 2022.08.27.


2022 Developments

2022.12.29 General Warrant - Best Interests of the Administration of Justice

General warrants under s.487.01 differ from regular search warrants issued under s.487.

A justice will issue you a regular search warrant if evidence justifies a reasonable belief that there is evidence of an offence or offence-related property in a specific place, building or receptacle. When you execute the warrant, you must do so overtly. No sneakin' around! Bring the warrant and give a copy to the people in the place.

A general warrant permits you do all kinds of things that will gather information about offences committed or yet to be committed. You can even execute them covertly. Including sneakin' around. (Give notice later to the people affected.)

To get one of these warrants, you need to satisfy a judge that an offence was or will be committed, executing the warrant will produce information, granting the warrant is in the "best interests of justice", and there is no other statutory authority that would permit you to do what you want to do.

What are "the best interests of justice"? A balancing between the public interest in investigation against the right to privacy.

Police in Thunder Bay learned of a drug trafficking ring. Members of the group frequently visited a storage locker. The officers figured that the members of the group stashed their drugs there. The officers sought a general warrant, so that they could find out when the locked contained drugs and when it didn't, so that they could best identify all the members of the group, and to best time their arrests.

The bust succeeded. They found drugs and they caught some drug traffickers, including Mr Brown, 2021 ONCA 540.

At Mr Brown's trial, defence argued that the police should have sought for a search warrant, and seized the drugs.

The judges rejected that argument: the objective of catching all the felons was a valid reason for sneakin'.

His lawyer pointed out that the trial judge, when reviewing the warrant, failed to consider whether the best interests of justice would be served by granting the warrant.

That could have been a problem, had it not been for the wisdom of the officer who applied for the general warrant

He wrote that "he believed it would be in the best interests of the administration of justice to issue the proposed general warrant because the investigation was ongoing and the execution of a conventional warrant would likely terminate the investigation, as the main targets would be immediately notified that they were the subject of a police investigation."

Perhaps not a perfect explanation why the public interest in collecting evidence outweighed the privacy of the storage locker, but at least the officer explicitly raised the subject. This reference to sufficed for the appeal court judges to uphold the trial judge's conclusion that the warrant was properly issued.

When applying for a warrant, spell out how the evidence establishes each precondition for the warrant you seek. When applying for a general warrant, include an explanation how it serves the "best interests of justice". In this case, one might put it this way:

I believe that the proposed covert searches of the locker best serve the interests of justice. Whether overtly or covertly, police officers will intrude on the privacy of the same locker and recover the same drugs. But a overt search will alert the targets of the investigation, who will doubtless take steps to separate themselves from the drugs before police can identify them. Covert searches will intrude slightly more on the privacy of the locker because of the secrecy and the multiple entries.  But covert searches will recover considerably more evidence of the offence. Covert searches will permit the investigators to determine when drugs are in the locker, and who put them there.


2022.12.27 Right to Counsel - Early Delays Increase Urgency

Of course, you know that the people you arrest are entitled to get legal advice "without delay" because the Charter guarantees it.

Who delivers on that guarantee?

You.

And of course, in real life, unavoidable delays occur.

When unavoidable delays accumulate, you might become complacent. Judges don't like that.

Some judge released Mr Desilva, 2022 ONCA 879 on conditions including:

Mr Desilva could leave his house if accompanied by a surety.

What's a surety? A surety is a member of the public who promises to the judge that they will keep the defendant in line, or else the court can take lots of their money. Here are some explanations.

Mr Desilva's surety was a woman.

At around 1:45am, police watched Mr Desilva get out of a Mercedes near a nightclub. I doubt that the judge had nightclubbing in mind when releasing Mr Desilva.

The officers didn't see a woman get out of the car with him, but there was a woman on the sidewalk about 5' in front of him. But she walked away when he stopped to talk to the bouncer. Could they arrest him for breach of his bail?  Yes. Even if the woman was his surety, she wasn't accompanying him.

The officers arrested him and told him about his right to counsel. Good!

He wanted legal advice.

The officers asked him about his surety. Bad! You can't attempt to elicit evidence until after the suspect gets legal advice.

The officers couldn't give him access to counsel at roadside. To do so would require them to:

  1. give him a cell phone, which would put him in breach of bail;
  2. put him in the police car, which was equipped with cameras and recording devices.

When officers searched Mr Desilva for officer safety, they found lots of cocaine and MDMA in Mr Desilva's clothes. The officers drove him to the police station. Unfortunately, lots of other officers arrested other folks. The officers waited an hour before booking him into the cells.

Then, for some unexplained reason, it took an hour to put him in touch with a lawyer.

At the drug trial, defence complained about the arrest and the delay connecting Mr Desilva with his lawyer.

The judges concluded that officers made no errors arresting him.  The judges didn't like how the officers handed the Charter guarantee about legal advice. The questions were bad. The unexplained delay after arriving at the police station bothered them. The Crown dropped the breach of bail charge because of the dumb questions. The judges forgave the slow delivery of legal advice. Mr Desilva's drug convictions survived appeal.

I mention the case to remind officers that slow connection to legal advice can undermine good investigation. You swore to enforce the law. One of the laws you swore to uphold includes this Charter guarantee. When busting bad guys, you must still deliver on that promise.


2022.12.24 Pedigrees of Informants - Criminal Records not Always Required

Confidential informants told police that "Amber" supplied drugs to street-level dealers. Amber Bridgen, 2022 BCCA 429 fit the descriptions they gave of this person.

Surveillance suggested that the tipsters spoke truth. Over a 3-month period, investigators watched her on 10 separate days. They saw her drive places to meet people briefly, in a manner suggesting that she was dealing. A known dealer possessed a substantial supply shortly after visiting her.

In an application for a search warrant, the investigator failed to mention whether the confidential informants had convictions for perjury or obstructing police. A justice granted the application anyway. Mr Bridgen's house contained lots of drugs.  At trial, defence argued that this omission was significant. The judges disagreed. There is no rule that the criminal records of confidential sources must be provided or that ITO must disclose whether or not an informant has a perjury or obstruction of justice conviction.

If some cases, your application depends heavily upon the honesty and reliability of the tipster. In those cases, you must supply the issuing justice with a pedigree which fairly explains how honest - or dishonest - the tipster is. For example, in this case, if the officers had done no surveillance, then the application had to contain fulsome pedigrees of the tipsters.

But in this case, the police surveillance by itself justified the issuance of the warrant. To the extent that the application needed to provide corroboration of the tipsters, the surveillance supplied it. In these circumstances, a minimal pedigree sufficed. See para 35.

Don't assume you no longer need pedigrees if surveillance confirms a tip.

Why? Because your application may rely more heavily on tipster than you think. We all suffer from confirmation bias. This psychological foible causes investigators to over-estimate the strength of the evidence listed in their ITOs.

But if you collect compelling evidence from other sources, and if your confidential source is particularly vulnerable to discovery, then this offers a solution. You could write: "Because I think that the other evidence justifies issuance of this warrant, I ask you not to rely on the information given by Confidential Source A". If you can write that, and still get your warrant, then you don't need a pedigree for that source.

2022.12.24 Search Warrant - Identifying the Place to be Searched

The investigation of Ms Bridgen, 2022 BCCA 429 (described above) led investigators to a single-story house. Ms Bridgen always entered through the back. Municipal records listed two owners. No vehicles registered to the owners of the house parked in the driveway. The investigators figured that Ms Bridgen lived there, renting it from the owners. During surveillance, officers got the impression that the house might be divided into two separate suites, but they didn't know for sure. They didn't raise this as a concern in their application for a search warrant.

The officers had grounds to believe that Ms Bridgen possessed drugs in her residence. What should they do about the possibility of separate suites and separate renters?

They got a search warrant to enter "The residence of Amber BRIDGEN located at 22318 117 avenue, Maple Ridge, British Columbia".

It turned out that the house was divided into two separate suites.  They searched only the back one, where she lived.

At trial, defence complained that the application should have mentioned the possibility of separate suites, so that the issuing justice would limit the search to that part of the residence that Ms Bridgen occupied.

The judges did not think that this omission mattered in this case. The wording of the place to be searched narrowed it to the right suite.

In this case, the investigator wisely worded the place to be searched as "the residence of...., located at ...". They knew who possessed the drugs, and they needed to narrow the search to the place where the drugs would be stored.

Your mileage may vary. Suppose the officers obtained the warrant, and then learned Ms Bridgen resided elsewhere. Executing that search warrant might lead to trouble.

2022.12.23 Santa doesn't need a Feeney Warrant, but You Do

A reader in Nova Scotia brought this case to my attention. I thank him.

Mr Mitchell, 2022 NSCA 77 had a girlfriend. After the relationship ended, she complained to police about his violence.

Knowing that a judge imposed a curfew on him for other matters, the investigators knew when to expect him at home. They attended at 1:00am to arrest him.

An officer knocked on the front door. Mr Mitchell answered. An officer told him that they were there to arrest him. He asked if they had a warrant.

They didn't, and they admitted it.

Mr Mitchell closed the door and locked it.

An officer kicked in the door. Three officers rushed in, and dragged him, struggling, shirtless, and barefoot, out into the chill of a March morning. They got him on the ground and cuffed him. He complained that the incident damaged his hip reconstruction.

Before trial, defence counsel asked the judge to throw out all 33 charges relating to his old girlfriend.

The trial judge agreed. So did the Court of Appeal.

The judges considered the police action in this case so outrageous that it justified dropping charges of domestic violence.

The officers knew that they needed a Feeney warrant to arrest Mr Mitchell in his residence. They didn't get one.

Chasing him into his house did not count as hot pursuit. There were no exigent circumstances either: the old girlfriend was free of Mr Mitchell - indeed, he'd found a new girlfriend by the time that the police arrived. (Hopefully, the new girlfriend is happier with his company than the old one.)

I suspect that lots of you attend homes without Feeney warrants for the purpose of making arrests. You can arrest your suspect outside the home. Unless you have a Feeney warrant, or immediate fears for someone's safety, or hot pursuit, you can't rush in.

2022.12.17 Heads Up! Changes to Legal Applications and Search Warrants

On January 14, 2023, Bill S-4 comes into force. It contains some good news, and some fundamental gotchas.

Good news:

Gotchas:

I need to spend much more time reading this bill. I hope to write more extensively about it soon. If you apply for warrants or authorizations after January 14, 2023, search out training materials to ensure that your documents and procedures are up-to-date.

2022.12.10 Right to Counsel When You're Losing Your Grip

Section 10 of the Charter guarantees that everyone arrested or detained by the state learns why they lost their liberty, and that they get legal advice about what to do about it.

Even people who can't think straight.

When medical people apprehended Mr Berry, 2022 BCCA 389, they had good reasons. It looked like he stabbed his two little children to death and then tried to kill himself in a bathtub. He left a note complaining about his ex-spouse and his mother.

The police took no part in this apprehension. But police had a double homicide to investigate.

The staff at the hospital locked Mr Berry up, but did not tell him about his right to get legal advice. During his time in their care, he asked several people to kill him. He told some that he tried to kill himself.

He complained some more about his ex.

Were those complaints admissible?

There was a clear breach of his right to counsel, but the judges forgave it. The right to counsel in this setting does not protect the right to silence. It simply helps the patient learn how to get released.

The evidence of his suicidal thoughts completed the Crown's case. The jury convicted.

But that leaves me worrying about the psych wards. Unlike you, they probably don't receive frequent reminders about their legal duties under s.10 of the Charter.

You can't control what hospital staff do; but you can remind them of the law. If you find yourself apprehending people under mental health legislation, it wouldn't hurt to remind the hospital staff what they're supposed to do about their patients' legal rights: explain the reason for their detention, offer access to counsel, and let them call a lawyer if they want. If the hospital staff want more information tell them to give this case and my email address to their lawyer.


2022.12.09 Right to Counsel When You're Under the Gun

When you make a demand under the Criminal Code for a driver to provide breath or bodily samples for analysis of undergo a Drug Recognition Evaluation, section 320.28 of the Criminal Code requires you to get the testing done "as soon as practicable".

But every such demand is a "detention" within the meaning of s.10 of the Charter. You must offer the suspect access to counsel, and give that suspect access if s/he wants it.

Some folks behave badly. After such a demand, Mr Hepfner, 2022 ONSC 6064 abused the officers, and even spat in the face of one of them. But he wouldn't say whether or not he wanted legal advice.

What would you do?

The investigators in this case took him to a phone room and put him in touch with a Legal Aid lawyer. That step added 23 minutes to the time it took to test Mr Hepfner's breath.

He blew 200mg%.

At the trial for impaired driving, Mr Hepfner's lawyer complained that the police did not test his breath "as soon as practicable". Defence argued that Mr Hepfner never asked to speak to a lawyer, and therefore, the police did not need to waste time connecting him with a lawyer. Because the investigator wasted time, the breath testing wasn't done "as soon as practicable", and the results should be excluded.

The judges sympathized with the police:

The fact that Cst. Rose “was not getting answers to his questions” did not mean that the appellant was waiving his right to a lawyer. Therefore, he found, it was reasonable for the police to contact duty counsel given the uncertainty caused by the appellant’s silence.

This does not mean that you arrange legal advice for every cantankerous suspect. If they say clearly that they don't want legal advice, get on with the testing.

But if they won't tell you whether or not they want legal advice, putting them in the phone room with Legal Aid may be an efficient way to resolve the question.

Just keep in mind that the breath testing must be done as soon as practicable.


2022.12.03 Police Practices that Conflict with Law - Strip Search or Delaying Access to Counsel

A Manitoba officer sent me this trial decision yesterday. I'm grateful. It illustrates a problem that arises often: mindless obedience to standard practices.

Don't get me wrong. Most police procedures and practices exist for very good reasons. Beware of following them when they conflict with legal rights.

Police searched a residence where Mr Gessen 2022 MBKB 210 stashed the drugs that he kept for sale, and the cash that he accumulated from the business. They found lots of incriminating evidence, but Mr Gessen beat the charges anyway. In a routine kind of way, the officers violated his rights.

The officers arrested him in the afternoon, after they had started their search. They told him that he could retain and instruct counsel without delay. But they delayed that access to counsel until after the search was done.

You can lawfully delay a prisoner's access to counsel if you have reason to believe that the accused's access to counsel could compromise the investigation or endanger police officers.  R. v. Mongomery, 2009 BCCA 41; R. v. Griffith, 2021 ONCA 302.

I guess that such fears often arise so often in drug searches that police officers developed a habit of always delaying access to counsel. The habit became a routine practice.

If so, that's a problem. In Mr Gessen's case, the scene was under control at the time of arrest. Nobody that Mr Gessen called could tip off anyone to flush the drugs or attack the police. The police practice breached Mr Gessen's right to counsel.

The judge didn't like that. But there was more.

The officer who took Mr Gessen to the police station also strip-searched him.

Two officers had already patted him down, and found no weapons. There were no specific reasons to think that he carried evidence of the offence in or under his clothing.

Never-the-less, for the purpose of discovering evidence from Mr Gessen, the officer required him to strip naked. Completely naked. Like he always did after drug busts.

This displeased the judge for two reasons:

Note that you can strip-search a prisoner without specific suspicion if you believe you're going to keep him for a while, in the company of other prisoners. See my comments last month on 2022.11.12 about Mr Francis.

If any of your standard police practices conflict with legal or Charter obligations, stop and think: what are the reasons in this case that I'm doing this? If you have no answer, maybe you should rethink what you are doing.

At the time that I wrote this, I found the Gessen decision published only on a private commercial legal database. I did not find it on CanLII, nor on the court's web page. If you urgently need a copy, contact me. If you wait a few months, I expect that CanLII will eventually publish it too.

2022.11.27 Entrapment on the Internet

Some people fish with a hook and line. Others use nets.

Project Raphael netted 104 men who arranged online to have sex with children.

Some of them complained that police officers entrapped them.

Yup.

Those officers sure did trap them.

But not unlawfully.

Because they did not cast their net too wide.

For those of you struggling to reduce a significant social plague, you might consider a sting operation. Stings usually involve police officers offering people opportunities to commit a crime. But your job is to stop crime, not encourage it. Therefore, the law draws limits on this kind of police work.

If you go online to attract your targets, you must take care to fish in the right waters, and to avoid a by-catch of the wrong species.

Inspector Thai Truong worked in drug and vice enforcement units, where he learned of the commercial exploitation of young girls and women. The more he educated himself about the problem, the more widespread he discovered it was.

He worked first with the young sex workers, attempting to stamp out the problem. But many of them would not cooperate. They feared their pimps, they wanted their drugs, the needed the money.

Inspector Truong then tackled the johns. He and his team posted fake internet ads on sites where the young sex workers posted their ads, using the code-words that the sex trade used to identify underage sex workers.

Lots of folks answered by text. Many of them disengaged when the officers explained that they were underage girls. But lots more continued the conversation. Some were looking for underage girls. Others just didn't care how old the kids were.

After his bust, Mr Ramelson, 2022 SCC 44 asked the trial judge to stay the charge against him. He argued that too many innocent people accessed the webpage where the police posted their ad. The police engaged in "random virtue testing" by exposing them to opportunities to commit a crime. He argued that the police should have focussed their ads in a way that attracted only criminals. And, he complained, the police failed to keep statistics about how many innocent people got attracted to their ads.

The trial judge agreed to stay the charge. The Court of Appeal disagreed.

The Supreme Court of Canada agreed that posting temptations like sex with underage girls needs to be aimed at the people who were looking for that kind of thing, or were indifferent to the age of the sex trade worker.

The court worried that policing the internet this way could stifle freedom of expression; but in the sphere of child prostitution, this effect was not terribly important.

What does this mean for your investigations of other online offences, such as fencing stolen property, gambling or whatever comes next?

If you're going to offer opportunities for people to commit offences, you need to focus your offers to the online "place" and in the style that will connect you to criminals. Try to avoid a large by-catch of non-criminal targets. If you have a big project, keep statistics, so that you can prove that your bait attracted mostly the criminals you meant to fish for.


2022.11.12 Teamwork during Arrest Procedures - Gettin' It Right

This case caught my eye because the officers involved did some good work, but also made some common mistakes. I think it offers an excellent example for discussion at a briefing.

An arrest warrant issued for Mr Francis, 2022 ONCA 729. Attempted murder on July 29. A shooting.

On August 8, an officer found him.

Officer Ma found him driving. Ma pulled him over and arrested him at gunpoint for attempted murder. Officer Ma patted him down, finding only a phone, wallet, keys and change. Officer Ma told him about his right to counsel. Mr Francis wanted legal advice.

Search incidental to arrest

Officer Jackson attended and assisted. Officer Ma told Officer Jackson to search the vehicle incidental to arrest.

Officer Jackson thought that his task was an inventory search. He snooped through it to see what valuables it might contain.

(I pause to commend these officers for their honesty on the witness stand. There was plainly some kind of miscommunication at the scene. I suspect that by the time they reached the court room, they knew there was a problem.  "Fixing" errors on the witness stand can blow up badly.)

During his "inventory search", Jackson found drugs and a handgun behind the front seat.

Jackson stopped searching, and returned to Officer Ma seeking further instructions. Ma directed Jackson to stop searching, pending the preparation of a search warrant.

The court rejected Jackson's idea that it was a lawful inventory search. You can't inventory a car just because you find someone suspicious in it.  The duty to make an inventory arises when you have a statutory duty to seize or impound, and you need to be able to account for what you seized. See R. v. Nicolosi, 1998 CanLII 2006 (Ont CA).

Thankfully, Jackson searched because Ma told him to search. Therefore, the Crown could argue that Ma's decision was lawful.

Was it?

If you arrest lawfully, then you can search a vehicle incidental to that arrest:

  1. to the extent that you think that there's some reasonable possibility that it contains evidence of the offence for which you arrested you can search for that evidence;
  2. to the extent that you believe public safety is at risk, if you have reason to think that there's something there that would cause harm to police or the public, you can search for that thing.

Plainly, Ma's arrest was lawful. A judge had ordered it.

But were there reasons for Ma to think that evidence of the attempted murder would still be in the car 10 days after the shooting?

The judges had little difficulty with this idea, and did not spend any time explaining why. They found this search was lawful.

You might not be so lucky.

If you find yourself in a similar situation, turn your mind to what powers of search you have. If it's a search incidental to arrest, what evidence do you think you might find? And if you direct another officer to search, maybe explain your thoughts to the other officer, so that they know what they're looking for and why.

If both of you make notes of that conversation at the scene, then at court, you won't contradict each other as Ma and Jackson did.

Right to Counsel

Having learned about drugs and a gun, Officer Ma forgot to tell Mr Francis about the new jeopardy he faced.

After he spoke with duty counsel, Mr Francis made two admissions: the gun was the one used in the shooting incident; and at the time he lived nearby.

Because Ma breached Mr Francis' right under s.10(a) to be told that he was arrested for the gun and the drugs, the judge excluded those admissions from evidence.

Damn! Those admissions might have been useful evidence!

When a prisoner's jeopardy changes, let him know!

Strip Search

During booking-in, officers strip-searched Mr Francis. They found more drugs.

They did the strip-search by the book. The got permission from a senior officer. In a closed room, they removed clothing from him one garment at a time. They never stripped him entirely naked.  Two male officers observed him.

Mr Francis complained that this search did not meet the requirements of a search incidental to arrest. The officers had no reason to expect to find further evidence of the shooting. Considering Ma's initial pat-down, there was no reason to think he carried weapons.

The judges rejected this argument. They distinguished between strip searches incidental to arrest, and custodial strip searches.

Strip searches incidental to arrest must follow the rules of search incidental to arrest, and follow the strip-search protocol.

Custodial strip searches address a different issue.  If the prisoner will be placed with other prisoners, you owe a duty to the other prisoners not to endanger them. You can strip-search the suspect, looking for drugs or weapons, even if you arrested for other reasons. The judges noted that the police already found a gun and some drugs in the car. It was no stretch to imagine that he might carry weapons or drugs on his person.

Epilogue

Mr Francis beat the attempted murder charge. The prosecution withdrew it even before it went to trial.

But the trial judge convicted Mr Francis of offences relating to the gun and the drugs. And the Court of Appeal upheld those convictions.


2022.11.05 Thin Blue Line - Camaraderie, Privacy and Broken Trust

A retired cop named Walton, 2022 ABCA 276 set up a private investigation company. An embittered ex-husband hired him to investigate and harass an ex-wife.

Walton enlisted the help of working police officers, retired police officers and even a suspended police officer. He paid them money.

Some of them used their access to police databases to assist in the investigation and harassment of the ex-wife. Walton paid them. And they harassed her.

Access and a badge gives you power.

And responsibility.

If you're a cop, you've been warned not to turn these things to personal profit or advantage.

Broken Trust

Curiously, it was the suspended cop who blew the whistle. Whatever the misconduct that led to his suspension (and his misconduct working for Walton), he realized that Walton's project was wrong, and reported it to authorities in the police service.

I presume that Walton's police friends got into lots of trouble. A jury convicted him, his wife and the husband of various offences reated to criminal harassment.

Police officers form strong bonds of friendship and trust. This is natural and healthy. When working with hostile people, you need to trust the officers around you. The badge confers power that civilians often fear. The job brings access to private information. The public entrusts you with it because you need it to do your work.

How did this abuse of power and public trust happen?

Power can corrupt. For those it corrupts, it can start small. Your routine access to databases makes accessing them for personal purposes seem so easy, so ordinary.

Those boring institutional warnings that routinely pop up on your screen when you access those databases actually address something real.

I often wish they did not appear on my screen. This case reminds me why they are there.

Privacy

The case of R v Marakah, 2017 SCC 59 taught us that sometimes, the sender of communications still enjoys an expectation of privacy over those communications even after they arrive in the recipient's phone.

The whistle-blower showed internal investigators screenshots of emails he received from Mr Walton.  At trial Mr Walton complained that the investigators breached his reasonable expectation of privacy: Those were private emails! He still expected privacy in them when they landed in the whistle-blower's phone!

On the facts of this case, the court found otherwise. The private investigation was no secret. The ex-wife knew exactly who they were and what they were doing. Mr Walton had no arrangement to keep these communications secret.  Instead, the private investigator swore affidavits in family court about the activities of him and his team. The thin-blue-line kind of trust between members (and ex-members) did not suffice to create an expectation of privacy. No automatic protection of the thin blue line. No secrets there.

This does not mean that a whistleblower can always show you the communications he received from the culprit. It depends on the circumstances of each case. What circumstances? Evidence that the sender of communications expected privacy in them.

So when a complainant comes to you asking to show you texts or emails they received from the subject of concern, take a moment or two to find out whether the complainant ever promised to keep them private.

2022.10.15 Questioning Suspicious Witnesses - Voluntariness

When I read Lafrance earlier this summer, I figured that the Supreme Court of Canada would soon tackle the legal issue of voluntariness. Last Friday, they delivered R. v. Tessier, 2022 SCC 35

The judges didn't change the law in the ways that I feared. I'm still working on a full explanation.  The main point is:

If you have reasonable grounds to believe that the person you're speaking with committed an offence under investigation, then you should give them the police warning

Regardless of detention or arrest.

Therefore, if you receive a dispatch to a domestic assault "man beating woman", and you meet a man who's probably the guy complained of, then you need to start talking about the right to silence before asking "'Ullo, 'ullo, 'ullo, what's all this then?"

I'll write more about this decision soon. It's a pretty important one.

2022.10.12 Reasonable Expectation of Privacy in a Burner Car

If you find the concept of "reasonable expectation of privacy" fuzzy, take heart. Judges disagree over it too.

Raja Dosanjh, 2022 ONCA 689 wanted to kill Aly Suderani.

To avoid detection, he rented a car under a false name.

Being a classy gangster, he chose a luxury car for this particular murder: an Infiniti QX60 - equipped with a wonderful infotainment system.

When he rented it, his passenger, Mr Passi, plugged his cell phone into that infotainment system. The infotainment system immediately downloaded Mr Passi's contacts list, which included Mr Dosanjh.

The infotainment system did more. It recorded everywhere the car went while Mr Dosanjh possessed it.

Mr Dosanjh drove that car to a hotel, where he used a submachine gun to kill Mr Suderani. Mr Dosanjh left the gun at the murder scene - with some of his DNA on the grip.

Security video cameras in the area recorded the car.

Police tracked down the rental car and bought it. They obtained the rental contract and video of Mr Dosanjh renting the car. They knew he lied about his identity.

Now that police owned the car, did they need a warrant to search the data in the infotainment system?

An investigator figured they didn't, because police now owned the car. He instructed the technical investigators to start digging. Then a lawyer told the investigator that they did need a warrant, so they stopped their examination of the data from the infotainment system, sealed up what they had, and got a warrant.

The trial judge found that Mr Dosanjh enjoyed a reasonable expectation of privacy over the tracking data and the passenger's contacts list. The trial judge found that this privacy survived transfer of ownership of the car.

The appeal court disagreed. The rental agreement required the driver to give his real identity. Mr Dosanjh gave a false name. He acquired the car by fraud. It was effectively a stolen car. And now it belonged to the police. Therefore, Mr Dosanjh did not enjoy an expectation of privacy in the data it collected when he used it. And he certainly didn't enjoy any expectation of privacy when the police later bought the car.

So the investigator was right, but for the wrong reason.

Note also that the transfer of ownership of the car was "a factor" in determining the expectation of privacy - but not the determining one. Still, I thought purchasing the car was a good strategy. It certainly put an end to any concern about reporting the car to a justice of the peace.

If an expectation of privacy did attach to the data in the car, I would expect you'd still need a warrant to get the data, and you'd have to report to a justice what data you extract from it.

If this analysis applies to burner cars, I wonder whether it might also apply to burner phones? Rarely do investigators hunt down the rental contract for burner phones. Maybe you should.


2022.10.09 Keeners who Commit Crimes - Noble Cause, Criminal Execution

I didn't notice this case when it first came out. From a lawyer's perspective, it looked like a sentencing case.  But there's another message.

Abe Letkeman, 2021 MBCA 68 worked for 6 years as a member of the RCMP.  People liked him. He worked hard.

He had some compelling reasons to dislike bad drivers. His brother, sister and father all died in car accidents.

This may have affected his objectivity. Early in his career, he continued a police pursuit contrary to orders, and got into trouble for it.

Later in his career, a over-enthusiastic pursuit ended very badly.

At 2:00am, he saw a Jeep revving its engine and spinning its tires. He followed it and formed a suspicion that the driver was impaired. He probably wasn't wrong. The driver had been at the bar socializing with people who had been drinking and using cocaine.

When he first tried to pull it over, it stopped. Before he could talk to the driver it took off. He pursued. In order to stop it, he deliberately hit the vehicle using the "Precision Immobilization Technique" (PIT). It kept going. Eventually, it turned onto an ATV trail, lost control, and stopped. Letkeman used his police cruiser to hit it broadside, on the passenger side. That collision broke the passenger's pelvis. Still the driver wouldn't stop. The vehicle reversed and drove toward Letkeman.

Letkeman fired his revolver at the driver, killing him, and further injuring the passenger.

Letkeman probably knew he crossed the line. He lacked the proper training to disable a vehicle using PIT. He wasn't supposed to use it. During the pursuit, he sought his supervisor's authorization to continue the pursuit. When doing so, he failed to mention the first collision. Again, in the aftermath, he failed to mention the first collision.

He was charged with manslaughter, dangerous driving and criminal negligence causing bodily harm. The judge acquitted him of manslaughter - because he fired the gun in self-defence. The judge convicted him of criminal negligence.

What went wrong?

I suspect that his passion for his work overcame his judgment. I think Abe Letkeman's enthusiasm for getting bad drivers off the road blinded him to the boring police pursuit policies that keep cops out of trouble.

I like to believe that the officers who read this website come here because they want to be better at their work. They have commitment and passion. I keep writing because I respect that attitude and the people who hold it. I want to encourage them.

This case reminds us all that passion creates blind spots. Maybe you care more about gangsters or child abuse than bad drivers. It doesn't matter which subject moves you. To work hard, we need inspiration. To get results, keeners often work close to the boundaries.

If you are a keener, I applaud you. But I also worry for you. How can you tell when your passion affects your judgment?

This tragic case offered me some hints:

  1. If you need to violate policy or legal rules to get the job done, slow down and think again.
  2. Second opinions from knowledgeable people can keep you from crossing the lines.


2022.10.01 Expectations of Privacy in Sent Communications - Exigent Circumstances Justify Immediate Action

If you send a text message to someone, do you enjoy a reasonable expectation that the government will treat that message as private?

It depends ... on the relationship between you and the recipient, and the content of the message.

If, for example, you're dealing drugs with someone, you can generally expect that the other guy will keep your communications private from the state. Therefore, the government must also treat those communications as private. Police will need lawful authority to get at them.

Kyle Gammie was dealing drugs. Some of his supply came from "Dew".  By text messages, "Dew" let Mr Gammie know that he had some heroin/fentanyl mixture for Mr Gammie to sell.

The text messages arrived on Mr Gammie's phone just when the cops were busting him for drug dealing.

The officers pretended to be Mr Gammie, and by text message arranged a time and place to meet up, so that "Dew" could deliver those drugs.  The officers planned to arrest whoever showed up.

Mr Campbell, 2022 ONCA 666 turned up. Police arrested him. On his person, they found 14.33g of a mixture of heroin and fentanyl, and a cell phone which contained the text message chain which led to the meeting.

At his trial, Mr Campbell complained that when police viewed his text messages to Mr Gammie, they violated his reasonable expectation of privacy.

The appeal court agreed. Drug dealers don't generally share with police the communications they had with other drug dealers. Mr Campbell had a reasonable expectation of privacy in the messages he sent to Mr Gammie's phone.

But the officers explained that they had to act immediately when they saw the messages light up Mr Gammie's phone. Fentanyl kills. They needed to get that stuff off the streets. If they did not pretend to be Mr Gammie, people could get killed.

The judges agreed that exigent circumstances justified this intrusion into privacy. The risk of harm to life justifies substantial intrusions into privacy. For example, even a reasonable suspicion that life is in peril will justify entry into a private residence. Godoy, [1999] 1 S.C.R. 311.

But the risk of loss of evidence may also create exigent circumstances.

A different text message conversation might discuss the the sale of stolen property. Using the reasoning in this decision, an officer might be permitted to impersonate a felon in order to recover a victim's property (and catch the felon responsible for trying to sell it).


2022.09.29 Computers - A tool for Precision or a Tool to Replicate Mistakes

Mr Pampena, 2022 ONCA 668 kept his drugs at 1015 Galesway Boulevard, Unit 19, Mississauga.

Police learned of this and got a warrant.  Unfortunately, the applicant for the warrant copied and pasted " 1105 Galesway Boulevard" into the ITO.

And the draft warrant.

26 times.

The justice granted the warrant as drafted. Officers went there and executed the warrant, not noticing the mistake.

The trial judge and the appeal judges forgave the officers this mistake, because they made it in good faith.

They all believed that the warrant permitted them to search this address, and the source material justified a search at that place.

The warrant authorized a search of the wrong address. A search of a different address is a warrantless search.

What if you, as a member of a search team discover this problem just as you assemble outside the door of the residence?

Who wants their face to appear on YouTube or TikTok as the cop who screwed up?

You can't execute the warrant "in good faith" because you now know that it authorizes the search of a different residence.

At that point, you must consider s.487.11 of the Criminal Code. Exigent circumstances. Is your cover blown? Will you lose evidence if you fail to enter? If the answer is "yes", then you may enter under the authority of s.487.11. I would suggest that limit your entry to freezing the scene.  Before searching for the evidence, get an updated warrant which corrects the typographical error.

That allows you to reclaim "good faith", because you rectify the problem as early as possible.

2022.09.26 "What's in the Bag?" - Threatening to Arrest

You can threaten to arrest people as a way to dissuade them from committing an offence:

You can't threaten to arrest them as a way to obtain their consent to a search.

At a time when possessing marijuana was illegal, an officer approached a group of people that smelled of burning weed.  He detained one of them, Mr Mengesha, 2022 ONCA 654, and asked him to show what was in his fanny pack.

Probably because it contained a loaded handgun, Mr Mengesha refused to say.

The officer didn't tell Mr Mengesha the reason for the detention, nor did the officer mention the right to legal advice.

The officer arrested Mr Mengesha for possession of marijuana. Within 2 minutes the officer found baggies of cocaine and fentanyl and a concealed knife. Soon after, when Mr Mengesha tossed his fanny pack into the bushes, the officers found the gun.

The judges didn't like the threat of arrest. They didn't like the breaches of s.10 of the Charter.

Although Mr Mengesha's conviction stuck, that fact should not encourage you to use the threat of arrest as a means to obtain a "consensual" search. 'Cause even if it works, it ain't consent.

2022.09.26 Examining Illegally Obtained Evidence - When the Complainant Breaches the Suspect's Privacy

"When citizens ... attend at the police station and provide evidence of what they have reason to believe was a crime, the police do not engage in an 'unreasonable warrantless search' by examining the evidence provided."

Mr King, 2021 ABCA 271 kept child pornography in private electronic devices. His wife, discovered his passwords and snooped through his devices. She suspected infidelity. She found illegal images.

She copied them onto her own flash drive, and took the images to police.

Police officers looked at what she brought them, and described what they saw in an application for a warrant. A justice issued the warrant, and the officer busted Mr King for child pornography.

At his trial, Mr King complained of the unreasonable search and seizure in this case.  His wife had no right to look at his private data. Therefore, when she stole it and took it to the police, the police had no right to look at it either, and therefore they violated his reasonable expectation of privacy.

The trial judge bought this argument. The Court of Appeal did not.

The wife may have violated Mr King's expectations of privacy, but the police did not. The police are entitled to look at evidence that a citizen brings to them.

This conclusion conflicts with the conclusion in Vey, 2019 SKQB 135. In that case, a wife secretly recorded private communications between her husband and his lover, in which the husband and the lover planned to murder the wife. She gave those recordings to police. The court found that by listening to the recordings, the police violated the husband's reasonable expectation of privacy.

This area of the law remains unsettled. The trouble arises when someone tells you "I broke into the bad guy's computer / phone and took this data without consent, would you like to see it?" The conservative approach is to ask the witness to describe the data, then ask a judge to authorize you to examine the data, using the witness's description to establish reasonable grounds.

King suggests you don't have to do that. Few judges have yet considered the reasoning in King. When they do, we may get better answers.

2022.09.10 Publicity, Privacy, Revolution, Massacre and Pretty Girls - Sealing Orders and Unsealing Them

Today's case resonates with recent issues in the news. First, the news:

Next, the topic: sealing orders.

When explaining the principles behind sealing orders, I find that our new king's predecessor, King Charles I of England, provides a useful starting point. If that sounds like boring history, perhaps the prospect of beach babes in bikinis will tempt you to read further.

King Charles I needed money. He imposed unpopular taxes. Some of the rich people of his age objected. One of the tools he used to keep them in line was the Star Chamber. This court earned a bad reputation - so bad that it became one of the justifications for a rebellion. That rebellion ended badly for King Charles. They chopped off his head.

I hope Charles III keeps his head ... firmly attached. Long live the king!

What was so awful about the Star Chamber? One of its flaws was that it proceeded in secret. The public could not see and hear how it reached its conclusions. How could anyone know whether the evidence justified the fearsome punishments it imposed?

Criticism of the Star Chamber taught English, Canadian, and American judges a lesson.

Good courts operate in public, so that the public can see the fairness with which they operate. Canada's highest court keeps re-affirming the importance of the open court principle, even at the risk of embarrassing or inconveniencing some of the people involved. For example, see last year's cases: Sherman Estate v. Donovan, 2021 SCC 25; CBC v. Manitoba, 2021 SCC 33, or the earlier case of R. v. Mentuck, 2001 SCC 76

To maintain public trust in the justice system, courts must expose as much as possible of what they do to public scrutiny, and keep as few secrets as possible. The press loves this principle, because it gives them access to information about high-profile people (like Donald Trump), high-profile events (like the search of his residence), and the sorts of sex and violence that sells newspapers and click-bait.

Applications for search warrants necessarily offend the open court principle. What good would searching a drug dealer's residence do if you had to apply for the warrant in open court? Someone would tip off the dealer before you get there. Some applications rely on information from confidential informants. Would rats help police bust gangsters if the courts name them?

Therefore, courts must operate in secret some of the time. The court must keep some secrets. The open court principle requires judges to operate in secret as little as possible, and to keep the fewest possible secrets.

The open court principle conflicts with police concerns:

  1. The identities of informants can be inferred from the information that they give.
  2. Publicizing the evidence during an ongoing investigation can taint witnesses, destroy the value of holdback, or alert culprits how to defeat the investigation.
  3. In high-profile cases, widespread publicity of the evidence may prejudice the public, making it difficult for the court to find impartial jurors to give the defendant a fair trial.
  4. Publicity can sometimes inflict further hurt on the victims, their families, and other innocent parties.

This brings us to sealing orders and beautiful women in bikinis.

I compare a blanket sealing order to the beach blanket that a bashful girl in a string bikini uses to protect her dignity,

The open court principle is like a requirement that the bashful girl throw the banket aside. And it compels her to wear only a string bikini to cover only the most private parts.

Do you remember the story last year of the Norwegian women's beach handball team? They protested a rule that required them to wear bikinis when they competed. Like police officers who don't like their investigations exposed to public view, these women didn't like being ogled when they played in public places.

The Norwegian women won worldwide support for their protest, and got the rules changed.

I noticed a case that might change the open court rules a bit. The bashful girl of my analogy might be permitted to wear something a little more conservative than a string bikini when she throws the beach blanket aside.

It arose when a reporter sought access to the applications for search warrants issued during the investigation of a high-profile serial killing in Nova Scotia back in 2020. CBC v. CBSA, 2021 NSPC 48; CBC v. CBSA, 2022 NSPC 22 The press wanted to find out whether the police should have issued public warnings earlier. But the warrant applications were sealed.

The reporter pointed out that the killer, Gabriel Wortman, died during the take-down. There won't be a criminal trial. Except for information tending to identify confidential sources, there's no need for any redaction, right? By asking the court to remove the sealing order, the reporter was asking the judge to make the bashful girl throw away the beach blanket. Expose her to public view.

Not so fast, the Crown responded.

These 22 killings left a trail of bereaved families. Applications for search warrants necessarily recite private information, the publication of which may hurt them.

The relatively recent Canadian Victims Bill of Rights requires the court to consider their privacy too, and to hear from those victims before making decisions which affect that privacy.

The judge agreed.

It's a little victory. The bashful girl in my analogy should be allowed to ask for the dignity of shorts, like the women of the Norwegian women's beach handball team.

But this little victory offers police officers engaged in fast-moving investigations a further justification for a blanket sealing orders over their applications for warrants and orders.

If you have a boilerplate sealing order application, it probably recites the justifications listed in s.487.3.

If your ITO or affidavit includes information private to a victim - anyone who has suffered physical or emotional harm, property damage or economic loss as the result of the crime - then you might add to your justification for the sealing order something like this:

This application contains private information about a victim. Section 11 of the Canadian Victims Bill of Rights requires this court to consider his/her privacy. Section 14 requires this court to receive his/her/their views about decisions that affect his/her/their privacy before making those decisions. Until it hears from the victim(s), this court should not risk harming him/her/them by releasing that private information.

If your victim tells you that publication of the his/her information will cause her harm, you might want to mention that fear in your ITO.

I note that these blanket sealing orders ought to be temporary. The open court principle requires that eventually, the blanket be removed, and to allow public access to all but the private material.

Where there are victims, the Canadian Victims Bill of Rights makes that a more complicated process.


2022.09.05 Wiretap - Investigative Necessity or Criminal Organization or Both

By definition, snooping on private phone conversations invades privacy.

A lot.

Except in serious emergencies, police must obtain judicial permission to do this snooping.

Because it's such a big deal, Parliament requires investigators to show the judge that no other technique will reasonably work to catch the bad guys, or that the offences are "organized crime" (gang) offences.

Applications for "wire" therefore often contain fulsome explanations why other techniques would not work.

Mr Chen, 2022 BCCA 296 supplied drugs to a dealer of kilogram quantities of MDMA. Police found Chen by wiretapping the dealer, who talked to him whenever he needed drugs.

Mr Chen challenged the wiretap authorization.

The officer who applied for it explained not only that no other investigative technique would work, but also that the targets fit the definition of a criminal organization, and that the crimes were by and for the organization.

The application spent a lot of time explaining investigative necessity, but merely mentioned criminal organization aspect.

The trial judge ignored the criminal organization part, because the application didn't emphasize it.

The Court of Appeal agreed that the authorization could have been better drafted, but disagreed that the trial judge could ignore that part.

For officers just getting into "wire", this case provides a reasonably clear discussion of the difficult topic of investigative necessity, and what to expect at trial - years after you draft your affidavit.

For experienced affiants, if you're going to rely on both routes, this case reminds you to spell out both justifications at the conclusion of your application.

I put the word "wire" in quotes, because modern interceptions of communications virtually never involve wire nor tapping. But the word "wiretap" remains a useful term - short and evocative - of what the technologies can do.

2022.09.05 Gender Safety When a Strip Search goes Wrong

How carefully must you protect a prisoner's dignity when the prisoner poses police a threat?

Mr Black, 2022 ONCA 628 started the problems when he lied about his name. Officer McCabe - a female police officer - pulled his vehicle over because the licence plate didn't belong on that car. When she asked him to identify himself, he gave a false name.

Mr Black had reasons to lie: he was on probation, a judge had issued a warrant for his arrest for robbery, ... and the thirty baggies of heroin in his underpants might get him into trouble.

When Officer McCabe figured out who he was, she arrested him and took him to the police station. The seriousness of the charges convinced her not to release Mr Black.

She asked a senior officer to permit a strip-search, to make sure he didn't bring weapons or drugs into custody with other prisoners.

Knowing that strip-searches should be done only by officers of the same sex as the prisoner, she arranged for two male officers to search Mr Black.

Although those officers followed the proper protocol, things went badly. Mr Black didn't want them to find the drugs. He reached into his pants as if to draw a weapon. He disobeyed the officers' commands to keep his hands out of his clothing. A struggle ensued. Mr Black kicked, pushed, banged his head against the wall, and screamed that the officers should kill him. One of the officers called for help.

Officer McCabe ran in and helped.

The officers bound him and stripped him naked. They carried him naked to a cell. They supplied him with a jumpsuit.

At his trial, Mr Black complained that the female officer should not have participated in stripping him or carrying him. The judges disagreed.  Mr Black created a crisis in which safety took precedence over dignity. Even when bound, Mr Black continued to thrash vigorously in a way that could hurt the officers.

In reaching their conclusions, the judges remind us:

The judges' answer to the question made sense: Safety first. If mayhem erupts in the room where the strip-search is being conducted, you can run to your colleague's aid. You don't need to run away, hunting for same-sex officers to solve the situation.  And you can stay until the danger subsides.

This case made me think of the difficult characters that we must routinely manage.

Many of you struggle frequently with irrational people living the very worst parts of their unhappy lives. Many of them express hatred of police. One may naturally feel that they deserve the sufferings that they bring upon themselves.

A professional strives to remain respectful of the dignity of even the most difficult people. It ain't always easy.

Respect and patience can pay in the long run. Seasoned members of our justice system all remember entrenched felons who responded to a little sympathy. Sometimes, in their gratitude, they'll later tell you - or some other officer - a crucial tip. Sometimes, they reach bottom, and turn to you - or some other officer - for redemption.

2022.08.27 Safety search during investigative detention

Mr McKenzie, 2022 MBCA 3 jogged through the back yards of a residential neighbourhood. At night. Clutching the left side of his body with his elbow.

A cop in a lane saw him, and wondered if he held his arm that way because of an injury. The officer called out, asking if he was okay.

Mr McKenzie and the officer locked eyes. At that moment, the officer recognized him: McKenzie was long-time member of a street gang, who often carried weapons.

I figure that Mr McKenzie realized he was looking at a police officer.  I'm guessing that Mr McKenzie feared that the officer would stop him. McKenzie had a reason for that fear: he was doing something suspicious.

Mr McKenzie ran faster.

The officer suspected - from his extensive experience with people who carry firearms - that Mr McKenzie held his arm that way to carry a concealed weapon. The officer yelled at Mr McKenzie to stop.

I doubt that Mr McKenzie felt any happier when he heard this.

Mr McKenzie kept running.

Mr McKenzie's reaction increased the officer's suspicions.

The cop caught up, and pinned him against the wall.

Mr McKenzie was carrying a fanny pack.

Should the officer lawfully look inside it?

Any officer interested in surviving his or her shift will say "yes".

But only the wise ones know why it's lawful.

This cop looked.

He found the handgun. He arrested Mr McKenzie, and then found the drugs. Charges followed. At trial defence complained that the officer lacked lawful authority to search the fanny pack.

You can - briefly - detain a person that you suspect is involved in a crime.  But suspicion - even reasonable suspicion - does not authorize you to search the person for evidence of that crime.

You can can arrest a person you have reasonable ("and probable") grounds to believe that the person committed a crime. And if you have some reason to suspect that they have evidence of that crime with them, you can search them for it.

This cop suspected that maybe Mr McKenzie had a gun or drugs. But the cop didn't have enough evidence to justify a reasonable belief. Therefore, the officer could not search incidental to arrest.

But pinning gangsters up against a wall in a back alley at night is a risky business. Any cop who wants to stay alive will want to take precautions to make sure that he does not get a knife between the ribs or a bullet in his brain.

Judges saw a tension between the public's right not to be subjected to search without reason, and the police officer's need to protect themselves from unsavoury suspects.

They struck a balance. You can't search for weapons any time you feel like it. But you don't need proof that the suspect has a weapon before you search for it.

Unfortunately, as discussed in this case, the Supreme Court of Canada used confusing language to describe this balance.

Either it's "reasonable grounds to believe that the suspect poses the officer a risk of using a weapon" against you, or it's "reasonable grounds to suspect that the suspect has a weapon" that he will use against you.

If you read the decision, you will see the struggles the judges have defining the test.

I dunno. I've long felt that this debate over language is silly.

I think that the key concepts are obvious. To search for officer safety:

  1. You need reason to think that the detainee may have a weapon; and
  2. You need reason to think that the detainee may want to use it against you.

If you don't have both, don't do a safety search. As the judges said, you can search when it is "reasonably necessary to eliminate an imminent threat".

When asked to explain their reasons for their fears, many officers resort to the language of safety training. Some instructors in that field emphasize the dangers of ignorance in a hostile situation. "You don't know what he's got in the fanny pack. It could be a weapon. You need to be sure. You don't know what kind of mood he suspect is in. You don't want to wait to find out."

That language doesn't meet the legal test. If you tell the judge that you searched the suspect because of what you didn't know, the judge will find that you lacked reasons to justify the search. To justify a reasonable fear, you must talk about what you do know, rather than what you don't know. For example, in this case:

When confronted with a situation like this, seasoned officers can think all of these thoughts so quickly that they may interpret their conclusions as "instinct". I don't believe in instinct any more. Break the situation down. You'll find that your "instinct" consisted of logical inferences. You can turn those inferences into words, if you try.

When you get good at that exercise, gangsters like Mr McKenzie will follow his footsteps ... into jail. Mr McKenzie lost his arguments at trial and on appeal.

2022.08.23 Collision Investigation - Event Data Recorders

Warrantless Seizure

Two vehicles crash on a public highway.

Does the Criminal Code give you the power to seize the car of the driver who caused the crash?

It depends. Do you think that driver committed a crime?

Section 489(2) permits you to seize anything if:

Notice the last two lines. If you have grounds to seize the culprit's car, then you may also have grounds to seize the victim's vehicle.

Warrantless Analysis

If you have grounds to seize the car, can you seize and download just the event data recorder (EDR); or do you need to ask a judge for a warrant?

An Ontario line of cases says you must always ask for a warrant. The BC Court of Appeal found that the driver/owner does not enjoy a reasonable expectation of privacy in the data that these devices record.

Mr Major, 2022 SKCA 80 also owned a pickup truck. He overloaded it with passengers, and blew through a controlled intersection, crashing into a big truck. The collision destroyed his truck and trapped the people in it. Emergency personnel had to rip the pickup truck open to extract him and his dead children.

Police investigators at the scene seized the EDR and downloaded it at the scene.

It said he was travelling at 137km/h just before the crash, but slowed to 118. The speed limit was 80 km/h, but it was winter in Saskatchewan. The roads were packed ice and snow.

Mr Major's lawyer argued that the officer needed a warrant to get the data.

The judges concluded that he did not in the circumstances of this case:

But that conclusion did not settle the case.

Expertise Necessary to Interpret the Data

At trial the officer who downloaded the data testified about what the EDR told him. Defence challenged his expertise:

He might know how to download the EDR data, but did he have the expertise to say that the numbers that the EDR records are accurate? For example, in this case, the EDR reported a few numbers that could not possibly be correct. The officer could not explain how those numbers got there.

The judges agreed that the testimony at trial failed to establish that the data that came from the EDR could be trusted.

I suspect that many crash investigators may actually have the expertise to establish that fact. This decision should alert you to formalize that expertise on your CV and in the reports that you write. If you lack the expertise to interpret the data, then the prosecutor needs to find someone who has it.

If you have any trials coming up in which your opinion relies upon EDR data, you might want to review your report, and contact the prosecutor to discuss the expertise necessary to establish the reliability of that data. Tell them about the case of Mr Major.


2022.08.20 Investigative Techniques - Wiretap and Lineups

The crime

Daniel Davis hung out with friends at 1:00am in a school yard. Three men in hoodies surrounded him and shot him dead.

A gang killing.

Mr Bent's girlfriend drove Mr Bent there. They met with Mr Wheatle, 2022 ONCA 591, and another guy. The men went into the park, fired their guns, and then they returned to where the girlfriend waited.

The investigation

The police worked with an agent - a gangster who worked with the police.

In a wiretapped holding cell, Mr Bent told the agent what happened.

The agent bought drugs from Mr Wheatle and socialized in a bugged hotel room. Mr Wheatle talked about his involvement, giving similar details as Mr Bent.

Police arrested Mr Bent's girlfriend for murder around the same time as they arrested Mr Wheatle for murder. When the two were shipped to court, they travelled together in a bugged prisoner transport.

On that transport, Mr Wheatle talked as if he knew her.

At first Mr Brent's girlfriend refused to cooperate with the investigation. Then, as part of a total immunity agreement for this and other serious crimes, she told them what she knew.

During an interview, an officer showed her a single picture of Mr Wheatle, and asked if he was one of the three men. She said he was.

The lessons learned

Gangsters don't often cooperate with police. As this investigation demonstrates, recording their conversations can often discover information that other techniques will never reveal. This investigation relied heavily on authorizations to intercept private communications. Those authorizations worked. Prisoner transport vehicles and cells provide excellent controlled circumstances under which gangsters may talk.

Agents and accomplices don't make great witnesses. The appeal court judges spent most of their decision discussing whether the jury had been sufficiently warned not to trust the girlfriend.  She got a great deal: freedom. All she needed to do was say that the men were guilty.

The other problem was the photograph. The judges didn't like how the officer showed her a single picture. It was like saying "if you want to go free, all you have to do is say this guy did it." A proper photo pack would have shown more clearly whether she recognized the guy.

I suspect that the investigators believed that the girlfriend knew Mr Wheatle well.  But that's not what she said. She said she met him only that night, for only a few minutes.

The judges agreed that this way to identify Mr Wheatle was very weak.

Fortunately, the recordings made up for what the identification procedure lacked.  The jury convicted and the appeal court upheld their verdict.

This case contains lessons for general duty officers and lead investigators of sophisticated units.

For you homicide and gang investigators, it illustrates how much you can do with wire and a coordinated plan. It reminds you how little judges trust agents, rats and turncoats. Get corroboration.

For you first responders and junior investigators, don't show a single photograph of a suspect to any witness (or suspect), unless you're sure that there is a substantial prior relationship between them. And be doubly careful when interviewing a witness of dubious credibility about who was there at the time of the crime.

This concept applies to live bodies too.

Sometimes, a first responder will catch - within minutes of the crime - a suspect who resembles the person that the complainant describes. Can you show the complainant who you caught?

Even if the complainant does not know the attacker, you can show the suspect to the witness, and ask "is this the culprit?"  But beware. At trial, the defence may argue that you merely caught a person who looked like the culprit. You'll want more evidence than this to prove beyond a reasonable doubt that the suspect is the culprit. If the complainant says "yes", keep investigating. For example:


2022.08.20 Reasonable Grounds and Possibility

When you ask a justice for authority to search a residence for evidence, you need to explain to the justice why you think that the evidence is there.

If years pass between the crime and the search, you may need compelling reasons to explain why one should expect that the evidence still remains in the place.

Mr Collison disappeared in 2009. Nobody found his body until 2014. It bore witness to 5 gunshot wounds. One in the back of the head. Four more in the back. Witnesses said that Mr Wise, 2022 ONCA 586 complained of disliking Mr Collison, and expressed interest in his murder.

In 2016, could the officers search his home?

The police had reasons to think that Mr Wise was a serial killer. They asked a psychologist whether serial killers kept souvenirs of their killings. The expert could not say that Mr Wise would likely keep them, but this behaviour was "within the realm of possibility".

They put that information into the ITO to help explain why their search would locate evidence.

Possibility ain't probability.

Although the investigators persuaded a justice to issue a search warrant for Mr Wise's home, the trial judge and the judges of the court of appeal held that the warrant should never have been granted.

Too bad.

He did possess some things that tended to show his guilt. Including what appeared to be a map of the place where the body was dumped.

That evidence was excluded.  Mr Wise beat the charge.

Even if little time passes between the crime and the search, your application for a search needs to explain why the evidence will likely be there.

If your grounds lead you to conclude that the evidence could "possibly" be there, then your grounds still aren't strong enough. You need to be able to say that the evidence and information you gathered so far gives you good reasons to think that the evidence - or at least some of the things - are there.


2022.08.14 Don't (always) need a gun to prove it was a gun

One way to prove that what the suspect fired is a "firearm" is to seize the thing, and send it to an expert to examine.

What if you can't get the gun?  What if the lab's too busy?

Sometimes, the prosecution can prove it's a gun by applying the duck principle.

If it walks like a duck, and it quacks like a duck, it must be a duck.

After a basketball game, some kids followed the coach of the losing team. One of them, Mr O.A., 2022 ONCA 565, pulled out something that looked like a gun. There was a bang like a gun. Afterward, there were two small round holes in the coach's car that weren't there before.

Even though investigators never caught Mr O.A. with any weapons, the trial judge concluded it must have been a firearm.

Mr OA complained to the Appeal Court that a judge needs more evidence than that to conclude that Mr OA possessed a "firearm".

The court disagreed. Effectively, they applied the duck principle.

This doesn't mean that a bang from something that looks like a gun, leaving bullet holes, will always prove that it's a firearm. It will depend on the quality of the evidence. Often, you will need an expert.

But not always.

2022.08.06 Foreign Cops and Local Offences - What's your Jurisdiction?

American cops asked Canadian cops to help bust an American drug trafficking ring. The American officers covertly seized 26kg of real cocaine, and put fake cocaine in its place. The American police said that their targets expected the cocaine to arrive in Canada. The American cops asked Canadian cops to participate in the investigation.

The Canadian cops participated in the delivery of the fake cocaine. Mr Hollaus, 2022 BCCA 272 and Mr Oliynyk showed up to pick up the fake drugs.

Canadian police officers arrested them, knowing that the drugs in their possession were fake. No real drugs entered Canada.

When the American authorities asked the courts to extradite Mr Hollaus, he complained that the Canadian police had no authority to arrest him. Because the drugs were fake, he was not really committing a crime in Canada. And besides, he said, the Canadian police were just helping the American officers investigate a crime that happened in the USA. Therefore, the Canadian officers had no jurisdiction to exercise police powers in Canada.

If the officers had arrested Mr Hollaus for possessing drugs in the USA, there might be some force to this argument.

But in Canada, it's an offence to possess drugs for the purpose of trafficking. And it's also an offence to attempt to commit a crime. Nobody acquires 26kg of cocaine for personal use. The only purpose would be to traffick.  Therefore, Mr Hollaus, attempted to possess drugs for the purpose of trafficking.

And that's an offence in Canada.

The police arrested him for (Candian) offence of PPT, as it was happening in Canada.

Defence argued that the underlying purpose of the arrest was to assist an American investigation. The judges didn't care. The arrest was good if the Canadian police arrested him for a Canadian offence that happened in Canada. Their motive to involve themselves for the purposes of a broader American investigation didn't change the lawful arrest into an unlawful one.

For you, it serves as a reminder of some basic principles:

2022.08.06 Explaining the Reason for Detention - The Problem with Pretexts

As explained above, after an officer saw Mr Hollaus, 2022 BCCA 272 and Mr Oliynyk load a suitcase into a pickup truck, they had grounds to arrest him for PPT.

They wanted to stop his truck, but they didn't want to tell him the real reason at first because:

So they told a little white lie: it was a "routine traffic stop".

They got him out of the truck.

Then they "disovered" the suitcase - giving him the impression that the officers on the ground did not know anything about the conspiracy.  Within 4 minutes of the stop, they arrested him for PPT.

it was actually an international investigation. There were compelling reasons to protect it at that vulnerable stage.

But lying to him about the reason for the stop directly offended s.10(a) of the Charter.

In this case, the judges found that excluding the evidence was not appropriate because of the brief and technical nature of the lie.

Unfortunately, I know of no lawful authority for police to tell these lies. In most small cases, they aren't necessary. But in multi-million dollar inter-jurisdictional investigations, failure to tell these lies when arresting the underlings can undermine the investigation, allowing the kingpins to escape justice.

I fear that the day will come that a judge will conclude that it brings the administration of justice into disrepute to have police officers routinely breaching s.10(a) of the Charter in serious investigations.

For that reason, I say that police should be able to apply to a judge for an order which grants them temporary dispensation from the obligation to explain the true reason for the arrest or detention. It will come with conditions, I expect, including a firm obligation to hold off eliciting evidence of the offence.

This requires legislation. A new provision like a warrant provision. I suggested it 15 years ago at a conference in Ottawa. I still think it's necessary. I still think Parliament needs to act.

Defence also argued that s.10(a) required the police to inform Mr Hollaus that he was detained in respect of the American offence of conspiracy. He had some case law to work with. In R. v. Borden, [1994] 3 SCR 145, police arrested the defendant for one sexual offence, and they suspected him of another. But when they arrested him, they only told him about one offence. The court said "Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention".

The court rejected this argument too, but didn't provide a clear dividing line between the situations in which you must mention multiple matters under investigation, and the ones in which you need only mention the matter for which you arrested.

Therefore, if you suspect your prisoner of multiple different crimes, and arrest him for one crime, consider mentioning at least the ones for which you have reasonable grounds to suspect his involvement.

2022.08.01 R. v. Lafrance, 2022 SCC 32 - What's a Detention? - Time to Start Second-Guessing Yourself

If handcuffs bind your hands and a lock secures the door, you can easily determine that you are detained.

Most folks would feel some relief when the man with the gun says "you are free to go". But if the man with the gun does not remove the manacles and unlock the door, that feeling of relief will soon pass.

Canadian law recognizes another kind of detention. It happens when fear of - or respect for - a peace officer's badge, role or power would cause a reasonable person to feel they can't leave. This "psychological detention" concept causes some confusion for police officers. This decision makes it more important than ever to understand.

Police woke Mr Lafrance, 2022 SCC 32 from his bed in the early morning. They told him to get out of his house while they searched it. They had a warrant. An officer explained that they were investigating a murder. The officer asked Mr Lafrance to come to the police station to discuss the stabbing death of his drug dealer. The officer told him he didn't have to come. He accept their offer of a ride in a police car.  He spoke with an officer for 3 hours.

At trial, he complained that the police detained him, but did not give him access to a lawyer. The trial judge concluded that the police did not detain him. Two judges of the Court of Appeal, and 5 judges of the Supreme Court of Canada held there was a detention. 1 judge of the Court of Appeal, and 4 judges of the Supreme Court of Canada held that they didn't.

If you consider all the judges who considered the case, the final score was 7:6. The majority held that Mr Lafrance was detained.

Mr Lafrance won a new trial.

You may find this a surprising result:

Five judges of the Supreme Court of Canada found that police actions can trigger a "detention" even when the subject himself does not feel compelled to accompany police. They relied heavily on an earlier case R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, in which the defendant himself did not consider himself detained, but the judges concluded that the officers had done what would make any reasonable person in his shoes believe was a detention.

The judges explained their interest not in what the subject actually felt, but what a reasonable person in the defendant's position would feel.

But what about telling him "you're free to go"? Doesn't that resolve any confusion?

Although telling a suspect that can leave may prevent him from being detained, it doesn't always work - depending upon what else the police do. Like the handcuffs that stay on and the door that remained locked, the judges found that how the police handled Mr Lafrance would have made a reasonable person feel detained, even though police told him he could go:

The majority of the judges held that even if (the reckless) Mr Lafrance himself was not cowed by the nighttime invasion of his house by armed officers, a "reasonable" 19-year-old indigenous man who experienced what these officers did to him would feel detained, even after they told him he was free to go.

And therefore, the police should have told him about his right to counsel.

Wow.

As the dissenting judges pointed out (para 121), this imposes a challenging burden on police officers. After you tell a suspect "you're free to go", and the suspect responds in a way that makes you think that the suspect understands this freedom, the judge may still conclude that because of his or her race, age or vulnerabilities, a "reasonable" person in the position of your suspect would feel like they are still detained.

In order to persuade the judge that you delivered the message, you may need to repeat information to the suspect, and organize your interactions in a way that gives the suspect a real opportunity to leave.

How far do you go? Doing too much may insult the intelligence of a suspect who understood you the first time you said "you're free to go". Mr Lafrance was reasonably intelligent. If an officer had gone too far to explain and demonstrate his liberty to him, I can imagine Mr Lafrance saying "What's the matter? Don't you want to hear what I have to say?"

You don't want anyone in the public to think that cops don't want information about the crime they are investigating. Least of all the culprit.

Therefore, you need to form strategies by which you can navigate this minefield.

What might work to create such clarity that the judge will find that a reasonable person would understand that they are free to go? Maybe:

2022.07.26 Reasonable Opportunity to Get Legal Advice - Second-Guessing the One Opportunity

Three weeks after they searched his house, police arrested Lafrance, 2022 SCC 32 for murdering his drug dealer.

When offered an opportunity to get legal advice, Mr Lafrance accepted it. He spoke with "a free lawyer" Legal Aid. He had never spoken with a lawyer before. He told an officer that he had spoken to a lawyer, and that he understood the lawyer's advice.

The interviewing officer started gently, but after several hours, confronted Mr Lafrance with his belief that Mr Lafrance killed the drug dealer.

What Mr Lafrance said next triggered another debate. Should the officer have given him further access to counsel?

Q. Alright so what happens Nigel?
A. Well –.
Q. What – what went on?
A. Well I would – ah I want to talk to my dad before I continue.
Q. Ok wh – why do you say that?
A. Cause well he’s – well he’s my only chance of getting a lawyer and I just – I don’t know.

Mr Lafrance explained further:

A. Well no they told me – they told me to get a lawyer before I continue talking.
Q. Ok what do you mean by told you to get a lawyer?
A. Like someone that can come down and sit with me.
Q. Ok.
A. Instead of just over the phone.
Q. There’s a person that ah you know what – and the way that that kinda goes ah – I won’t say it’s, it’s bad advice but it’s maybe miss – a little bit miss as – miss ah – interrupted. Um there’s not any time or any process during our interview –.
A. Um?
Q. Where we’re gonna have a lawyer sitting in the room with us.
A. No, no I – I mean, no mean like so –.
Q. Ok.
A. Like for me to sit down with them personally.
Q. Ok.
A. To talk to. [Emphasis added.]

Just as they disagreed about the detention issue, the judges disagreed whether this triggered an obligation on the police officer to stop and give Mr Lafrance a further opportunity to get legal advice. A bare majority of the judges found that it did.

Why?

Because it suggested that Mr Lafrance didn't understand his right to get legal advice. It suggested that the lawyer told him that he could get another lawyer to come to the police station and give him legal advice in person.

The dissenting judges felt that Mr Lafrance later indicated a full understanding of his right to silence. Therefore, whether he was confused or not about how many lawyers he could consult with, he knew his rights in the interview.

The majority rules. If, after getting legal advice, your prisoner raises the concern that s/he expects to speak further with counsel before proceeding, stop investigating the offence, and work out whether the your prisoner finished obtained legal advice about the matter for which s/he is arrested or detained.

Your prisoner isn't entitled to get advice from non-lawyers, but is entitled to get help from non-lawyers to contact a lawyer.

Therefore, when your prisoner says "I want to call my dad/mom/brother/cousin/employer/friend/partner", you may want to inquire why.

When the prisoner calls a non-lawyer to locate a lawyer, you can participate. Why? Because it's not privileged. You may want to make sure that the prisoner really is trying to get a lawyer, or to ensure that the prisoner isn't asking a friend to destroy evidence or threaten a witness.


2022.07.26 Refusal

 without Legal Advice - Principles in Conflict

What obligations affect a driver and a police officer after the officer makes a breath demand? Should the driver blow? Should the driver talk to a lawyer first? What do you do with a driver who refuses?

Detention

All of the sobriety-testing demands trigger "detentions" within the meaning of s.9 and s.10(a) of the Charter. In order to avoid "arbitrary" detentions, you must have sufficent grounds (ie reasons) to make them. In order to satisfy s.10(a), you must explain the purpose of the detention to the driver. (Generally, reading the demand explains what's going on.)

Right to Counsel

Analysis demands (breathalyzer, blood, urine, DRE) trigger the right to get legal advice before giving the sample. (Prosper, [1994] 3 SCR 236) But screening demands (SFTS, ASD) do not. (Woods, 2005 SCC 42).

Arrest

Should you arrest a drunk driver? Section 495(2) of the Criminal Code prohibits you from arresting people for hybrid offences if you don't need to. If the only reason you're thinking of arresting the suspect is to get the suspect to come with you to the police station for a breath analysis or DRE, think again. The demand already imposes that obligation. See s.328.28(1)(b)

If you do arrest a drunk driver, section 498 obliges you to release him or her as soon as practicable once you know who they are, have collected all the evidence, and addressed concerns about further offences. Judges call it "arbitrary detention" when you hanging on to a prisoner without justification. This violates s.9 of the Charter

Refusal of a Breath Analysis Demand

What should you do when a driver refuses a breath demand?

Mr Gordon, 2022 BCCA 260 drove while drunk. Civilians complained. Police stopped him. An officer arrested him for drunk driving, and told him he could get legal advice. He responded that he wanted legal advice.

The officer then demanded that he provide breath samples down at the police station.

He told the officer that she was "way out of line". Unequivocally, he explained that he wouldn't provide breath samples because he wasn't drunk.

She arrested him for refusal too, and told him again of his right to get legal advice. Again, he said he wanted to talk to a lawyer.

Instead of arranging for legal advice, or taking him to the police station to blow into the breath testing instrument, she released him on process to attend court.

Afterwards, Mr Gordon complained that she interfered with his right to retain and instruct counsel:

Instead, she elicited evidence that could be used against him - his refusal to provide a breath sample.

Without discussing s.498 of the Criminal Code or s.9 of the Charter, the court agreed with Mr Gordon. The judges held that the officer "interfered" with Mr Gordon's right to get legal advice.

I disagree with the court's analysis. By freeing Mr Gordon, the officer gave Mr Gordon every freedom including the ability to get legal advice if he really wanted it.

However, I agree with the court's conclusion that the officer should have done something different.

A long time ago, that court explained what to do with asuspect who refuses an analysis demand but wants to talk to a lawyer.  Until the suspect gets legal advice, the officer should treat the refusal as "conditional". It isn't over yet. After the driver gets legal advice, if he still fails or refuses to comply with the demand, then the refusal becomes unconditional. R. v. Sullivan, 1991 CanLII 656.

Although some courts disagree with the BC approach (eg McKeen, 2001 NSCA 14), I think it's fair. I think this principle  would have helped the officer who dealt with Mr Gordon:

  1. The officer wanted evidence of Mr Gordon's intoxication.
  2. The demand compelled Mr Gordon to provide it.
  3. By refusing, Mr Gordon was making a bad decision
  4. The act of refusing was a crime.
  5. A police officer's duties include dissuading people from committing crimes. Therefore a police officer should want to persuade people not to refuse a lawful demand.
  6. A lawyer's job includes advising their client not to commit a crime.
  7. Mr Gordon said he wanted legal advice.
  8. Independent legal advice would likely have persuaded Mr Gordon to blow. (He seemed to believe that he was sober.)
  9. Therefore, keeping him in custody while he got legal advice might prevent him from committing the crime of refusal.

I think that section 498 did not compel the officer to release Mr Gordon at the scene:

  1. If the refusal was "conditional", then the officer was witnessing an ongoing offence of refusal to provide a breath sample. Further detention was necessary to put a stop to that criminal conduct.
  2. One of the justifications for ongoing detention is to obtain evidence. There was evidence to obtain.
  3. If a lawyer would persuade Mr Gordon to provide breath samples, then ongoing detention was necessary in order to obtain evidence of Mr Gordon's impaired driving.

Because of this difference between BC and Nova Scotia, this analysis works in BC, but might not work in Nova Scotia.

Refusal of a Breath Screening Demand

But what if Mr Gordon refused a screening demand?

There's no legal right to advice after a screening demand. The Sullivan analysis does not apply. An unconditional refusal terminates that part of the investigation.Even if the driver wants to talk to a lawyer (See Woods)

What's the fair thing to do at roadside with a driver who unequivocally refuses to blow into a screening device, but wants to talk to a lawyer?

Here's my suggestion:

If s.495(2) prevents you from arresting him, or if s.498 compels you to release him, then I suggest that you obey your legal obligation first - release the driver and serve process. But before s/he goes, try to help them get legal advice. After they get legal advice, the driver may want to comply. If so:

Don't Offer Refusal as an Option

After you make a demand, you have a duty to follow through without delay.

All too often, after reading a demand, officers ask the driver about their plan to comply.

Those questions cause trouble. They suggest that the driver has a choice of complying or refusing.

Don't suggest to a suspect that they commit a crime.

If you found a group of mischievous teens hanging around at 4:00am, you wouldn't ask them "hey kids, are you going to throw a rock through that store window, or are you going to go home?" If they weren't thinking of smashing the window before, they will now.  Why do the same thing with an inebriated driver?

Act as though they're going to comply, even if they mumble disagreement. Promptly present the instrument or do the field sobriety tests. Or bring the driver quickly to the instrument or the DRE.

2022.07.26 R. v. Lafrance, 2022 SCC 32 - Time to Start Second-Guessing Yourself

Last week, the Supreme Court of Canada delivered a split decision which will cause you trouble for at least a decade.

The majority of 5 judges determined that even if you repeatedly tell someone that he is not detained, he may still be detained for the purposes of s.9 or s.10 of the Charter.

They also found that even after an arrested suspect exercises his right to counsel, you may have to give him further access to legal advice if he hints that he got bad legal advice or that he expected to get further access to counsel.

The decision contains much to consider. I haven't finished analyzing it. I will write more soon.

This decision matters to all police officer who interact with suspects. Members of interview teams will need to read it carefully.

2022.07.02 When is the Case Over?

In 2010, a court found that Mr Bailey, 2022 ONCA 507 did, indeed rob and assault his victim, causing bodily harm. His lawyer asked the judge to find him "not criminally responsible by reason of mental disorder". The judge (and prosecution) agreed.

For the next decade he stayed in hospitals and supervised placements in the community.

And after a decade, he applied to appeal his conviction.

The court let him.  If there's a retrial, it's going to be a difficult one to run.

When you're clearing out your exhibit locker after a big case, it might be worth taking a few photographs of the exhibits before you throw them out or return them. Especially if the defendant was found guilty.

2022.07.02 Interviewing Vulnerable Suspects - Voluntariness

Mr Hosack, 2022 BCCA 226 suffered from mental illness when he killed Mr Falardeau. Mr Hosack continued to suffer mental illness when police interviewed him about the homicide.

He asserted his right to silence. Police kept interviewing him. He denied killing Falardeau. Police kept interviewing him.

For 12 hours.

Many hours into the interview, Mr Hosack adopted a weird "grandfather persona". This persona admitted ordering the killing.

The trial judge admitted Mr Hosack's statement into evidence. It, and other evidence led the trial judge find him guilty of murder.

On appeal, Mr Hosack's lawyers argued:

These arguments all failed.

The cognitive abilities sufficient to give a voluntary statement are modest. The evidence need only show that the suspect knew he was speaking with police, that what he says could be used in evidence, and that he exercised his on choice in deciding whether to speak. You may find some value in reviewing the trial judge's review of the interview.

These officers video-recorded their interactions with Mr Hosack. The recordings show that they treated Mr Hosack gently and kindly. His responses to them through showed that he understood what was going on.

The officers did overstate the strength of the evidence they had gathered. That can lead to difficulties if your lies force the suspect into confessing. That didn't happen in this case.

The officers did, however, "gate" him. He was about to be released from jail after serving a sentence on an unrelated matter. Police arrested him for the murder. Defence argued that doing so would dash Mr Hosack's hopes of liberty; this would serve as a psychological hammer to break him down.

The optics of gating suspect are ugly. Avoid proceeding in this manner if you can.

If he was insane, how could he be convicted of murder?

Sanity isn't binary. People who hold delusional beliefs on one topic can simultaneously think rationally on other topics. For example, you likely know people who hold delusional beliefs about COVID, politics or the flatness of the earth. The evidence did not show that mental illness rendered him unaware of the legal and moral wrongness of the killing.

The best-trained officers in interviewing did this interview.  General duty officers don't usually have that much training. These officers took 12 hours to interview Mr Hosack. General duty officers rarely get an hour to talk to the suspect.

Even still, I suggest that general duty officers read the trial judge's review for ideas on how to conduct their own interviews.  Even if you spend only half an hour explaining what you know about the case, you may collect crucial evidence.  Even if you don't get a confession, the defendant may admit background facts which will provide important at trial.


2022.06.26 "Can I have my cell phone" - Right to Counsel

In a routine impaired driving investigation, an officer arrested Ms Cyr-Desbois, 2021 QCCA 305, and took her to the police station.

When told she could call any lawyer she wanted, Ms Cyr-Desbois told the officer that she wanted her cell phone so that she could call her dad, and ask him for name and contact information of the lawyer that her family trusted.

The officer refused to let her have her phone, and did not let her call her father;  but she got to speak with duty counsel.

At trial and appeal, the judges agreed with her complaint: access to duty counsel wasn't good enough. She knew of a lawyer she would trust. Police should have tried to help her reach that lawyer.

In this case, that should have involved calling her dad, or letting her access her cell phone

2022.06.23 Cops Need to Prove Identity

People can make mistakes about identification of strangers. For that reason, judges view with some suspicion the word of an eyewitness "that man over there is the man I saw 2 years ago when the crime occurred."

What evidence should you gather so that you can prove that the person who turns up in court year(s) later is the person you caught committing a crime?

An undercover officer purchased drugs three times, and arranged to purchase them a fourth time. Police arrested Mr Baksh, 2022 ONCA 481 on the fourth occasion.

At trial, the undercover officer claimed to recognize Mr Baksh as the guy he dealt with on the previous three occasions.

Defence argued that the officer's brief interactions, so long ago, raised a risk that the officer might be wrong about who he dealt with.

If in-court recognition were the only evidence of identification, the judge would have acquitted.

But the officer's cell phone communicated with the same cell phone each time. The person he communicated with each time continued a conversation that started with the first call. Other officers tracked a car that the dealer used to the defendant's mother's house.

For police officers, taking photos of the suspect (and looking at them before you testify) really helps you explain how you recognize the person in the court room. If you can't get photographs, then consider what other evidence you can gather that answers the question "how will we prove that the person who comes to court a year from now is the same person we investigated today?"

2022.06.05 Bilingual Justice System - First and Second Choices

In Canada, people facing criminal charges have a right to a trial in either French or English ... or both. But they don't have a right to play games with the justice system over this right.

In British Columbia, the idea of a bilingual nation can seem theoretical. Of uniliingual people here, the vast majority speak Asian languages. Bilingualism in French and English is fairly rare.

But French remains the other official language of Canada. In an Anglophone province, this should affect your practice when arresting and releasing bilingual Francophones for court.

A junior cop arrested Mr Tayo Tompouba, 2022 BCCA 177 for a sexual assault. In English, she told him about his right to counsel.

He could speak Engish and French.

So could her supervisor.

But everyone spoke English, because that's convenient in B.C..

After getting legal advice (in English), Mr Tato Tompouba confessed to the police officer that he did sexual acts to the complainant while she slept.

An officer released Mr Tayo Tompouba on a Promise to Appear, which he signed.

He went to court, as he had promised.

The justice addressed him only in English.

Section 530 of the Criminal Code required the justice of the peace to tell him that he could have a trial in French if he wanted.

But she forgot.

He had an English trial.

After his conviction, Mr Tayo Tompouba wanted a do-over. In French, this time. (Maybe he thought he sounded more innocent in that language.) He appealed, complaining that the justice failed to tell him about his right to a French trial.

You might not find the Court of Appeal's analysis of language rights at trial interesting, but you should be heartened to learn that the investigators helped salvage the case.

They used a standard form for the Promise to Appear.  It contained a notice - in both official languages - informing Mr Tayo Tompouba that he could choose his language of trial.

At the appeal, the Crown argued: "Sure, the justice forgot to tell him about his choices. But the cop did. Mr Tayo Tompouba actually knew what choices he had. The minor error that the justice made means nothing."

Legally, this form didn't cure the mistake that the justice made. But it helped the court of appeal come to the conclusion that the justice system treated Mr Tayo Tompouba fairly. His conviction stuck.

This case reminds us all that in a justice system, every defendant needs to be able to communicate effectively. Get interpreters for folks who need them. But in Canada, French and English are special. Even if the defendant can communicate effectively in one language, s/he choose to use the other.

This case makes us think about pre-printed forms. I don't them very much. Filling the blanks is so boring that many people ignore what the forms say. When you stop thinking about what the document actually says, you may use it for the wrong purpose, and things will go wrong.

But when well-drafted and used properly, forms can save the day.

Now that you know why Promises to Appear should refer to the choice of language of trial, you might want to check to see whether your office still uses bilingual forms which mention the defendant's right to trial in either official language.

2022.06.05 Note-Takers - First and Second Choices

When the recruit arrested Mr Tayo Tompouba, 2022 BCCA 177, she told him about his right to counsel and wrote some notes about it in her notebook. Her supervisor watched, but didn't write the prisoner's answers in his notebook.

The recruit died before trial.

As noted above, the prisoner made a damning confession. But the Crown could not use it at trial unless it could prove that the police told the prisoner about his right to counsel.

So they asked the supervisor to explain what happened.

Not easy if you don't have notes. He didn't remember.

The prosecutors relied on the recruit's notebook and some clever legal arguments. They managed to satisfy the trial judge and the court of appeal. Complicated legal arguments don't always work. Evidence usually works better.

Whether you are supervising, or just providing back-up to another officer, if you watch significant events in the investigation, take some notes.


2022.05.29 Charges Aren't Convictions - Warrant Drafting

I often cross-examine defendants about their criminal records. I am allowed to ask them whether they were "convicted" of the offences on their record. They often agree that they were "charged".

But in a court room, there is a big difference between "charged" and "convicted". "Charged" happens when a peace officer swears that there are reasonable grounds to believe that someone committed a crime. "Convicted" happens when the suspect pleads guilty, or when the judge, having heard sworn testimony concludes beyond a reasonable doubt that the suspect did the crime.

Many criminals don't know the difference. But judges care about the difference. Judges (and prosecutors) do a great deal of work moving from "charged" to "convicted". When you equate the two, you treat the judges' work as if it doesn't matter.

Pissing off the judge does not help the case.

Mr Abdoulkader, 2022 ONCA 354 attempted two bank robberies, and at one, he got away with lots of cash.

This wasn't new. He previously faced charges of attempted robbery and robbery. Of banks.

When investigation of the latest ones led police to Mr Abdoulkader, they applied for warrants for his house and cell phone.

In the ITO, the officer who applied told the justice that Mr Abdoulkader had previously been convicted for similar robberies.

Well, he had been convicted for a similar attempted robbery. But only once.

A justice granted the warrants. Executing the warrants recovered $222,000, and useful evidence.

Mr Abdoulkader was charged. At trial, his lawyer complained that the ITO contained false information. The judges agreed.

But there was so much other evidence justifying the issuance of the warrant that the judges dismissed his complaint. Mr Abdoulkader was convicted, and he lost his appeal.

For the last 20 years, I've seen cases discussing this error more times than I can count. It seems that police officers keep making the same mistake. Next time you draft an ITO, try to avoid annoying the judges:


2022.05.17 The Intoxication Defence - A Duty to Warn

?

A crime occurs when someone intentionally does something prohibited by law.

After a guy drinks so much that he does not know what he is doing, can it really be said that he "intentionally" did anything? Can extreme intoxication excuse every evil act?

In May, 1989, Mr Daviault [1994] 3 SCR 63 got real drunk and sexually assaulted a friend of his wife. In his defence, an expert testified that his intoxication deprived him of any understanding of what he was doing. He couldn't have acted intentionally.

The trial judge convicted him. The Supreme Court of Canada liked the argument and ordered a new trial.

Today, the science suggests that alcohol can not create an ability to act without knowing what you're doing. But drugs can.

The idea that a guy beat the charges by saying "I was too drunk at the time to know what I was doing" annoyed a lot of people. Parliament responded by enacting s.33.1 of the Criminal Code which eliminated voluntary intoxication as a defence to a crime of violence.

Mr Brown, 2022 SCC 18 got high on a combination of alcohol and magic mushrooms. In a psychotic state, he attacked a stranger, causing terrible injuries. His lawyer complained that s.33.1 offended his Charter rights by allowing him to be convicted of a crime when he never intended to do the harmful prohibited thing (assault).

The judges agreed: he didn't know - at the time that he got high - that he would hurt anyone; and when he did hurt someone, he was too intoxicated to intend to do anything wrong.  Therefore, he didn't intentionally do any prohibited act that hurt anyone. Therefore, it would be wrong to say that he committed an assault.

Mr Sullivan and Mr Chan, 2022 SCC 19 made similar successful arguments. Mr Chan also mixed alcohol and magic mushrooms, which may have aggravated a pre-existing brain injury. After several irrational acts, he stabbed and killed his dad. When Mr Sullivan overdosed on a prescription medication, he attacked his mom with a knife, but didn't kill her.

Note that this analysis only applies to extreme intoxication, where the defendant is a walking automaton. If the offender still has some general idea of what he is doing, then he may be held liable for most offences of violence.

What Parliament Can Do

The judges recognized that Canadians want to hold the extremely intoxicated people accountable for the harm they do. The judges suggested two ways to do it:

  1. Create a stand-alone offence of intoxicating oneself excessively; or
  2. Create a criminal negligence offence of intoxicating oneself when one knows that doing so creates a dangerous risk of criminal behaviour that one cannot control, and then committing a criminal offence.

If Parliament creates only the second type of offence, the next "Mr Brown" would escape liability. Mr Brown testified that he had tried magic mushrooms before. According to him, they gave a "fuzzy but positive feeling". But no homicidal madness. Because he had no reason to expect to behave so badly after consuming 'shrooms, he was not criminally negligent when he consumed them.

Even if Parliament creates both types of offences, some evildoers will escape liability by surprising the Crown with this defence.

Suppose, for example, that excellent security video records a killing. The investigation locates no evidence of intoxication. The only charge that the evidence supports would be murder.  Suppose, at trial, the defendant testifies that he bought and used magic mushrooms shorty before the killing, which put him into a psychotic state. If believed, this evidence now provides a complete defence to the murder charge. And the killer would escape conviction for the other offences because they were not charged.

Therefore, Parliamentarians would be wise to add a section that defines these offences as "included" offences for offences that include violence, property damage, or risk to life.

Parliament might also do well to include a presumption that everyone knows that illegal drugs inspire dangerous behaviour.

The combination of mental disorder and intoxicants complicates the analysis some more. As does the thorny problem of addiction. The analysts in Ottawa have some work to do.

What police can do

If you investigate a case of highly intoxicated violence, you might want to investigate the defendant's past incidents of intoxication.  Did he know what would happen if he used? If it looks like he might beat the violence charges on the basis of extreme intoxication, can the Crown prove that he was criminally negligent?

Users of intoxicants need to know how dangerous they become when they use. If they know, and still use, then they're criminally negligent.

Therefore, if Johnny goes crazy on drugs, then when he regains sobriety, you should:

  1. tell him clearly what did,
  2. try to find out what he was using, and
  3. document what you learned and what you told him.

If he uses the same drug again, he may be held criminally negligent for the harm he causes. But only because the prosecutor can prove that Johnny knew how dangerous he would become when he used.


2022.05.17 What Digital Logs can Tell You (If you Look)

What did Mr Grandine, 2022 ONCA 368 know about the effects of lorazepam, and when did he know it?

The answers to these questions helped answer a bigger question: was he criminally responsible for his wife's overdose?

During their relationship, his wife did not like his habit of viewing pornography online. As part of ongoing counselling, they installed software on a shared computer which filtered his access to porn and reported to her account what his account had been doing.

His wife did not like his infidelity either. He promised to end his affair with Ms Florentino, a woman from the church.

Searches of his electronic devices suggest that he broke both promises.

Mr Grandine told police that on the night that she died, he left the house around 9:45pm, for a run. He returned an hour later.

But:

He then called 911 to report that his wife drowned in the bathtub.

Her body contained too much lorazepam.

Did she commit suicide by taking lorazepam?

Someone in her house took great interest in lorazepam. Searches done on their shared computer showed queries on where to buy lorazepam without a prescription, how much would be a fatal dose, and whether it or other drugs would be detected in an autopsy.

In the days before she died:

The searches for sex-related websites occurred within minutes of searches relating to Lorazepam. From this pattern of usage, one can reasonably infer who took such an interest in lorazepam.

But there's more. When emergency personnel arrived after the 911 call, they found Ms Grandine still in the tub. Mr Grandine had not even pulled out the plug to drain the water. Are your suspicions aroused? Yeah, mine too.

The Court of Appeal decision addresses no points of law relevant to police work.

But it does illustrate what you can learn from electronic devices if you search broadly, and how much more you can learn when you create a time line which shows that data in relation to the other evidence.

Doubtless, the investigators needed a search warrant to authorize such broad searching. I don't know how the investigators justified the broad searches that they did.

Recall that an application for a search warrant must explain what relevant evidence the applicant expects will be found in the device to be searched. When a justice grants the search, the searcher must focus the analysis on the data identified in the warrant.

You won't find that data if you don't look for it. You can't look for it in private devices without judicial pre-authorization. You won't get broad judicial pre-authorization unless you consider carefully what you know, and articulate what inferences you can draw from what you know.


2022.05.01 Police Conduct when Providing Access to Counsel

The Supreme Court of Canada delivered a decision on Friday that matters to investigators of every type of crime. If you might detain or arrest anyone in the next 15 years, you ought to read R. v. Dussault, 2022 SCC 16.

Police officers arrested Mr Dussault for murder and arson. He told them he wanted legal advice. He picked a lawyer at random. That lawyer spoke to him for 9 minutes. The lawyer asked to speak to an investigator, and did. The lawyer asked that police to suspend the investigation, so that he could come to the police station to talk further with Mr Dussault.

The officer told him "no problem".

The lawyer told Mr Dussault that he would come to the police station to continue the conversation.

The investigators reconsidered whether Mr Dussault was entitled to further legal advice. Relying on R. v. Sinclair, 2010 SCC 35, they figured that Mr Dussault already got his legal advice, and wasn't entitled to more. They pressed on with their investigation, and told the lawyer not to come to the police station because Mr Dussault didn't want to meet him.

When the lawyer came to the police station, the police officers did not permit him to talk to Mr Dussault. Mr Dussault left an angry letter, explaining that he didn't think his client understood the legal advice he gave.

When Mr Dussault asked whether his lawyer arrived, an investigator asked him who had asked the lawyer to come. Mr Dussault said it was the lawyer's idea. The investigator told Mr Dussault that the lawyer was not in the police station.

A different officer asked Mr Dussault questions. Mr Dussault expressed concern that his lawyer didn't arrive. He then made incriminating remarks.

At trial and on appeals, Mr Dussault complained that the police officers breached his right to get legal advice, and the incriminating remarks should be excluded from evidence.

The trial judge figured that Mr Dussault got sufficient legal advice in the first conversation, or at least that the police could reasonably presume under the circumstances that he did. Canadian law does not grant suspects the right to have a lawyer present during police questioning (see Sinclair).  Therefore, the police did not breach his rights.

The Court of Appeal figured that Mr Dussault did not receive a reasonable opportunity to get legal advice, and the police knew it because of the lawyer's angry note. Those judges felt that the police deliberately attempted to prevent Mr Dussault from getting complete advice.

The judges of the Supreme Court of Canada all agreed with Moldaver J. - a particularly well-respected judge on criminal law.

He ducked the question whether Mr Dussault got a sufficient opportunity to get legal advice. Instead, he looked at what the police knew about Mr Dussault's experience of getting legal advice. The officers knew:

  1. Mr Dussault spoke to a lawyer;
  2. The lawyer said he would come to the police station to talk with Mr Dussault, and did come.
  3. At the beginning of the interview, Mr Dussault expected to see his lawyer.
  4. But police told Mr Dussault that the lawyer wasn't there.

This sequence of events would give Mr Dussault the impression that the lawyer let him down. Why should he rely on the advice of an untrustworthy lawyer?

Moldaver J. concluded that the police were obliged to allow Mr Dussault a further opportunity to get legal advice because of the impact that police behaviour had on his trust in the legal advice he received.

You might ask yourself why Waldock thinks this case matters. "I'm not on the homicide squad. I'm not going to investigate the kind of cases in which lawyers rush down to the police station to speak with their clients.".

Judges Care about Prisoners Getting Legal Advice

All of the judges concentrated hard on what police officers did to provide the prisoner with access to counsel.

I write about s.10(b) of the Charter often because it comes up so often.

Whether you arrest murders or drunk drivers, you can expect defence counsel and judges will scrutinize your actions after the arrest.

  1. Did you inform the prisoner promptly about the right to get legal advice? (Did you make notes?)
  2. Did you hold off asking questions about the crime before the prisoner got the access they wanted?
  3. Did you make reasonable efforts to accommodate their desire to identify an appropriate lawyer and contact them?
  4. Did you act promptly, or make the prisoner wait unnecessarily?
  5. When the prisoner contacted counsel, did the prisoner get a reasonable opportunity to get advice?
  6. Did you say or do anything which might undermine the advice that the prisoner got?

Knowing that you will face such scrutiny, do you keep adequate notes and records?

How can police determine when a prisoner received a "reasonable opportunity to get legal advice"?

The trial judge and the Court of Appeal wrestled with this question.Justice Moldaver ducked it. I think he declined to answer that question because it's so important, and because he wanted to highlight his main point.

Despite the absence of an answer, we can draw some useful experience from this case:

A single phone call may or may not suffice. Because legal advice is privileged, you must not ask what the lawyer discussed with the prisoner. But you do want to know whether the prisoner got the legal advice he was seeking, or whether he is expecting or needing more.

Undermining Legal Advice

Justice Moldaver focussed on this topic.

Many years passed since the Supreme Court of Canada last directly discussed what a police officer can say about the defence lawyer. In R. v. Burlingham, [1995] 2 SCR 206, the judges didn't like how the police officer explicitly characterized defence counsel as greedy and uninterested in the defendant's best interests.

In this case, even though the police officers said nothing derogatory about the lawyer, their actions had the effect of making him look bad.

This nuanced approach gives defence counsel broader scope to challenge your words and conduct in the future.

How will you respond

From 1995, we know that you must not denigrate defence lawyers.

Notice that the problem arose in this case partly because of the combined remarks of more than one police officer. When one officer hands a prisoner over to another officer, they should communicate about the progress of the prisoner's access to counsel. Beware of making assumptions about what previous lawyers told the prisoner.

Notice that Mr Dussault even alerted the intervewing officer to a potential problem. It may be wise, when you receive a prisoner, to ask him or her about the progress of access to counsel, and to double-check concerns that the prisoner raises.

Seeking Legal advice is Good

What's good for the goose is good for the gander.

Judges like it when people seek legal advice.

If you read the case, you will find that one of the officers sought legal advice before denying Mr Dussault an second interview with counsel. Although that didn't impress the Quebec Court of Appeal, I think it did impress Justice Moldaver. Seeking legal advice when you're not sure is a good idea.



2022.04.27 Home Invasion without Imprisonment - Residential Searches Tend to Trigger Detentions

Suppose 8 men with guns invaded your home at 6 in the morning. Suppose that they told you to go to the living room. Would you feel "detained"?

That's what happened to Mr Scopel-Cessel, 2022 ONCA 316.

Eight police officers turned up at his place, with a warrant to search for child pornography. They wanted to know who was responsible for the file-sharing program running the at the shared IP address at his residence.

The lead investigator told him and his wife that they were free to go, but asked them to go to the living room while the officer searched.  The lead investigator told them that they had no obligation to answer questions or assist; but he asked them questions which they answered, and he persuaded Mr Scopel-Cessel to use his password to log into his computer, so that the searchers could locate evidence.

Mr Scopel-Cessel asked for permission to make coffee for himself and his wife.

The officer never told him of his right to contact a lawyer until the officers found the file-sharing program running on the computer he had logged into. At that point they formally arrested him.

If you read the decision (it's mercifully short), you can see that the investigating officer tried hard to avoid the detention trigger.

The trial judge found that no detention occurred before that arrest. The appeal court disagreed.

Controlling the scene usually involves controlling the people in it. Asking questions about their involvement in the offence tends to focus your interaction on their involvement in a crime. And that may defeat all the comforting words you say that they are free to go.

This case is worth discussing before you execute your next residential search warrant. With the benefit of hindsight, how would you have handled this interaction with the prime suspect and his wife? If you try to assure them that they are not detained, and free to go, perhaps you might also suggest that they can use their freedom to call a lawyer, if they want.


2022.04.24 Incommunicado between Arrest and Search - A Danger Zone

I found a decision which advanced and junior officers might find useful.

Confidential informants told police that Mr Ghousy trafficked firearms. Surveillance established a network of people with whom he associated. Police watched what looked like a firearms transaction. A couple of days later, they saw another transaction between Mr Ghousy and Mr Keshavarz, 2022 ONCA 312. Police officers arrested them both. They found two handguns in Mr Ghousy's car, and cash in Mr Keshavarz's pocket and drugs in his car.

The officers sought applied for search warrants for 3 residences associated to the two men. The officers suspended their access to counsel until after they got and executed their warrants.

At trial, both men complained that the police investigation breached their rights.

Mr Ghousy enjoyed more success than he deserved. The trial judge figured that the officers lacked sufficient grounds to search his car, and excluded all the evidence as against him. (The Court of Appeal felt that there were ample grounds.)

The trial judge convicted Mr Keshavarz of trafficking the two guns that were found in Mr Ghousy's car.

Mr Keshavarz appealed. He complained that the judge should have excluded even that evidence because the police violated his right to counsel: He didn't get to talk to a lawyer for over 7 hours after arrest!

The Crown agreed that the police breached Mr Keshavarz' right to counsel, but disagreed about the 7 hours. The police allowed Mr Keshavarz to make calls about an hour after the searching was done.

The Court of Appeal agreed with the Crown. Must of the delay was justified.

There are times police can suspend a prisoner's access to counsel. This was one of them.

  1. Mr Ghousy worked with others trafficking firearms. If his confederates learned of his arrest, they might well hide the rest of his firearms.
  2. Those firearms endangered the public.
  3. Police could not enter the residences and seize those firearms until they got a warrant.

An officer wisely testified that he had no concern that the lawyers would help hide the evidence; but in his experience, "things as simple as counsel contacting potential sureties or family members could 'inadvertently cause [the] loss of evidence'".

The court particularly liked how the police did not suspend access to counsel as a matter of routine, but because the specific events in this case required it.  Senior police officers should review the discussion at paragraphs 71-81 to get a sense of what justifies the suspension of access to counsel.

Although the court upheld the conviction, they still found that there was a breach of s.10(b).

If you suspend a prisoner's access to counsel, you must grant access to counsel immediately after the reasons for it subside.  In this case, the moment of safety came when the last house was searched. At that point they should have contacted the cell block, and permitted Mr Keshavarz to get legal advice. Instead, they packed up and drove back to the police station.

Junior officers should not often suspend a prisoner's access to counsel. This decision teaches them that judges care about s.10(b). They want to see that you try earnestly to give your prisoner access to legal advice promptly after arrest or detention.


2022.04.13 Police Officer's Duties and Decorum in Public

Mr Hall 2022 ONCA 288 worked as a security guard at a car factory. On his watch, a fire broke out in an electrical cabinet. In the recent past, that factory had suffered copper thefts. The electrical cabinet contained copper. If someone had attempted to remove that copper, it would have caused an "arc flash" explosion which could have started the fire. Coincidentally, after the fire, Mr Hall had physical symptoms consistent with suffering the effects of such an explosion.

Maybe he started the fire by trying to steal copper.

A police officer arrested him for the theft.

The security company fired Mr Hall.

Charges proceeded to trial. The trial judge acquitted Mr Hall, on the basis that the evidence didn't quite prove his guilt.

Then Mr Hall sued the police for malicious prosecution. He complained:

The trial judge agreed with Mr Hall's complaints, and ordered the police service to pay $686,216.92. The Court of Appeal upheld the verdict.

Ouch.

Regardless whether you agree with the conclusions in this case, it identifies vulnerabilities for busy or enthusiastic cops.

Arrest

All too often, the complaint identifies a crime and a criminal. An objective investigator should not arrest because a citizen demands it, but because the evidence justifies it. Often, the complaint supplies sufficient grounds. But you need to think before you act. The first investigative theory ain't necessarily the best theory. Unless there's urgency - where delay would imperil life or evidence - investigate the available leads before arresting the suspect.

Don't arrest if you don't think the suspect committed a crime.

Obvious? Yes.

Worth repeating? Yes.

Sometimes a junior officer who knows more about the case feels obliged to obey a senior officer who knows less about the case. Rookies: if a senior officer tells you to arrest someone and you don't think the evidence justifies it, ask why. You don't want to cost your police force half a million dollars. Senior cops: listen to the rookie's concern, and if you disagree, explain your thinking

Am I counselling insubordination? Must the rookie refuse an order? No.

If an investigating officer believes the suspect is probably guilty and has reasonable grounds for this belief, that officer can direct another officer to make the arrest. The arresting officer may rely on the investigating officer's work. (Please add the investigating officer to the witness list.) R. v. Hall, 2006 SKCA 19 (Same last name, but an unrelated case.)

Objectivity

The high-five in the court house demonstrated the police officer's allegiance to the company. The judge didn't like it.

Should you stand aloof from the victims in every criminal case?

No.

A good cop seeks justice. A cop who cares will support and encourage the victims of crime, and the witnesses who participate in the stressful business of trial.

I don't think that high-fives are inherently wrong. But they do risk tainting you with an appearance of bias.

Seeking justice also requires caring also about the perpetrators of crime, and ensuring that the process that leads to their conviction is fair, and looks fair.

As investigator, your job is not to secure a conviction, but to present the evidence fairly. Behave in a manner which inspires the trust of both sides of the dispute.

Next time you encounter the defendant, he may have information that he could tell you about a crime. If you prove yourself honest and trustworthy in your dealings with him, he may talk with you next time.

Or maybe he meets a different cop, and remembers how you behaved.

Your objectivity and compassion in one case can ripple far and wide.


2022.04.09 Clearing a Residence - Need for Reasonable Suspicion and Notes

Yesterday, the Supreme Court added some conditions on when you can clear a residence, and how you should document it.

Mr Stairs, 2022 SCC 11 drew attention to himself, which resulted in police discovering his drugs. Mr Stairs complained to judges that police overstepped their authority. The judges disagreed. I previously discussed his complaints to the Ontario Court of Appeal. He didn't like their conclusions, and complained to the Supreme Court of Canada.

The facts

While driving to his father's house, he beat on his passenger, a woman.

Another driver noticed this, and called 911.

Police attended the residence. They knocked and announced themselves.

Nobody answered.

Fearing for the woman's safety, they entered. They announced themselves as police, and asked all present to show themselves.

Nobody appeared.

Eventually, from the top of the basement stairs, an officer saw Mr Stairs moving around down in the basement. But he didn't come up stairs.  The woman did, with fresh injuries on her face. She denied that anything untoward had occurred. Mr Stairs hid. Officers descended to the basement, found Mr Stairs and arrested him.

And then, an officer walked through the basement, looking for people. That's when he found the drugs. At trial, the officer explained that he was clearing the residence - looking for other possible victims or other potential assailants.

The complaint

Mr Stairs complained that the officer had no business snooping through his home: the officers had already protected the victim and secured the suspect. There was nothing more for them to do in the basement. Mr Stairs proposed that police should only be permitted to clear a residence of people when they have reasonable grounds to believe that someone (police or public) will suffer imminent harm if they don't.

The Conclusion

The Supreme Court agreed with Mr Stairs that police can't snoop through a residence just because they made a lawful arrest inside it. They disagreed with him that officers need to justify their search on such strong grounds.

The judges agreed with the Crown that you can still search the vicinity of the arrest. If you find him in a bedroom, you can look for evidence related to the offence, or weapons, in the places to hand where he might have stowed them just before the arrest. But you can't search the rest of the house for those things.

Because of the enhanced privacy of a residence, you can't go digging through the rest of it looking for evidence.

The judges said that you can't even clear it of people unless you have have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search. And when you search, you must restrict your activity to a search for people. No digging for evidence.

But in this case, there were ample reasons for concern. Finding one battered woman does not eliminate the possibility that Mr Stairs hurt another woman. Indeed, it raises a distinct possibility that he did hurt someone else.

Therefore, Mr Stairs lost his appeal. And his drugs.

The Warning

Specialized officers such as tactical squads and dog handlers, beware! The judges strongly recommended that you take fulsome notes about searching residences: what you did, where you searched, how long, and what you searched for. In my experience, those specialized officers often think that because they found nothing of interest, they need not write about it. The judges disagree.

The Gap

The judges did not address what to do when you want to protect evidence in a residence until the execution of a search warrant. In the absence of an arrest, can you enter to clear the residence? I did discuss "freezing the scene" a bit, back in 2019. I don't think that the basics have changed for other contexts. Instinctively, you should think that you need reasons to intrude on private spaces. And then, instinctively, you should record those reasons, as well as how you carefully protected the privacy while performing your duties.


2022.04.09 Reporting the Results of a Computer Search - "5.2" Reports for Data

Head's up!

A trial judge in B.C. recently decided that the results of the non-consensual search of a computer are "things" that need reporting to a justice pursuant to s.489.1 of the Criminal Code, and renewal of detention orders pursuant to s.490

The court has not yet published the decision. Its citation will be: 2022 BCSC 344.

2022.03.09 Arrest for the Sole Purpose of Interviewing

Can a police officer lawfully arrest a suspect for the sole purpose of asking the suspect questions?

If the offence can be prosecuted summarily, I don't think so.

Unfortunately, the only two decisions I know of which address the question directly come from trial judges. I don't know of any answers from higher courts.

An Iqaluit police officer learned that Ms Akpalialuk, 2013 NUCJ 12 was bootlegging. He found her at the air cargo office, receiving lots of boxes of booze. He arrested her and seized the booze. He left her in custody for longer than he should have. He then interviewed her. Five times, she told the officer she didn't want to answer his questions. Finally, she confessed.

But in Nunavut, bootlegging is a summary conviction offence. Section 495(2) prohibits police officers from arresting suspects for summary conviction and hybrid offences unless the public interest requires an arrest. The trial judge found that none of the justifications for arrest set out in that section applied.

In particular, the judge found that you can not justify an arrest for the purpose of taking a statement, or for getting the suspect legal advice. Confession excluded.

But the rest of the evidence proved the defendant's guilt. Therefore, the Crown could not appeal this ruling.

The other decision I know of is R. v. Dieffenbaugh, 1990 CanLII 2282 (BC SC). An officer arrested Mr Diffenbach for assault and interviewed him. Assault can be prosecuted summarily, which means that s.495(2) applies. Again, the officer had no justification under s.495(2) permitting arrest. The trial judge found that the officer breached Mr Dieffenbaugh's right to be free from arbitrary arrest. The judge found that the officer acted in good faith, and Mr Dieffenbaugh would have given the statement anyway. The judge admitted the statement into evidence, and later, convicted Mr Dieffenbaugh.

Again, the Crown won, and therefore, had no opportunity to appeal the finding that the interview breached Mr Dieffenbaugh's rights. (Curiously, in the defendant's appeal, the court said that the accused's statements were ruled inadmissible. R. v. R.A.D, 1993 CanLII 6878 (BC CA) at para 13. I'm not sure what happened there.)

Section 495(2) does not apply to the offences which can only be prosecuted by indictment such as: robbery, aggravated assault, residential burglary, manslaughter, murder etc. Can you arrest a suspect for one of those offences, solely for the purposes of interviewing them? I don't know.

If you know of court decisions which tackle this question of arrest solely for interview, feel free to throw me an email.

Update:

A smart officer pointed out the case of R. v. Viszlai, 2012 BCCA 442. In that case the police arrested lawfully. They had concerns that he posed a risk of reoffence. The officer responsible for the investigation was out of town, and took many hours to get to the police station to interview the suspect. The court interpreted s.498(1.1), which requires police to release prisoners as soon as practicable - unless the "RICE" public interest factors apply. The judges held that after a lawful arrest, police may hold someone for the purposes of interviewing - as long as there is no unreasonable delay.

But the language in s.498(1.1) is exactly the same as the language in s.495(2). How can the same language say it is unlawful to arrest for the purposes of an interview and but also mean that it is lawful to hold an arrested person for the purposes of an interview?

The answer remains unclear.


2022.02.25 Night Search - s.488 of the Criminal Code - Absence makes the heart grow fonder

Section 488 of the Criminal Code prohibits you from executing a search warrant at night unless you satisfy the justice that there are "reasonable grounds" for executing it at night.

A little bit of history

When first enacted back in the 1890's, this made total sense.

Barging into people's residences at night when they're all sleeping can scare them. Sometimes people mistake a police search for a home invasion, and respond with force, which can be bad for police and suspects.

International events highlighted the wisdom of s.488. Night raids by government agents was a hallmark of totalitarian regimes - like the KGB during Stalin's reign of terror, or the Gestapo under Hitler. Nice Canadian police shouldn't raid at night unless it is necessary. Indeed, R. v. Sutherland, 2000 CanLII 17034 (ON CA), the court declared that only in "exceptional circumstances" should police execute search warrants at night.

The concept is great, but the wording of the section did not keep up with the times.

In times past, once an officer seized something, the officer could examine it without judicial authority.

Now, we have cell phones. In most situations, you need a search warrant to search a cell phone that you seized from a suspect or a scene.

Can you execute a search warrant for a cell phone after 9:00pm? Not according to s.488. What about a warrant to search a seized vehicle for guns? Not at night. You need special permission from a justice before you can put in the overtime on that search.

Of course, this is ridiculous. When you plug the cell phone into a data download device, you won't disturb or endanger any people sleeping inside a cell phone. When you start searching the seized vehicle in your secure bay, you won't rouse any people from their beds (but the bound and gagged hostage in the trunk might be pleased that she didn't have to wait until morning for you to release her).

Until Parliament fixes this section, you always need to ask justices for permission to execute at night any warrants you obtain under s487, 487.1 and 462.32 (proceeds of crime).

"Reasonable Grounds" or "Exceptional Circumstances"?

Notice the words I highlit above. The section says the justice needs "reasonable grounds" to grant a night search. The Ontario Court of Appeal said that the justice should grant it only in "exceptional circumstances". At law, those are different standards.

How big an emergency must there be to justify a night search? Last week, the BC Court of Appeal said it needs to be firmly justified, and almost-but-not-quite agreed with the Ontario Court of Appeal on the "exceptional circumstances" test.

It all started in September 2018, when Danny Solomon tried on a $4,000 gold necklace at a Kamloops jewellery store. He ran out of the store without paying for it. On December 5, 2018, images of a matching necklace appeared in advertisements on Facebook Marketplace and Kijiji under the name of his buddy Matthew Carstairs, 2022 BCCA 69.

An officer figured it was the stolen necklace. On December 10, the officer applied for a warrant to search the motel room where he stayed, and asked to be permitted to search by night.

The officer wisely remembered to explain why a night search made sense:

He got his warrant and executed it. He didn't find the necklace. He did find drugs, cash, a stolen drone and an imitation handgun.

The trial judge felt that this night search was justified.The appeal judges disagreed. Factor that mattered to them included:

However, the judges were pleased that the officer asked for the night search, and explained his reasons fairly. They felt that the breach of Mr Carstairs' rights under s.8 was minor. They upheld the convictions.

For you, the lesson is reasonably clear: night searches need permission. Always ask. Always justify it.

Judges aren't fond of night searches. But in this context, "absence makes the heart grow fonder" means "absence [of people from the place you're going to search] makes the [judicial] heart grow fonder [of night search]."

That suggests night searches for cell phones or seized vehicles should be easier to justify than night searches of homes.


2022.02.20 "U good for powder?" - Entrapment

For those of you who investigate dial-a-dopers, this case provides a short clear distinction between entrapment and development of reasonable suspicion.

When an anonymous tipster gives you the phone number of a suspected dial-a-doper, your investigation should not start by immediately calling it and offering to buy. That's entrapment. You need to develop a "reasonable suspicion" that the number a drug dealer uses the number. Maybe your databases tell you something about this number. Maybe your tip gives you more information.

After canvassing other sources, you might try calling the number and asking whether the person who answers deals in drugs.

An officer received such a tip. It led him to the information that the number belonged to Mr Zakos, 2022 ONCA 121, who had no criminal record.

The officer texted the number:

Officer: This tj?
Zakos: Who is this
Officer: Scot, got your number from my cousin. You still around the college?
Zakos: Who’s your cousin
Zakos: Yes still close but I moved
Officer: Jay said he got off you at the gas station a while back. U good for powder?
Zakos: How much were you looking for

Defence complained that the question "U good for powder?" constituted entrapment before the officer had formed a reasonable suspicion.

The judges disagreed. It wasn't an offer to buy, it was an inquiry to determine if the suspect was in the business. It was close to the line but did not cross it.


2022.02.18 Storing Digital Evidence

If you don't yet have a convenient and formal method of storing digital evidence, get one now.

In 2011, someone wearing a balaclava robbed a donut shop at gunpoint. Police seized security video, and a balaclava from nearby. They found some saliva 60m from the shop. DNA analysis from the balaclava and saliva did not match known offenders. The robber left a white kitchen garbage bag on the counter in the shop.

In 2017, DNA from Mr Janeiro, 2022 ONCA 118 entered the DNA database. It matched DNA from the saliva, but not the balaclava. He was about the right height and age to be the robber. Of the 5 identifiable fingerprints on the bag, one belonged to Mr Janeiro. He was charged.

As trial approached, officers could not find the security video. After it was first obtained, an officer labelled it, and put it in a filing cabinet - in an unmarked brown envelope. Other officers viewed it. But nobody could find it for trial. The trial proceeded without it.

Defence asked the trial judge to drop the case because of the missing evidence. The trial judge refused, and convicted Mr Janeiro based on the evidence that remained. The appeal court agreed with defence counsel. In this case, the video was too important. The officers did not take sufficient care to preserve it. Losing it undermined the fairness of trial.

General duty police officers routinely take snapshots with their cell phones. Complainants regularly email screenshots, photographs, email and chat chains.  All sorts of electronic evidence pours in.

If you don't yet have a formal, secure and convenient system to preserve it, then evidence will go missing, and judges won't be sympathetic.


2022.02.17 "Holding Off" Eliciting Evidence before Access to Counsel

"Before you talk to a lawyer, please tell me about the drugs in your possession."

Such a question attempts to elicit evidence of a crime. If you arrested the suspect before asking it, then you have an obligation to "hold off" asking such questions.

Relying on a 911 call, police arrested Mr Mohamed, 2022 ONCA 117 at first for sexual assault. On a pat-down, they found a knife and a small quantity of drugs, so they arrested him for that too.  Mr Mohamed wanted a lawyer.

He appeared intoxicated. He talked in circles about what a good guy he was.

At the police station, he suddenly stopped talking.  That happened when an officer asked him whether he was hiding any weapons or contraband. No more rambling. Silence.

From that silence, the officers inferred that he was hiding something.

A strip search discovered 20 ounces of crack cocaine concealed in his anus.

The court found that the question violated Mr Mohamed's rights. Even worse, the officer who asked it testified that he routinely asked that question.  The judges decided to put the word out to police: don't ask investigative questions before the defendant gets (or waives) legal advice. Mohamed beat the charge.

Does this mean you can ask no questions whatever between arrest and access to counsel?

A good discussion of this appears in R. v O’Reilly, 2021 BCSC 766, which agrees with an older case:

"Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited..."

Basically, you can't ask investigative questions. Be wary of asking questions that could, as in the case of O'Reilly, turn out to provide evidence. (In that case, they asked the prisoner if he wanted anything from his vehicle. He described his phone. That phone contained evidence of his involvement in the crime. The court excluded evidence of that conversation.)

But you can ask the suspect if they have weapons or objects that could hurt you when you're searching for such things. R. v. Patrick, 2017 BCCA 57.

2022.02.08 Full Disclosure means More than "Evidence Supporting Conviction"

Ms Bouvette, 2022 BCCA 9 left a a 17-month old baby unsupervised in a bathtub. The baby drowned - or so said the pathologist.

Ms Bouvette pleaded guilty to criminal negligence causing death.

After sentencing, questions arose about the pathologist's competence. The Crown hired an independent lawyer to investigate.

It turns out that 43 pages - a peer review report which criticized the pathologist's conclusions - was not disclosed to defence.

That justified a re-hearing of the case

This time it was the prosecution that failed to disclose relevant evidence. Don't let "next time" be you.

It's surprisingly easy to fall into the trap of thinking that information about the case in your possession is "not relevant". This happens often when the information does not fit your theory of what happened. But that's exactly why it's relevant.

2022.02.07 After Arrest - Preserving and Proving Voluntariness

She told police "my cousin raped me last night."

Police officers arrested Mr S.S.S. 2022 YKCA 2. They (wisely) swabbed his penis and interviewed him.  He told police that he didn't remember putting his penis in his cousin. DNA testing showed that he did.

At trial, his memory returned. He remembered the sex, and particularly how consensual it was. He explained that his statement was wrong because he suffered a seizure. He also told the judge that the police told him that they would not release him if he did not cooperate.

Don't say stuff like that.

Judges exclude confessions if the police apply pressure of this sort to the suspect. This statement was obviously important. The appeal court ordered a new trial because of his claim (and a procedural mis-step).

I rather doubt that the officers in this case said anything of the sort.  But proving what police officers did not say can be tricky:

If you provide security to an officer who arrests the suspect, you may figure that it's not your investigation, and you aren't an important witness.

Surprise!

At trial, the defendant may claim "it wasn't the arresting officer who threatened me, it was the other guy".

Suddenly, your role changes from spectator to key witness. You'll wish you took more notes.

How do you handle this risk? There are two strategies:

Even if you were a minor player at the arrest, during transport, or when receiving the prisoner at the police station, your name goes on the witness list, and the extent of your interaction appears in your notes.

2022.01.16 Imperfections and Delays in the Justice System

After an evening of drinking with a friend, Mr Girbav, 2012 ABPC 219 drove off the road. The streets in Calgary can be icy in January.

Two police officers saw the car go off the road, and went to investigate. The car was stuck - high-centred on accumulated ice and snow. One officer broke the driver's side window, pulled him out of the vehicle, and arrested him. Finding him too drunk to drive, the officer made a breath demand. He blew 210mg%.

He beat the charges.

He told the trial judge that the police officer attacked him without warning, and that a swarm of police officers jumped on him when he was pulled out of the car, and they beat him close to unconsiousness. He suggested that one of them made a remark that suggested that they needed to invent false charges against him, to cover up their own violence ("You better get something on this guy or you could have a problem.") He complained that he tried to get legal advice from a particular lawyer, but the police only let him talk to duty counsel.  He produced photographs of injuries to his head and to his arm. His long-time friend testified similarly about the bad behaviour of the police. They both mentioned that more than one officer removed Mr Girbav from the vehicle.

The police officers explained that even after they knocked on the driver's side window, Mr Girbav revved the engine. It looked like he was trying to get away. The one officer had to break the window in order to stop him. They disagreed that there was a crowd of police officers present to arrest Mr Girbav. It was just the two of them. The other officers arrived later. They agreed that he suffered an injury, but denied a beating.

The judge believed Mr Girbav and his friend. The judge inferred from differences in the officers' accounts that they had had not given accurate stories.

Did the violent officer and his partner lie to protect themselves?

About 5 years later, a lawyer complained about the officers to the Police Service and the Police Commission. ASIRT - Alberta's independent police watchdog - investigated. That investigation took 5 years. They concluded that the officers likely told the truth, and that Mr Girbav and his friend were the inaccurate ones. Decision of the Executive Director of the Alberta Serious Incident Response Team, January 6, 2022 (2017-32(S)

The most important piece of evidence came from an independent witness that police interviewed at the scene. Her version matched the version of the officers and contradicted the versions that Girbav and his friend gave.

The trial judge never heard her evidence. It would have been difficult to reach the same conclusion if he had.

Why didn't the prosecutor present this evidence? I suspect several reasons. For one, she seemed unimportant: she saw neither the driving before the crash, nor the driver's symptoms of impairment afterwards. I wonder whether defence gave sufficient notice of the details of Mr Girbav's claims. I am troubled by the manner in which they were litigated - but that's a lawyer's problem.

The trial judgement reflected badly on Csts MacGregor and Johnson. It took 10 years for them to receive vindication. I hope the judgment did not harm them.

Mr Girbav was convicted before and since this trial of impaired driving. When ASIRT interviewed him he denied responsibility for drunk driving. Information in the ASIRT report suggests that he is an unrepentant drunk driver. I hope he harms no one.

When the justice system reaches the wrong result, people can suffer.  When it takes too long to reach the right result, people can suffer.

This case resembles the fiasco which led to Ontario (Attorney General) v. Clark, 2021 SCC 18, which I discussed back in May.

Lessons to draw from this case include:

This was a good case for a bodycam or a dashcam, and audio-recording of the process of offering medical treatment and discussing access to counsel.


2022.01.15 Evidence - Take a Second Look

Four gangsters told police that Mr Vallee, 2022 BCCA 11 murdered Kevin Leclair. Everyone knew it happened at a mall in Langley. Was Mr Vallee there? Some of the gangsters said he went to Tim Hortons with them.

It was a big investigation. Investigators gathered a million documents. Yes. A million.

Buried in that pile was security video from Tim Hortons. Investigators summarized those videos saying that they did not record anything of interest.

They were wrong.

To those who looked closely, images of Mr Vallee could be seen in those security videos.

Relying on the police summary, Crown left the video out of the disclosure package, and ran much of the case without looking at them. Part way through trial, defence asked Crown to admit that the videos showed nothing useful. Crown looked at the video. Crown realized that the video confirmed that the 4 gangsters were telling the truth about Vallee.

The Crown's case changed shape.

At the trial, defence counsel asked the judge to declare a mistrial. (Mistrials can destroy prosecutions.) The trial judge said no. The defendants appealed, complaining that it should have. The Court of Appeal upheld the conviction.

Prosecutorial tactics aren't your problem. Disclosure is.

Prosecutors find that investigators overestimate the value of the evidence they gather. That's natural. You gather it in the context of inquiry. We use in in an adversarial context, where the other side attacks it from every angle. Examined skeptically, much evidence loses its shine.

But sometimes investigators underestimate the value of the evidence. There are times that I have found more in a photograph or a statement than was first apparent. Usually, this occurs when cross-referencing evidence.

In an enormous case like that, an error of this sort is easy to make.

It could have been avoided by taking a second look at the video. The importance of that video would only have become obvious after the gangsters gave statements discussing Tim Hortons.

Uninformed summaries are less likely to be accurate than informed ones. Once you understand how the evidence fits together, you can identify the evidence that merits a second look.

That second look can pay dividends.


2021 Developments

2021.12.29 Warrant Drafting - Reciting the Suspect's Wicked Past

"He sold drugs before. It looks like he's selling them again."

When drafting a warrant application, you may base some of your reasoning on evidence of the suspect's past misconduct.

But there are traps.

A lazy cop will look only at investigative records.

A smart cop will check to see if those investigations led to acquittals, stays of proceedings, withdrawal of charges or convictions, and mention those conclusions in the affidavit.

Judges hate inferences based upon acquittals.

A trial judge convicted Mr Ribble, 2021 ONCA 897 of drug and gun offences. He complained to the Court of Appeal that the cop who drafted the warrant mentioned charges that had been dropped, stayed or resulted in acquittals.

The court rejected his complaint saying:

The facts underlying charges which do not result in convictions, in some circumstances, may be validly considered as a basis for search warrants, though in other cases will be “irrelevant and improper”.

That answer does not adequately explain what information from previous investigations you can rely on.

Here's a rough summary:

Result of previous investigation
What evidence you can rely on in your ITO
Conviction
All the evidence relating to the specific convictions.
Stay of proceedings before verdict
All of the evidence, but mention that the proceedings led to a stay (and why it was stayed - if known)
No charges laid.
All of the evidence, but if you can find out why charges did not proceed, mention why.
Acquittal
Uncontentious background evidence only. Do not rely upon the target's guilt in that incident to support your reasonable grounds in the new investigation.

The Court of Appeal liked this ITO because the author specifically recited the conclusions of the various previous investigations mentioned in the ITO. The affiant did not rely upon the target's guilt of the matters in which he was acquitted.


2021.12.24 Cell Block Security Video - The Forgotten Blessing - The Forgotten Curse

By the time that general duty police officers deliver a suspect to the cell block, they often think that their investigation is over, and all the evidence is collected. It's easy to forget that the security video system may be collecting evidence when you have stopped.

In the morning after the baby died, witnesses told police that Mr K.D.S, 2021 SKCA 84 slept in his baby's crib. Apparently, all the adults got hammered. It seemed that Mr KDS passed out on top of his child, killing her. Police arrested Mr KDS and took him to the police station.

Mr KDS was charged with criminal negligence. Sleeping on the baby. Perhaps while drunk.

Defence asked for full disclosure, including "all videorecordings". Defence did not specify that they wanted cell-block video until long after it was overwritten.

Defence explained that the security video could contradict the police officers on their evidence, and most importantly, it would show that Mr KDS wasn't all that drunk.

The trial judge agreed. Failure to preserve the video of Mr KDS at the police station was "unacceptable negilgece". The trial judge stayed the charges. The Court of appeal agreed.

Consider how many drunks to take to the police station for domestic violence or drunk driving. Did you preserve the security video of them walking or blowing into the breath testing instrument? If not, you have have been "unacceptably negligent" in your failure to preserve relevant evidence.

I know that this ruling is impractical. Security video turns out to be important once in every 1000 arrests. Must you really preserve the recordings in 999 other cases?

There are ways to lighten this load. If you know that the video will relate to the issues, then of course you should preserve it. If the case is serious, consider preserving it regardless whether you think that the cell block video is important. And if you're not sure, you can ask Crown to ask defence whether they want it. If defence informs you that they don't care, they can hardly complain if the video gets overwritten.

Cell-block video protects you from false claims of police brutality. It holds you to account for true ones.  But it also gathers evidence. It's easy to forget, and once forgotten, it can trip you up.


2021.12.24 Affidavits which Explain Documents

Usually, you receive corporate data as information. It takes care and skill to turn that information into useful evidence.

Four teenage girls complained of a creepy guy who did sexual things to them against their will. He communicated with some of them through Facebook. Investigators contacted Facebook who gave the officers data which showed the IP address that the user used to access the account. The investigators properly obtained the physical address of that internet connection. Mr Rashid, 2021 ONSC 3443 lived there. He looked like the creep that the teenagers described.

Case closed? Sure, if someone prepares the evidence properly.

But information is not the same as evidence.

Generally speaking, information only becomes evidence when the right person vouches for its authenticity.

The investigator can't testify that the account used that IP address. The court needs to hear from someone at Facebook who looks into their information systems, and locates the data.

Facebook employees swore affidavits which assured the court that the "attached" records were indeed records from Facebook which identified the IP address from which the user accessed the account.

Great.

But they did not attach the records to the affidavit.

Filing the affidavit was something like putting a witness on the witness stand who says "I photographed the criminal in the act of the crime. The picture shows the felon's face clearly. But I didn't bring the photograph to court today. Sorry."

That testimony is useless without the photograph.

The prosecutor can't produce the photograph later in the trial, and file it, saying "here's the missing photograph". Because the prosecutor didn't take the photograph, the prosecutor can't attest to its authenticity.

The prosecutor tried to file the Facebook information separately from the affidavit.

The trial judge rejected the evidence. Only someone from Facebook could prove the authenticity of the records.

Mr Rashid beat most of the charges. The Facebook evidence could have made a big difference.

I, too, have received affidavits which did not attach the requested records. In one recent case, the author of the affidavit sent me a sworn affidavit which asserted that he attached "to this affidavit" the records of interest. The affidavit came in an envelope that also contained a disk. The disk contained an unsigned copy of the affidavit, the records of interest, and the affiant's (inadmissible) personal notes and correspondence. The disk was in no way attached to the affidavit, and therefore, the affidavit was false. I couldn't file the disk anyway, because it contained inadmissible material. I made him do the affidavit again, but this time, actually attaching the records before swearing the affidavit.

In my experience, because of their experience with wiretap, phone company security personnel prepare pretty good affidavits. But security personnel at other private corporations often draft awful affidavits. They often contain quantities of officialese and verbiage. I'll never forget one truly awful one with a particularly impressive notarial seal. But they often miss the main points:


2021.12.11 Recognition Evidence - When to show a Single Photo

Tyler and Shane Bradley had substantial criminal records. They demonstrated no reluctance to use racist language against black people.

Their attitude and remarks led to a confrontation with two black men. One of the black men shot Tyler. Tyler survived.

Shane called 911. He told the operator that "Rico" shot his brother, and that "O" was with him.

Was Mr Alvarez, 2021 ONCA 851 the shooter?

Both Bradley brothers disliked black people. They also disliked police. They made the investigation difficult.

Police followed up on the information that they received from these two unsavoury fellows. Police quickly found Mr Alvarez at 92 Arizona Drive, a place where "O" had recently been.  They found the gun at that residence too.

But who was this "Rico" person? Police did not find anyone who called Mr Alvarez "Rico".

When police first interviewed Shane he said he did not know the two men. The investigator showed him single photographs of two suspects. Shane said that they were "O" and "Rico".  According to Shane, police also showed him an array of photographs. The investigator could neither confirm or deny that occurred.

Tyler gave a statement 3 weeks after the shooting. He said he knew "O", and had met "Rico" only briefly. He also claimed that the police showed him a bunch of photographs of suspects, but no officer could confirm or deny that. He was a difficult and hostile witness.

Defence complained that the single photo prompted Shane, so that thereafter, Shane would be able to describe the shooter in a manner that matched Mr Alvarez.  The investigator defended his action, on the basis that Shane knew "Rico". All the investigator wanted to know was whether Alvarez was the "Rico" that Shane was talking about.

Both were right.

When your witness knows the felon well, showing the witness a single picture of a suspect should not taint the witness's memory. All you're asking is "is this the person you know so well?"

But the defence counsel also had a point.  The more distant the relationship, the greater the risk becomes that the witness will guess that the person in the photo is the person they're thinking of. The danger is that by showing the witness a picture, you'll cause the witness to believe that the person in the picture committed the crime.

Shane was a bigot -- the kind of fellow who might think that all black men look the same. It's all too possible that he didn't really know Rico well enough to recognize him.  But he might, from looking at the picture, start "remembering" distinctive features, such as tattoos.

Shane also defied the law. He would happily allege that police officers misconducted themselves. He certainly suggested that they followed bad procedures.

In this case, the investigators did not record all of their conversations with him. I'll bet that they wanted to develop rapport. The formality of recorded interviews prevents that.

But in the long run, the lack of formal documentation of the conversations came back to haunt the investigators.

This case offers two lessons:


2021.11.20 Recognition Evidence

"That's my brother," she said.

Ms Deaken saw images from security video of a robbery. Investigators released them in an effort to identify the robber. She contacted police and told them that she thought the robber was her brother, Brian Deakin, 2021 ONCA 823.

An investigator showed her the video. When she saw the first two clips, she said that she could not identify the person in them. But when she saw the "good" clips - which best showed the robber - her heart sank. She knew it was him, in part from the way he walked.  She called it a "thug walk".

The investigator showed her a Facebook image of her brother. She identified the person in that picture as her brother.

The defence urged the court to reject her identification:

The trial judge convicted Mr Deakin, and the Court of Appeal upheld the conviction. What did they like about this identification?

The judges saw no problem with showing a picture of a suspect to a witness if the witness already knows the suspect well.

The probative value of the "bad" clips caught my attention in this case.

When showing security video to a witness who knows the suspect, one may wish to ignore the "bad" clips, and work with the "good" ones. But in this case, the "bad" clips served a valuable function. They proved to the court that the witness wasn't guessing or applying preconceived notions when seeing the clips.

You might want to show all of the clips to your recognition witness, not just the "good" ones.

The defence lawyers made a good point about generic recognition. When your witness identifies the person in the video, ask them how they know. A "thug walk" is good. But what else does the video show?

She and her brother did become estranged over his criminal lifestyle. Her heart sank when she recognized the robber as her brother. After she testified, he got 3 years jail. I hope that her act of tough love works. I hope he changes. I hope that their eventual reunion will be a happy one.

But one can never know what someone's heart will do.

For that reason, take some care to inquire into the relationship between the suspect and the person who claims to recognize him or her.

2021.11.19 Joint Statements

All too often, witnesses want to tell you, together, what happened. Interviewing more than one witness at a time is a bad idea. All too often, I see a transcript of an interview in which another witness starts "helping". This makes it plain that one witness heard the evidence of another.

Joint statements cause trouble. Don't do it.

A girl accused Mr C.G., 2021 ONCA 809 of sexually abusing her when she slept over with his daughter.

Mr C.G's lawyer reviewed the girl's statement with Mr C.G. and his wife. During the conversation, the wife and Mr C.G. discussed all the reasons they knew why the girl's story could not be true. This was a bad procedure. All of that discussion came out in cross-examination. Crown Counsel argued that the wife's testimony had less impact because she knew what to say to match the defendant's testimony. The trial judge agreed, and convicted him.

The appeal court ordered a new trial, not because the Crown's complaint about this tainting was a bad one, but because the trial judge failed to analyze it in the context of reasonable doubt.

But the prosecution's evidence bears much heavier scrutiny. If it's a bad idea for defence counsel to interview witnesses together, it's a worse idea for you to interview complainants and/or witnesses together. And it's wise for you to caution them not to discuss the details between themselves until after the trial is done.

2021.11.14 Inadvertent Detention - Easy to Do, What'

s the Fix?

Mr Tutu, 2021 ONCA 805 lost his guns and drugs, but he beat the criminal charges that they incurred ... mostly because an officer inadvertently detained him.

It ain't what you think, but what you do that counts.

An officer on routine patrol noticed a black rental car parked in a hotel parking lot. Fresh yellow paint stuck to the front quarter panel - suggestive of a collision.

He pulled in behind it, and approached on foot.

As far as he knew, he wasn't detaining anyone because the vehicle appeared unoccupied.

He found Mr Tutu and a woman in the car, sharing a joint.

He knocked on the window. Mr Tutu rolled it down.

The officer asked him to extinguish the joint, turn down the music, and tell him their names.

The woman gave her names. Mr Tutu lied: "Marcus Anthony" he said. The officer's computer showed no no driver's licence in that name.

The officer asked him to spell his name. He couldn't. Mr Tutu offered another false name: "Ben Dan".

The officer arrested Mr Tutu for obstruction, but did not immediately explain to him his right to counsel. Another officer arrested the woman for possession of marijuana (an unlawful arrest, even at that time).

The officers searched the vehicle, and found guns and drugs. That led to more charges.

At trial, Mr Tutu alleged that the officers focussed on him only because he was black. "I'm the victim of racial profiling!"

He also complained that the police detained him from the moment that the police vehicle blocked his car. Because the officer did not explain why his vehicle was blocked (s.10(a)) and that he could talk to a lawyer (10(b)), all the evidence that the officer obtained thereafter was unlawfully obtained.

The trial judge didn't buy his complaints, but the appeal judges agreed that the officer detained him and failed to give him his rights.

The prosecution argued that the officer could not have detained Mr Tutu when the officer first arrived, because the officer wasn't even aware he was in the vehicle.

The judges responded that a detention is not triggered by the officer's intentions, but what a reasonable person would infer from the officer's actions.

This officer blocked Mr Tutu's car, knocked on the window, and started issuing commands.

The officer didn't think he was detaining Mr Tutu. The court found that a reasonable person in Mr Tutu's position would think that he is the focus of a police investigation.

Perhaps the judges might have reached a different conclusion if:

I don't think it helped that:

Therefore, when interacting with "interesting" people, a useful question to ask yourself might be "would a judge watching this interaction think I've detained this person?"

If you discover evidence of an offence, then you can expect the defendant to characterize the your conduct as aggressive or oppressive. "The officer detained me early on, but didn't tell me my rights." How will you answer those allegations in court? Take many notes. Record the central phrases in the conversation, especially how the conversation started, and whether you told the subject that he was not detained, and that he could leave if he wanted.

Actions speak louder than your thoughts or your words.

Saying he's free to go won't mean much if you have already handcuffed him and lodged him in the back seat of your police vehicle. Similarly, your words won't mean much if you surround him with cops who leave no way out. Nor do those words mean much if you block his car from driving away.

2021.11.13 Airbag Control Modules

More and more vehicles contain devices which record how they were operated when they crash.

In B.C., police lawfully seized a vehicle, and obtained a warrant to search it. But they didn't specifically obtain authority to download the "Airbag Control Module" (ACM), which recorded the last 5 seconds of brake, speed and accelerator. The court found that the lawful seizure extinguished a territorial expectation of privacy over the ACM, and the defendant did not enjoy a reasonable expectation of privacy over the data. Fedan, 2016 BCCA 26

Ontario courts continue to find that police need a warrant to download the data from these devices. R. v. Yogeswaran, 2021 ONSC 1242. The Ontario judge was also very unimpressed by the police failure to report its seizure of the vehicle to a justice.

An Albertan judge agrees with the Ontario judges. R. v. Greyeyes, 2021 ABPC 240.

In B.C., police who lawfully seize a car may not need a warrant to search devices which record only a little information. But beware of the devices which record more detailed information about a vehicle's operations. The Fedan case did not bless the warrantless search of GPS devices.

In other provinces, police may need warrants.

In all provinces, police should report to a justice what they seize. Whether it's a broken car, a lost wallet, or a bodily sample, if you seized it you should report it (usually in "Form 5.2").

2021.11.11 Avoid Creating Exigent Circumstances

I missed this decision last year when it came out. It's still interesting this year.

Police planned to get a search warrant for Mr Hobeika's, 2020 ONCA 750 apartment and vehicle because they had good information that he was trafficking from that apartment. They planned to execute it when he went there.

Surveillance discovered he was living in a different apartment. Further investigation suggested that he was trafficking from the other apartment.

When they saw him get into the car, they executed the warrant to search his car. Because this search occurred in sight of the second apartment, they feared that occupants would destroy evidence in it. Therefore, the officers entered it and froze the scene. They found people and lots of drugs.

At trial, defence argued that the police created the urgency. If they had pulled over Mr Hobieka's car somewere away from the apartment, they would not have attracted so much attention. The court agreed that if the police created the urgency then they can't rely on the exigent circumstances to justify the warrantless search. But in this case, the police had good reasons for stopping the vehicle immediately rather than pulling it over someone away from the apartment.

Those of you who plan searches and surveil targets, you may need to make snap decisions about when to reveal your investigation, and whether you can lawfully enter a private location to freeze the scene. This case and the similar decision of Phoummasak, 2016 ONCA 46 may help you understand the constraints.


2021.11.08 'Ullo, 'ullo, what's all this then?  Questions after detention and arrest

When officers arrested a dial-a-doper named Mr Choi, 2021 BCCA 410, one officer him about his right to counsel, and another one patted him down for weapons and drugs.

Mr Choi told the first one that he wanted to talk to a lawyer.

The first officer didn't tell the second one that Mr Choi wanted counsel.

During the pat-down search, the second officer felt a bulge in Mr Choi's shirt, and asked "what is that?"

Mr Choi responded "more stuff".  Indeed, it was. More drugs.

The officer who asked the question expected that he would get an incriminatory answer. He got one. Those words would have helped convict Mr Choi ... if they were admissible.

But anytime you arrest or detain someone, you have an obligation to hold off eliciting incriminatory answers until the prisoner waives or exercises their right to counsel.

The judge at trial and the judges in the appeal court all agreed that the question breached the defendant's rights. They excluded that particular package of drugs, and the comment.

I see this procedural error way too often in the case law and in my daily practice. This officer was too keen. Once you detain or arrest someone, resolve access to counsel before you start asking questions about the offence.

I hesitate to criticize too fiercely. The other failure I see way too often is apathy after access to counsel. Many police officers make no serious effort to interview the suspect.

These keen police interviewed Mr Choi after he spoke to counsel. He confessed. That confession sunk him.

I note that during a pat-down search, if you need to ask questions about weapons for officer safety, keep the questions narrowly focussed only on that issue. Don't ask questions if you don't have to.

On arrest or detention, don't ask questions about the offence until you have resolved access to counsel. But once the defendant waives or exercises his/her rights, it's a good idea to ask the suspect lots of questions (within the bounds of voluntariness).


2021.11.08 What's a "Strip Search"?

After arresting a dial-a-doper named Choi, 2021 BCCA 410, an officer took him to the police station. There, the officer searched Mr Choi, to make sure he would not bring drugs or weapons into the cell block.

The trial judge characterized the search as a strip search, and found that the officer violated the prisoner's rights of privacy. The appeal court disagreed.

At the police station, under the constant supervision of a security video camera, the officer:

The officer did not see Mr Choi's genitals, nor expose the whole of his underwear. He was surprised to hear counsel calling it a "strip-search", but conceded that he had not read the policy in a long time.

The trial judge said that this re-arrangement of clothing to expose some of Mr Choi's underwear qualified as a strip-search. He did not like the fact that others could watch it.

The appeal court said that this search did not qualify as a "strip search" because it did not expose private parts of the body. It did not violate Mr Choi's rights. The officer did nothing wrong.

Officers who arrest people might find it worthwhile to review their force policy on strip searches. You might also consider camera angles in the police station. It can be very helpful for you to have security video which shows that you respected a prisoner's privacy when you searched him/her. A well-placed camera provides great accountability. But a badly-placed camera which records the prisoner's private parts or intimate underthings will greatly increase the intrusion into their privacy.

I'm sure Cpl Pollock, who did the search, feels vindicated this week.

2021.11.08 What's "Importation"?

When is "importation" of drugs or guns complete?

When authorities detect contraband entering the country, they often track the shipment to its destination, and arrest the people who receive it.

People in those positions often asked judges to acquit them of importing. "Importing is bringing something into Canada. But the product and I were both already in Canada when I received it, therefore, all I did was possess it."

A series of Ontario cases seemed to extend "importing" to include delivery to its ultimate destination.

Lawyers for Mr Okojie, 2021 ONCA 773 and Ms Hudson, 2021 ONCA 772 complained that this was confusing because it differed from past judicial interpretations. The prosecution pointed out that importation often involves more than one player. If one arranges the importation, and others aid in the delivery to the importer, all of the middlemen can be parties to the offence of importing.

When the law needs clarification, appeal courts sometimes convene a larger panel to sort it out. Five judges of the Ontario Court of Appeal - instead of the usual three - heard the appeal. They agreed that importing is complete when someone brings something into Canada, and the government relinquishes control. If there remain import duties to pay, then even if the product is in the hands of a courier waiting for payment of the fees, the importation isn't complete.

The judges went on: Circumstantial evidence can show that other people down the chain of possession were responsible for bringing the product into Canada.

Therefore, if someone picks up the imported product, and takes it to someone else who unpackages it, the court may find - depending on the evidence - that the people who unpackaged the product were the ones who arranged for its importation. If so, they can be convicted of the importation.

In Ms Hudson's case, the authorities removed all of the contraband (fentanyl) before delivering the package. This raised the interesting question whether she could be convicted of "possessing" it. The court found that she could be held liable for constructive possession while it was in transit, if the prosecution proved she was responsible for arranging the importation. But if she was just a minion assisting the importer, then she could not.

Both of these cases make interesting reads for those of you who deal with importation offences.

2021.11.06 When the JP says "No" - Making a Second Application for a Warrant

Four confidential informants told police that Mr Bond, 2021 ONCA 730 was packing a gun, and selling cocaine.

Police applied for a search warrant, relying on that information.

The first Justice of the Peace turned them down, giving four reasons.

The officers evidently disagreed with the JP's decision.  They submitted the application a second time. The second JP granted the warrant.

The confidential informants were right. Police found drugs and a firearm.

At trial, defence complained that the police were "judge shopping". Police should be satisfied with the answer that a judge or justice gives them.

The trial judge and the Court of Appeal disagreed. But you need to know why.

The officers did nothing underhanded. They made full disclosure. Their second application explained that the first JP turned them down. It included first JP's four reasons for rejecting the application. The officers did not try to select a JP, but simply submitted their application again.

The appeal court noted that unlike most judicial decisions, there is no way to appeal a JP's decision to reject a search warrant application. (There is a route to judicial review, but that's slow and technical.) In this case, the judges found that the police action did not constitute judge-shopping.

I don't think that this decision gives you the green light to re-apply every time a JP rejects your application. In this case:

I suggest that you pick your battles carefully. If a justice gives you reasons for rejecting your application, consider them carefully. Try to remedy the problem if you can. If you can't, and your matter is urgent, then if you do re-apply, you must tell the second justice what the first one did.

2021.10.30 Charter Still Operates when You Take the Defendant to Hospital

Mr Jarrett, 2021 ONCA 758 fought against the police officers who found him in possession of drugs. The police officers overpowered him, and he suffered injuries.

When an officer told him he could call a lawyer, he asked for one by name.

The police officers took him to a hospital, where he stayed for 30 hours, handcuffed to a bed.

Only after they returned to the police station did the police put him in contact with a lawyer.

Judges don't like this abandonment of duty. The right to retain and instruct counsel without delay does not necessarily mean "you can call a lawyer when we get back to the police station". It's a right that operates where ever the prisoner happens to be. The reason that judges usually let you take the prisoner to the police station before providing that right is because you need to provide that access under controlled circumstances, and the conversation must occur in private.

The judges excluded the evidence of the drugs. He beat the drug charges.

He didn't beat the charge of assaulting a peace officer. That's because the police applied their use of force training. And becase Mr Jarrett's girlfriend wasn't credible. And a civillian nearby generally supported the police version of events. (If your colleague gets into a struggle with a suspect, and especially if the suspect suffers injuries, you might want to get statements from onlookers. And cell phone video, if they took any. But don't make the victim officer investigate. Bad optics.)

Stay safe out there. But once you are safe, and your prisoner is under control, give the prisoner access to counsel.

Several times recently, I have seen reports of officers who read blood demands to drivers who crashed their cars. In some cases, the officers failed to explain to the drivers their right to get legal advice. Oops. Breath and blood demands trigger s.10(b). If the suspect wants legal advice, failure to provide access usually results in exclusion of evidence. Whenever you read one of those demands, make sure you also explain the right to counsel. (Screening demands are different.) And if your suspect goes to a hospital, make sure that you give them access to legal advice at the first reasonable opportunity. Of course, don't interfere with medical treatment. Life and health come before evidence.

2021.10.30 Circumstantial Evidence - Threads bound together make a rope

Mr Humble's home caught fire when he was inside. He died of his injuries. Did Ms Cole, 2021 ONCA 759 set it?

Unlike many arsons, the fire investigation found no evidence of accellerant, and no specific evidence of how it started.

But lots of evidence pointed at Ms Cole.

I found this case interesting because of the abundance of investigative techniques involved.

Mr Humble was 82. Until shortly before he died, he lived alone and independently. But after a knee surgery, he needed some help. Ms Cole stepped into his life. Several weeks later, his house went up in flames.  Ms Cole claimed that she had power of attorney, and his will now named her as beneficiary of half of his estate.

The autopsy discovered that his body contained a powerful prescription sedative ... which was not prescribed to him. But a doctor had prescribed this sedative to her. Mr Humble, a night owl, went to bed unusually early on the night before the fire.

Ms Cole gave a false alibi, and volunteered other false information when challenged about it. For example, she said that in the morning before the fire, she put a TV on a microwave in the garage, but did not enter the house. The TV was in the garage, all right, but the investigators noticed too much dust on it. Nobody could have moved it without disturbing the dust.

Her financial affairs were a mess; investigation of them discovered that she stole money from Mr Humble.  And the will was forged. And someone who had access to the house must have removed the batteries from the smoke detector.

There are legal issues in this case of some importance to court room lawyers. But I think police officers may glean some valuable ideas from reading about the evidence gathered. For example:

Paragraph Evidence
13 A forensic accountant reviewed Ms Cole's financial affairs, and found that she owed $350,000. Some of the money was due imminently. She needed cash fast.
16, 17 Ms Cole called the deceased's lawyer to inquire about obtaining power of attorney over Mr Humble's money.
18 A forensic document examiner determined that a power of attorney document that did turn up was forged and other documents looked forged, including cashed cheques.
19, 23-27 The POA and the will purported to be witnessed by two witnesses. Both witnesses told police that they signed the document after Mr Humble died, and never saw him sign it. They claimed that she offered them $10,000 to sign.
29 Mr Humble's sister always expected that he would name her as his beneficiary, just as she named him as hers. He never mentioned changing his will.
31 Forensic analysis of deleted files on Ms Cole's computer showed that she had researched and drafted wills just before the fire. And on Google, she researched how to overdose someone using her prescription medication.
35 The post office's barcode markings on an envelope indicated that Ms Cole mailed the "new will" to the lawyer's office days after Mr Humble died.
53 Ms Cole confronted an investigator about contacting her family to check out her alibi. This call likely took the investigator by surprise, but became important evidence at trial. (Take notes of surprising events.)
59 An investigator who examined the garage noted too much dust on the TV for it to have been placed there recenty.
61 An electrician inspected Mr Humble's home during a service call, and checked into the smoke detectors. (How did they find this guy?)
63 Strangely, all of Mr Humble's most important identification and financial documents managed to leave the home before the fire.
64 Ms Cole previously forged documents for the purposes of getting herself out of a financial scrape.

Some of these investigative angles were obvious. Some were not. Some required sharp attention to detail. Some required quick responses to unfolding events. Major crime investigators may find this an interesting case study.

General duty police officers should notice the importance of casual conversations and careful observation (such as the dust on the TV). Note-taking likely mattered in this case.

The evidence was completely circumstantial. Never-the-less, the jury found that Ms Cole killed Mr Humble, and convicted her of first degree murder. The Court of Appeal found that the evidence was so overwhelming that the trial judge's errors didn't matter.

A successful investigation.

May Mr Humble rest in peace.

2021.10.29 Warrantless entry into a Residence

The threshold of a residence poses a legal barrier to every police officer. You need lawful authority to cross it.

Whether that threshold is the door of a tent in an encampment of homeless people (consider R. v. Picard, 2018 BCPC 344), or the portico of a palace in the British Properties or York Mills, you generally require lawful consent, a warrant, or exigent circumstances.

After a couple of armed robberies by four masked men, police arrested Mr Duliepre. He named Mr Reilly, 2021 SCC 38 as one of the other men. Security video and other evidence tended to support this identification. Officers went to Mr Reilly's place to arrest him.

Without a warrant.

Mr Reilly's probation officer told the officers that he had a curfew. During curfew hours, all they needed to do was call him, and he would present himself at the door.

They went to his place. They knocked on the door. He did not answer. But they didn't phone him.

One officer, a big guy, went in to look for Mr Reilly.

Another officer followed, for officer safety. Two more went in.

When the big officer found Mr Reilly in his bedroom, the officer tackled and arrested him. After the arrest, officers cleared the residence. During that operation, they saw items relevant to the robberies: a mask, product from a store.

Overnight, they got a warrant to search for the things they saw during the clearing search. The next day, they found those things, and a gun, and more.

The judges hated the illegal entry. They liked the warrant, but noticed that it asked only for the things that the officers saw during the clearing search. The trial judge and one judge of the Court of Appeal felt that the evidence could be used at trial. (Reilly, 2020 BCCA 369) The rest of the judges of the Court of Apppeal, and all of the judges in the Supreme Court of Canada rejected the evidence found in the search. They did not want to appear to condone the action of the junior officer of barging into Mr Reilly's house without lawful authority. They did not want to condone the conduct of all of the other officers in following him in.

If you have a Feeney warrant, you can cross that threshold to arrest a person inside. If you don't, then you need to follow a plan that results in a lawful arrest.


2021.10.22 Self-defence - The Supreme Court examines the 2013 amendment

Before 2013, the Criminal Code contained definitions of self-defence which few judges could correctly explain to juries. Parliament replaced them. You can find the result of Parliament's work in s.34. It creates three key questions for assessing the claim "I was defendin' m'self". In 2021, the Supreme Court of Canada first fully considered Parliament's efforts after Mr Khill, 2021 SCC 37 killed a man who was stealing from his pickup truck.

Self-defence matters in homicide investigations. Self-defence matters when you handle difficult citizens. This section matters to you.

In the middle of the night, Mr Khill's girlfriend woke him. She heard noises. He looked out the window at his truck in the driveway. He could see the dashboard lights. He grabbed his shotgun and loaded it with two shells.

He sneaked through the dark, his gun at the ready, close to the truck. He found Mr Styres, leaning in through the passenger side. Mr Khill yelled:

"Hey, hands up!

As Mr Styres started to turn, Mr Khill fired.

He racked his gun and fired again.

As Mr Styres lay dying, Mr Khill searched him for a weapon. Nothing in his hands. Only a folded knife in a pocket.

At the murder trial, Mr Khill explained that in the darkness, he mistook Mr Styres' movements. He thought Mr Styres brandished a weapon.

The defence urged the jury to consider how dangerous that moment would have seemed when Mr Styres turned toward Mr Khill.

The Crown urged the jury to consider how Mr Khill made that moment dangerous by sneaking up too close, and creating a killl-or-be-killed confrontation.

The trial judge focussed on the moment. The Court of Appeal ordered and new trial, and the Supreme Court of Canada agreed. The jury ought to consider all of the circumstances, including the defendant's role in setting up the fatal confrontation. In so doing, they analyzed provision for the first time.

Most investigators simply need to know that you should investigate all of the circumstance around the use of force. Whether you investigate a low-level domestic assault or a high-end murder, s.34(2) identifies obvious avenues of interest relevant to almost every use of force:

  1. the nature of the force or threat;
  2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
  3. the person’s role in the incident;
  4. whether any party to the incident used or threatened to use a weapon;
  5. the size, age, gender and physical capabilities of the parties to the incident;
  6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  7. any history of interaction or communication between the parties to the incident;
  8. the nature and proportionality of the person’s response to the use or threat of force; and
  9. whether the act committed was in response to a use or threat of force that the person knew was lawful.

Homicide investigators might find the nuances interesting.

The section defines three elements to self-defence:

  1. the catalyst - the force or threat that the defendant feared;
  2. the motive - whether the defendant used force to defend himself (or someone else), or for some other purpose; and
  3. the response - what force the defendant actually used.

Those boil down to three questions to ask the suspect:

  1. What did you think was going on? (Were the suspect's thoughts reasonable under the circumstances? If the suspect were sober at the time, would s/he have thought the same thing?)
  2. What were you trying to achieve with your response?
  3. Was that response a reasonable one?

Homicide investigators should read the decision.  Regular investigators should at least read s.34.

And every officer who will use force in the execution of their duties should consider how this section would apply to you if you draw your weapon and kill someone. See whether it fits into the use of force models you learned in your training.

2021.10.22 Fixing a Broken Undertaking to Appear

Ever released someone to attend court on the wrong date? Common mistake. What are the consequences? How can you fix it?

Jimmie hit Sally.

Cst Rookie arrests Jimmie to prevent him from hitting her again. Cst Rookie figures that the usual no-go and no-contact provisions will protect her. Therefore, s.498 of the Criminal Code compels him to release Jimmie. Cst Rookie uses an undertaking, in order to impose those conditions on Jimmie.

Good work, Rookie.

Section 501 describes the obligatory and optional contents of an undertaking. It must state a specific date for Jimmie to attend court.

Because of Cst Rookie's name and role in this discussion, he get the date wrong.

When does the undertaking take effect? How long does it last? What can be done to fix the problem, so that Jimmie doesn't go back to Sally and hit her again?

A provincial court judge in Alberta answered the first two questions: R v Gladue, 2021 ABPC 50

The undertaking started when Cst Rookie released Jimmie.

It ends when:

  1. Someone changes it pursuant to s.502;
  2. At the time of the laying (or rejecting) of charges, the justice cancels it;
  3. The date for appearance at court arrives, but no charge has been laid.
  4. The court acquits or sentences the defendant.

The good judge did not answer the most important question: how do we fix Cst Rookie's mistake?

It depends on the mistake.

If Rookie left the court appearance date blank, then he did not issue an "undertaking" as that thing is defined in s.501(2). Fill in the date, and give the suspect the completed undertaking. If Jimmie hit Sally between the time of release and the time that Rookie fixes this mistake, the defence lawyer can reasonably argue that Jimmie was not yet bound by the conditions, and therefore he can not be convicted of breaching it.

If Rookie entered a date that came and went before any charges were laid, then the undertaking is dead. Lay charges pronto. Whoever swears the charges needs to explain to the justice why there are reasons to fear that Jimmy will hit Sally again, so that the justice will issue a warrant for Jimmie's arrest pursuant to s.512.

If Rookie told Jimmie to come to court on a provincial or Federal holiday (Remembrance Day is coming soon), then s.26 of the Interpretation Act allows that the appearance can be made on the next day.  But it would be wiser to amend the undertaking.

If Rookie told Jimmie to come to court on the wrong day, Rookie might solve the problem by asking Jimmie to consent to amend the undertaking to attend on the right court date. See s.502(1). Don't forget to ask the prosecutor to consent as well.

If Jimmie doesn't want to cooperate, you can ask the prosecutor to apply to court to replace the undertaking. s.502(2). Get that done before the returnable date on the undertaking.


2021.10.03 Affiant Drafting - An Easy Mistake to Make and Strategies to Prevent It

Drafting an affidavit for wiretap or an ITO for a search warrant requires summarizing evidence accurately.

When the evidence compels strong conclusions, we naturally start thinking and talking about the conclusions instead of the evidence.

For example, an officer investigating a drug importation conspiracy received a security video from a witness who worked in a warehouse. The witness told the officer that Mr Duncan, 2021 ONCA 673 attempted to take possession of the shipping container that contained the drugs. The witness gave the officer a video-recording of the event.

In the affidavit, the officer wrote that he watched the video and "observed DUNCAN attempt to take possession of cargo container AKE 2219 TS, within approximately an hour of CBSA seizing and removing cargo container AKE 2290 TS from the Cargo Zone warehouse.”

The video did not show such detail. It showed one man walk up to another man, talk, and then leave. The video was grainy. Nobody could identify the parties just by watching the video. Nobody could hear the conversation by watching the video.

Instead of narrating what the video actually showed, the officer wrote what he believed it showed.

It sounds like a dumb mistake, but it's remarkably easy to make. The officer had good reason to believe that his narration was accurate: the warehouse worker told him what happened. The more firmly you believe your investigative theory, the easier it becomes to fall into this trap.

Fortunately, the officer fully and accurately described in the ITO what the warehouse worker said. Although defence counsel at trial complained loudly about the error, the error did not mislead the issuing judge, nor did the trial judge find the mistake important.

But beware. Many earnest investigators have fallen into this trap.

How do you avoid it? Here are some ideas:


2021.10.03 Search for Officer Safety - Understanding the Principles

This case isn't new. I stumbled on it this weekend. But it provided a clear example of a common problem. A police officer may reasonably want to search a person for officer safety before sufficient grounds develop to search lawfully. What should you do?

In deep Canadian winter, 100km out of town, a car crashed.

Two police officers attended. They found four cold people who needed help. Their car couldn't start. The officers found no evidence of any crime.

The officers recognized a couple of them - from past domestic violence calls. And they recognized Mr Williams, 2020 ONSC 4880, who police suspected, from past information, might be involved in the drug trade.

The officers offered to drive the four back to town. But the officers put a condition on this offer: they must submit to a pat-down search for officer safety. None of the four objected. (How could they? They were in real danger of freezing to death.) But none gave explicit consent.

When an officer checked Mr Wiliams' right side, Mr Williams took a pill bottle out of his left pocket. That seemed suspicious. The officer looked at the botte. It bore a tattered prescription in Mr Williams' name. And even more suspicious, the prescription date omitted the year of issue. An officer looked inside and found oxycodone. Figuring that the prescription was lapsed or fake, the officer arrested Mr Wiliams for possessing narcotics. That led to a search of his backpack, which revealed more drugs, cash and a debt list.

At his trial for drug charges, Mr Williams complained that the search violated his right under s.8 of the Charter to be free from unreasonable search and seizure.

The judge agreed that the officer lacked sufficient grounds to justify a safety search. Read paragraphs 33-42.

When explaining safety searches, I find that police officers often try to justify their actions by identifying what they don't know. For example, these officers didn't know whether these four cold people carried weapons.

That's good risk management. When you invite strangers into your space, you make yourself vulnerable to them. You should assume that they pose you a risk until you discover reasons to trust that they will not harm you.

But it's illegal. There's a gap between risk management and lawful authority to search. As the judge explained, at law, the four cold people had rights to privacy. You can infringe on their privacy only when you know there are reasonable grounds to fear. A lawful search for officer safety depends upon what do know, rather than what you don't know.

If you don't have any evidence or information to justify a safety search, then you need to protect yourself using other strategies. Any good armchair quarterback reading this case can identify alternate strategies these officers could have used. For example:

  1. They could have asked for consent to search. (Indeed, the officers tried that approach. But they didn't go all the way. See paras 43-47 for the requirements of an effective consent.)
  2. They could have placed any bags or bottles in the trunk of the police vehicle, without searching them.

In this case, the officer opened the pill bottle. If he searched for the purpose of protecting himself from harm, one may reasonably wonder what firearms or knives he expected to find inside the pill bottle. What really happened here was that the officer switched from officer safety to investigation of an offence.

Bad idea. Even if he had sufficient reasons to search for officer safety, or even if he had valid consent, it was only to search for weapons.

Judges who see police officers abusing the power to search for officer safety will respond by tightening up the law. The existing limits already pose risk management problems. You don't want stricter limits.

Therefore, I suggest reading this case to understand the principles, and then discussing lawful risk management strategies to use in situations like this one.


2021.09.18 "What were he thinking?" - Drawing Inferences from Behaviour Before and After the Crime

For all criminal offences, the law demands proof not only of what the defendant did, but also what he thought:

Some crimes require general proof of the defendant's thoughts. For example, when someone drives dangerously, it suffices to prove that the driver didn't think about the dangers he created when he ought to have done so.

Other crimes, such as murder, require proof that the defendant intended a specific thing, such as death.

One way for a defendant to beat the rap is to claim that his brain wasn't working well enough to appreciate the consequences of his acts. "I was intoxicated." "I suffered a brain injury" "I was suffering madness."

Mr Scott, 2019 BCSC 313 loved a woman. But she loved another man. Mr Scott shot that man dead. Four shotgun blasts to the head.

At his trial, he raised all these issues, but the trial judge convicted him anyway. The Court of Appeal found no fault with her logic (2021 BCCA 337).

What made the difference was the police investigation of Mr Scott's actions before and after the killing. If his brain was so addled before the killing, he would not have:

Likewise, in the hour after the killing, he would not have:

Investigation of the defendant's actions before and after the event can shed light whether he was thinking straight during the incident.

That requires investigation of more than just the defendant's actions at the time of the killing. The investigative team gathered evidence from many sources. The work paid off. The prosecution team presented evidence from many sources. The judge wrote over 500 paragraphs to analyze it all.

Homicide investigators may find it interesting to read the trial decision thinking "what were the investigative strategies of this team?" It's a long read, but it reveals impressive work.

General duty officers can also learn something from this case. In Mr Scott's case, the homicide investigators did not get an opportunity to interview Mr Scott shortly afterwards. Often, the homicide team arrives too late for that kind of involvement.

Usually, general duty officers encounter the suspect first. If you do arrest a suspect right after a crime, even what he says about innocuous things can help discover whether alcohol, drugs or mental disorder affects his brain.

As a professional responsibility, you should assess the health of the people you arrest in any case. After serious offences, take notes of everything the suspect says and does. Even casual conversation or minor mannerisms may matter.

2021.09.05 Risking Pinging - When Exigent Circumstances Justify Tracking without a Warrant

A daring officer tested the limits of "exigent circumstances". We can learn from his cliff-edge performance.

It all started when Mr Bakal, 2021 ONCA 584, a drug dealer, annoyed his girlfriend. At around 3:00am, she called Toronto police and claimed:

Police believed her - he had a history of violence. She gave the police his phone number. The officers looked up the dealer's brother, and learned that he drove a Jeep Patriot.

The daring officer asked his staff to ask the cell phone company to "ping" the phone, to find out where Mr Bakal was. A senior civilian supervisor at the Toronto Police Service refused to do this without a warrant. The supervisor figured that because police were with Mr Bakal's girlfriend, she was safe.

The officer bypassed the supervisor. The officer called the phone company himself, and persuaded them to send him the locations of the cell towers with which the cell phone communicated from time to time.

That information suggested that Mr Bakal was headed east, to Ottawa.

Highway patrol officers stopped a Jeep Patriot on the highway to Ottawa. In the car, they found the two Bakal brothers, two loaded handguns and two kilos of cocaine.

At trial, the Bakal brothers complained to judge that the police violated their privacy rights by tracking them without a warrant. They explained that in exigent circumstances, police can do some things that would otherwise require a warrant. But not tracking people:

All of the judges rejected this argument. First, the telewarrant idea is wrong. Nothing in the Criminal Code applies the telewarrant section (s.487.1) to tracking warrants. Applying for warrants takes time. The judges figured it would take three hours at the fastest. Those of you who are competent at warrant drafting will know that it takes many hours to draft it correctly. Three hours was too long to wait to get started looking for Mr Bakal.

The judges all agreed that even though the Criminal Code does not provide for tracking people in exigent circumstances,  exigent circumstances such as these justify tracking someone by these means, as a matter of common law.

The Bakal brothers argued that there was no urgency to finding Mr Bakal. The girlfriend was with police. She was safe. No risk, no exigent circumstances.

The judges disagreed.

An angry drug dealer with a history of violence may do harm to others. Carrying kilos of cocaine is a great way to find trouble. Packing a handgun gave him the means to do great harm.

The judges found that the police had reasonable grounds to fear for people other than the girlfriend, and that these grounds for fear justified tracking Mr Bakal.

Does this mean cops can do GPS tracking in exigent circumstances? Not necessarily. This case involved only cell tower locations - which provide only the general area, within a few kilometres, of the phone. But this case involved possible harms. If your case involves a high danger of specific and likely harms, this case suggests you might be able to use more precise tracking.

Does this case mean cops should ignore their stuffy policy-bound supervisors? I didn't say that. It may be that the daring officer had a deep understanding of the principles of privacy and exigent circumstances. Deeper than the supervisor. Or maybe he was a loose cannon who lucked out.

The lessons to draw include:

But wait. There's more in this case...

2021.09.05 Detaining Someone on Imprecise Information - Black can be White

A highway patrol officer in Kingston, Ontario received information that Mr Bakal, 2021 ONCA 584 assaulted his girlfriend, and was now heading east on the highway from Toronto to Ottawa, possibly with his brother in a black Jeep Patriot, possibly in possession of cocaine and a handgun.

He didn't find a black Jeep Patriot on that highway, but he did find a white one, bearing a licence plate registered to a person in Ottawa. Another officer radioed that he had pulled over a black Jeep Patriot. This officer did nothing about the white one. Then, the other officer confirmed that the black Jeep did not contain Mr Bakal. This officer found the white Jeep.

There appeared to be two or more people in the Jeep. The highway wasn't busy.

With backup, the officer pulled it over, and did a high-risk take-down, guns drawn.

He found the Bakal brothers in it. He arrested the one that the girlfriend complained about. He searched the car incidental to arrest.

As described above, it contained guns, cocaine, and Bakal's girlfriend's possessions.

At trial, the Bakal brothers complained to the trial judge that the police officer lacked grounds to stop the car: The officers only had reason to stop a black Jeep Patriot, but not a white one.

The trial judge disagreed:

It was reasonable for the officer to suspect that this Jeep carried the Bakal brothers, even though the colour did not match.

I observe that the officer received imprecise information - that the vehicle was possibly a black Jeep Patriot. Had the officer received clear-cut information that the vehicle was definitely a black Jeep Patriot, the judge might not have been so generous.

The appeal court judges did not rule on this issue.

A lesson to draw from this part of the case is:

But wait. There's more in this case...

2021.09.05 Search Incidental To Arrest - Searching for Supporting Evidence

Relying on information he received from a Toronto police officer, a highway patrol officer in Kingston stopped the car which contained Mr Bakal, 2021 ONCA 584, and arrested him for assault. As described above, the Toronto police officer told him that the complainant reported that Mr Bakal had a handgun with him when he assaulted her, but he did not use it to intimidate her on this occasion.

Could the Kingston officer search the car for the gun?

Most of the judges agreed that he could.

One judge disagreed.

You can only search "incidental to arrest" if you search for evidence of the offence for which you arrested.

This officer did not arrest Mr Bakal for gun or drug offences. Just the assault.

Although Mr Bakal didn't use the gun when assaulting his girlfriend, the gun played a significant part in her story. Finding the gun would tend to confirm her story. Three judges found that the officer could search for it "incidental to arrest". One judge, a renowned legal scholar, thought otherwise.

Several lessons appear from this part of the case:

I'd like to say that's the end of it, but there was still more...

2021.09.05 Dumb Mistakes are Easy to Make

Acting on information from a Toronto police officer, a highway patrol officer in Kingston stopped the car which contained Mr Bakal, 2021 ONCA 584, and his brother. The officer had grounds to arrest Mr Bakal, but not the brother. The officer had grounds to suspect that they possessed cocaine.

Nobody told the brother about his rights. Nobody let him call a lawyer.

Oops.

The Toronto officer who briefed the Kingston officer told him about cocaine. The Toronto officer made no notes about how he knew about the cocaine. The Toronto officer told the prosecutor that before he made the call to Kingston, he had no knowledge about cocaine. I don't know how what really happened, but the trial judge didn't like it, and didn't trust the officer's evidence.

Oops.

Fortunately, everything that was important to the case was documented in other places, such as radio calls, other officers' notes. The judge relied on other evidence, and convicted the defendants.

Lessons:

2021.08.29 Ghosts, Hindsight and Keeping Records for Posterity

On April 22, 1983, someone raped and murdered, 22-month-old Delavina Lynn Mack. That year, at his trial for that offence, Phillip Tallio, 2021 BCCA 314 pleaded guilty to second-degree murder. He protested ever since that he didn't do it. He said he got railroaded into admitting guilt.

In 2009, the UBC Innocence Project at the Allard School of Law took on Mr. Tallio’s case. They asked for re-examination of bodily samples to see whether DNA analysis would identify the real killer.

His team hoped that DNA analysis might clear him. On that hope, they launched an appeal of his conviction, 34 years after the guilty plea.

Using advanced techniques experts managed to extract DNA from some samples taken during the autopsy. It neither exhonorated or identified Mr Tallio as the killer.

Tallio's lawyers attacked the adequacy of the original police investigation. They produced affidavits from residents of the community which asserted that the officers failed to interview the people that they should have interviewed.

To answer the appeal, police, defence counsel and prosecutors wanted records of what happened decades earlier. Most of the files were destroyed pursuant to records retention policies. That meant that they had to find as many original investigators prosecutors, defence counsel and witnesses as they could who were still alive, and ask them what happened all those years ago.

Ultimately, the court rejected Mr Tallio's appeal. The DNA did not exhonerate him. He could not produce evidence that showed that either the investigation or the trial was unfair. And there was some pretty strong evidence that incriminated him.

Mr Tallio went back to jail.

This review of an old conviction cost lots of money. What can we learn from it?

My secret source told me that this case turned on evidence, not law. Good evidence answers questions.

Complete your investigation - the more serious the case, the more important it becomes to investigate all leads.

A code of silence makes this difficult. This murder occurred in the reserve at Bella Coola. At that time, residents there did not generally cooperate with police. Citizens have that right. You can't force them to talk (and it's dangerous if you do). But you gotta try to get them to open up, with all of the best social skills you can muster.

Getting good evidence solves even the seemingly little cases. The complainant in a domestic disturbance may tell you that her partner hit her.

Is it worth the extra effort? Yes. A "he-says she-says" case won't go far in court. But corroboration changes the equation.

Is it worth it? If he hit her this time, I wonder what he will do to her next time.

Documentation matters - Even if your investigation is complete, your report is incomplete until you document all that you did - including the dead ends you reached. If someone declined to give you a statement, you record that fact.

As Mr Tallio's case illustrates, record destruction can cause headaches years later. [So did exhibit preservation.] We can't keep everything; but we need to make wise choices about what to destroy and when. If you make such decisions, you need to take cases like Mr Tallio's into account when determining what risks are acceptable.

It Never Ends - Even if an investigation is complete, it is never "over". Mr Tallio's litigation lay dormant for 34 years, and now, 38 years later, it may even carry on to the Supreme Court of Canada.

Plea bargaining comes with risks - Why did Mr Tallio plead guilty if he was so innocent? He blamed his lawyer. The judges found that the evidence did not support his complaints.

But there was another dynamic. He was 17. The Crown charged him (quite properly) with first-degree murder. He faced life imprisonment, with no eligibility for parole for 25 years. When the Crown's case looked strong, pleading guilty to second-degree murder - with eligibility for parole at 10 years - must have looked like the best option.

If you were innocent, but you faced such bleak prospects, what would you do?

Although plea bargains clear a great many trials out of the courts, we must take some care not to make the offers too sweet. We should never get into the business of racking up convictions for their own sake.

2021.08.17 Right to Counsel on Arrest or Detention - Cell Phone call at the Scene

Many of you learned from your training to give your prisoners access to counsel at the police station.

But s.10(b) of the Charter gives your prisoner the right to retain and instruct counsel "without delay".

Most adults in Canada now pack cell phones, so that they can communicate with who they want, when they want. Arrests make many adults want to talk to a lawyer.

Why can't they use their cell phone?

Ms Tremblay, 2021 QCCA 24 swerved all over the road. A police officer stopped her. She confessed to texting while driving, but her red eyes and the odour of liquor on her breath gave her away. The officer demanded that she blow into a screening device.

It said she had too much booze in her.

At 11:40pm, the officer arrested her for impaired driving, and offered her access to counsel. She wanted a lawyer. At trial, she claimed that she wanted to call immediately, but the officers would not let her use her cell phone to make that call.The investigating officer said she wasn't in such a hurry. The judge believed her.

The officers waited for a tow truck, then took the Ms Tremblay to the police station. She reached her lawyer at 12:28am.

The officers explained to the judge several reasons why they did not give her immediate access to counsel at roadside:

The trial judge and two levels of appeal judge rejected these explanations. Ms Tremblay beat the charge

They held that you don't always have to give your prisoner access to counsel by cell phone at the place of arrest. But if you don't, you must have good reasons.

Since then, for similar reasons, that court threw out two more convictions for drinking and driving. Ms Freddi, 2021 QCCA 249 and Ms Cyr-Desbois, 2021 QCCA 305.

They aren't alone. Other courts reached similar conclusions. Rover, 2018 ONCA 745; Taylor, 2014 SCC 50.

What are good reasons for preventing your prisoner from using a cell phone immediately at the scene of detention or arrest?

I've heard stories about people who call their friends, who then make false 911 calls in the hope that the officer who caught a drunk driver will rush away to deal with a gun complaint. Such stories don't suffice to delay access to counsel. You need reasons which arise from the circumstances of the specific arrest or detention.

Prisoners and detainees frequently need access to counsel at the scene of arrest or detention. How do you control such abuse of cell phone access to cousel? Here are some suggestions. I'd be interested in your ideas.

  1. Get management to install cell phones in your cars that you can control.
  2. Supervise the suspect when s/he dials the numbers.
  3. Listen to all calls except the call to counsel.

2021.08.15 Document The Obvious

Police arrested Mr Choudhury, 2021 ONCA 560 for drug trafficking. They got a warrant to search the place where they bought drugs from him. Inside, they found one bedroom contained women's clothing, and a locked bedroom contained man's possessions. The woman's room contained no drugs (but it did contain needles). The man's room contained an open safe, and drugs.

Oh, yeah. And Mr Choudhury's OHIP (health insurance) card.  The officer who found the card planned to return it to Mr Choudhury. And so the officer didn't record it in the list of exhibits seized in the bedroom. Nor did he list it in his notes.

The trial judge was so unimpressed by this lack of documentation of a key exhibit that she ignored the officer's evidence about the OHIP card. That made proving that he possessed the drugs in the safe a bunch harder.

What should you do if you seize something because it has evidentiary value, but you want to return it right away?

If we ignore the irrelevant bits, s. 489.1(1) tells you quite clearly:

where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

        (i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

        (ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so...

So the general rule is: Seize it. Document it. Get a receipt from the suspect when you give it back. Report it to a justice.

2021.08.05 Statements of Victims of Property Crimes

Good paperwork busts bad guys.

I missed this decision last year when it came out. It remains just as relevant today as when I first encountered this issue ...  30 years ago: you should take proper statements from victims of property crime.

"Someone" stole a truck from a residence in Stettler, Alberta. "Someone" stole stole a bunch of firearms from a residence in Big Valley, Alberta.

Mr Shaw, 2020 ABCA 86 crashed the truck near Red Deer. It contained the stolen firearms.

Did Mr Shaw know the truck was stolen? Did he know it contained stolen firearms?

Inference of Recent Possession

Considering the distances involved, you would want to know how much time elapsed between the thefts and the crash. If they occurred within hours of each other, you would figure he stole them. But if months elapsed, then you can imagine scenarios in which Mr Shaw might innocently possess these things. The judges call this the inference of "recent possession". If the theft occurred really recently, then the person holding the goods must know about it.

Inadequate Formal Statements

The prosecutor filed statutory declarations from both victims. Attached to those statutory declarations were statements from both victims. Unfortunately, neither the declarations nor the statements stated clearly when the crimes occurred, nor where the property was when it was stolen.

I infer from the way the wording in the declarations that the thefts likely occurred within hours of the crash. But the documents did not clearly say so.

In my experience, this usually occurs because at the time of investigation, everyone involved knows exactly when the thefts occurred, and so nobody bothered to document it formally. The victim knew. The 911 dispatcher knew. The investigating officer received a dispatch which spelled out when the victim complained. The officer probably interviewed the victims on the day after the theft. The date of the theft seemed too obvious to mention in the formal statement. The location of the property when stolen was just as obvious, and so nobody talked about it.

The poor trial prosecutor, a year later, had no admissible evidence to offer the trial judge about these key (but obvious) points:

What's Required?

So when you catch someone possessing stolen property, what evidence will the prosecutor need at trial?

  1. To prove that the property was stolen, we need an owner's evidence that the culprit had no right to possess it. Where there are multiple owners, this can get tricky: can we establish that no other owner lent the thing to the suspect? Sometimes you need statements from multiple owners.
  2. To prove when the the property was stolen, we need a witness to say when they discovered that the thing was missing and a witness to say when and where it was last seen. These may be different people than the owner.
  3. To prove that the thing you found belonged to the owner, we need the owner to recognize it or to recite its serial number and/or licence plate.

Inexperienced investigators often assume that because they know the answers to these questions, the prosecutor will be able to prove those facts.

Not true.

Your computer system may tell you the Vehicle Identification Number of the victim's vehicle. That's hearsay. It isn't evidence that the trial judge will accept as proof that you found the victim's car. If you rely on a serial number, get the victim to give you that serial number in a formal statement, or obtain formal certification of ownership.

Your dispatcher may tell you what time the felon took the car. That's hearsay. The judge needs to hear from the person who saw it taken. Get a formal statement about what the witness saw.

Often, this key evidence can be established by way of a statutory declaration pursuant to s.657.1 of the Criminal Code. But that declaration must include all the key facts - especially the obvious ones. Don't assume that the standard form property owner's affidavit that your office uses will suffice.

Triggering the inference of Recent Possession

Notice item #2 in the list above. Many investigators overlook an obvious fact: the discovery of the theft usually occurs after the theft. The inference of recent possession only works if the theft occurred recently. We need to know who last saw the thing in its proper place. For the purposes of "recency", the clock starts ticking when that person turns their attention away from the thing.

Consequences

Mr Shaw beat the charges relating to the stolen truck and guns. From the way the report reads, I'm pretty sure he committed them.

What went wrong in that case is nothing new. Investigators (and some prosecutors) have been making those same mistakes for decades. On the day of the arrest, when cops catch the felon red-handed, documentation seems unnecessary. A year later, the absence of formal documentation causes the case to collapse.

Good paperwork busts bad guys.


2021.07.30 Independence of Crown

Back in May, I wrote about Ontario (Attorney General) v. Clark, 2021 SCC 18. In that case the Supreme Court of Canada held that prosecutors have no obligation to protect the interests of police officers when prosecuting criminal cases.

Some folks in law enforcement found that decision disappointing.

This week, police may find some comfort in that decision.

A police officer responding to a 911 call arrested Mr Klassen, 2021 BCCA 294 for assaulting his wife. Mr Klassen and his wife responded forcefully. The Crown prosecuted the Klassens for assaulting the officer. In criminal court, the judge acquitted the Klassens. The judge found that "probably", Mr Klassen did not assault his wife, and therefore, the officer did not act lawfully.

The Klassens sued the officer for arresting them without lawful authority.

In the civil court, the officer's defence team argued that the officer acted lawfully because Mr Klassen actually did assault Mrs Klassen.

The Klassen's lawyer objected: "A judge already decided that question. We don't need to litigate it again!"

The judges disagreed.

Because the prosecutor is independent of the police, and because the prosecutor had no obligation to defend the interests of the police, it would be unfair to the police officer to rely on the criminal decision. If the police officer controlled the criminal trial, maybe the police officer's version of events would have come out differently.



2021.07.27 "Look, Ma, No Hands" - Distracted Driving in BC

Mr Rajani, 2021 BCCA 292 drove a car. According to him, he wedged the cell phone between his right thigh and the seat of the car, in a manner that allowed him to see the screen. (The officer said it was on his lap.) It was plugged-in and charging. The screen was black.

Was he "using" an electronic device while driving?

Section 214.1(a) of the BC Motor Vehicle Act defines "using" to include “holding the device in a position in which it may be used.”

Mr Rajani argued that "holding" requires the use of hands. Because he did not use his hands to secure the phone where he could see it, he was not "holding" the phone, and could not be convicted of distracted driving.

The judges disagreed. Within the meaning of the Act, one can "hold" a phone with a chin, or an arm, or a knee.

According to ICBC, distracted driving causes lots of car crashes. Warnings and tickets may save some lives.

2021.07.27 Breadth of Search & Breadth of Disclosure

I encountered a case which caused me to consider the limits of some basic principles.

Which principles?

  1. An investigation is complete when you have canvassed all reasonably available sources of information.
  2. A report about the investigation is complete if it provides all of the evidence that you gathered.
  3. When charged with an offence, the defence is entitled to disclosure of the fruits of the investigation.

Which case?

Women complained that Mr Dadmand, 2021 BCCA 250 sexually assaulted them. He pretended to operate a modelling agency, and by this pretence, met women that he photographed and video-recorded, even while he engaged in sexual acts with them.

Investigators prepared an Information to Obtain a search warrant, based on information received from six women. They searched his electronic devices, and discovered evidence of more offences against other women. The officers discovered lots of sexual material, some of which involved women they could not identify.  The Crown pursued charges relating to offences against only two of the first six women, and four of the newly discovered victims.

Limits of Disclosure - Relevance

Crown disclosed to defence all of the material relevant to the charges laid, but withheld data that related to the women who complained, but were not the subject of charges.

Defence complained that the police officers scrutinized too much data from his devices: overbreadth of search.

Defence demanded disclosure of the withheld material so that he could prove that the police searched his devices too broadly.

The Crown observed that some material had no relevance to the prosecution, nor to the defence of the case. Sure. But defence claimed that they needed it in order to prove a breach of a Charter right. Yes, the judges held, the defence is entitled to disclosure of evidence tending to establish that police violated his rights.

But what good was this material even to prove a breach of Charter rights? For example, there was a video of Mr Dadmand having sex with a woman who had nothing to do with the charges laid. The prosecution wouldn't use that video to prove the case. The defence would not use that video to show that Mr Dadmand had a defence. The judge would not find that video useful in determining whether the police searched too much.

The court agreed with the Crown. In a challenge to the breadth of a search, the court examines how widely the police searched, not the data that they took away. In this case, the notes and evidence of the people who searched the devices explained what data they examined, and what they ignored. Neither the defence lawyer nor the judge needed copies of the data that police saved from Mr Dadmand's devices in order to determine whether the police limited their searching to the kinds of data authorized by the search warrant.

What the judge and defence needed was a full accounting of what the searchers did to look for data responsive to the warrant, to determine whether they looked further than they should have. Police were able to supply a list of all the keyword searches done on the devices.

Some obvious lessons emerge from this:

Breadth of Search of an Electronic Device

As part of their complaint about the breadth of the search of Mr Dadmand's devices, defence complained that the police did not restrict their data searches by date.

Defence counsel urged have judges to require police to specify in advance precisely which search terms and techniques they should use when searching the target device. So far, judges refused. They appreciated that when the technician starts finding relevant data, the technician may think of new search terms or techniques.

Following that line of thinking, the judges disagreed with defence. Limiting your searches by date may be a good way to keep the search focussed on the searching that warrant authorizes, but it's not the only way.


2021.06.16 "Trust me, I'm a Pro" - When to Express Opinions about the Defendant's Guilt

Mr Daou, 2021 ONCA 380 confessed to murdering Jennifer Stewart. At the time he made this confession, he suffered from a mental disorder; but many of his claims matched hold-back information about the killing.

During the trial, the prosecutor asked the investigator to describe his impressive career in criminal investigation. Then, the prosecutor asked the investigator to identify what parts of the confession convinced him that Mr Daou's confession was true. The investigator reviewed the holdback and compared it to descriptions that Mr Daou gave. The officer explained to the jury that at first he was skeptical, but was eventually convinced by the details that Mr Daou gave that he was telling the truth.

The jury convicted Mr Daou.

Mr Daou appealed to the Court of Appeal: The prosecutor should not have asked the investigator to explain his belief in truthfulness of the confession.

The judges agreed. The officer should not have testified about his opinion on the guilt of the accused.

Hang on!

Police officers often testify about why they stopped or arrested someone, or demanded breath samples. What's wrong with telling the court why you think that the defendant is guilty?

It depends on the issue. When the judge needs to determine whether you acted lawfully, your beliefs about the guilt of the accused justify your actions. The judge needs to hear evidence about what you thought.

When the judge needs to determine whether the defendant acted lawfully, then your beliefs are worse than irrelevant. Your opinions about the guilt of the defendant undermine the justice system.

If the judge permits you to tell the him or her what conclusion to reach in the trial, then an independent observer gets the impression that the cop, not the judge, decides the case. All the money we spent on hiring an independent decision-maker is wasted.

Same problem with a jury.

We go to significant efforts to select jurors who are independent of the investigation. When deciding the case, those jurors had the duty of reviewing the defendant's statement, and comparing it to the hold-back to determine if the defendant was telling the truth. As you well know, sifting through evidence is hard work. The prosecutor tendered impressive evidence of the officer's career, and then the officer said, effectively: "Trust, I'm a pro. The defendant is guilty." It's very tempting for a bus-driver, a cashier or short-order cook to say in the jury room "I don't know much about criminal investigation. That cop has more experience than me in comparing statements to hold-back evidence. I trust his opinion". A juror who reasons this way fails to do the task of deciding the case by analyzing the evidence. Stakeholders like the defendant and his family lose faith in the fairness of a trial in which the jury does what the police officer tells them to do.

Of course, there are exceptions. For example, people qualified as experts can offer opinion evidence within the area of their expertise.

"Okay Waldock," you ask. "You're saying sometimes I must tell the judge my opinions, and other times, I must not. When I'm testifying, how can I tell whether I should or shouldn't?"

  1. Listen to the question. If the question doesn't ask you to explain your thoughts about the guilt of the accused, then don't. Questions that start with "Why did you...?" or "What opinion did you form...?" generally requires explanations about your thoughts.
  2. Ask. "Do you want me to explain what I thought at the time about whether Mr Defendant had done something wrong?"
  3. Communicate with the prosecutor beforehand.

The way this decision reads, the prosecutor bears the responsibility for the legal error. It looks like the investigator followed all three steps.

2021.06.15 "Home Free" - Preventing Random Traffic Stops

Six years ago, I wrote that in Ontario, an officer who sees a vehicle driving on a driveway may stop the driver for a random safety check even if the driver first pulls into a private driveway. But the officer must make the decision to stop the car before it leaves the highway. I relied on R. v. Heer, 2013 CarswellOnt 18962, 2013 ONSC 7257, [2013] O.J. No. 6432, which is still, unfortunately, not available on CanLII.

The Ontario Court of Appeal now disagrees. The omission of Heer from the databases matters less now.

Mr McColman, 2021 ONCA 382 stopped at a gas station. Police officers noticed his vehicle, and followed it for 200m, intent on stopping it for a sobriety check, pursuant to s.48 of the Highways Traffic Act. Before they turned on any lights or sirens, Mr McColman turned into his private driveway. The officers pulled in behind him.They approached him, and noticed a remarkable absence of sobriety. Although he drove just fine, Mr McColman had trouble walking. He stunk of booze.

At his trial for drunk driving, he complained that the police had no authority to stop him. The Ontario Highway Traffic Act authorizes police to stop drivers who are driving on a "highway" for random sobriety checks. These officers could have stopped him when he was driving on the road, but they didn't. At the time they stopped him he was no longer driving on a highway, but on a private driveway.

The Crown reminded the court that in R. v. Lotozky 2006 CanLII 21041 (ON CA), they decided officers in similar circumstances could walk up the driveway and stop the driver. Surely, Mr McColman's situation was the same.

No, said the court.

In Lotozky, the officers responded to a 911 call. The complaint was of an intoxicated driver. They saw the car in question drive into a driveway. They already had grounds to suspect an offence. In those circumstances, those officers could stop the driver even on his own driveway.

The officers who dealt with Mr McColman had no reason to think that Mr McColman had committed a driving offence. In those circumstances, the court found that the officers could not exercise the random stop power granted by s.48 of the Highway Traffic Act if the driver was no longer driving on a highway. By reaching home before the officers turned on their lights, Mr McColman was "safe". Olly, Olly, oxen free

Did they need to stop him?

Perhaps you're wondering what all the fuss is about. Mr McColman had stopped his car all by himself. If he wasn't driving any more, then the officers didn't "stop" him. They didn't need to exercise the power granted by s.48 of the Highway Traffic Act to stop him. Maybe. But I can see why - in this case - the prosecutor didn't want to make that argument. If the officers weren't relying on their power under that section, then what authorized them to enter private property?

What if the driver parks in a driveway that is not private property, like the parking lot of a bank or a liquor store? You may not have authority under s.48 of the Highway Traffic Act but if the driver stops himself and gets out, then you don't need it. You can watch the driver get out. You can talk to him or her if you want.

What are your powers?

Did you notice that I pasted the link to s.48 of the Highway Traffic Act into this comment six times so far? Why did I do that? Surely, once was enough.

Nope. It's a hint that I want you to read s.48 of the Highway Traffic Act (Oops. I did it again.) Even if you don't work in Ontario. Why?

Because you need to know your powers.

If you work in Ontario, and you're going to use this section, then read it again while thinking of this case. If you don't work in Ontario, read this section, and then compare it to the legislation you use in your province.

What's a "highway"?

When you review your legislation, you'll probably see the word "highway". What is a highway? Your mileage may differ. Different provinces define "highway" differently. For example, in Saskatchewan and Ontario, a business parking lot is not a "highway". Lux, 2012 SKCA 129; Tresham, 1998 CanLII 14756. In BC, it is. Cyr v. Koster, 2001 BCSC 1459.

2021.06.12 "Recent Possession" - A Soft Concept

You can infer a person's involvement in a theft if the person possesses property from the theft shortly afterwards.

For example, if you catch Jimmy driving a stolen car 2 minutes after someone stole it, you may confidently infer that Jimmy stole it.

If you catch Jimmy driving that same car 4 hours after someone stole it, the inferences vary more. If you find him 4 hours' drive from the place where the thief took it, you may still confidently believe that Jimmy stole it. But if you find him driving it closer to home, you may reasonably suspect that Jimmy stole it. But he may have received the car from the thief. If he received it from the thief, you can still be fairly sure that because so little time passed, that Jimmy knows it was stolen, either because he stole it, or because he dealt with the thief so shortly after the theft, that he must have known what was going on.

Of course, the strength of the inference declines with the passage of time and the type of property.

When you apply for a warrant, this inference works in reverse.  You can infer that after a short time after a theft, the felon will still possess the loot.

How long can one expect a thief to hang on to stolen property?

It depends again on the type of property, and whether there are special circumstances. You can expect a thief who steals cash to dispose of it sooner than a thief who steals a unique artwork. A junkie will likely consume quickly the drugs taken in a drug-ripoff. A stalker will likely keep the undergarments he took from his victim's dresser.

Two months after a home-invasion robbery, police located the stolen van which the robbers used to commit the crime. First they found it parked outside one residence, but it moved to a spot outside the residence of Mr Fuller, 2021 ONCA 411. The investigators obtained a warrant to search that residence for property stolen during the robbery.

Defence argued that after two months, there was no reason to believe that any property taken in the robbery would remain in the residence. The warrant should never have issued.

The judges disagreed. They held that although reasonable minds might differ about whether the search would recover stolen property, this warrant was properly issued.

Your mileage may vary. This decision does not establish that 2 months after every theft, you can get a warrant to search the residence of a suspect.

Why did the judges think 2 months wasn't too long? This robbery involved a jewellery box containing earrings and other items. If you sought to profit from such booty, how would you do it without drawing attention to yourself? An obvious strategy would include finding different buyers, and moving slowly.

If time passed between the crime and your discovery of a likely felon, consider your suspect's motives and likely courses of action. In your ITO, a careful articulation of the difficulties involved in disposing of the stolen items may cause the issuing judge or justice to see why you think that the property is still there.

2021.06.03 Search and Seizure - Documenting the Search

How methodically do you search? How do you document it?

Mr Wragg, 2021 BCCA 214 got into a car accident and left the scene. He came back after a while, and grabbed some things from the car and put them in a bag. Two police officers arrived while he was still in the area. One of them arrested him for failing to remain.

At trial neither could recall who did the arresting.

One officer searched the bag, and found 24 packages of drugs. That officer couldn't clearly recall where he did that search. The other officer remembered that he emptied the bag onto the hood of the police car.

At trial, Mr Wragg explained that he didn't know about the packages of drugs. They must have been in his girlfriend's purse, which was one of the things that he grabbed from the car.

The big question at trial became whether the packages of drugs were in the purse or not.

The officer who found the drugs couldn't remember all of the details of the search clearly. He did make some notes of the search. Some of those notes differed from his testimony at trial. He remembered things a bit differently. The defence lawyer highlighted this variation in memory during cross-examination.

Don't laugh at the police officer. This could happen to you. If you do lots of searches, then years later, they will blend together, and you may find yourself struggling on the witness stand to remember find details about the case.

How do you avoid this?

Documentation.

The notes that the officers did make helped greatly. The trial judge didn't laugh at the officer. The trial judge believed him. The appeal court found that the conviction was reasonable, and upheld it.

    With the benefit of hindsight, you can learn much from this case.

For example, why couldn't the officers remember which one of them arrested Mr Wragg?

I'll bet they wrote their reports in the passive voice: "Mr Wragg was arrested." Do you think there would have been any confusion if they wrote their reports in the active voice? "Cst X arrested Mr Wragg."

I hate the passive voice. I use it, but sparingly. When I read the passive voice in police reports, it irritates me. The passive voice conceals the responsible person. "The bag was searched" - who did the searching? "20 small bags of meth were found." - Who found them? Which thing contained them? The active voice answers those question. "Cst Jones searched the bag. He found that it contained 20 small bags of methamphetamine."

What can you do to avoid the problems that these officers encountered? I'll bet some photographs would have helped jog memories. If you're searching a collection of interesting things, you might want to document clearly which container(s) held the objects of interest.

If you apply hindsight to this case, you may discover other investigative angles you might have considered. When I read the decision, I thought about handwriting comparison. You might think of other things you could do next time you encounter a similar situation. That's one of the values of reading case law.


2021.05.23 Delaying Access to Counsel

A couple of weeks ago, I wrote about giving the defendant access to counsel at the scene. No delay!

But you can delay, where you have reasons specific to the case.

Police watched Mr Griffith, 2021 ONCA 302 because a tipster told them he sold drugs. What they saw caused them to believe the tip.

When they arrested him, he tried to flee. He carried lots of cocaine, and a loaded handgun.

The officers told him promptly about his right to counsel - they even video-recorded it. He wanted a lawyer. But the officers were getting search warrants for his house and storage locker. They worried that he might abuse the phone call. They didn't know who occupied his apartment, but they did know that Mr Griffith carried a loaded gun, and they had reason to suspect that he sold drugs from there. This sufficed to stall his access to counsel until the officers went in.

It didn't justify delaying his access to counsel for an hour and twenty more minutes. That was a problem which arises all too often.

When you get a warrant, you should always brief your team. Perhaps that briefing should always address how access to counsel will be granted once officers enter the location.

2021.05.23 Explaining the Right to Counsel & Documenting what you Did

Police officers often arrest suspects and explain the right to counsel. One can easily forget routine events.

Most suspects get arrested rather less often. For them, the experience stands out as memorable.

Therefore, when the defendant claims that you failed to explain the right to counsel properly, the defendant has an advantage over you. The defendant's lawyer can often get you to agree that you have no specific memory of what you "usually do". Then the defendant's lawyer will point out to the judge that the defendant has a specific memory of you doing things wrong, and all you can say is what you usually do.

But Cst. Price of the OPP told the court of very specific memories of arresting Mr Luu, 2021 ONCA 311. It was raining heavily when Cst Price arrested him. Cst Price read from card. He noticed that Mr Luu spoke with an accent. He backed up and explained the rights again in everyday language, to make sure that Mr Luu understood. Mr Luu indicated that he understood, but didn't know whether he wanted a lawyer.

How did Cst Price remember those specific details?

I don't know. The decision doesn't say.

I do know that Mr Luu didn't dare contradict him about what happened at the roadside.

Instead, at court, Mr Luu complained that he didn't understand what Cst Price was saying. He complained that Cst Price failed to figure out this comprehension gap.

Mr Luu's complaints didn't impress the judges. Cst Price went further than reading the card. He listened to the answers he got. What he heard made him take another step. Everyone knows that the best communicators are the ones who listen. Because Cst Price took that second step, the judges could be confident that Cst Price wasn't just going through the motions, but he was actually communicating.

How could Cst Price remember all this detail? My guess is that he wrote it down. Maybe in a wet notebook. Or maybe he recorded the interaction.

Investigators should document the interesting stuff that they find. Smart cops document the routine stuff too.

Cst Price busted Mr Luu for conspiracy to traffick drugs. Mr Luu had half a kilo of meth on him when arrested. The conviction and sentence survived appeal. Whatever Cst Price did to record his interaction with Mr Luu, I bet he'll do it again next time, and maybe even better.


2021.05.23 Impaired Driving - Another Document to Give the Driver

In routine impaired driving cases, before you release a drunk driver, you usually give him or her a handful of documents, including:

But there's one more document that you need give the driver.

"We never used to give the driver a copy of that certificate. Why now?"

Because the drunk driving legislation changed in 2018.

"That's a couple of years ago now. Why did Waldock wait so long to tell us?"

Because the answer wasn't clear. Lawyers disagreed about what those changes meant. Judges disagreed too. When judges disagree, lawyers appeal. It takes a while for those appeals to work their way through the system. This week, the first provincial Court of Appeal delivered its opinion on this issue. R v Goldson, 2021 ABCA 193. That provides some clarity.

Judges in your province may disagree. The Supreme Court of Canada may disagree.

If they disagree, then this is a make-work project. Nothing will happen if you fail to serve the extra document. But if they agree, then some prosecutions will fail if you don't do the extra work.

I think the Supreme Court of Canada will agree with the Alberta Court of Appeal. Until the judges give a final answer, I think you're better safe than sorry. The safe route is to serve too many documents rather than too few. For that reason I think you should give the driver a copy of the analyst's certificate, along with notice.

"Notice"? What's that?

There is actually one more document on that list of documents that you usually give the driver.

In my jurisdiction, the "Notice of Intention to Produce" is printed on the same page as the Certificate of Qualified Technician. Some people think it's one document, but the page actually contains two different documents, signed by different people, and saying different things.

Because of the Goldson decision, I think that you now need to give notice that the prosecutor will use two certificates at court.

Therefore, the complete list of documents for service looks like this:

"Bloody heck, Waldock! That's an awfully long list of documents!"

I agree. But we can reduce it by one.

In my view, there is nothing wrong - and much right - about combining the two notices into one document that says "The prosecutor is gonna use the breath tech's certificate and the analyst's certificate in court." Some people may resist that suggestion because it's a bother to re-program the breath testing instrument to print a notice that mentions both certificates.

Yup. It's a bother.

The process of investigating and prosecuting drunk drivers is already pretty complicated. Complications in investigations tend to lead to complications in prosecutions. And from there, it's a short walk to acquittals. 

If I managed the alcohol testing programme, I would ask the manufacturers to program the instruments with the following features:

Um, what's this "alcohol standard" you keep talking about?

In case you were afraid to ask, I thought I might explain.

The instruments measure the amount of alcohol in the air that the driver blows into the instrument. In order to show that the instrument's results are trustworthy, the manufacturers design them with a quality assurance cycle. In addition to measuring the driver's breath, the instrument measures air laced with a known quantity of alcohol. Scientists refer to this as a "control" sample. If the instrument finds the right amount of alcohol in the control sample, then it must be working properly. That control sample is the "alcohol standard". (It actually does other things to make sure that it's working properly. Let's not get into that right now.)

The new legislation (s.320.31(1)) says the judge must accept the instrument's measurement of alcohol in the driver's breath if the prosecution proves that the instrument used a good alcohol standard. That's new. In the past, judges accepted the breath tech's word or certificate that the alcohol standard was good. Many lawyers and judges figured that was still okay under the new legislation. The court disagreed. Read the decision to understand why.


2021.05.17 Authenticating Electronic Data - A Story of Scorn

"There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is." Nordheimer J.A. at para 30.

Mr Aslami, 2021 ONCA 249 had a wife. When their relationship ended, she was angry. Very angry. In order to hurt him, she arranged to have sex with a man he hated. She sent him pictures of herself in bed with his nemesis to make sure that Mr Aslami felt some pain.

Shortly afterwards, someone firebombed that man's house.

Who threw the bomb?

The ex-wife testified that she recognized Mr Aslami in a brief and blurry security video of the firebomber.

Before and after the firebombing, the ex-wife and the guy Mr Aslami hated both received several messages, both by text and on social media platforms. Some of those messages suggested that the sender was involved in the firebombing.

Police got those messages only from the phones of the ex-wife and the new guy. They did not recover Mr Aslami's phone.

The ex-wife testified that the phone number and social media account belonged to Mr Aslami.

Did Mr Aslami send the the messages, or was he framed?

In her phone, the ex-wife attached Mr Aslami's name and photograph to several phone numbers, including the one that sent these text messages. But police found no evidence of a phone that Mr Aslami used at the time with that number.

The social media accounts were in pseudonyms which the ex-wife said were Mr Aslami. But the police gathered no communications which clearly identified the sender as Mr Aslami.

Electronic messages on a cell phone can be deceiving. Many systems display a photograph of the sender beside the text. But who associated the photograph to the phone number? Can you attach the wrong photo to a phone number in your phone? Can you set up a fake social media account? Would this woman do such a thing to punish Ms Aslami some more?

Oh yeah. There's one more thing. Before the fire-bombing, the new guy split up with his partner, and moved out of the house. The fire-bombing didn't hurt him.

Was he complicit in framing Mr Aslami?

The trial judge convicted Mr Aslami. The Court of Appeal ordered a new trial. The judges worried that the trial judge had not considered the scorned woman theory sufficiently.

What does this mean for your investigations? When you review electronic messages that prove a case, you want to authenticate them. That means finding evidence that proves who typed them.

If you can seize and search the target's cell phone, that will solve the authentication problem.

Another way is to examine the content. Yesterday, I reviewed the statement an officer took from a woman complaining of harrassing messages from her ex-boyfriend. I was pleased to see that he took the time to ask her "but how do we know these messages came from him?" She identified topics in the messages that were important to the ex-boyfriend, topics that they had discussed over the course of their relationship.

Notice that this may require extra seizure. You want more than the harassing messages, but also the ones that tend to identify the person who sent them.

Sometimes that will suffice. Sometimes you need more. What if the woman in my case were framing him, as was proposed in Aslami's case? In the messages I looked at, the sender described something he was about to do. I have independent evidence that the defendant did exactly that.

2021.05.12 Arrest Procedures that Protect You

Some police officers had reasonable grounds to believe that Mr Scala, 2021 ONCA 297 committed criminal harassment, and so they arrested him.

He resisted arrest. The police officers took him to the ground.

Afterwards, he sued the police. A decade after the arrest, he testified in court that the officers beat him up. So did a buddy of his, who said he saw the brutal attack and tried to stop the officers.

Naturally, the officers denied inflicting any violence.

Lots of evidence rebutted Mr Scala's version: cell block video and photographs; Mr Scala's medical records; audio recordings of what Mr Scala said shortly after the arrest.

The trial judge rejected the claim. So did the Court of Appeal. If you read the decision, it all seems so simple.

But the decision refers to lots of evidence. That evidence made all the difference. Where did the evidence come from?

Much of it came from following good booking procedures. Cell-block video recording system. Photographs. Audio-recording the defendant as he goes through the booking process.

There are people who will make false allegations about police officers for their own gain. The cumbersome processes of documenting the prisoners in your custody can protect you against false claims. Even a decade later.

2021.05.12 Independence of Crown - Ontario (Attorney General) v. Clark, 2021 SCC 18

In 2009, some officers arrested Mr Maharaj and Mr Singh for armed robbery. At their trials, each alleged that the police beat them up during the arrest. The Crown dropped the case against Mr Maharaj, but pressed on with the case against Mr Singh. During that trial, Mr Singh asked the judge to stay the charges because of the police brutality. Both Singh and Maharaj testified that the police beat them up.

The Crown did not ask the police officers to explain their side of the story at the trial.

The trial judge convicted Mr Singh. The Court of Appeal found that that the police brutality should have resulted in a stay of proceedings. The judges condemned the officers' brutality, naming them in their decisions.

But Ontario's Special Investigations Unit, and Toronto's Police Service Professional Standards Unit investigated the police misconduct. Mr Maharaj didn't cooperate. Those agencies concluded that likely, the officers did not assault the two robbers. Maybe the prosecutor should have told the judges of the Court of Appeal.

The police officers sued the prosecutors for failing to contest the robbers' claims properly.

The Supreme Court of Canada rejected the officers' claims. The judges found that the prosecutors did not owe any duty to the police officers to protect them from false Charter claims in a criminal trial.

Why?

Because Crown Counsel aren't your lawyers.

To ensure the independence of the prosecutor, the prosecutor must not bear any duty to protect police officers' interests.

Does that mean that the results in this case were just? I don't think so. Two robbers beat serious charges by making false allegations against police officers. The Crown didn't fight those false allegations hard enough. The false allegations hurt the careers of some police officers. I don't know exactly why things went wrong. I suspect that there were trust or communication problems between the officers and the prosecutors, either personally, or institutionally.

There are two ways to apply this decision to every-day police work. You can view it as proof that prosecutors are aloof, and not to be trusted. If the relationship between police and prosecutors in your area is bad, then I think this approach will exacerbate the problem.

Or you can recognize and affirm the independence of Crown, but work with them to improve communications, so that they don't lose cases like this one on false allegations.

On of the main reasons I write this website is to promote a good working relationship between police and prosecutors. There are deep reasons why prosecutors and police must remain separate agencies; but there are equally deep reasons why police and prosecutors need to be able to work side by side, with good cooperation and communication. Knowing each others' roles helps us understand what we can and can't do for each other.

2021.05.08 Right to Counsel - Cell Phones at the Scene

"[T]he case law could not be clearer on the issue of when an accused is entitled to avail himself or herself of his or her right to counsel. The right applies immediately following arrest and reading of constitutional rights, insofar as the circumstances of the case allow." LeBlond J.A. in R. v. Landry, 2020 NBCA 72 at para 3 (The report is in French first, then English.)

A police officer stopped Mr Landry just before 3:00am, and investigated him for impaired driving. When Mr Landry (eventually) blew a "fail" on a screening device, the officer arrested him, and took him to the police station for a breath analysis.

When should Mr Landry get to speak to a lawyer? He asked to use his cell phone at roadside. The officer made him wait until they got to the police station. That took 30 minutes.

Unsurprisingly, most lawyers didn't answer their phones in the dead of night. The officer spent almost an hour trying to contact lawyers for Mr Landry. Eventually, the officer called Legal Aid. Mr Landry refused to speak to the Legal Aid lawyer that was available. Shortly after that, the officer gave up and made Mr Landry provide his breath samples.

Why not give Mr Landry his cell phone at the roadside, and let him call his lawyer right away?

The officer had no explanation.

The judges didn't like that.

This officer also read the "Supplementary" (aka "Prosper") warning to Mr Landry. This was a mistake. One reads that warning when your prisoner starts to waffle after first saying he wants a lawyer. But Mr Landry never changed his mind. Nothing triggered a need to tell him that he was entitled to a reasonable opportunity to get legal advice.

It wasn't a bad mistake - it merely re-affirmed that Mr Landry was entitled to a reasonable opportunity to get legal advice.

Very shortly after telling Mr Landry that he was entitled to a reasonable opportunity to get legal advice, the officer told him he had to stop calling lawyers, because it was time to provide breath samples.

The judges didn't like that either. They excluded the breath test results, and Mr Landry beat the charges.

Why do you take prisoners to the police station before letting them call for legal advice? I know of several explanations:

Times have changed. Cell phones are everywhere.

Most of these concerns can be addressed.

If the sound quality in the police car is poor, then ask the lawyer to be available when you get your suspect to quieter place - such as a police station.

After you make a breath demand, you need to test the subject's breath "as soon as practicable". If the subject wants legal advice, one of the necessary steps is contacting the subject's lawyer. Calling right away may reduce delay at the police station.

Even if you didn't read a breath demand, s.10(b) of the Charter guarantees the prisoner legal advice "without delay".

Decisions like this one suggest that if you can provide the suspect with access to counsel at roadside, then you must. If you can't, then you need to be ready to explain the reason(s) that prevented it.

Police cars weren't designed for providing access to counsel. Maybe they should be.

2021.05.05 Confidential Informants - It Seems Easy until Later

Two years of service teaches a police officer only the rudiments of the job.

With two years of experience under his belt, an officer received a confidential tip about Mr Dawkins, 2021 ONCA 235 packing something illegal.

The officer had never handled a confidential source before, but he knew that he had an obligation to protect the source from being identified. (Good. He got one fundamental correct.)

Police information suggested that Mr Dawkins as a dangerous guy. He had a history of firearms offences, and he was prohibited both from possessing firearms and - as it turns out - driving cars.

One night, the officer saw Mr Dawkins get into a car, so he pulled it over.

The officer first violated s.10(a) of the Charter: he lied about the reason for pulling over the vehicle.

He did so for officer safety. He was working alone. He didn't want to arrest Mr Dawkins for driving while prohibited until backup arrived. So he told Mr Dawkins that he saw the vehicle swerving. That didn't turn into a problem in the case; but don't make a habit of lying about the reason for detaining someone.

When backup arrived, the officer arrested Mr Dawkins for driving while prohibited. A search of the vehicle discovered a loaded handgun under the driver's seat.

What should the officer do about the confidential source information? Even though the source information formed part of his reason for pulling the vehicle over, he said nothing about it at the scene, and wrote nothing about it in his notes and report. He figured he could sort it out with the Crown if there was a trial.

Defence launched a Charter application. The main point was that the officer lacked grounds to stop Mr Dawkins' car - a breach of s.9. I don't know from the reasons of the Court of Appeal why defence thought this argument would work, but it may have had some substance.

Two weeks before trial, the officer met with the prosecutor, and explained how the source information formed part of his justification for stopping Mr Dawkins. The prosecutor immediately disclosed to defence the fact that the officer acted, in part, on source information.

Things could have gone wrong:

Handling confidential sources gets tricky fast. As you can see from this case, failing to write anything down can backfire. But writing things down in the wrong places (like disclosure to defence) or failing to redact it can also backfire. Beware of shortcuts. Read a manual. Take a course. Learn the procedures that your police force follows.

In this case, the judge found that the officer's inexperience explained why he acted as he did. The judge believed the officer and convicted Mr Dawkins.  If it works, that excuse of inexperience works only once. If you don't know how to handle a source, then get some formal training.



2021.05.02 "Why would she lie about this?" - Interviewing Danger Zone

Mr Bernier, 2021 ABCA 27 had with a young woman at a house party. She said so. And when an officer interviewed him, he agreed. But they disagreed about whether she consented. She said that his sexual acts woke her up. He said she was awake from the beginning and she enthusiastically participated.

During the interview, the police officer repeatedly asked Mr Bernier to explain why she would lie about what happened.

Although you can ask this question in your interview, don't make it the central theme of your interview.

At a trial, the question is improper. At law, the prosecutor can't ask the defendant to explain why another witness might lie, and if the judge relies on the defendant's inability to give a satisfactory answer to the question, then the Court of Appeal will order a new trial. And that's just what the court did in this case.

The court said that the prosecutor ought to have edited those questions and answers out of the interview before tendering it in the trial.

If your interview is going well, perhaps you should simply avoid that topic altogether.

2021.04.27 Victimizing Cops - Investigating Your Own

A drunk assaulted a cop in downtown Vancouver. His name was Eddison, 2021 BCCA 168.

It went badly. The officer took Mr Eddison down, but he fought and struggled.

When the officer's partner stepped in, something broke her leg. Either the drunk fell on her the wrong way, or he kicked her during the struggle.

Once the officers got the drunk under control, other officers canvassed the area for security video and witnesses. They found witnesses, but did not secure any useful video.

Everybody who saw the incident described it differently. Even the two officers gave different accounts. Video would have helped.

But one witness gave a different account. He claimed that he saw the event, and the video security system at the place where he worked recorded the whole thing. He said that two officers came and looked at it, but did not request a copy. A different officer testified that she actually did look at that recording, but found no useful evidence.

At trial Mr Eddison's counsel used that as an opportunity to attack the cops: The witness proved that the one video was probative. Three cops looked at it, but they didn't want anyone to see what it contained. "Negligent investigation!" By failing to secure the video, those three cops were covering up the truth.

It's a common tactic to accuse police officers of inadequate investigation or cover-up, and it sometimes works. Here's why: when police fight with civilians, all the investigators look biased.

Remember when Iran shot down a commercial airplane. When Iran released its official investigative report, critics found the investigation inadequate. The lack of independence of the investigators from the investigated undermined the credibility of the report.

When you investigate the circumstances of an assault of a police officer, or any other victimization of your brothers and sisters in blue, your critics may suspect you of bias, or even cover-up.

The judge in this case rejected the notion that there was a police conspiracy to frame Mr Eddison. He had good reason. The two main police witnesses had quite obviously not colluded. They provided different accounts of what happened. But the independent witnesses generally agreed that Mr Eddison was the aggressor, and the police reacted appropriately.

The judges concluded that Mr Eddison was guilty.

Think how much harder the case would have been without independent witnesses.

The trouble is, when someone hurts you or your colleague, there are no independent investigators you can call on to perform a credible investigation. The only resources available are the people you work with.

What do you do?

Don't make the victim, or the an officer who witnessed the crime take the role of investigator. That aggravates the problem of apparent bias.

Get other officers to investigate the crime ... and document the investigation.

What do I mean "document the investigation"?

A good example can be drawn from the Eddison case. Remember the one officer who looked at the security video, and concluded that it was not relevant? She behaved like it was a routine investigation. Suppose, at that moment, she thought to herself "I am a cop investigating an assault on a cop. Someone will claim I am part of a conspiracy." What would she do to show she was not? Perhaps she might take a copy of the useless video. Or photograph the screen of the video system to show that it recorded the wrong area.

In these situations, if you can't bring in an independent investigator, then investigate transparently.

On the witness stand, you might get asked "why did you do something different than a routine investigation?" You can answer, "it wasn't an routine investigation. I knew the victim. I knew someone might suspect me of slanting the evidence. So I took extra steps to show that I didn't."


2021.04.19 Innocent Possession - "I'm just holdin' it for a friend"

Mr Faudar, 2021 ONCA 226 found a handgun and ammunition in his makeshift music studio. That wasn't cool, in part because a judge had prohibited Mr Faudar from possessing firearm. So he moved it to his bedroom. A friend texted him, asking him to hang onto the gun until the friend got back into town.

About a week later, before the friend returned, police raided Mr Faudar's place, and seized the gun.

At trial, Mr Faudar said he was innocent. He was just hanging onto the gun until the friend took it back.

There is such a thing as innocent possession. If a citizen finds a kilo of cocaine in the playground, the citizen can grab it, take it home, and call police for assistance.

But it ain't so innocent, if the citizen holds it for the drug dealer.

Same thing for Mr Faudar. He didn't try to turn it in. He was going to put it back into the hands of the guy he got it from. His "defence" was not a defence, but evidence of guilt.

For lawyers, the case got somewhat more interesting.

Why did the police raid Mr Faudar's place? They had a confidential informant.

Who did Mr Faudar suspect? His friend.

Mr Faudar retained a lawyer to help him. Who did he retain? His friend's former lawyer.

Was the lawyer acting in conflict of interest? For lawyers, there's some interesting discussion about conflict of interest. In this case, the answer was "nope, not a conflict".

Mr Faudar's conviction stuck.

2021.04.16 Entrapment by a "Cutie"?

Police logging onto a chat site as jail bait is not entrapment.

In November 2012, a police officer logged onto a chat site using username "mia_aqt98". This suggested that "she" was 14, and a “cutie”. Mr Ghotra believed "her". Mr Ghotra, 2020 ONCA 373 chatted with "her", and "she" confirmed that "she" was a 14-year-old girl. He turned the conversation rapidly towards sex. Within a few days, he proposed that she meet him. Police arrested him at the meeting place.

He called this entrapment. Most of the Court of Appeal disagreed with him. So did all of the judges of the Supreme Court of Canada. R. v. Ghotra, 2021 SCC 12

Why?

Because the officer merely provided the opportunity for Mr Ghotra to lure a 14-year-old girl. Mr Ghotra is the one who took the initiative.


2021.04.11 Digital Forensic Experts Don't Know Everything

Let's talk about a narrow technical point and a broad philosophical idea.

Narrowly, when a computer forensic expert examines a computer or phone, don't assume that they have all of the expertise necessary to interpret the data. The field of computer science now has many areas of specialty.

But broadly, when you investigate a crime, should you investigate innocent explanations for the evidence you have found?

When a forensic expert examined a cell phone and computer seized from Mr Gauthier, 2021 ONCA 216 she found evidence of child pornography, including Skype chats containing child pornography.

A fair bit of evidence linked Mr Gauthier to the chats. Heck, the user name of the Skype account used his mother's maiden name.

Defence asked some difficult questions about Skype:

The expert didn't know enough about Skype, how it worked, and what data to look for in the logs to say whether this theory was right or wrong.

Fingerprints don't stick to digital information.

When investigating digital information in a computer or cell phone, it isn't enough to find the data of interest in a computer or cell phone. You want to know how it got there. And you may need to consider all alternative means for it to get there, like this defence lawyer did.

The best investigation of a digital crime involves investigating inside the box and outside the box. What does the computer or the cell phone hold? What human evidence outside that box can you gather to eliminate (or establish) innocent explanations?

I'm not dissing these investigators. It's clear from the report that they investigated outside the box. But they didn't know what their expert didn't know.

But perhaps the investigators would have found out more if they pressed their expert with the question: are there any other ways for this data to get onto these devices than Mr Gauthier putting it there?

They'll get a second kick at the cat. The Court of Appeal ordered a new trial. The prosecution may need the help of a Skype specialist. I hope they don't ask me. Although I have a B.Sc. in computer science, I lack the knowledge to be of any assistance.


2021.04.11 Section 10(a) - Keeping the Investigation Alive by Stopping a Suspect on a Ruse


Hells Angels are known for making their money by breaking laws. You make your money by upholding laws. The Charter says that when you stop someone or arrest them, you must tell them why. That law applies to you even when you are arresting someone who breaks laws.

Mr Bielli, 2021 ONCA 222 belonged to the Hells Angels. Police had good reason to believe that he and his gang made money from illegal online gambling. The investigators learned of a day when he would deliver a quantity of cash. They wanted to relieve him of the ill-gotten gains without alerting the gang that the police were on to them.

The lead investigator wanted to stop Mr Bielli on some pretext, and then "discover" the cash as if by accident.  But he realized that the plan required police officers to lie to Mr Bielli about the reason for the stop. He asked a lawyer, Andrew Sabadini, whether he could get a General Warrant which would authorize him to stop Mr Bielli on a ruse. Mr Sabadini told him:

Nope. General warrants authorize searches. Lying to someone isn't a search.

Mr Sabadini gave good legal advice. He answered the question in 2011. The Ontario Court of Appeal delivered a decision 5 years later that showed that the lawyer was right. (Poirier, 2016 ONCA 582)

The officer decided to proceed with the plan, without a warrant.

He instructed two officers to detain Mr Bielli for a traffic matter, give him access to counsel, search his car, and scoop the cash. And then give him access to counsel all over again. He instructed them not to mention in their notebooks what they knew about the big project he had running against Mr Bielli and his friends.

They stopped Bielli but they didn't tell him all about why. They scooped $75,000 cash and a laptop. A subsequent audit suggested that the gambling operation grossed $100M over 5 years.

The trial judge found that the officers breached s10(a), but admitted the evidence.

The Court of Appeal noted that the officers deliberately breached s.10(a), and even made misleading notes and reports. That wilful disobedience of the law led them to exclude the evidence from the trial.

I've long felt that there needs to be a judicially-granted authorization like a general warrant by which police may arrest or detain a suspect on a ruse. But it still doesn't exist.

In the mean time, don't give false reasons for stopping or arresting someone.


2021.04.09 Measuring the Prospects of a Search Warrant - "Might" differs from "Will"


The bearded prospector heads out into the wilderness filled with hope. He leads his donkey, packed with tools for mining gold.

Hope is no substitute for knowledge. Unless he knows what he is doing, his wanderings in the wilderness will not enrich him.

He must dig in places where gold will likely be found.

The same principle applies to police officers who apply for judicial authority to violate privacy.

In R. v. Muddei, 2021 ONCA 200, the cold squad had a problem investigating a bar-room murder. When it happened, lots of people were present. Nobody wanted to talk to police. Well, almost nobody. A couple of witnesses who weren't present told police what they heard from people who were present. The stories didn't exactly line up. Tipsters told police a few more details. 7½ years passed, without substantial breaks in the case.

The investigators decided to try wiretap. "Let's tell all the suspects and likely witnesses that we've reopened this case. Put out press releases asking for witnesses. And then let's listen to what they say to each other."  A common stimulation technique.

They put together an affidavit explaining this plan, and a judge granted them authority to listen to private communications between the main players.

The interceptions didn't dig up the gold they were looking for. No evidence about the murder. But they did find gather some precious stones: the intercepted communications included key evidence which proved two different offences. Two guys trafficked drugs. Two other guys did a home invasion.

At the two trials of each of those cases, the defendants complained that the authorization should never have been granted. The affidavit explained only a hope that listening to these conversations would reveal new information about the murder, but not reasons why it was likely.

The two trial judges disagreed whether the authorization was properly granted. The traffickers were convicted. The home invaders beat the rap because the trial judge threw out the wiretap evidence. The two trial judges can't both be right. Both cases went to the Court of Appeal, and were heard together. The Court of Appeal agreed with defence. Everybody walked free.

For affiants, the learning point is a simple one. Most of the interesting warrants and authorizations require that you show reasonable grounds to believe that evidence or information will be obtained by the intrusion into privacy that you propose. You don't need to be certain, but you must show that you will likely strike gold.

For managers, the learning point is also simple.

Every prospector needs hope of success to motivate them. Prospecting involves hard work.

Likewise, in tough cases, you need keen investigators. They also need hope of success to motivate them.

But hope is also a problem. An ignorant prospector will toil in places where he has no chance of finding gold. Hope will keep him working until his food runs out.

Hope is a problem in investigations too. Hope of success sometimes causes keen investigators to believe that a search will bear fruit even when, objectively, it's a shot in the dark.

That's why, in your group of keen investigators, you may need a contrarian, a devil's advocate, whose job it is to distinguish hope from reasonable belief.

2021.04.03 Interviewing Witnesses doesn't Breach s.8 of the Charter

I first saw this case over a year ago. When I revisited it this morning, I thought it worthy of mention.

A mom left her 4-year-old daughter with Mr Molyneaux, 2020 PECA 2 for a short time. Afterwards, while he slept, she snooped through his cell phone because she doubted what he said about his past relationships. To her surprise, she found pornographic photographs of her daughter, evidently taken that evening.

She told a social worker, who told police, who invited her to give a statement. And she did.

Mr Molyneaux complained to the judges that the mom violated his reasonable expectations of privacy by snooping through his phone. (She sure did.)

And the police knew about this violation from what the social worker told them. (Yup.)

Therefore, asking her to recount what she saw violated his right under s.8 of the Charter to be free from unreasonable search.

Nope.

The Charter restrains government action. If a police officer searched Mr Molyneaux's phone, without a warrant, while he slept, the police officer would violate his right to privacy. (R. v. Fearon, 2014 SCC 77)

But the officer didn't search his phone. The officer merely probed her memory. And that didn't violate his rights.

So if a citizen violates the Charter rights of a suspect, you are free to ask the citizen about it.

But this does not create a warrantless back door into the private lives of your suspects.

If you ask a witness what they saw, you're generally safe. But if you ask a witness to snoop on your behalf - whether into a phone or onto property - then you turn the witness into your agent. If the witness does what you ask, then the Charter applies.

(I note that you can't ask a nurse or a doctor or a psychologist to reveal what they know from their treatment of a patient. Doing so violates s.8 because you cause the professional to violate a professional obligation of confidentiality. R. v. Dyment, [1988] 2 SCR 417)

There's another lesson to draw from this case: To obtain a consent search, you must give the suspect a real choice to permit or deny the search.

When the police got a statement from the mom, they contacted Mr Molyneaux, and asked for his consent to search his phone. He agreed. The officers searched, and found the pictures.

I gather that the officers did not obtain consent in a way that left Mr Molyneaux any meaningful choice. Probably, they said "We can do this the easy way or the hard way. You can consent, or we can get a warrant. Do you consent?"

At trial, Mr Molyneaux's lawyers sought exclusion of the pictures on the basis that the consent wasn't truly voluntary. The Crown agreed. Pictures excluded.

So be careful about how you ask for consent to search.

That error was not fatal on this occasion. The prosecutor relied only on the testimony of the mom. The trial judge convicted Mr Molyneaux, and he lost his appeal.


2021.03.28 Accounting for What You Seize - Preserving Evidence

Mr Hillier, 2021 ONCA 180 ran when he saw police officers.

There were warrants for his arrest. And besides, he had some drugs on his person.

But was he also carrying a ball of heroin-fentanyl-meth mixture for the purposes of sale?

A police officer tackled him, and they fell into a puddle. Officers searched him for safety, during which Mr Hillier volunteered that he had drugs in his sock. He did. 5.53 grams of fentanyl mixed with other drugs. In a pill bottle.

They searched his shoulder-bag. They didn't find more drugs.

Then, they put him into a police car.

When the police car arrived at the police station, there were dime bags scattered in the footwell, and meth on the back seat. The officers found a wet pouch on the floor of the cruiser, containing various drugs. And in Mr Hillier's mouth was a 28 gram ball of heroin-fentanyl-meth mixture.

Simple, right? Just prove that the officers searched the car before putting him into it, and it was clean, and then show what it contained after they took him out.

Not so simple.

The two officers who searched the car at the beginning of their shift gave differing testimony about whether they searched it. And they didn't have notes about this mundane task.

But worse, the exhibit officer discarded half of the things that officers seized in this investigation. Without taking any pictures.

At court, Mr Hillier complained: "There's no way I could have possessed the pouch. Police searched me on arrest, and didn't find it. They took my bag away. My clothing was too tight to conceal it. That pouch must have been in the car before I was placed in it. But by destroying so much of the evidence, I can't show how big that pouch was, so as to prove I wasn't carrying it."

He claimed that the 28 gram ball was lying in the cruiser when the officers put him into the car. For fear of being accused of putting it there, he popped it in his mouth. He claimed he did not know what it was.

The judges did not like the destruction of evidence. They found that any evidence obtained from after placing Mr Hillier into the vehicle had to be excluded. Including the big ball of drugs.

Though he's probably guilty, Mr Hillier beat the PPT charge because the exhibit officer failed to document what was seized.

What does this mean for investigators?

  1. Those routine things you always do at the beginning of the shift matter. Do them, and make a note. In 99 shifts, it means nothing. In the 100th shift, it will be essential.
  2. The exhibits you seize are not only for proving guilt but also for establishing innocence. Even if the thing doesn't inculpate the suspect, it might be relevant in exculpating him. Document what you seize. Destroy with care.

2021.03.28 Following the Money - Private Parts of the Trail

An old man fell for a classic fraud. He received a letter informing that he won a big lottery prize. He followed the instructions. He paid fees for delivery of his big prize. And more fees. And more. The fees exceeded $150,000. The big prize never came.

It took four years to bust the fraudster, Freddy Mawick, 2021 ONCA 177. It took a couple of years to convict him. Naturally, he asked the court of appeal to overturn his conviction.

That big prize never came either.

The investigators followed the money. The victim sent certified cheques by UPS. The fraudster instructed him to keep the tracking numbers. The victim followed that instruction too.

The police used those tracking numbers. Even without a warrant or production order, UPS told them where the packages went and who signed for them.

Mr Mawick complained that he enjoyed an expectation of privacy over that information. The court said he didn't.

That makes sense to me. The victim paid for the UPS service. The victim received the tracking number for the purpose of tracking the package. The fraudster could only expect that the victim would eventually use that tracking information to determine where his money went. No expectation of privacy.

As the investigator closed in on the prey, things got trickier. Some financial agencies revealed information about the the accounts through which the cheques were negotiated. Without a warrant or production order.

That could have derailed the case. People generally enjoy pretty high expectations of privacy in their financial records.

Lucky for the investigator, Mr Mawick cashed some cheques through an account that belonged to someone else. Mr Mawick did not enjoy an expectation of privacy in someone else's account.

I think the investigation reveals the value of the old adage "follow the money". But be careful when you follow the trail into the banking system.

Those of you who do follow the money should beware of expectations of privacy. Your investigation may require stepwise production orders before it reaches the prize.

I've never been a big fan of criminals who prey on vulnerable elderly people. I think the investigators deserve kudos for sticking with it over the years.

They pursued the prize of busting Mr Mawick by following the money.

Their big prize did come.


2021.03.20 No-knock Entry - Search and Seizure

The Supreme Court of Canada set the rules for no-knock entries into residences:

When executing a search warrant, always knock before you enter (and wait for someone to answer).

Except.

If knocking would endanger you or result in the loss of evidence, you can enter without knocking.

R. v. Cornell, 2010 SCC 31

Normally, we call it "home invasion" when armed people burst uninvited into a residence to imprison the occupants and take their property. The usual sentence for this crime is a federal sentence.

Even if you had a warrant authorizing you to enter and search a house, a judge will review carefully whether you executed the warrant reasonably. If you entered without knocking, the judge will want to know why.

At 1:43pm, police raided Mr Pileggi's 2021 ONCA 4 house. They had a warrant, and good reasons to think he trafficked oxycodone. During the raid they found oxycodone, and cocaine.

But they didn't knock first.

At trial, defence cross-examined the officers, trying to get them to agree that they had a policy of always doing hard entries without knocking.

All the officers denied it, but the defence came pretty close. When explaining why in 90% of the drug warrants his team executed, they did not knock on the door, one officer said:

"If we were knocking on drug trafficking doors, I’m going to suggest that we would never seize cocaine."

If defence established that the police had a standing policy of hard entries when searching for hard drugs, the judge would have excluded the evidence.

Junior officers may not appreciate the legal obligation to knock. Unless someone educates them, they may agree with suggestions that police never knock when searching for hard drugs.

Whoever makes the decision to enter without knocking needs full information about the investigation, and what risks may lie on the other side of the door.

If you're thinking that you might need to enter without knocking:

At the scene, keep investigating whether you need to enter without knocking. Change the plan in response to what you discover.

You don't need judicial pre-authorization for a no-knock entry. (Al-Amiri, 2015 NLCA 37)  If you don't discover the reasons for the no-knock entry until you arrive on scene, you can still execute the warrant. But once you have the scene under control, document why you didn't knock.

This Pileggi doesn't change the law. But it explains existing law quite well. It illustrates some common problems that arise during searches. I recommend it as worthy of discussion at police training sessions.

2021.03.20 After Arrest, Offer Access to Counsel Promptly

Prisoners are like exhibits. At trial, you must account for what you did with them. (And to keep them in your custody, you must promptly ask a justice.)

Police raided Mr Pileggi's 2021 ONCA 4 house. They had a warrant, and good reasons to think he trafficked oxycodone. During the raid they found oxycodone, and cocaine. I don't know how carefully they handled the exhibits, but they did not handle the suspect with care.

The first officer found him in a bedroom with his wife. That officer arrested him for PPT. The officer handcuffed him and made him kneel on the floor.

The second officer stayed with him while other officers cleared the house.

Seven minutes later, a third officer told him that he could get legal advice.

At trial, Mr Pileggi complained that police did not explain him his rights sufficiently promptly. The officers explained to the judge that they were busy getting the scene under control: once the officers knew they were safe, they explained to their prisoner his right to legal advice.

The trial judge and the appeal judges agreed with the officers on this point.

When Mr Pileggi learned he could get legal advice, he told the third officer that he wanted to call his father, and ask him to arrange a lawyer. The third officer promised to call the father on Mr Pileggi's behalf.

When the third officer started taking Mr Pileggi out the door, a fourth officer intercepted them. The fourth officer read the search warrant to Mr Pileggi. Mr Pileggi responded "my wife has nothing to do with it". The fourth officer then asked Mr Pileggi if he would like to tell police where "anything" was. Mr Pileggi said "no".

At trial, Mr Pileggi complained that the fourth officer tried to get him to incriminate himself before Mr Pileggi got the legal advice he wanted.

The appeal court judges agreed with Mr Pileggi. After an arrest, you have a duty to "hold off" eliciting evidence until the person has exercised or declined to exercise the right to legal advice. When cross-examining the fourth officer, defence counsel noted that there was no law requiring the officer to read the search warrant to Mr Pileggi. The lawyer accused the officer of reading the search warrant for the purpose of eliciting a response. The officer disagreed. The judges leaned toward the defence view. They said reading the warrant to the suspect was risky. It did look like an effort to get Mr Pileggi to talk about the drugs before he got access to counsel.

A fifth officer drove Mr Pileggi to the police station.

A sixth officer received him, and arranged for him to speak with duty counsel. That officer didn't know about the promise to call Mr Pileggi's father.

Transferring a suspect from one officer to the next renders it unlikely that the last officer will know what conversations the earlier officers had with the suspect. This causes two problems:

  1. What access to counsel did Mr Pileggi ask for? The last officer won't know. What promises did earlier officers make about arranging it? The last officer won't know.
  2. If Mr Pileggi makes incriminating remarks about the crime to the last officer, the prosecution will want to prove that those remarks were voluntary. Ordinarily, that requires producing every officer in the chain, and asking them to recount what conversation they had with Mr Pileggi. The weakest links in the chain are the officers who did the least. They tend to make no notes. Those officers have a hard time a year or two later explaining what they did with the prisoner.

When processing exhibits, you would try to avoid passing them through the hands of six different officers. That's because accounting for what happened to the exhibits afterwards would require all six to testify about what they did with the exhibit.

With humans, you must answer questions about conversation and physical treatment. What discussions about right to counsel did you have? Did you tell the next officer? Did you discuss the offences at issue? Did you raise the prisoner's hopes of liberty or softer sentence by hinting that he should talk about the offence. Did you feed the prisoner? Tend to his wounds?

Accounting after the fact is easier if you reduce the number of officers involved in the chain.

Respecting the prisoner's requests for counsel is easier if each officer informs the next what legal advice the prisoner requested.

If some officer gives you a prisoner to transport, ask the officer (and the prisoner) what access to counsel the prisoner wants. And make some notes.

2021.03.14 After Arrest, Explain the Right to Counsel Promptly

Mr Mann, 2021 ONCA 103 called 911 saying "I'd like to report a murder". He explained he choked and beat his girlfriend to death with his hands. The dispatcher heard a loud banging, consistent with someone's head being banged against a wall. The dispatcher asked him if he was sure that the victim was dead. He replied "Uh pretty sure, she’s going to be [unintelligible] anyway."

She didn't die, but she suffered brain damage.

When police attended and arrested him, he started talking about how he was considering killing himself, and then he "lost it on her".

It took the officers 5-10 minutes to get around to telling him about his right to counsel and his right to silence. All the while, Mr Mann kept talking.

The trial judge thought it might be okay to admit this "spontaneous" evidence. The appeal court didn't:

"It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached."

The judges did not mind that the officer, on seeing blood on Mr Mann, first asked if he was hurt. He was not. But the judges did mind that the officers delayed in explaining his rights.

2021.03.14 Don't Talk to Jurors During Trial

A juror asked an innocent question of someone wearing a uniform. The juror had trouble understanding a statement of admissions. The juror wanted to know more about it, and whether a witness would come to court and explain it.

The juror asked a deputy sheriff.

Instead of telling the juror to ask the judge, the sheriff asked the prosecutor about the exhibit.

The prosecutor explained the exhibit. Before the sheriff could explain the exhibit to the witness, defence counsel asked for a mistrial.

The judge turned down the application, but removed the sheriff from the case. R. v. Athwal, 2021 BCCA 84

Nobody should ever explain anything about the case to a juror, except in open court. The sheriff should not have attempted to get answers about the case for the juror.

Things might have gone differently if the sheriff had returned to the jury and explained the exhibit. The entire murder trial would have gone off the rails.

In other cases, police officers who were involved with or connected to the investigation thought it wouldn't be a problem to have dinner or drink a beer with a juror. They were wrong. The trials had to be done again.

After a trial, you can discuss the evidence with jurors, but you tread dangerous ground. A juror who discusses the jury's deliberations commits an offence under s.649 of the Criminal Code. A police officer who engages in such a conversation will usually be in contempt of court.

But during a trial, any conversation about the case could cause a mistrial. Even the possibility that you discussed evidence will cause the judge to worry. If defence learns that you, a witness, talked with a juror, during the trial, they will assume that you discussed the evidence until satisfied that you didn't. If a juror asks you to directions to the washroom, you can answer, but a wise officer will report that conversation to counsel.

2021.02.28 Spousal Privilege ends with Divorce

Wiretap might record what the killer told discussed with his wife about the killing. But s.189(6) of the Criminal Code and s.4(3) of the Canada Evidence Act prevent a court from admitting the recording. It's privileged. Indeed, the prosecution can't even compel the wife to testify about those conversations.

But if the killer and his wife divorce, spousal privilege ends. R. v. Al-Enzi, 2021 ONCA 81.

You don't need to read the whole decision to follow the reasonably clear explanation which starts at para 168.

2021.02.27 Paperwork that can Kill Your Career

In British Columbia, police officers who catch drunk drivers send reports to the Superintendent of Motor Vehicles, which generally results in significant penalties including driving prohibitions.

Those reports include a thing we lawyers call a "jurat". It says that you solemnly affirm, or declare or swear that the contents of the report are true.

Be careful of any document that contains one of those. You stake your credibility on it.

If you deliberately assert false information over a jurat, you are committing the crime of perjury. That will end your career quickly.

If you mistakenly assert false information, you could find yourself seriously embarrassed in a court room.

Q: Officer, today you say you saw my client was unsteady on his feet at the roadside?
A: Yes.
Q: You didn't see that in the police station?
A: I don't remember.
Q: You completed a report to the Superintendent of Motor Vehicles about this?
A: Yes.
Q: You were required to explain to the Superintendent why you thought he was too drunk to drive?
A: Yes.
Q: You understand that the Superintendent uses these reports to determine whether a driver should be prohibited from driving?
A: Yes.
Q: So you told the Superintendent all of your observations that day?
A: Yes.
Q: In that report, you listed the odour of liquor and the slurred speech, but did not mention anything about unsteadiness on his feet?
A: What? Oh. Um. I must have forgotten to write that part in. I filled out that form in a hurry.
Q: Officer, before you submitted the report to the Superintendent, you solemnly declared that it was true?
A: I filled in the part at the bottom.
Q: The words say that you solemnly declared that it was true.
A: I guess so.
Q: And it wasn't complete.
A: Well I did see him unsteady on his feet.
Q: I suggest to you that the report was accurate, and you are lying today.
A: No, I did see him unsteady on his feet.
Q: You so solemnly affirm today?
A: Yeah!
Q: But you solemnly affirmed something different when you wrote the report! Were you perjuring yourself then or are you perjuring yourself now?
[If it truly was a mistake, then you did not commit the crime of perjury. Perjury requires intent to deceive. But lawyers who cross-examine like to ask dramatic questions like that one.]

When you "fill in paperwork", make sure the sworn documents are completely true. When you come to court to testify, review carefully any documents you swore to be true. You can bet defence counsel hopes you will say something different on the witness stand.

A couple of officers nearly avoided all of that trouble, by failing to get a Commissioner for the Taking of Oaths to witness their oaths. Kuzmanovic v. The Superintendent of Motor Vehicles, 2021 BCCA 83. Someone in the office of the Superintendent noticed, and got the officers to submit sworn documents. The manner in which they patched it up became an issue in the litigation.

The legislation requires the officer to submit sworn (or affirmed) information. The case discussed what makes a properly sworn document.

The basic idea is simple. Only the document that starts or ends with the officer's solemn oath or affirmation is a sworn document. If you file other documents with it, they are not evidence. But if the contents of the sworn document refers to other specific documents and adopts them, then those become part of the sworn document "by reference". Like this:

"This investigation is accurately described in my report dated 2021-02-27 which is attached."

Please make sure that your report is, indeed, accurate.

2021.02.15 Swearing Charges and Seeking Process - Should it Be Recorded?

When a peace officer or public officer lays a charge, the justice of the peace follows the process set out in s.507 of the Criminal Code. That section does not require the justice of the peace to make a formal recording.

Lawyers for Mr Orr, 2021 BCCA 42 argued that it should. The trial judge rejected their application. The appeal court said they they followed the wrong procedure when making their complaint.

Mr Orr's lawyers weren't crazy. Swearing a charge is serious. Getting a warrant for someone's arrest is serious. They urged that every request for a warrant be recorded. If police get a warrant for someone's arrest without good reason, lawyers for the accused can do something about it.

At the trial, the officer who swore the charges against Mr Orr was made to testify. The officer had to explainwhat steps he took to assure himself that a warrant was needed in that case.

The poor officer could not remember the case. Like many court liaison officers, he swears many many charges in the course of his work.

But he could explain his usual procedure. That procedure ensured that whenever he asked for a warrant, he had good reasons.

And that was was why the judges approved of what he did.

If you swear a charge, read the file. Know why you think the accused is guilty.

If you ask for a warrant, read the file, and check background information. Know why you think it's in the public interest to arrest the accused rather than merely summon him/her to court. And tell the justice your reasons for wanting a warrant.

I add: if you think a summons is all you need for this file, check the background information. Every so often, our office handles a case where a victim needed protection from the accused, but the police sought only a summons.

Maybe one day, the process of laying charges will be recorded. Even if they aren't, you want to be able to answer questions like the ones Mr Orr's lawyers posed this officer. Follow a procedure that ensures that you know why you think the suspect is guilty and why a warrant should be issued.


2021.02.15 Videorecording Interviews Is a Good Idea

Mr Schneider, 2021 BCCA 41 put Natsumi Kogawa's naked body into a suitcase, and lugged it to a vacant lot. But did he kill her?

The pathologist who examined her decayed body could not clearly determine how she died. But suffocation was a live possiblity.

A police officer interviewed Mr Schneider. During the conversation, Mr Schneider explained that there was an angry argument. He briefly placed his hand over his nose and mouth, demonstrating what he did to her. He demonstrated this twice.

Naturally, that gesture took on great importance in the trial.

Too bad it wasn't video-recorded.

You don't want to be the officer who must explain why such an important interview was not video-recorded. You don't want to be the officer on the witness stand trying to explain what the gesture looked like.

Use the video-recording system for interviews. Not just for suspects, but also important witnesses, and children, and aged and vulnerable people. Check the system, to make sure it's working.

In the field, even your cell phone may record video.

2021.02.14 Translating Evidence

Mr Abdullahi, 2021 ONCA 82 spoke Somali. Toronto police intercepted his communications, and busted him for trafficking in firearms.

I infer that there were many interceptions that required translation.

At trial, defence challenged the translator, and cross-examined him for a long time. The trial judge accepted the translations. The jury convicted him. The appeal court agreed.

What did the Toronto Police Service do correctly?

First, they had a team of three Somali interpreters. Two did the initial translation. The third reviewed the recordings, and proof-read the transcripts. He kept the original translations, and made note of the changes he made to the efforts of the first two.

The prosecutors probably liked this: at trial, only one witness needed to testify about the translations - the third interpreter.

That interpreter would listen to the whole of the recording for himself. Then he would listen to it bit-by-bit, and confirm for himself that the translation was correct.

The judges seemed to like that procedure. The first step allowed him to grasp the meaning of the conversation for himself, without prejudicing himself by reading the work of the other interpreters. The second step permitted a careful proof-reading of others' work.

Defence complained that he lacked sufficient qualifications: he had no formal certification as an interpreter.

The judges dismissed this concern rapidly. The translator was born and raised in Somalia until he was 5. He used the Somali language for the rest of his life with his family, watching Somali TV, and engaging with the Somali community. He worked for several years doing translation work before he worked on this case.

Judges prefer experts to be independent of the parties. This translator was an employee of the police service. Considering the sensitivity of the investigation, I imagine that the investigators would not want to retain an outside expert on the Somali language. But that could throw some doubt on his objectivity.

This translator testified that he took care not to insert his opinions about what the speakers meant. The judges liked that.

Because the recordings and translations were disclosed well in advance of trial, the judges knew that the defendants could challenge any translations with which they disagreed.

To summarize:

2021.01.28 Mr Big and Mr Small

Security video recorded Mr Quinton, 2021 ONCA 44 as the last person to visit Mr Gilby, a drug dealer. The next person to enter that apartment found Mr Gilby dead in a pool of blood. Someone smashed his head in with a hammer. A set of his keys went missing.

Naturally, police suspected Mr Quinton.

Mr Quinton lived on disability benefits - which were slim. He abused drugs and alcohol so much that he arranged for his disability cheque to be managed by someone more trustworthy than him. Mr Quinton took medication for anxiety and depression. 

When undercover police befriended Mr Quinton, they gave him work. They paid him small sums - by most people's standards. But for Mr Quinton, these sums dramatically increased his disposable cash.

The undercover officer often visited him carrying a 6-pack of beer, which they shared, while Mr Quinton smoked marijuana - which was illegal at the time.

Mr Quinton suffered a stroke. The undercover officers assisted him in his time of need, caring for him when nobody else would.

When they turned up the pressure, he confessed to the murder, and led them to the drain where the victim's keys had been hidden.

After his conviction, defence argued that the confession should be excluded. The police had made Mr Quinton too dependent on the undercover officers.

Without deciding the question, the appeal court ordered a retrial. It bothered the judges that the officers prevented him from getting his medication before getting him to confess. They worried that admitting the confession might be an abuse of process, and suggested that the trial judge review the circumstances carefully at the new trial.

For officers conducting Mr Big operations, you'll want to review this one. Judges get skittish when Mr Big's kindness toward Mr Small creates a relationship of dependency. The operation should not take unfair advantage of the suspect's illnesses.


2021.01.17 Solicitor-Client Privilege - Careful What you Read

When police arrested Mr Borbely, 2021 ONCA 17 for murder, he had been driving his car. When the officers searched his car, they found a sealed envelope addressed to his lawyer.

The officers placed it - unopened - into another sealed envelope, awaiting the day that a judge could determine whether it was privileged.

That day came before the trial. The judge opened the envelopes and looked inside. He found a diary which described the events leading up to the disappearance of the deceased, and a letter to the lawyer.

Communications between lawyer and client are privileged: don't touch. The judge put the letter back into the envelope.

But the judge found that the diary did not record communications from the Mr Borbely to the lawyer. Therefore, it was evidence that the police and prosecutors could read and use.

The investigators behaved wisely. Judges and lawyers take privilege very seriously. If the officers had opened the envelope and read the privileged letter, a judge might well have stayed the entire prosecution.

If you encounter communications between suspect and lawyer, follow the lead of these officers: treat it like it's radioactive. Seal it up, and call in the lawyers.

(And don't secretly listen to your prisoners talking to their lawyers.)


2021.01.17 Reasonable Expectation of Privacy - Guest in a Bedroom

Does a guest enjoy a reasonable expectation of privacy?

The expectations of privacy in a bedroom differ according to the people making the claim of a violation of their privacy.

Mr Sangster, 2021 ONCA 21 stayed for 3 weeks at the apartment of a friend. Mr Sangster and his girlfriend slept in the friend's bedroom while the friend slept in the living room. But the owner's clothes and property were in the bedroom.

Someone got stabbed in the hallway. While police investigated this violent assault, social workers came to check up on the friend. They brought a police officer along for safety. The social worker asked the friend to let them into the bedroom. There, the social worker saw Mr Sangster holding a gun. She screamed and fled.

Police got a warrant and searched the place. They found the gun, and evidence linking Mr Sangster to the stabbing.

Mr Sangster complained that the police violated his reasonable expectation of privacy. The trial judge disagreed. So did the appeal court.

Does that mean guests have no expectation of privacy? No. It all depends upon the circumstances. In this case, the homeowner consented to the social worker's entry into the bedroom. Mr Sangster had minimal control over the bedroom. He made no contribution to he house. He shared the use of the room with everyone else in the apartment. Other guests may enjoy greater expectations of privacy.


2021.01.17 Warrant Drafting - Confidential Sources - "Step Six"

May drug dealers, and some other offenders, get busted because people in the criminal underworld tell police what they did.

When someone gives information on condition of anonymity, you owe him or her privacy. You must not reveal to the target - or anyone else - who informed on the target.

But the information serves no purpose if you can't use it.

When seeking a warrant to search or surveil the target, you can tell an issuing judge all about the confidential source and the information. Indeed, you need to explain why you can trust the source, as well as anything that suggests that should not trust the source. But if you do, you must seek a sealing order. Otherwise, the application for the warrant will be public, and the target will discover the identity of the source.

But a sealing order doesn't solve all of the problems. Confidential sources seem easy to deal with, but they get complicated fast.

If you bust the target, and he gets charged, he will demand a fair trial. Part of a fair trial involves reviewing the police work to see if it was done properly. That includes reviewing the application for the warrant.

And so we engage in the imprecise science of redacting.  We give the defence a copy of the application, but we remove from the copy anything which might identify the source. The defence then tells the judge that the redacted application lacks sufficient detail to justify the warrant, hoping that the judge will agree.

That's what happened in the case of Mr Perkins, 2021 BCCA 9. And the trial judge agreed that the redacted application failed to support the warrants at issue.

Not all was lost.

The Crown asked the judge to take "step six of the procedure laid out in R. v. Garofoli, 1990 CanLII 52 (SCC)".

The prosecutor showed the judge some of the original application, and provided a summary to defence of what it contained. The judge agreed that the summary adequately informed defence of the contents of the hidden material that defence could check to see if police did their job properly.

Complicated? Yes. Successful? Yes. The trial judge found that the additional information justified the production order at issue. That led to Mr Perkins' conviction.

On the appeal, defence complained that the redactions left the application looking imprecise and vague.  For example:

Source E “picked up cocaine [redacted] from the person he identified in the booking photo” as “[name]”

Suppose the redacted word was "scales" or "pipes" instead of "powder".

This argument could have succeeded. It didn't in this case.

Officers who draft applications for warrants, production orders, tracking devices and the like would be wise to draft in anticipation of the redacting, and judicial review.

In this case, the defence argument would have been avoided by writing:

Source E “picked up cocaine in the form of powder     from the person he identified in the booking photo ...

A redacted version of this sentence would not reveal the form of the cocaine, but would clearly establish that Source E acquired cocaine.

You might ask why there is extra space after the word "powder". That's to make it more difficult for someone to figure out what the redacted words are. One can't type the possible words and see if they fit.

If you don't understand "step six", this decision explains it fairly well.

2020 Developments

2020.12.29 Language Barriers during Arrest - Penile Swab

Mr Cortes Rivera, 2020 ABCA 76 spoke Spanish. He got drunk at a house party. So did a woman. In the morning, the woman complained that he raped her. Police arrested him at 1:30pm that afternoon. They arranged for a Spanish interpreter to explain his rights.

Police swabbed his penis and interviewed him. The swab revealed the complainant's DNA on his penis. The interview committed him to a story which contradicted the version he gave at trial. This led to his conviction at trial.

He appealed on may grounds. His complaints about police treatment are worth considering.

The interpreter gave him the impression that he was allowed only one call to get legal advice. When you work with an interpreter, you know what you tell the interpreter, but you don't know whether the interpretation will be accurate. Fortunately, in this case, the investigators offered him several calls at different points in the investigation. The judges gave no weight to this complaint.

Mr Cortes Rivera asked to call a friend. He did not tell police that he intended to ask the friend to help him find a lawyer. The section 10(b) right to retain and instruct counsel includes the right to ask a friend for help finding a lawyer. Because he did not explain his purpose at the time, the judges found no breach of his s.10(b) rights. But when your prisoner asks to call a non-lawyer, you would be wise to ask the prisoner why they want to make that call.

When swabbing his penis, the police failed to respect his privacy (they stripped him fully naked, and one more person than necessary watched the process), they failed to make a complete record (they should have audio-recorded the procedure), and they deprived him of Spanish interpretation (they excluded the interpreter because she was female).

There are practical solutions to these problems:

  1. Most, "strip searches" do not require that the prisoner be rendered completely naked. Try to leave parts of a person clothed while you examine other parts.
  2. When searching intimate parts of a person, minimize the number of observers.
  3. For privacy it was necessary to exclude the female interpreter from the room. But her interpretation could have been given from outside the door, or through a cell phone on hands-free mode. Or she could have been in the room, if a privacy screen blocked her view of the suspect.
  4. Recording devices are commonplace. You probably have "an app for that" on your phone. When handling difficult suspects, recording your interactions is easy. When performing a penile swab, making a complete record is necessary.

The judges agreed that the officers breached Mr Cortes-Rivera's rights. But they admitted the evidence, because the officers made some efforts to respect his privacy. Mr Cortes Rivera's appeal failed.

2020.12.19 Reasonable Grounds to Arrest or Detain - When a Suspect Runs

If you find someone looking suspicious, and you ask them what they are doing, they have no obligation to explain. They don't have to tell you their name either. R. v. Guthrie, 1982 ABCA 201. And unless you detain them, they have no obligation to stick around and speak to you.

So if this suspicious person tries to walk away, you can't use that bare fact to justify attempting to arrest them.

But the way that they attempt to end the conversation may properly elevate your suspicion to a level that justifies an arrest or detention, depending on how they behave.

This difference in focus led to the conviction and sentencing of Mr Coutu, 2020 MBCA 106.

Someone robbed a convenience store. It wasn't Mr Coutu. But the robber wore clothing similar to Mr Coutu. A dog track led police to the area where police found Mr Coutu, but the dog lost the track. When police saw Mr Coutu, they took an interest. A police officer yelled to him "police, show me your hands". Mr Coutu walked backwards and started to remove his backpack. It looked like he was going to run away.

The officer arrested him for robbery. In the backpack, the officer found a loaded sawed-off shotgun, two throwing stars and an air pistol with a silencer. Bad stuff. It led to charges.

The trial judge found that the match between Mr Coutu's clothing and the broadcasted description of the robber was too generic. The trial judge concluded that the arrest was unlawful.

The Court of Appeal disagreed. Mr Coutu's response to police added to the officer's grounds, rendering them lawful.

Mr Coutu's reluctance to speak with police was not  an additional reason to justify arrest. But his apparent preparation to run away after being detained was.

The excitement of the chase makes subsequent documentation harder to do. This officer must have done a pretty good job. After an exciting pursuit, write down the interesting details of what happened when you found the quarry.

That includes you dogmasters too!

2020.11.29 Disclosure - Even Unimportant Things can be Relevant

This isn't breaking news. I overlooked it when it first came out. I re-read it today, and thought that more people might find it interesting than just undercover officers.

An undercover officer befriended Mr Hersi, 2019 ONCA 94 because police had information that he took an interest in extremist causes. Mr Hersi told the officer that he was going to quit his job, fly to Egypt, and from there, go to Somalia and join a terrorist organization. Mr Hersi did quit his job; and he bought a plane ticket to Egypt. He urged the officer to join him.

Police busted him at the airport for attempting to contributed to a terrorist group.

The undercover officer deleted some of the text messages he received from Mr Hersi early in the operation. He did so because he saw nothing relevant or important in the messages, but lightweight chatter.

At trial, defence claimed that the messages were crucial. They claimed that the undercover officer encouraged Mr Hersi to join a terrorist organization, and the messages would have proven it.

Fortunately, the officer made verbatim notes of the messages.

The court found that destruction of the messages from the phone was a breach of the defendant's right to full disclosure; but it wasn't a terribly serious breach because the officer took steps to preserve the evidence.

It is human nature to rank the importance of the evidence you collect during an investigation. Evidence which proves the defendant's guilt feels like "the good stuff". But the defence will look at the evidence differently; they may value highly the evidence you overlook. Therefore, before you destroy evidence, second-guess yourself. "I might not think this is important, but is there some possibility that someone else will?"


2020.11.22 Bad Character - Good Clues can be Bad Testimony

A big investigation into organized crime caught lots of suspects. Among them, police busted Mr Cook, 2020 ONCA 731 for drugs and proceeds of crime.

Part of the investigation included surveillance. Officers saw Mr Cook hanging out with members of the Hells Angels. Part of the investigation included wiretap. Mr Cook spent time talking with a friend of his about how to beat drug possession charges. Part of the investigation involved a search of his house. Police found the kinds of Hells Angels paraphernalia which the Angels do not sell. You have to earn it from them.

Does that information make you think he was probably guilty?

Why?

So far, this article describes no evidence that tends to show that Mr Cook possessed the cocaine and anabolic steroids that police found, nor whether the money in his house came from the commission of crimes.

Perhaps you think he's a bad guy because of his choice of friends. Perhaps you think he would possess drugs and profit from them because he's a bad guy.

That's reasoning from bad character evidence. Defence lawyers hate it.

This kind of information often helps you find felons, but judges don't like to use it for proving guilt.  Once we know that the defendant is a bad guy, it becomes easy to stop worrying about whether the evidence actually proves his guilt in this particular case.

The prosecutor presented lots of this bad character evidence. To a jury. The jury convicted. The Court of Appeal worried that the jury convicted because they hated Mr Cook, instead of relying on the evidence. Now Mr Cook will get a retrial. And with COVID running rampant, who knows whether that trial will ever run. Mr Cook may beat the charge. He may beat the charge because the prosecutor told the jury that he is a bad guy.

It was the prosecutor who screwed up this time. But police officers make this mistake all the time.

When testifying, don't mention the defendant's previous crimes unless specifically asked.

You can refer to bad character evidence in a search warrant application, but be skittish about mentioning it at trial. Especially when it's a trial by jury.




2020.11.14 The morning after the night before - Text Messages Before and After the Sex

Mr Langan, 2019 BCCA 467 separated from the mother of his child. After trying to reconcile, she decided that she wanted only to be friends. They lived in different parts of the province. Using text messaging, they planned a visit for one summer weekend. She told him "I’m not having sex with you if that’s what your trying to get at."

But sex happened anyway.

Afterwards, she complained about what he did to her, again by text message. His text responses agreed that she told him "no", but he had intercourse with her anyway.

She went to police. Charges were laid. She testified at trial, and the text messages made a big difference at trial.

The trial judge convicted. Two of the three Court of Appeal felt that the trial judge made errors admitting the text messages, and ordered a new trial. Most of the judges of the Supreme Court of Canada sided with the trial judge. Langan, 2020 SCC 33

This case is important for lawyers, because it clarifies rules of evidence relating to such text conversations, and also the rules for Crown tendering evidence of the complainant's prior sexual activity.

I think, for police officers, this case serves as a useful reminder of the importance of gathering text messages from witnesses who converse that way with the suspect. All too many victims block their assailants' accounts, and delete all messages. Capture that precious evidence before they do. In sexual assault trials, conversations between the only two witnesses who know what happened can have great probative value.

I observe that sometimes, officers even encourage the complainant to converse with the suspect, and record the conversation. Of course, such an investigative operation requires judicial pre-authorization.


2020.11.01 After Godoy - Powers of Arrest and Search after Emergency Entry of a Residence

The 911 caller said he saw a man beating a woman in a car. He described the man and the car, and said the licence plate was either either “BEWN 480” or “BEWN 483”.

Eight minutes later, officers found a matching car bearing licence plate “BEWN 840” outside a residence.

Can they enter the residence?

The senior officer at the scene called the 911 caller back to get more detail. That man said he saw the man in the car punching the woman in the head, she was "turtling" from the strikes and he put her in a headlock.

The officers knocked long and loudly at the door, announcing themselves.

Nobody answered.

They entered and repeatedly announced themselves, but there was nobody on the main floor.

From the top of the stairs to the basement, an officer saw a man who resembled the description given by the 911 caller. The officers called for all the people in the basement to come up.

Eventually, a woman came up the steps. She had fresh injuries on her face.

Okay. Now that she was safe, could the officers search the basement?

Two officers descended to the basement. One went left, in the direction they last saw the man. The other officer went right.

The one that followed the man found Mr Stairs, 2020 ONCA 678 and arrested him. The one that went right found his drugs in a Tupperware container. The officer opened the lid to look at the drugs. Lots of methamphetamine.

Did the officer who found the drugs search lawfully?

The judge at his drug trial said that the officers' actions were all lawful. The Court of Appeal found that the legal questions went from easy to hard.

1. Could they enter the residence?

Yes. Easy.

The public pays police officers to preserve life above all. Other considerations, like property, detection of crime, or regulatory offences, are secondary. The 911 caller's information gave clear reasons to fear for the woman's safety. Where you have reason to suspect that life (not minor injury) is at risk, you can enter private places - even residences, without a warrant. But only for the purpose of protecting life.

2. Once they found the woman, could they arrest the man?

Yes.

Defence argued that once the woman was safe, the officers no longer had any lawful authority to remain in the residence. They should have left the residence and got a Feeney warrant. All of the appeal court judges agreed that powers of warrantless search of residences are limited, but that the officers had reasonable grounds to believe that the man assaulted the woman, and therefore, having entered the residence lawfully, they could arrest the man.

Defence also argued that the police should have interviewed the woman before deciding whether to arrest the man. The judges rejected that idea too - in this case. Your mileage may differ if you have less-compelling evidence that an offence occurred.

3. Did the second officer search lawfully?

The second officer explained that he looked in the area that the suspect walked away from for the purpose of ensuring officer safety during the arrest. He was clearing the scene.

The trial judge and two judges of the Court of Appeal accepted this as a sufficient reason.

The third judge in the Court of Appeal wasn't convinced. He pointed out that the officer had no reason to think that anyone or any thing in basement that posed any danger to police.

4. Was opening the Tupperware container a problem?

Yes or no.

The judges characterized what happened with the container differently, and reached different conclusions.

The majority said that the officer saw the drugs in "plain view" and seized them, and opened the container after the seizure. I think that was a generous interpretation. You should not model your safety searches on this interpretation.

The dissenting judge characterized it as searching. The only lawful authority available for being in that part of the basement was to search it for people who posed a threat to the officers. Why was he opening a Tupperware container?

If your authority to search a house depends upon the danger that the people in it might pose to you, then look only in places where you might find people. Don't look in Tupperware containers.

On the other hand, if you find contraband in "plain view" while performing such a search, you can seize it. I suggest that you leave the seizing until after you have ensured that the residence is safe. I suggest that you don't open containers until you have taken them out of the residence.

Can you photograph the item before you lay hands on it? That depends. If you stop to photograph and seize the thing of interest before you finish clearing the scene, nobody will believe that you were concerned for your safety. If you photograph more than the object that you seize, there's a reasonable argument that you're converting a safety search into an evidentiary search.

Maybe you should drop an object - such as your business card - in the location where the thing lay. Take the contraband away. Get your search warrant, and come back and photograph the hell out of the place. Don't forget to mention in your ITO that you dropped your business card in the place where you found the object, and you want to photograph that location.

2020.10.10 Common Investigative Mistakes - a Collection

Probably, Mr Adler, 2020 ONCA 246 possessed and made child pornography. Probably, he raped an unconscious woman. But he beat the charges because the investigators made some common mistakes. It is better to learn from their mistakes than to repeat them.

Some general duty officers patrolled the Canadian National Exhibition in Toronto. A place where anything can - and did - happen. A woman told them that she saw Mr Adler used a concealed camera to video-record up the skirt of a young woman. The camera was concealed in a stuffed owl's head.

As the officers moved in, they saw him fumble with the owl's head, and then put something in his mouth. They figured it was the memory card.

The arrested him, and seized a video camera, an iPod Touch and a laptop.

Here's a table of things that went wrong.

Right under the Charter Breach
10(b) Right to be informed of the right to counsel "without delay". For 10 minutes, they didn't tell him he could get legal advice.
10(b) Right to retain and instruct counsel Instead of making reasonable efforts to find a phone number for that lawyer, the officer told him he could speak to duty counsel.
Instead of letting him get advice, the officers suspended his access to counsel until they searched his residence for more evidence. They feared - with little foundation - that someone would destroy evidence.
8 Freedom from unreasonable search - warrantless entry to freeze the scene. Before obtaining a warrant, officers entered his apartment and saw several electronic devices of interest. When applying for a warrant to search the place, they did not mention this warrantless entry. Freezing the scene requires reasonable grounds to fear that evidence is in peril. No peril here. The police had the suspect in custody.
9 Arbitrary detention & 8 search and seizure - delaying a bail hearing without saying why. The police asked the prosecutor to delay the bail hearing for 3 days. They did not tell the prosecutor that the purpose of this was to perform a bed-pan vigil, to get the memory card that they believed Mr Adler swallowed. Therefore, the prosecutor did not tell the judge what the real purpose of the adjournment was: it involved a search.
8 Freedom from unreasonable search - telewarrant and night search The police sought and obtained a telewarrant which permitted them to search Mr Adler's residence by night. But they provided no explanation in the ITO why they could not get a warrant by applying in person (s.487.1(4)(a)), and no explanation why a night search was required (s.488).
8 Freedom from unreasonable search - grounds inadequate for the breadth of search The police sought a warrant to search all of Mr Adler's electronic devices, but the ITO explained only why they could expect to find evidence inside stuffed animal cameras.

I commend this case to you as a cautionary tale, so that you do not make the same mistakes.


2020.10.10 What to do when the Justice Denies You Your Warrant

"The denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the Information to Obtain the warrant to furnish grounds for other purposes."

I've been meaning to mention this case for a while.

Police officers applied for a warrant to search a for heroin and fentanyl.

They did so because a tipster told them someone was selling those drugs from that place. When they watched the place, they saw lots of visitors attend briefly and leave. Some of the visitors had small objects in their hands.

But the justice rejected the application, explaining "Grounds as presented and when considered in totality, falls short of rpg to believe that items to be searched for will be at the location. No evidence to show that heroin and fentanyl would be in residence."

Considering the tipster's information, the officers might have been surprised by this.

They pressed on. They figured that the justice wanted stronger evidence of the types of drugs being sold.

They watched the residence some more, and when they believed that another visitor purchased drugs, they arrested the visitor. His name was Mr Buchanan, 2020 ONCA 245

The justice was right. Mr Buchanan possessed heroin and cocaine. Not heroin and fentanyl.  He also had a loaded firearm and some cash in his car.

Mr Buchanan complained that his arrest was unlawful. Because the justice turned down the application for the warrant, therefore, the officers knew that they lacked reasonable and probable grounds to arrest him.

The trial judge agreed that the officers lacked grounds to arrest, but they certainly had reason to detain him. Because the officers were just short of R&P grounds, it would be okay to admit the evidence.

The Court of Appeal felt that the officers likely had sufficient grounds to arrest. The judges saw nothing improper with police investigating to fill the remaining gap in the evidence necessary to obtain the warrant to search the house.

This case illustrates that even between judges, there is room for debate whether a certain set of facts qualifies as reasonable and probable grounds.

If a justice turns down your warrant application, gather some more evidence, and try again.

How much evidence is enough for R&P grounds? When you're close to the line, in my experience, most experienced police officers assess the evidence more confidently than judges. But I have also encountered a few officers who are excessively cautious. Where are you on this spectrum? You'll only find out by reading what the judges say. And that's an imprecise study, because on the edge cases, even the judges disagree. This is one case that helps you find where the edge is.


2020.10.01 An Act of Kindness or A Breach of Rights? Search and Seizure Incidental To Arrest

When you arrest someone from a car, is fetching their effects from the car:

As a result of a major drug investigation which included surveillance, police knew:

The investigators asked local police to stop the car.

Those officers confirmed the existence of warrants for Mr Santana's arrest. They say the vehicle travelling at night without proper tail lights.

They stopped the car. A woman was driving. Mr Santana gave a false name. The occupants told the officers that they came to the town to "see the sights". The officers didn't believe them. They arrested Mr Santana - the passenger - on the outstanding warrants.

The woman argued with an officer, but they were going to let her go, and she would be able to drive the car away.

It was a cold night. Mr Santana wasn't wearing a coat.

The officers handcuffed him and placed him in the back of a police car.

Before letting the woman drive away, an officer went into the vehicle and got Mr Santana's coat. Before putting the coat into the police car, the officer searched it for officer safety, and found drugs.

That search started a cascade of searches which concluded with the seizure of 4500 pills of fentanyl from Mr Santana's hotel room.

But was fetching the jacket from the car lawful?

The defence successfully established that Mr Santana had an expectation of privacy in the car. The officer had no lawful authority to search it:

Going into the car without lawful authority violated Mr Santana's rights.

Mr Santana got a new trial, at which the prosecution will start from a position of disadvantage.

What can we learn from this?

Really, this arrest was for drug trafficking. Breaching bail wasn't the main issue. Nor was the outstanding warrant. By arresting for those matters alone, the local officers narrowed their powers of search. If you have grounds to arrest on the main issue, then you will have powers to search for evidence of the main offence. If you pick a side-issue, then your powers of search incidental to arrest are limited to the side-issue.

It may be that the local officer earnestly didn't want to search the car.

Some might say that he should have let Mr Santana freeze. I wouldn't. Acts of kindness and consideration uphold the dignity and reputation of police. It's the professional thing to do. Some of our southern neighbours are demanding that governments defund the police. They complain that police treat suspects without kindness. We don't want that kind of trouble here.

Perhaps this officer should have asked Mr Santana first - "would you like me to get your jacket?"

If Mr Santana had said "yes", this would have been a different case. If he said "no", the drug investigators would have lost an opportunity.

2020.09.19 Searching for and into Cellphones

Back in 2013, the Supreme Court made it clear that a warrant that authorized peace officer to search a place for a cell phone did not, by itself, authorize them to go into the cell phone (or other personal electronic device) to search the data. The court said "If they wish to search the data, however, they must obtain a separate warrant." R. v. Vu, 2013 SCC 60 at para 49.

Most peace officers don't like drafting separate applications. Most peace officers now ask in one application for authority to search the place for electronic devices, and for authority to search the contents of the electronic devices that they find.

Ms McNeill, 2020 ONCA 313 was visiting her drug-dealing partner when police raided the place. The officers had a warrant that authorized them to seize cell phones. The officers didn't know anything about Ms McNeill when they got their warrant, but they took her cell phone too.

And they searched it.

Just like their 2-in-1 warrant authorized.

The messages in her phone were damning. She got charged for trafficking.

At her trafficking trial, she complained that the police failed to follow the two-step procedure required by the Supreme Court of Canada. She complained that the police knew nothing about her when they got their warrant; and therefore the officers needed separate a authorization to investigate her and look into her cell phone.

The trial judge and the appeal judges rejected her complaints.

If you can adequately explain why in your application, you can get lawful authority in one application to do both things: search for the object, and search into the objects that you find.

An application for a warrant to search generally needs to explain reasonable grounds to believe:

For most warrants and production orders (except wire), you don't need to show to the judge or justice who you are investigating - though it often helps.

This application spelled out why there would be cell phones in the place, and why the cell phones would contain evidence of trafficking. Therefore, this one-step application for a warrant was lawful.

Your mileage may vary.

In other investigations, you may need to dance the two-step. It all depends upon how much you know when you apply for your warrant.

2020.09.17 Freezing the Scene - Clearing a Residence to Preserve Evidence


What information or evidence justifies entering a residence without a warrant, and clearing all the people out?

Just before 10:00pm, police arrested Mr Pawar, 2020 BCCA 251 for dealing drugs. The officers had reasonable grounds for the arrest.

The officers wanted to search Mr Pawar's home, because they believed, on reasonable grounds, that he possessed more drugs there, but they didn't yet have a warrant.

Mr Pawar lived several kilometres away from the place where the officers arrested him.

The officers knew that Mr Pawar lived with his mother and brother. Might those people discover that Mr Pawar was arrested, and destroy the evidence?

Several officers gathered outside the residence. The lights were out. Nobody was moving.

At 10:42pm, - three quarters of an hour after the arrest - they knocked on the door. The lights came on. The officers cleared the mother and brother out of the residence.

Eventually, they got a warrant. At 3:43am, they entered and searched. They found damning evidence.

Naturally, at trial, Mr Pawar's lawyer asked the judge to exclude the evidence. Why? Because the officers lacked sufficient grounds to justify a warrantless entry into Mr Pawar's home.

The trial judge agreed there was a breach of Mr Pawar's rights, but admitted the evidence because he thought the officers acted in good faith. The appeal court excluded the evidence, saying that the officers should have known better.

"Clearing the residence" is, at law, a warrantless entry and search. If you do it for the purposes of preserving evidence, you must have reasonable grounds to believe that evidence is in peril. You don't need proof. Just a reasonable fear.

It isn't enough to say "I've had cases where the evidence was destroyed before I got to execute the warrant, therefore I cleared the residence." You need reasons specific to the case.

And that was the problem. The officers had no specific reason they could identify which reasonably caused them to believe that in this case the evidence would be destroyed.

You require justification to evict an innocent woman from her house and bed, in the dead of night.

What suffices to justify a reasonable fear that evidence will be destroyed? The court listed several cases in which the courts found that the circumstances justified a warrantless entry. (See paras 69-71). You don't need proof, but you do need concerns specific to the case.

If you lack such grounds, then in cases like this one, you may be able to draft most of your ITO before you go out to arrest your target. That should reduce the time between arrest and search.

2020.09.13 Consent Conversations - Voluntariness of Witness Statements

Somebody shot Mr Tessier's friend in the head.

An officer phoned Mr Tessier, 2020 ABCA 289 and asked him to attend the police station for questioning. The officer wanted to learn about the victim, and had no reason to suspect Mr Tessier of the killing.  The officer therefore did not tell Mr Tessier of his right to silence.

The officer asked some questions which tested Mr Tessier's virtue: would his DNA be at the scene? what should happen to the killer? would Mr Tessier provide a sample of his DNA?

But other evidence inculpated Mr Tessier. The statement he gave to the officer became much more important.

At Mr Tessier's trial, over 10 years later, the judges scrutinized the officer's behaviour with Mr Tessier. Did Mr Tessier make the choice to speak with the officer, or did the officer compel him to talk?

They ordered a new trial.

Several lessons arise from this:

2020.09.12 Consent Searches - Telling the subject that they can say "no"

Apparently, some social scientists researched how willingly people give up their private information when people in authority ask.

In their (somewhat artificial) experiment, they found that telling the target that they have the right to decline made very little difference to the number of people who permitted the researchers to search their cell phones.

I suspect that many of you already know this.

The authors of the report plainly don't like requests for consent searches, and want to put a stop to them.

For your purposes, this study is interesting because it should reduce your fear of explaining the consensual nature of consent searches.

2020.09.12 Searching a person, for officer safety - Searching private places

Some searches aren't consensual.

After watching what they believed was a drug transaction, police officers arrested Mr Byfield, 2020 ONCA 515. During a pat-down, a police officer noticed something large and hard in Mr Byfield's groin area.

The officer asked him what it was. He claimed it was:

"My dick"

Between the police cruiser and a snowbank, two male officers investigated. One rearranged Mr Byfield's clothing, looked at his underwear, and reached in and removed a package.

The package contained more than the average man's endowment: 184 grams of cocaine.

At trial, defence complained that this constituted a "strip search", and should have been conducted at the police station, in private.

The trial judge rejected the idea that this qualified as a "strip search" because no clothing was removed.

The appeal court agreed with defence that it was a "strip search". But they disagreed that this required the officers to follow the strict protocol for strip-searching a person for evidence. They observed that the officer searched for officer safety. A sensible police officer should not want to risk leaving a firearm in a prisoner's crotch during even a short drive to the police station.

Several factors satisfied the appeal court judges that this search was okay:

The simple lesson from this case is: even if your prisoner behaves like a dick or makes gratuitous sexual claims, you should search him (or her) respectfully.

2020.09.07 Possession of Stolen Property - Can you arrest the Passenger?

The crime of possessing contraband involves:

Even a bad driver has some measure of control over the vehicle. If someone recently stole it, you may reasonably infer that the driver got control over the vehicle in shady circumstances - either by stealing it, or by receiving it from the thief. From that inference, you may often infer that the driver knows that the car was stolen.

But what about the passenger(s)?

At 7:25am, someone stole a car in Surrey, BC. At 10:50am, officers found it parked on a street. They watched it for a bit. At 11:13am, Mr Harms, 2020 BCCA 242 and a known car thief named Maloy got in. Maloy drove for about half an hour. He parked in an alley. The two men left the car, and split up. A few minutes later, they met at a nearby intersection.

Police officers arrested them both for possessing stolen property. Mr Harms' backpack contained a sawed-off shotgun and some live rounds, for which he faced charges.

Mr Harms challenged the arrest. At trial, he said the officers shouldn't have arrested him. Although the arresting officers might have had reason to believe that the driver had knowledge and control over the car, they lacked sufficient information to believe on probable grounds that the passenger had any knowledge of the theft, nor any control over the car.

It was a good argument, but it failed.

The recency of the theft gave the officers reason to believe that the driver knew it was stolen. The conduct of the passenger - in participating in what appeared to be a heat check - tended to suggest that he knew too. And the passenger got the benefit of a ride with the driver, tending to suggest that he was jointly enjoying the benefits of the stolen car.

A passenger may also be a party to the possession of stolen property by encouraging the driver to continue to control the car ("Drive faster Johnny!") or jumping into a recently stolen car for the purpose of going for a joyride.

More typically, you discover a car is stolen, and you pull it over. It contains driver and passengers.

Whether you can arrest the passenger(s) depends upon what makes you think that the passengers knew about the theft, and whether they exercised some control over the car, or at least encouraged the driver in the crime.

Of course, to make things more complicated, some passengers will lie through their teeth after you stop the car. Sorting fact from fiction requires some careful consideration of the information available to you. In court, you may be asked to explain why you thought that the passengers participated in or knew about the theft. To arrest, you don't need proof. As the court said, you need a "practical, non-technical and common sense probability” that the passengers know that the car is stolen, and are benefitting from the ride, or encouraging the driver in some way to continue to possess the car.

Please note that what suffices for arrest rarely suffices for proof beyond a reasonable doubt. Proving the guilt of the passenger beyond a reasonable doubt is often quite difficult.


2020.09.04 Swabbing the Door Handle of a Car in a Public Place

Police officers reasonably suspected that Mr Wawrykiewycz, 2020 ONCA 269 dealt drugs.

In the course of investigating him, they swabbed the door handle to his car at a time that he left his car in a public place. Police then used an ion scanner to detect drug residue in the swab. They did not seek prior judicial approval. It found cocaine. Police got a warrant and busted him.

The trial judge felt that the police could use this investigative technique without a warrant, so long as they had reasonable suspicion.

The Court of Appeal disagreed: "I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required."

So there you have it: Even if the car is in a public lot, no swabbing and ion scanning without a warrant.

But how the court reached that simple conclusion raises a practical question: Can you swab the doorhandle first, and later get a warrant for the ion scan?

The judges felt that the swabbing did little to violate territorial privacy. Anyone might feel the hood of a car, or brush by the door handle.

But the ion scanning invaded too much informational privacy. It revealed "“intimate details of the lifestyle and personal choices of the individual".

If the significant infringement of privacy is the ion scan, then perhaps only that part needs the judicial pre-authorization.

But which warrant would be appropriate?

Supreme court decisions about the deployment of drug dogs suggest that the appropriate legal standard to justify applying an ion scan would be "reasonable suspicion" rather than "reasonable belief".

Neither the Criminal Code nor the CDSO provide a warrant which operates at that standard to authorize an ion scan.

There is, of course, the general warrant, provided by s.487.01. But to get one of those, you need reasonable grounds to believe that the crime occurred. In most cases, if you have such grounds already, then you don't need the ion scan.

You need a warrant, but the legislation for the appropriate warrant doesn't exist.

Catch-22.

The courts say that expectations of privacy lie on a spectrum. Some are slight, and some are great. Where privacy expectations are slight, police may sometimes intrude on the basis of reasonable suspicion. Where privacy expectations are great, police must have reasonable beliefs regarding the need.

But the Criminal Code provides only a few specific judicial pre-authorizations on the reasonable suspicion standard. It provides a bunch judicial pre-authorizations on the reasonable belief standard.

Because of this decision, and others like it (eg Spencer, 2014 SCC 43), I think Parliament needs to craft a general warrant for minor intrusions into privacy which operates at the "reasonable suspicion" level.

By the way, the trial judge convicted Mr Wawrykiewycz, and the Ontario Court of Appeal upheld the conviction, finding that the police had sufficient grounds for their search warrant in that case, even without the ion scan information.


2020.08.16 "Suspect" or "Believe"

In Canadian Criminal law, there's a difference between "suspecting" something, and "believing" it.

For most production orders, you apply under s. 487.014 of the Criminal Code. It specifically requires that the applicant demonstrate "reasonable belief".

Mr West, 2020 ONCA 473, who distributed child pornography, beat the charge because the investigator missed this simple point.

In an application for a production order, the officer asserted that there were reasonable grounds to "suspect" that someone committed child pornography offences, and production of data would afford evidence of this misconduct. The officer used that verb 4 times, but never once asserted that he "believed" it.

The production order issued. The officers got their data, and the data led to proof of the guilt of the defendant. But in litigation, it all fell apart.

In giving its decision, the court observed two flaws:

Nightmares like this one led many officers to use boilerplate which makes sure that Information to Obtain states the required belief.

Some police officers write language like this: "I believe that there are reasonable and probable grounds to believe that ...."

I find this phrasing cumbersome because it does not reflect the legal division of responsibility.

  1. Does the officer believe that an offence occurred, and that evidence will be obtained by the proposed search or production order?
  2. What evidence or information makes the officer believe these things?
  3. After considering this evidence or information, does the justice or judge find these beliefs reasonable?

Really, only the judge or justice makes a legal finding that the beliefs are reasonable. Therefore, it bothers me that officers swear to the "reasonableness" of their beliefs.

It be simpler for the officer to swear:

"I believe that somebody committed <offence> and that evidence <specifically ....> respecting that offence will be will be obtained by <searching/producing...>.

The information and evidence which leads me to those beliefs is: ....".

Where necessary, you can also explain your inferences: "<list items of evidence> caused me to believe / infer <inference>".

Then in the warrant or production order, the judge or justice declares that having read this sworn document, the judge or justice finds there are "reasonable grounds" to believe that the offence occurred, the evidence exists, and the evidence should be procured.

The boilerplate language works, but it's confusing. I prefer to write simply ... when I can.

2020.08.14 Identification by Watching Video

When the witnesses don't know the felon personally, you need identification evidence.

Sometimes, identity seems terribly obvious. You, the investigator, watch a security video, and think "of course, that's Johnny Rotten!"

So you go and arrest Johnny Rotten, and charges get laid.

At trial, defence will challenge your evidence as tainted by confirmation bias:

Defence will argue that you are prejudiced against Johnny Rotten, and therefore, your recognition of him in the video should not prove identification beyond a reasonable doubt.

Defence will give the judge this week's decision of R. v. Hudson, 2020 ONCA 507.

It identifies the key questions.

I have a trial coming up at the end of the month where I will tender this kind of evidence. You can bet I'll be asking my witnesses those questions.

If you are the recognition witness, take some time to record your answers.

If you seek recognition witnesses, it would be wise to document how you communicate with them, so that you can show that you did not suggest any names to them when you asked whether they recognize anyone in the video or image.


2020.08.08 Exposing Grungy Witnesses

Mr Pascal, 2020 ONCA 287 had a history of offending, including two sexual assaults. A young woman accused him of sexually assaulting her at a dock near a motel. A worker at the motel told a police officer that she heard a man and a woman at that dock, looked out, and saw a man. Just before trial, she gave a second statement which changed her version of events significantly. Now, she said that the woman's voice was distressed. She saw the man's arms move as if he was pulling up his pants. This evidence signficantly supported the victim's version of events.

What the police did not disclose to the prosecutor (nor to the defence) was the woman's criminal situation.

At the time she testified, she had a record of drug convictions, and she faced drug charges. Her boyfriend was a busy drug dealer in the town, and her name surfaced in several investigations. Some of the officers involved in the sexual assault investigation knew about her criminal history.

After the trial judge convicted Mr Pascal for the sexual assault, defence learned about her legal predicament, and appealed.

The timing of the change of her story might be explained by a desire to get more lenient treatment for her own charges if she supported the sexual assault prosecution. If the defence had known, then they could have cross-examined on this. The trial judge might not have trusted her, and the defendant might not have been convicted.

The trial court agreed that there should be a new trial.  The officers should have disclosed the ugly past and current circumstances of this witness to the prosecutor and to defence.

The judges did not say you must disclose the criminal record and outstanding charges of every civilian witness. Only the crucial, central ones, whose credibility is key.



2020.07.24 Timestamps in Digital Records

Police found child pornography on a computer belonging to Mr Butler-Antoine, 2020 ONCA 354. At his trial, his mother testified that she let lots of visitors use his computer during the day when he wasn't using it. That could raise a doubt that perhaps someone else put the child pornography there.

But the forensic analysis did not just look for child pornography, but also the "meta-data" associated to it. In this case, the browser history showed that the computer visited webpages that specialized in sexualized images. The computer did this continuously, late into the night.

When the visitors weren't around.

The trial judge convicted him and his appeal failed.

If you search for images, you'll get images. If you search for images, and metadata relating to those images, you'll get more.


2020.07.23 Springing an Imprisoned Suspect for Interview

It has been a long investigation into a serious charge. You have grounds to charge your suspect. You want a skilled interviewer to ask the suspect about the offence. But the suspect is already in a jail somewhere, by reason of other charges. Can you bring the suspect to your office?

S.527 of the Criminal Code will allow it. But only if your suspect consents.

You doubt that your suspect will consent.

An Alberta judge found that you can get a warrant to bring your target to your office for a full interview if you:

  1. swear the charge,
  2. apply for an arrest warrant, and
  3. apply for an assistance order.

R. v. TS, 2019 ABQB 161

Danger!

Other judges may disagree.

Because of the way that this was litigated, no defence counsel argued against the order. As a result, it may be that the judge did not consider the opposing views. By the time your suspect reaches trial, another judge may determine that this kind of order was unlawful.

If you try this, don't hang your entire investigation on that interview with the suspect. But if you do try this, it may elicit valuable evidence from the suspect.

This decision is over a year old. I looked to see if other judges have disagreed. I found no other cases in which this decision was considered. It's an interesting solution to a long-lasting problem. Time will tell whether higher courts will approve.

2020.07.05 Breach of Bail - Charge or Administrative Process?

At 10:30pm someone rang the doorbell at the residence where Mr Zora, 2020 SCC 14 lived. He didn't answer.

That turned into a plateload of trouble.

Mr Zora was on bail for drug trafficking. His bail required him to be home at that time of night, and to answer the door when police came to check if he was home. The person at his door was a police officer checking his compliance with bail.

At his trial for breach of bail, Mr Zora explained that he couldn't hear the doorbell from the bedroom where he slept. He didn't deliberately avoid answering the door. He just didn't know the police were there.

The prosecution argued that the bail terms placed a duty on Mr Zora to arrange his affairs so that when police rang the bell, he would respond. The defence argued that you can't call him a criminal if he didn't intend to break the bail condition.

The Supreme Court of Canada unanimously agreed with the defence. The crime of breaching bail requires proof of an evil or reckless intention. Mere carelessness isn't criminal. If Mr Zora was in bed asleep, he was merely careless about his bail, not deliberately avoiding its terms.

"Oops, I forgot" has become an easier defence for those folks who fail to attend their trial. "Aw darn, I didn't mean to miss curfew, I was with my friends and I just lost track of time," is a good defence to the criminal charge.

Ordinarily, an appeal court answers only the question raised by the appeal. The court answered the question about mens rea of breach of bail: the prosecution must prove that the defendant knew and understood his bail terms (or was reckless about them), and intended to (or was reckless about) breaching them.

But this time, the judges went far beyond the question raised by the appeal. They dwelt at length upon other topics:

  1. Bail terms must be the fewest and least restrictive necessary to achieve the goals of bail.
  2. Each restriction of liberty must relate to a real concern in the case (paras 83-84)
  3. Modifying bail terms or revoking bail should be the default approach to breaches of bail.
  4. Charging suspects with offences for breaching bail should be the last choice, not the first.

The judges made it clear that this advice applies to police officers as much as prosecutors and judges. (paras 100-106)

I expect defence counsel will quote this case for decades to come.

I observe that Mr Zora was charged with drug trafficking, not domestic violence. I was troubled that the court chose Mr Zora's case on which to sound off. After domestic violence arrests, there are often high risks of retaliation or re-offence against the victim. I have in mind a worst-case example from Victoria. After you read the court's exhortation to police, prosecutors and judges to impose minimal bail terms, take care not to throw the baby out with the bathwater.

What are the known risks with this offender? What bail terms will control those risks?

The court's enthusiasm for administrative processes may actually result in tighter bail terms on those defendants who need them.

Why?

Because the administrative procedures apply regardless of the defendant's intentions. At each criminal trial, the prosecutor must prove that the defendant intended to disobey his curfew. At a bail hearing or bail review, the mere fact that he repeatedly missed his curfew tells against him, regardless of the myriad excuses he offers.

But this works only if police and prosecutors organize themselves to collect all the information available about the defendant for those bail hearings and reviews.

The reason I included a link to a worst-case example is that it illustrates the kinds of questions that get asked when things go wrong.

At the inquiry, they ask:

1. Did the police officer, prosecutor or judge who released this offender make a good decision?

Good decisions require good information from which to work, and a deep understanding of how to assess it.

2. Did the decision-maker have all the relevant information that was available?

In the past, many judges in my jurisdiction took the view that past breaches of bail didn't matter much unless the defendant was convicted. I think Zora changes that. At bail hearings, I think judges are now obliged to consider breaches of bail (and probation) that did not result in prosecutions.

3. Who is to blame if the decision-maker lacked relevant information?

How good are your information systems at collecting information about a suspect's minor breaches of bail?

Do your information systems provide that information on time, and to the right people to prevent harm?

Can you provide sufficient detail that a judge will trust it at a bail hearing?


When preparing for difficult bail hearings and sentencings, I prepare 3-column chronologies:

Date Event Source



It takes more time than it should, because my information comes from many sources. I draw from police reports (for events on the street), court records (for the defendant's appearances and absences in court, as well as sentences and releases on bail). I include summaries of reports from bail supervisors and probation officers, and sometimes I can get information from parole officers too.

When complete, such a table reveals much more about an individual than the facts of the latest breach of bail conviction.

"Jimmy was drinking in breach of bail" means little. But suppose you find "In the last three years, whenever Jimmy started drinking, he committed a new property or violence offence within 3 weeks."

When you discover that fact, you suddenly see that the third column matters. It identifies the key evidence for the decision-maker. Those incidents of drinking might not be charged as crimes, but we need to know about them in order to assess Jimmie's current risk to the community.

If Zora provides us with marching orders, then we need to gather relevant information on each case, in order to make responsible decisions about release.

On the street, the officer who catches a Mr Zora breaching bail terms needs to know that there's a choice: not every breach needs to be charged, and it's easier now for him to beat the charge. Breaches may also be dealt with administratively ... but every breach needs to be documented.

Deciding what to do with him requires good information about the risks your Mr Zora poses.

Managers: If your information systems don't deliver the necessary information efficiently, maybe you need to re-organize them.

2020.06.14 How drunk/high was he?

A couple of weeks ago, the Ontario Court of Appeal released its decision that s.33.1 of the Criminal Code violates the Charter of Rights and Freedoms. Sullivan, 2020 ONCA 333

For "law and order" politicians, this is a big deal. For defending some cases, this is a big deal.

For many offences of violence, section 33.1 abolished a defence: "I was so drunk/high I didn't know what I was doing. If I didn't know what I was doing, then obviously, I didn't intend to do it. And because I didn't intend to hurt anyone, you gotta acquit me."

Parliament enacted s.33.1 because it doesn't seem just that overindulgence in risky chemicals should form a complete excuse for the harm that ensues. "Too bad that girl got raped. But I was too drunk to be responsible, so I'm not going to jail for it."

But one of the fundamental principles of justice is that people should only be convicted of crimes for which they were responsible. Holding a person responsible for a crime requires proving that they chose to do something blameworthy. The court suggested that Parliament should make a crime of committing a prohibited act while intoxicated, so that the choice to be punished is the defendent's decision to get wasted.

Whlie the lawmakers squabble, police officers must still investigate. This case emphasizes that you should always investigate how intoxicated the suspect was at the time s/he committed the offence.

2020.06.07 Arresting the Usual Suspects - s.495, s.495.1 and "RICE"

As you know, when you catch someone committing a summary conviction or hybrid offence, s.495(2) of the Criminal Code prohibits you from arresting them unless you have concerns that they may Reoffend, you need to Identify them, you expect that they won't attend Court, or you need to arrest them to preserve Evidence ("RICE").

On December 18, 2019, Parliament changed the names of some of the release documents that police and courts use to compel suspects to attend court and to abide by conditions.

It also consolidated the power to arrest people that you find committing indictable (and hybrid) offences while bound by a summons, appearance notice, undertaking or release order into a new section s.495.1.

That section starts with some magic words "Despite any other provision in this Act... the peace officer may arrest without warrant for the purpose of taking them before a judge or justice to be dealt with under section 524."

Those magic words overrule s.495(2)

Basically, if buddy has received process on outstanding charges and commits an indictable (or hybrid) offence or breaches his bail terms, you need not concern yourselves with s.495(2) and "RICE". You can arrest, if you are arresting for the purpose of bringing the suspect to a judge or justice.

That makes things a little simpler. Be aware that s.9 of the Charter continues to apply. S.495.1 doesn't compel you to arrest. And after arrest, you must still release your target promptly if it is reasonable under the circumstances to do so.

2020.06.06 A cell phone is a cell phone

B.C. officers involved in traffic enforcement will find this one interesting.

Mr Tannhauser, 2020 BCCA 155 drove his vehicle with his cell phone in his hand. An officer caught him and gave him a ticket. At trial, he explained that his cell phone contained software that shut off its functions when it was in motion. Therefore, it didn't function as a cell phone as he drove, and wasn't therefore a cell phone for the purposes of the legislation that controls electronic devices in motor vehicles.

The Judicial Justice who heard his trial accepted this explanation, and acquitted him. The appeal judge agreed too.

But not the Court of Appeal.

A cell phone in the driver's hands is a cell phone: "a cellphone that is turned off can be turned on; a cellphone with a dead battery can be plugged in".

The trial judge shouldn't need evidence of its recent operation in order to convict. (But such evidence may help prove that it was in the driver's hands.)


2020.06.06 Upholding the Rule of Law - s.25.1 and its limitations

Investigators had information that Mr Baranec, 2020 BCCA 156 murdered a 15-year-old girl in Saskatchewan. They launched a Mr Big investigation against him in BC, where he lived.

It worked.

Mr Baranec told them he did the murder. He agreed to go to Saskatchewan and re-enact the killing.

But Mr Baranec was serving a Conditional Sentence Order at the time. Those orders always come with a condition that the offender not leave the jurisdiction.

If the officers took him to Saskatchewan, they would assist him to defy a court order. If they asked him to apply to the court for an order permitting him to go to Saskatchewan, they would blow their cover, and perhaps never discover where the body of the missing girl lay.

The investigators sought legal advice from the Department of Justice. The legal advice suggested that it would be okay after all.

On the trip to Saskatchewan, they didn't find the girl's body.  However, Mr Baranec told the officers that he committed another murder in BC. Further investigation proved it.

At the trial of the BC murder, defence asked the court to exclude the Saskatchewan confession to the BC murder, and all the evidence that flowed from it. Defence complained that the police broke the law, and encouraged the target to disobey a lawful order.

The (provincial) prosecutor agreed that the (federal) legal advice was wrong, and the police misconducted themselves. But the prosecutors pointed out to the judge that the police tried to avoiding breaking laws. They identified a problem, and sought legal advice. They tried to operate lawfully.

The judges agreed with the prosecution. The legal advice was wrong, but the cops did their best to operate lawfully. (The judges did not explain how the officers could have acted differently to investigate the Saskatchewan murder lawfully.)

Despite the unlawful conduct, the judges agreed that the evidence could be used at the trial. Mr Baranec was convicted, and lost his appeal.

For you cops doing routing policing, this reminds you that you are paid to uphold the law: you need to operate squeaky clean. (Can you really promise to take that addicted witness to her drug dealer after she testifies? When can you lawfully speed?)

For people higher up the chain, you might consider whether s.25.1 needs further amendment. For about 15 years, I've thought there should be provision for a judge to permit an officer, under controlled circumstances, to disobey s.10(a) of the Charter. This often arises in the context of identifying people who associate with a known criminal target. The Baranec case makes me think a judge should be able to give ex parte permission to police to permit a suspect to breach a court order, under controlled circumstances.

For those of you who do undercover work, it's another Mr Big success story, and well worth a read because of the unexpected twists and turns in the investigation.

2020.06.04 Memories and Inferences - Know your Weaknesses (again)

Back on 2020.04.13, under "Memories and Inferences" I wrote about a B.C. case. Today, I saw a matching Ontario case.

We all have a tendency to draw conclusions from observations, and report the conclusion rather than the observation. It's part of the human condition, and it's a trap.

In Phan, 2020 ONCA 298. this issue arose again. Again, the defence alleged that police officers lied. Again, the judges expressed some criticism of the officers, but some understanding, and the bad guy's conviction stuck.

There are times to express conclusions; but there are also times to recite observations with great care. Surveillance units carry the responsibility of providing the observations. People who apply for judicial authorizations need to recite those observations, so that they can justify their inferences. Nobody can do their job properly unless everyone knows and respects the difference.

2020.05.31 Entrapment and Reasonable Grounds to Suspect

This case matters to more than drug cops, because while discussing entrapment, it delves into "reasonable grounds to suspect". Reasonable suspicion turns up in other kinds of police work.

In two similar but separate operations, police busted Mr Williams and Mr Ahmad, 2020 SCC 11 for dial-a-dope operations. 5 judges of the Supreme Court of Canada found the police entrapped Williams. All 9 judges agreed that the police did not entrap Mr Ahmad.

Both investigations started with bare tip information that a phone number was a dial-a-dope line. Neither investigation collected any information to confirm the tip. In both investigations the officer called the number.

What made the difference?

Look at the conversations that occurred after the officer dialed the number:

Ahmad

Williams

Officer: Hey, It’s Mike, Matt said I can give you a call, this is Romeo?

Male: He did, did he?

Officer: Yeah, said you can help me out?

Male: What do you need?

Officer: 2 soft

Man: Hold on, I’ll get back to you.

Officer: Alright.

 

Male: Hello.

Officer: Jay?

Male: Yeah.

Officer: You around?

Male: Who is this?

Officer: It’s Vinny.

Male: Vinny who?

Officer: Vinny. Jesse from Queen and Jarvis gave me your name. . .your number. Said you could help me out. I need 80.

Male: Okay. You have to come to me.

What's the difference?

In the Williams investigation, the officer was the first person to suggest a drug transaction. In the Ahmad investigation, it was the person who answered the officer's call.

For those of you who investigate dial-a-dopers, this case seems to confirm that even if you lack reasonable suspicion, you dial the number. If, during your call, you develop reasonable suspicion you can offer to buy drugs, so long as you make your request to buy drugs after the the other person confirms your suspicions that s/he has drugs for sale.

Read paragraph 54. Five of nine judges view this as risky, but lawful. (The other four judges felt that the difference between these conversations was too subtle to justify treating them differently.)

At Canadian law, police "entrap" people by:

  1. offering someone an opportunity to commit a crime without any good reason to think that the person would commit a crime, or
  2. pushing a suspect into committing a crime, instead of merely offering them an opportunity.

The older cases said that police required a "good faith" for using #1. The 5 judges replaced "good faith" with "reasonable suspicion".

The difference is the quality of information in your possession that makes you think that the target might be committing crime. You may act in good faith if you respond to allegations. Reasonable suspicion requires evidence.

This case should interest all officers because it the judges discuss what it takes to form "reasonable suspicion". Compare the information available to the two investigators:

Ahmad

Williams

A police officer received information from a source that "Romeo" is selling drugs from a specific phone number. The handler passed only this information on to the investigator, but provided no information about the reliability of the source.   

A police officer prepared an information package which asserted that Williams was going by the name "Jay", but didn't explain how the officer knew this.

A confidential source of unknown reliability asserted that Jay was a cocaine dealer working in a particular area. The package included a phone number which it alleged was the dial-a-dope number.

The investigator knew Mr Williams from a previous cocaine bust, but did not know he used the name "Jay".

From this summary, it looks like the Williams investigation started with way more information than the Ahmad investigation.

The judges said they were equal: both investigations operated on the basis of uncorroborated tips of unknown reliability.

Why?

Because the information package in the Williams case did not explain how police knew that Mr Williams was using the name "Jay". For that reason, the investigators on the Williams case lacked evidence to link "Jay" to Williams and his past drug dealing. Therefore, all they had was a tip of unknown reliability ... just like the investigators in the Ahmad case.

I fear that this explanation might not be clear enough for some officers. Here are two information reports about the same suspicious character. The first gives you a "good faith" reason to investigate. The other gives you "reasonable suspicion".

Information package

Evidence package

On May 31, 2020, Cst Conclusions received a tip that "Legal Beagle" is operating a  dial-a-dope line in Chilliwack on the number 604 313 1313 and selling cocaine.

It is believed that "Legal Beagle" is Henry Waldock, the notorious Chilliwack cocaine dealer.

On May 31, 2020, Cst Evidence received a tip that "Legal Beagle" is operating a  dial-a-dope line in Chilliwack on the number 604 313 1313.

The tipster has provided information about drugs in Chilliwack 5 times in the last 2 years. Investigations of 3 of those tips gathered evidence which tended to confirm the information provided. The other two tips were not investigated, and so it is unknown whether they were accurate or not.

Cst Evidence searched police computer information systems for references to "Legal Beagle", and found that in a 2018 Chilliwack murder investigation, several witnesses gave police statements in which they referred to a Chilliwack cocaine dealer by the name of "Legal Beagle". When asked who this person was, one called him "that nerdy guy with the stupid police website".

Cst Evidence knows of only one nerdy guy in Chilliwack who maintains a police website: Henry Waldock. Cst Evidence has met Waldock, and read his website. CPIC records that Waldock has convictions for possessing or trafficking cocaine in 2002, 2009 and 2012.

Whenever the courts demand "reasonable suspicion" or "reasonable belief" they want to hear about evidence, like the information on the right. The evidence package contains not only what we know, but how we know it.

I emphasized "it is believed" on the left side because I hate that phrase, and phrases like it.

It is a phrase for cowards: people too afraid to take responsibility for the allegations they make; people who conceal the reasons for their belief, possibly because their reasons are too flimsy to put in writing. I have seen prosecutions fail because of this kind of writing/thinking.

If you catch yourself using that phrase, delete it immediately, and write "I believe ________ because ________." Now fill in the blanks. After you fill in the second blank, you can delete "I believe", and substitute "It appears that", or some other less personal phrase.

The second blank is articulation. If you want to know how to articulate how evidence led you to a belief, read the next story.

2020.05.26 Applying for a Warrant - Linking what you Know to What you Expect to Find

After explaining what your investigation discovered so far, an application for a search warrant ought to explain what you think you're going to find, why you think it's there, and why it would help your investigation.

That part trips up many police officers because it differs from simply explaining evidence. Beginners usually describe the investigation and declare what they want to search for, leaving the justice to draw the links. The case of P.W., 2020 ONCA 301 illustrates the problem.

A six-year-old girl complained that her father, Mr P.W., washed her bum with his bare hand and inserted his finger into her anus, which hurt.

The girl's mother split up with him several years earlier. The mother told police that he had an interest in child pornography. At the time of the break-up, a doctor also confirmed that he had this problem. For a while, he got supervised access only to his children. But he got treatment for this interest, and the supervision condition ended.

An investigator asked for and obtained a warrant to search the computer for child pornography. The computer contained child pornography, but no pornographic images of the girl.

At trial, defence complained that the application failed to justify the search. This was an investigation into sexual assault allegations. There was no evidence that Mr P.W. was still accessing or using child pornography.

During cross-examination of the affiant, the officer explained her reasoning. She did so somewhat awkwardly, but the following links came out:

  1. She knew that Mr P.W. took non-pornographic pictures of his daughter. She had seen them on Facebook.
  2. She understood that the sexual abuse occurred in a spartan room which contained Mr P.W.'s bed and three computers.
  3. She knew that the 6-year-old girl complained of sexual touching.
  4. She knew that Mr P.W. had a prior interest in child pornography.
  5. In her experience and training, when people who like child pornography also sexually abuse children, they often take pictures of it.
  6. Therefore, she believed that searching the computer would discover pornographic images of the girl, which would corroborate the girl's complaint.
  7. She also felt that finding pornographic images of other children would corroborate the girl's allegation that her father had a sexual interest in children.

The court agreed with defence that this reasoning should have been expressed in the application for the warrant. This application violated s.8 of the Charter. But because the officer's reasons made sense, the judges decided to admit the evidence anyway. Mr P.W. was convicted and lost his appeal.

How do you explain inferences in an Information to Obtain?

I suggest that you "blame the evidence" for your conclusions. Using the facts above, you could word it this way:

  1. I saw images of P.W.'s daughter on his Facebook page. The context of those images gave me the impression that he took them. This makes me believe that he liked photographing her.
  2. The girl described the sexual offending occurring close to Mr P.W.'s three computers. This causes me to believe that it was possible for him to use those computers to record the sexual activity.
  3. The mother described P.W.'s prior problem with child pornography. The girl's new complaint makes me think that P.W.'s sexual interest in children persisted or has returned. That makes me think that his interest in child pornography persists or has returned. That makes me think it is likely that his computers or some of them now contain child pornography. Therefore, I ask to search his computer for child pornography.
  4. My training and experience shows me that the people who like child pornography and sexually abuse children often take pictures or make videos of the abuse. Mr P.W. liked child pornography, and now his daughter complains that he sexually abuses her. From the Facebook images, I know he takes non-sexual pictures of her. These factors together make me think that Mr P.W. likely took pictures or made videos of his abuse of his daughter. If so, the logical place for him to store those pictures or videos would be in one or more of his computers.
  5. Pictures of the abuse would corroborate what the girl alleges. Therefore, I believe searching Mr P.W.'s computers will likely discover evidence of the sexual abuse of his daughter.

Notice that each of these paragraphs identifies a particular piece of information or evidence, and then explains what piece of information made me think. I call this "blaming the evidence" because it forces more rigorous analysis. Start from the assumption that the suspect is innocent, and the warrant won't find any evidence against him. Then, step by step, identify the evidence which forces you to reach the opposite conclusion.

I observe that this search is too narrow. It seeks only the most damning evidence. You should search for the smoking gun, but when investigating, less damning evidence can also help. Probably, non-sexual images of the complainant would confirm that he saw the girl, and the date stamps in meta-data would narrow down the exact dates when the suspect saw her. And that's useful evidence too. And if, when searching for images of the complainant, clothed, you discover images of naked children, well, you've found a smoking gun.

2020.05.10 Trouble with Interpreters and Swabbing Rapists' Penises

When you arrest someone who speaks English badly, take some extra time to explain rights and procedures. When you strip him to get evidence from his body, maximize the privacy and dignity of the process.

Mr Cortes Rivera, 2020 ABCA 76 spoke Spanish well, but English badly.

He went to a party. At that party, a woman drank too much. She alleged that while she was vomiting into the toilet, Mr Cortes Rivera raped her.

Police arrested Mr Cortes Rivera shortly afterwards. They found an interpreter to assist. They told him he could call a lawyer. Apparently, the interpreter told him he could make a single call to a lawyer.

The investigators decided to swab Mr Cortes Rivera's penis, in case it carried the victim's DNA.

It did. From his penis, the swab picked up 14x more of her DNA than his. An anal swab of her picked up only trace male DNA.

At trial, he complained that the officers failed to explain his right to counsel properly. He complained that the swabbing process did not sufficiently ensure his privacy: the officers stripped him naked, and there were too many people in the room when it occurred. Those complaints failed at trial and on appeal.

Fortunately, the officers offered Mr Cortes Rivera further access to lawyers after his first consultation. The extra offer resolved any questions about whether the initial explanation sufficed.

The trial judge agreed with Mr Cortes Rivera that there were three problems with the swabbing process:

  1. too many people in the room;
  2. stripping Mr Cortes Rivera completely naked wasn't necessary either;
  3. the police failed to make a complete record of the process followed.

After that investigation, the Supreme Court of Canada explained how to do such an unusual investigative step properly. See R. v. Saeed, 2016 SCC 24 at para 78.

Because the SCC clarified the rules after this investigation, the judges felt that the officers didn't do so badly that the evidence should be excluded.


2020.05.08 The Story of Easy Eddie - Moral Inducement

 or Dirty Trick?

Somebody murdered Mr Parsons. Police suspected Mr Hayes, 2020 ONCA 284. When attempting to persuade Mr Hayes suspect to discuss the crime, an officer told him the story of "Easy Eddie" O'Hare, the lawyer for Al Capone who decided to turn in his client.

Defence complained that telling this story could undermine the suspect's confidence in the lawyer who advised him.

Yup. It sure could ... depending on how you tell the story.

This officer told the story in a way that emphasized Easy Eddie's desire to do the right thing, for the good of his children. This officer mentioned that Easy Eddie suffered for "the right thing" (the mob murdered him). The officer did not suggest that lawyers commonly inform on their clients.

Because of that, the court found that this was no a dirty trick, but a proper moral inducement to persuade the suspect to talk.

I note that Mr Hayes didn't confess. He denied killing the deceased. Other evidence proved him guilty anyway.

2020.05.04

 Giving Expert Evidence as a Police Officer

If you investigate criminal gangs for long enough, Crown may ask you to explain the culture to a judge or jury. You can expect the defence to object to your testimony. This case gives you some idea what to expect.

But if you don't investigate criminal gangs, this decision discusses how police officer experts should behave.

A stolen van drove to the centre of a gang's territory. Two men got out and started shooting. One man died. The shooters got back into the van which departed. A distance away, Mr Gager, 2020 ONCA 274 got out of it. Police arrested him while he was trying to dispose of a .45 handgun. In jail, he wrote and drew words and images consistent with gang membership. He used language consistent with gang involvement.

Did Mr Gager participate in the killing because of gang rivalries?

An officer who investigated gangs in the area knew of Mr Gager, because his name arose in the course of the officer's work. That officer did not participate in the murder investigation.

Defence objected to the officer's testimony, saying:

All of the judges agreed that these can be real problems, but they could be controlled in this case by limiting what the expert could say, and warning the jury to be cautious of expert testimony.

If you know gangs, then read this case for what to expect when Crown asks you for expertise.

If you testify as an expert on other matters, pay attention to the section on "Impartiality" for ideas about how to preserve your credibility and impartiality.


2020.04.25 Mr Big avoids Applying Undue Pressure

In 2006, Mr Moir, 2020 BCCA 116 met Mr Big. The meeting went well. Mr Moir told Mr Big about how he helped his dad murder a 14-year-old girl.

Mr Big persuades suspects to confess. He has done so many times, and will doubtless do so again. If you, as a police officer haven't encountered Mr Big before, maybe you should read this decision. It's important to get to know him.

But some of you work with Mr Big. Some of you are Mr Big. For you, this decision may serve as a helpful reminder about how Mr Big and his associates should behave.

Holdback

The officers who investigated the murder scene found 4 distinctive things about the killing. They kept that information under wraps.

Mr Moir told Mr Big all four distinctive things.

Such secret knowledge tends to incriminate. But only if the investigators can keep the secret.

People inexperienced in criminal justice like to be "in the know" about the juicy details of big and interesting cases. Not smart. It's hard to keep a secret when everyone knows. If you're involved in an investigation as a minor investigator, and someone says "holdback", walk away quick, unless you truly need to know. And if you do not, sprinkle your notes with the word: "holdback".

Keep the secret until it's truly time to tell.

Nice Mr Big

Back in 2014, the Supreme Court of Canada changed some rules about Mr Big's evidence. Hart 2014 SCC 52 If Mr Big applies too much pressure on the target to confess to the crime, then trial judges will exclude the confession.

In the Hart case, the suspect was particularly vulnerable and needy. Mr Big's organization became his whole life - his friends, his family, his employment. The undercover officers intimated that violence would befall people who crossed the group. When Mr Big asked him about the crime, Mr Hart gave an innocent explanation. Mr Big rejected this explanation and asked for "the truth". Mr Hart then said he did the crime. The court didn't like it. The judges felt that the police put too much pressure on Mr Hart. His willingness to participate in a (fake) criminal gang would make him look evil in the eyes of the jury. The court decided that trial judges should not accept such evidence unless the prosecution proves that the confession is reliable -- so reliable that all the ugly evidence of the defendant's willingness to join a criminal gang and commit (fake) crime will not persuade the jury to convict him only because they dislike him.

The officers who investigated Mr Moir did it right. They emphasized truthfulness over violence. They didn't take over Mr Moir's life. Mr Big didn't force him to say things that weren't true. And they did all this before the Supreme Court of Canada gave its decision in Hart.

For lawyers, this decision resolves a technical side-issue: the Bradshaw rules for admission of hearsay do not apply to the Hart rules for admission of Mr Big confessions.

For undercover officers, this decision provides a useful current explanation of how to structure a Mr Big operation, and how to react to your suspect's personal peculiarities.

For regular investigators, it demonstrates the great power of holdback. Holdback made a huge difference in making Mr Moir's confession admissible. His conviction depended on it.

Please forgive my enthusiasm, but a friend of mine prosecuted the trial. Appeal dismissed. Well done, cops and Crown!

Requiescat in pace, Chelsey Acorn.


2020.04.25 Detention - The Trigger - The Responsibility for its Consequences

Shortly after midnight, Mr Thompson, 2020 ONCA 264 sat in a parked car behind a shopping plaza with drugs ready for sale.

After receiving a rather vague tip that someone dealt drugs from a car at that plaza, two junior police officers drove there in two separate marked police cars. They found Mr Thompson's vehicle. They boxed it in and approached on foot.

One officer went to the driver's side, and the other to the passenger's side. They knocked on the windows, and spoke with Mr Thompson and his passenger.

Both officers smelled marijuana. One saw a roach. It was still a prohibited drug at the time, so the officers arrested the occupants of the vehicle for possession of marijuana, searched them, and put them in the back of the police car. They searched Mr Thompson's car and found lots more drugs.

21 minutes after arresting them, the officers explained the right to counsel.

At trial, Mr Thompson's lawyer complained that the officers:

  1. arbitrarily detained Mr Thompson when they boxed his car in;
  2. unlawfully searched his vehicle;
  3. failed to advise Mr Thompson of his rights when they first spoke to him;
  4. failed to advise Mr Thompson of his rights without delay after arrest.

The trial judge disagreed with 1 & 2, but agreed with 4. The trial judge didn't see the violation as serious enough to exclude evidence. The judge convicted Mr Thompson for possessing drugs for the purposes of trafficking. The appeal judges agreed with 1, 3 & 4. They found the breaches serious. They excluded the evidence and acquitted him.

"Detention" - s.9 and s.10 of the Charter

The appeal court judges found that the officers "detained" Mr Thompson even before he knew they were there. Boxing in his car and approaching him on foot triggered the detention, because any reasonable black person in those circumstances in that neighbourhood would believe he would not be free to leave.

Curiously, nobody argued that the tip and the unusual behaviour created reasonable suspicion to believe that Mr Thompson was selling drugs. (I can't tell from the decision whether this was arguable.)

Because the police action was a "detention" for the purposes of s.9 and s.10 of the Charter, and because tip wasn't strong enough to justify a reasonable suspicion that Mr Thompson was committing a crime, therefore this detention was unlawful.

This case isn't just about cars. It's about the impression you make when you're "checking things out". Do you give the impression that the person is no longer free to go, and he'll be in police custody for a while?

Whether you're in a police car or walking the streets, this case should affect how you approach the people who inhabit your beat. For your own safety, be tactical. For compliance with s.9 of the Charter, if you take control of people, you need reasons.

"Immediate" right to counsel - s.10(b) of the Charter

Detaining someone triggers the obligation to tell them why, and that they can get legal advice.

The officers didn't tell Mr Thompson when they first approached that he could call a lawyer. That's not surprising. I doubt the officers knew that a judge would find what they did was a detention.

But the officers didn't tell him about his right to counsel for 21 minutes after arresting him.

According to the judges, police in that area have tended for years to wait way too long to explain legal rights. The judges' patience wore thin. The court emphasized that s.10(b) requires you to tell a detainee "immediately" of the right to counsel.

In most situations, 21 minutes is way too long to explain why you arrested or detained someone (s.10(a)), and that they can get legal advice (s.10(b)).

There are special circumstances in which as much as 21 minutes might be okay. In Suberu, 2009 SCC 33 at para 42 the Supreme Court of Canada identified when:

"Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention."

If you arrest someone who possesses a gun or a knife, you can relieve him of the weapon before opening your notebook and reading him his rights. If you've just stopped a knife fight, arrested the guy who was still standing and put him into your police car, you can attend to the injuries of the guy on the ground before talking about lawyers.

Canadian law recognizes a specific exception for brief traffic stops and sobriety screening demands. No need to talk about lawyers while that kind of stop remains brief.

But if those exceptions don't apply, and the scene is under control, it's time to talk about lawyers.

2020.04.20 General Warrant - Covert Search - Notice

Investigators had good reasons to believe that Mr Pipping, 2020 BCCA 104 and his associate used a unit in a large apartment building for their drug business. But which unit?

They asked the manager, but the manager told them to get a production order.

Instead, the officers obtained a general warrant which permitted them to enter the hallways and common areas of the building and watch the targets. The warrant contained an assistance order which directed the manager to give them a key and permit the officers access to the building.

The officers saw Mr Pipping go into unit 407. The officers then asked a judge for authority to search that unit. They searched it, and found drugs. They busted Mr Pipping.

Simple? No.

Section 487.01, which authorizes general warrants, contains a notice provision:

Notice after covert entry

(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.

The general warrant lacked any direction by the judge to give notice to Mr Pipping that police officers watched him inside the building.

"Aha!" cried defence counsel: "The warrant is invalid."

The court agreed.

"If the warrant's invalid, then the evidence must be excluded," defence counsel argued.

Nope.

Because the officers arrested Mr Pipping, and he soon received full disclosure, he got the notice that s.487.01 wanted him to receive. No harm done. This time.

If you used a general warrant to do something covertly, remember to add in a condition that requires you to tell the people whose privacy you violated what you did.

Expectation of Privacy in Common Areas of Buildings

I found this decision interesting because the court wrestled with several questions that arise for police:

Difference between Authorization and Assistance Order

Finally, the court commented on a philosophical flaw in the drafting of this warrant.

This warrant did not contain a specific authorization to enter the hallways and watch Mr Pipping. It merely ordered the building manager to allow police to do that.

Here's how to think about it:

If you want to watch Mr Pippin covertly in the hallways and common areas of the building where he has some expectation of privacy, then the warrant that the judge issues must explicitly say: "I, Judge Jones authorize Cst Diligent and peace officers working with her to watch Mr Pippin covertly in the hallways and common areas of the building".

Technically, if the judge orders the managers to let you do that watching, but the judge fails to authorize you to do it, then you still lack the authority to violate your target's expectation of privacy.

Defence counsel complained about this gap. The court felt some sympathy with the officers: they made a good effort to comply with the law and obtain judicial authorization. The warrant as drafted made it reasonably clear what the judge wanted to permit the officers to do. The court found that the evidence should not be excluded. Mr Pipping lost his appeal.

2020.04.18 Managing Protesters

Mr Stewart, 2020 ONCA 255 went to the Toronto G20 summit in 2010. Not as a politician, but a protester.

Toronto police prepared for that event because previous G20 summits experienced worldwide political attention. Some of the more enthusiastic protesters caused riots. In the days leading up to the event, they encountered an activist publication containing an article “Advanced Street Fighting”, which included information on “Breaking Police Lines”, “Security Fencing”, and “Throwing Projectiles”.

They had reason to fear that things might not go so well.

They decided to search the backpacks of people heading into the area for weapons and gear that could be used to defeat police crowd control methods.

Mr Stewart objected, and a camera recorded the interaction. He later sued.

What was the police authority to search people who headed into the park that day?

Police relied upon a letter from the City which delegated to police the power to enforce the Ontario Trespass Act in relation to city property (including the park). The Toronto Police claimed that the City had given them the power to set rules for who entered the parks.

The court disagreed: the City did have the power to make rules about who could enter the park. They could have made rules requiring everyone who entered that park that day to submit to a weapons search. They didn't. The letter only gave the police the authority to enforce the existing rules, not make up new ones.

Mr Stewart won, but not as much as he asked for. He started out by asking for $100,000 for the interference with his Constitutional right to freedom of expression and to be free from arbitrary detention and search.

The court granted him $500.

The judges found that the officers were wrong in law, but they were doing the best they could under the circumstances. They maintained complete professionalism when dealing with Mr Stewart, who wasn't quite as professional.

For Ontario officers, this decision helps you understand how the Trespass Act works. For that reason those officers should take a look at it.

For the rest of you, many must deal with rude and unruly people. The rewards for staying professional when dealing them rarely come immediately. In this case, it took 10 years. But after watching the video, the Ontario Court of Appeal obviously sympathized with the officers.

So long as you are not endangered, politeness and patience will pay off in the long run.

Take care of yourselves out there!


2020.04.13 Reasonable Grounds to Suspect - the Imperfect Match



After stopping a suspect for a crime, can you still investigate them if you discover a flaw in your original grounds?

It depends.

On whether you still have reasonable grounds to suspect them of the crime.

A security guard at the University of Toronto called just before midnight. Someone reported to him that a man carrying a gun was on campus. A black guy. Early 20's. Medium build 5'6", dark ball cap, black hoodie, black jacket, grey pants. The guard reported seeing the gunman get into an orange and green "Beck" taxi van. The guard watched that cab using the university security cameras until the vehicle left the view of the last camera going west on Steeles Avenue.

In less than 2 minutes, police officers found an orange and blue "Beck" taxi van heading West on Steeles Avenue, just past the university.

They stopped the van.

The only passenger was Mr Bejarano-Flores, 2020 ONCA 200.

He looked Hispanic, not black. Different from the dispatch information.

His clothing, though similar, did not exactly match the caller's description either.

The officers required him to get out. They patted him down. No gun.

An officer saw a knapsack on the seat where he had been sitting. They searched that too.

No gun, but lots of drugs.

At trial, defence complained that the officer lacked reasonable grounds to detain Mr Bejarano-Flores: wrong colour of skin meant wrong guy, and that meant that the officers lacked grounds to stop him.

The officer who stopped Mr Bejarano-Flores explained why he believed he had the right guy. He found:

The officer explained that the minor differences in clothing did not raise concerns. In his 18 years of experience, he found that stressed people often do make some mistakes in their descriptions of strangers. In his experience, fleeing felons often change their clothing when they see police. Therefore, the skin colour and clothing mismatches did not dissuade him. He told the trial judge he was certain he found the right cab.

At law, he didn't need absolute certainty. He needed to believe that this could be the right guy. And he needed to have received credible evidence or information that made that belief reasonable.

The trial judge concluded that the detention was lawful at the beginning, but no longer lawful at the time the officers checked backpack. The Court of Appeal agreed that the officer lawfully stopped the cab, but held that the detention remained lawful even after the officer saw the different race and minor clothing differences. He had reasonable suspicion, and therefore the search was lawful.

Suppose police found two cabs containing single male passengers that equally matched the complaint. One passenger is Asian and the other is Hispanic. Could you detain both while you work out which one is of interest?

Yes.

Reasonable grounds to detain is a lower standard than balance of probabilities.

On the other hand, if you encounter evidence which makes it plain you've got the wrong person, back off. You no longer have the power to detain. If the cab had contained two Caucasian girls in white dresses, the attending officers would have needed some compelling new information before searching their purses.

2020.04.13 Memories and Inferences - Know your Weaknesses

When describing things we know about, our brains trick us. Our brains merge patterns into scripts. We automatically draw inferences, and remember differently from what we experienced.

For example, officers suspected that Lucas Theissen, 2020 BCCA 85 dealt drugs. A surveillance officer saw Mr Theissen approach a particular door with a key in hand. A moment later, the door opened, and Mr Theissen entered.

When applying for a warrant another officer wrote that Mr Theissen unlocked a door with a key.

This mattered. Mr Theissen's possession of a key that opened the door tended to establish that a search of the place would find drugs.

But the surveillance officer admitted in testimony that he didn't see Mr Theissen unlock the door with the key. A video-recording of the event suggested that the officer's view of the door was blocked.

The officer saw Mr Theissen approach a door with a key in hand, and the door opened as if Mr Theissen used the key to unlock it.

Defence called the officers liars for over-stating the evidence.

The judges found this attack unimpressive.

They agreed that the ITO overstated the evidence. When describing the evidence, the application should have stated specifically what the officer actually saw.

But the judges understood that the officers drew a reasonable inference: Because Mr Theissen approached the door with a key in hand before going in, one may reasonably infer that Mr Theissen unlocked the door with a key. The judges would have been quite content if the officer accurately described the observation and followed it with "I infer from this that Mr Theissen used the key to unlock the door."

At another point in the ITO, the officer almost did this.

The surveillance officer saw Mr Theissen emerge from the residence walking stiffly, and leaning as if he carried something heavy. But that officer could not see what Mr Theissen carried. The officer who applied for the warrant wrote:

THIESSEN was observed carrying something as he left [Sappers Way] and returned to his garage at 5428 Peach Road. I was advised by [surveillance officer] that THIESSEN appeared to be carrying something heavy as he departed from 21‑5805 Sappers Way, Chilliwack.

The first sentence is false. The second one is true.

Why did the ITO claim something false? Because one of the officers formed a coherent theory about THIESSEN's activities and described conclusions instead of observations. One of them dropped some conclusions into the places where he meant to describe observations.

If the ITO had started with the observation, and then explicitly drawn the inference, nobody would have complained:

[Surveillance officer] told me that THIESSEN appeared to be carrying something heavy as he departed from 21‑5805 Sappers Way. From that observation, I believe that THIESSEN carried something heavy from that address.

Either the surveillance officer or the officer drafting the ITO drew conclusions from observations and described the conclusions. This officer's problems occurred he's human. We all do what he did. But it can get us into trouble when defence challenge your accuracy.

How can we avoid this problem?

  1. Whether your are on surveillance, drafting ITOs or speaking with drunk drivers, try to distinguish between observation and inference.
  2. Whether you write for, or as, an affiant, double-check your descriptions of the evidence to ensure that you accurately stated the evidence.
  3. If you obtain evidence from other humans, you might ask a couple of questions to ensure that you got what they observed rather than what they concluded.
  4. I find writing in the active voice helps me because it focuses my attention on choosing the correct verb. The sentences punch harder. When they punch too hard, I notice the error.

2020.04.01 April Fool's Boilerplate - Who's the Fool?

In Wood-Tod v The Superintendent of Motor Vehicles, 2020 BCSC 155, the judge condemned boilerplate affidavits prepared by a certain law firm. See paragraphs 91-99, and look at the appendix.

Why do you care? Police officers rarely swear affidavits.

Because an Information To Obtain a warrant or production order is really just an affidavit.

We call it an "Information To Obtain" because the Criminal Code uses that language in Form 1 of the Criminal Code. But in structure and content, it's an affidavit.

Look how quickly boilerplate can get you into trouble.

The Criminal Code requires you to use Form 1 for most applications for judicial pre-authorizations.

Form 1 identifies the officer who applies for a warrant as the "informant". Parliament chose that word poorly. Police officers often refer a confidential source, as an "informant". But the boilerplate at the beginning of Form 1 reads:

"This is the information of A.B., of blank line in the said (territorial division), (occupation), hereinafter called the informant, taken before me." (my emphasis)

According to that first line in the document, any time you use the phrase "the informant" in an ITO, you are referring to yourself.  Therefore, if you write an ITO which describes information taken from a single confidential source, and you say in the document "the informant said...", the language at the top of the document tells the reader that "the informant" is you.

Oops.

To avoid this confusion, many police officers prefer to call themselves as the "affiant". I agree with them. But I wish Parliament would discard the phrase "Information to Obtain" and "informant", and call these things what they are: "affidavits" and "affiants".

I do not expect Parliament will listen to this wild-haired lawyer standing on his soap-box shouting at the world. Perhaps I am the April Fool.

I do hope to guide you away from looking like a fool.

If you apply for warrants, you probably use "precedents". Prefab ITOs containing lots of language to cover the boring stuff.

Beware. That's the stuff that judges hate. Like the judge in this case. That's the stuff that makes you look foolish.

Like the law firm in this case.

When you finish drafting your ITO from the prefab ITO, you can't see the flaws. The process of writing renders the writer blind to the errors in the document. But you can ask the person who reviews your ITO to check the boilerplate for errors or unnecessary information.

This concept applies more widely than warrants. The officer in this case solemnly affirmed the truth of his report about the impaired driver. Some officers who deal routinely with impaired drivers draft their reports by copying and pasting from prior reports, and modifying the language to match the event. I'm not sayin' you must not do that. But know the dangers of this practice. Judges notice. Doubtless, the lawyers in this law firm will notice. Lawyers may use this decision against you.

2020.03.31 What's Dangerous Driving?

When investigators attend the scene of a terrible crash, the destruction and injury naturally draws attention. Broken cars. Broken people.

If there was a crime, it happened before the crash.

An investigator needs to investigate what happened before the crash.

It's usually easiest to figure out what happened in the seconds before the crash. Skid marks on the road. Eyewitnesses at the scene.

All too often, the only evidence that reaches the court room describes what occurred in those few seconds.

Unsurprisingly, Canadian law developed a defence to dangerous driving based upon the idea that a "momentary lapse in attention" should not be criminal.

Admit it: All drivers take their attention from the road for short periods. To change the music. To locate that snack. To type a licence plate into a mobile terminal. Either all drivers are criminals, or the standard for criminal driving requires something more than briefly taking your eyes off the road.

The Canadian answer is that driving isn't criminal unless the driver does something that's objectively dangerous, and the driving was a "marked departure from the standard of care of a reasonably prudent driver".

At trial, Mr Chung, 2020 SCC 8 convinced the trial judge to acquit him based upon this idea: a brief period of bad driving isn't criminal.

The Supreme Court of Canada disagreed. A momentary lapse in attention is one thing, but a brief period of intentionally awful driving is quite different. Over a period of about 4-5 seconds Mr Chung accelerated his vehicle to 140km/h in a 50km/h zone. There were vehicles ahead of him, in a busy intersection. He dodged one, but hit another. The dash-cam of another vehicle recorded much of the incident.

That's not inattention but intentional risk-taking.

What does this case mean for investigators?

Specifically, if the evidence shows that the driver deliberately undertook serious risk, then a short period of driving may be criminal.

But generally, the state of the law requires you to look at more than the crash scene.

You should, of course investigate the crash. But if you suspect that a driver committed a crime, you need to back up, and investigate the driving before the crash.

It's relatively easy to investigate the crash scene. You can see it.

It's harder to investigate the crime scene. In dangerous driving cases, it may stretch over many kilometers. The eyewitnesses are often driving, and leave the scene long before you get there. Tougher to investigate, but necessary for finding the evidence of the crime.


2020.03.21 Disclosing Investigative Information

A woman went on a first date with Mr Razavi Zadeh, 2020 BCCA 93. They planned to go out, but he asked her to stop in at his place while he changed his clothes. They didn't leave. He gave her drinks. She drank willingly, including shots of Tequila. She became groggy. He wants sex. She didn't. She passed out. When she woke up he was getting what he wanted, and she was too weak to do anything about it.

Afterwards, she told police that she thought that she had been drugged. At court she said she thought it was GHB (which she had used before). At court, she said she thought she drank some of the Tequila from a bottle in the fridge.

After she complained, police searched his residence. They found a Tequila bottle in the fridge. Toxicologists found it contained GHB.

Her testimony appeared to be confirmed.

Except.

Before court, a police officer told her mother that the bottle contained GHB. Mom told the complainant.

Did the complainant say she drank from the Tequila bottle in the fridge because she remembered it, or because her mom told her that bottle contained GHB?

The judge wasn't sure. He was not prepared to find, based on her word, that she did indeed drink the Tequila that came from that particular bottle.

Sometimes, for the health of the victim or to further your investigation, you need to reveal information you discover in your investigation. It does not appear that revealing this information to the mother was necessary.

At first, it feels fun to know the whole story. But with knowledge comes responsibility. Sharing what you know with one witnesses can undermine the credibility of another.

That's one way publication of an ITO can undermine a prosecution.

Careful who you tell what you know.

As a footnote, the trial judge accepted other aspects of the complainant's testimony, and convicted the defendant. The appeal court upheld the conviction. For lawyers, it's an interesting case on how drunk is too drunk to consent.

2020.03.03 Relying on Warrantless Searches by Civilians

Several readers sent me decisions in which civilians violated the suspect's rights of privacy, and thereby obtained key evidence. The civilian told police, and police acted. The emai I received today puts them together nicely.

A mom left her 4-year-old daughter for a short time in the care of Mr Molyneaux, 2020 PECA 2. She didn't know Mr Molyneaux well, and after contemplating what he told her about himself, she decided to peruse his phone to see how much of it was true.

She found photos of her daughter's genitals and buttocks in his phone. She deleted the photos, and later, confronted him. He explained that the phone must have fallen out of his pocket and accidentally taken the pictures.

A few weeks later, she mentioned her discovery to a social worker, who told police. The police interviewed the mom, learned about the pictures, and invited Mr Molyneaux in for an interview.

They told him what they knew and offered him a choice: sign a consent to search, or police would get a warrant. He signed the consent, and police found 18 pornographic photographs of the child.

At trial Crown didn't even try to tender the photographs. Good choice. The "consent" was not voluntary; therefore it did not give police lawful authority to search the phone. If the Crown had sought to tender the photographs, the court would have excluded them.

But was the mom's testimony admissible? She violated Mr Molyneaux's privacy when she searched the phone. By interviewing her, police obtained private information which they could not have obtained themselves without a warrant. Therefore, defence argued, her testimony violated Mr Molyneaux' right under s.8 to be free from unlawful search.

Rubbish.

The Charter protects Mr Molyneaux from unreasonable intrusions on his privacy by the state. The interview stage did not involve searching the phone. The mom did the intruding. All police did was interview her.

No breach in an intervew.

In contrast, consider Mr Vey, 2019 SKQB 135. His wife suspect he was cheating on her. She set up an iPod to record conversations in their residence while she was out. It recorded her husband talking with his lover. But worse, in the key recording, Mr Vey seemed to talk with his lover about their plans to kill their respective spouses.

This alarmed Mrs Vey. She played the recordings to family members, and then brought them to police. After debating whether or not to get a warrant, police listened to the recordings without a warrant.

Let's be clear here. Mrs Vey committed a crime. Covertly recording a conversation between two (or more) people without their knowledge offends s.184 of the Criminal Code. That crime may have saved her life. But the recording violated the part of the Code which protects privacy.

The court concluded that the recording remained private to Mr Vey and his lover, even after Mrs Vey recorded them and listened to it.

The police could interview Mrs Vey without a warrant. They could ask her what she heard on the recording. But they needed judicial pre-authorization to listen to the recording itself.

The trial judge conceded that in exigent circumstances, police could have listened to the recordings if they needed to protect life or preserve evidence. But in this case, the police did not otherwise act as if life or evidence were in peril. Exigent circumstances were not at play in this case.

The trial judge found that the police violated the expectations of privacy of Mr Vey and his lover. The judge excluded the evidence of the recordings from the trial.

These two cases suggest that if a witness tells you that she intruded on a suspect's privacy, you can interview the witness, but you need a warrant to get the fruits of the witness's search. Even if she hands the digital device to you.

This leaves me wondering what you should do with physical evidence. Suppose a vigilante breaks into the residence of a murderer, and recovers the bloody knife used to kill the victim. The vigilante delivers the knife to your desk, and explains how he got it. Naturally, you should seize the knife pursuant to s.489(2) of the Criminal Code. But do you need judicial authority to analyze the blood or fingerprints on it? A prudent officer might now ask a justice.

I thank both of the kind readers who alerted me to those two interesting decisions.

2020.02.28 Cop Exhonorated

Way back in 2017, I wrote about Mr Dunstan, 2017 ONCA 432. He was a drug dealer under active investigation by a team which included S.Sgt. Gillis. The investigation made no headway until police received an anonymous tip that somebody was breaking into Mr Dunstan's residence.

Police officers attended to investigate the B&E. Somebody had kicked in the door, but left the drugs and cash in the house. Pretty weird.

Defence alleged that S. Sgt Gillis staged a break-in and made the call, so as to give the police an excuse to enter the place without a warrant. If defence were correct, then the entry would have been made in bad faith, and unlawfully.

In 2017, the Court of Appeal ruled that if the defence could show reasons to suspect that S.Sgt Gillis made the call, then the Crown had to prove that S.Sgt. Gillis didn't make the call.

Proving that something didn't happen is usually much harder than proving that something did happen. This was a challenge for the prosecution.

I learned today that at the retrial of Mr Dunstan, 2020 ONCA 145, the prosecution met that challenge: the evidence proved that S.Sgt. Gillis didn't cheat.

As I explained in 2017, courts are very sensitive to unlawful police activity, and will permit defence to explore it. When you exercise police powers, you are accountable. You are paid to uphold the law. Therefore you, more than anyone else, must obey the law. To prove your lawful conduct, it helps to keep good records.

2020.02.25 Possession - Who knew?

When you find contraband, you automatically infer that the person or people near it possess it. But to convict a person of possessing contraband, a judge will require proof that the person knew what it was.

A day after he returned from a trip to the Dominican Republic, Mr Lights, 2020 ONCA 128 had some friends over. Police raided his place. When the officers entered, he tucked a silver handgun under his legs. It was loaded.

He was charged with possessing a loaded handgun under s.95(1) of the Criminal Code. He beat the charge.

How?

Although the evidence proved that the possessed the handgun, nothing established that he knew it contained ammunition at the time he tried to hide it.

Sure, the apartment contained three boxes of ammunition for it. Sure, the act of hiding the gun made it clear that he knew he shouldn't possess the gun. But there were other people in the apartment, and he shared the place with his girlfriend. Somebody else could have loaded it, and he might not know.

Proof of the offence of possessing a loaded firearm requires proof that the person who possessed the firearm knew it contained ammo.

But wait. There's more.

A bag containing marijuana and cocaine sat in the front hallway.

Mr Light's apartment contained clues that he dealt in drugs: A vacuum sealer. A money counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and two cellphones.

The trial judge inferred that Mr Lights knew what the bag contained because drugs were necessary for his drug business. The appeal court rejected this inference. Mr Lights beat that charge too.

Who would a drug dealer associate with? Maybe other drug dealers. Maybe one of his friends brought some drugs over. Maybe one of his friends had not yet told Mr Lights about the drugs in the bag.

At law, "possession" = control + knowledge.

Could these officers or the prosecutor have done more to prove Mr Lights' guilt? I don't know enough about that case to criticize them. It may be they did all that could be done.

When you investigate contraband - be it drugs, child pornography or weapons - it's great to seize the stuff, but even better to discover who knew about it and how much they knew.


2020.02.17 Searching a Person for Weapons - What to Ask

When you detain a suspect - if you have reason to fear that the suspect might hurt you - you can search the suspect for weapons or other objects that the suspect could use against you. R. v. Mann, 2004 SCC 52.

One way you can do that is by asking the suspect if they have weapons or objects that could hurt you. R. v. Patrick, 2017 BCCA 57.

Usually, when you search a detained subject, you search before giving access to legal advice. At that early stage, you must hold off eliciting evidence about any criminal offence. You must focus your questions specifically on the safety issue: objects that could hurt you (or other officers).

An officer detained Ms Fead, 2018 CarswellAlta 3243 (Alta Q.B.) on a traffic matter, and because it appeared that there were warrants for her arrest.

The officer asked her a question during the initial safety search, to which she responded that she had cocaine and syringes in her shoe.

At her trial for possessing those drugs, her lawyer complained that the question violated her rights.

The summary conviction appeal court agreed.

The officer couldn't remember what question he asked. It could have been any one of the following:

  1. "Do you have anything that would hurt me, poke me, stab me?"
  2. "Do you have anything on you?"
  3. "Do you have anything that I need to be aware of?"
  4. "Do you have anything on you that you should be concerned about?"

Number 1 is fine. The others are a problem. Even if the officer thought he was asking about his safety, the detainee could reasonably believe that the officer asked about evidence.

If the officer had made complete notes, he might have been able to say what question he asked. He didn't.

Many of you ask this sort of question every day. I suggest that you draft a lawful question, and then always use the same wording in every safety search.

Unfortunately, I did not find this decision on CanLII. If you require a copy, email me.


2020.02.16 Prompt Disclosure

Late disclosure can blow up a trial. New disclosure can also blow up a trial, but nobody will blame you.

From time to time, inexperienced officers show up on the day of trial with some new information. Some new pictures. A document. A statement from a witness that was not previously disclosed.

Sometimes the new material actually matters. During the murder trial of Mr Jiang, 2018 ONCA 1081, the prosecution obtained some documents relating to the health of the defendant's mother. This mattered. His mother had the opportunity to commit the crime. But did she have the strength? The records touched on the answer. But Crown did not disclose them until after the defendant started testifying.

After the jury convicted him, he got a new trial. The appeal court judges agreed that the defence team might well have presented their case differently if they had known what those records contained. The fact that the prosecution team held the information back for several days annoyed the judges.

Don't emulate those prosecutors.

You and the prosecutor have duties to disclose all evidence promptly.

If your file contains relevant information, and you first disclose it to your prosecutor for the first time on the morning of trial, expect trouble. Judges hate late disclosure of information, and will heap scorn upon you.

But sometimes, you can't help it. Sometimes, you discover new evidence at the beginning, or even at the end of trial. Trial publicity sometimes stirs reluctant witnesses into action ... other evidence becomes available.

Nobody will blame your for disclosing new evidence when it arrives, as long as you disclose promptly. New evidence can also disrupt trials, but judges are more forgiving if they know you did your job.

So what's relevant?

Inexperienced officers think "relevant" evidence is the stuff that will help convict the defendant.

Sorta.

If it would help the defendant beat the charge, it's also relevant.


2020.02.15 Reviewing the Evidence

I don't know why Mr Al-Enzi, 2020 ONCA 117 first went to jail. While he was there, he assaulted a guy. Two other inmates, Mr Ali and Mr Elenezi also assaulted the victim. The victim suffered slashes to the face. Security video recorded much of the event. As usual for prison inmates, the victim claimed to have little memory of what happened to him.

Who slashed him?

The security video showed pretty clearly that Mr Al-Enzi carried something in his hand when he approached the victim. The video showed motions like slashing.

At the trial, the other two guys testified. They claimed that they wielded weapons which must have cut the victim.

Beware of such fellows, especially the ones serving life sentences. They aren't afraid of being charged with perjury because the only penalty is jail. And they are already in jail, serving life sentences.

The trial judge looked very closely at the security video. He watched the hands of the other two inmates, and could see that they didn't carry any objects before the fight, and they didn't dispose of any objects after the fight.

Neither the defence lawyer nor the prosecutor examined the video with the same care.

The judge's careful examination of the video led him to reject the evidence of Ali and Elenezi, and convict Mr Al-Enzi.

The lesson for for all of us is simple: after you collect evidence, spend some time considering it. You'd be amazed what you will learn if you read the victim's statement carefully, or watch the video carefully.

I've watched a fair bit of security video recently.

When security video records multiple views of multiple subjects of interest, I ask police to separate clips which track each subject from all the various views and put them into separate compilations. If I want to know what subject 1 did, I watch the compilation of clips that depict that guy. If I want to know what subject 2 did, I watch that compilation. This saves time: I don't need to watch the blank bits. Judges like compilations too. Court time is precious. Judges don't like watching long blank sections of video to see what happens next.

Whenever you collect security video, always:


2020.02.07 Interviewing Suspicious Witnesses - Kids under 18

Somebody stabbed Michael Cocomello-Mandino to death. Shortly before the stabbing, his phone exchanged 29 text messages, and connected 4 times for telephone conversations with a phone that Mr Joseph, 2020 ONCA 73 carried.

Mr Joseph was 17.

If you were investigating this killing, would you want to talk to Mr Joseph?

The investigating officers did not know what the messages said, but they knew they wanted to talk to Mr Joseph. They invited him to come to the police station. He came. With his mom.

The officers told him he did not have to give a statement. They told him that he could call a lawyer if he wanted.

Mr Joseph said things that that were provably untrue.

At trial, the prosecution used his statement to show how much he lied to the investigators at the beginning of the investigation.

After a jury convicted him, Mr Joseph complained that the trial judge should have excluded the statement. He said that the officers should have given him the waiver which section 146 of the Youth Criminal Justice Act requires officers to give when officers:

The court rejected the complaint. The police didn't detain or arrest Mr Joseph, nor did they have sufficient grounds to arrest him.

That last point is the tricky one.

A "person of interest" can rapidly morph into a suspect. When a young person of interest says enough to give you grounds to arrest, you must break your interview and deal with the young person the rights required by that section.

I noticed that the appeal court judges specifically commented on the fact that the police told the youth that he didn't have to give a statement, and that he could talk to a lawyer if he wanted. They liked that.


2020.02.02 Impaired Drivers - Right to Counsel - How Many Calls?

At 10:30pm, Mr Tahmasebi, 2020 ONCA 47 parked his car in a stranger's driveway and took a nap. Perhaps it was the painkillers he was taking. The stranger called the police. A police officer woke him and talked to him. He appeared confused. When the officer returned to his police car to turn on the dash-cam recording system, Mr Tahmasebi released the brake, which allowed the car to roll back into the officer, pinning him against his cruiser and injuring him.

An officer arrested him for dangerous driving. At the police station, he told another officer he was using an opioid analgesic. That officer re-arrested him for impaired driving and dangerous driving, and offered him an opportu