Summaries from: 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004

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 opportunity to get legal advice.

He took it.

Later, an officer demanded that he provide urine for analysis, pursuant to the demand sections of the Criminal Code.

He refused to pee.

At trial, he said that after such a demand, he ought to have been given further access to legal advice.

The judges all said "no".

Once you have told a driver that he's under investigation for driving / operation while impaired by drugs, he knows enough to get legal advice. If he does get legal advice, the lawyer should advise him what to do if officers make the routine demands for bodily samples for the purposes of investigating that offence. Therefore, you should not need to stop your investigation each time you make an additional demand.

This is the second appellate court to reach this conclusion. See also R. v. Fogarty, 2015 NSCA 6.

What does it matter? What harm could there be in offering the subject further access to counsel after every demand?

Delay.

All of the screening, analysis and evaluation demands in sections 320.28 require prompt action. "Immediately" or "as soon as practicable". No delay. No dilly-dallying.

Offering the subject unnecessary legal advice delays the gathering of evidence, and could result in exclusion of the results.

Particularly when investigating drugged driving offences, you want to get your bodily samples done before 2 hours expire, because that is the way that the offence is defined.

But if subject fails or refuses to comply with an analysis or evaluation demand, then offering them more legal advice may be appropriate:

  1. By failing or refusing, the subject causes delay. If you think that giving the subject more legal advice will get results faster than cajoling him, then pick up the phone and call the lawyer.
  2. When your suspect fails or refuses to provide you the sample(s) you lawfully demanded, he commits a new offence. Hey! You are in the business of preventing people from committing offences. If you think that giving the subject more legal advice will dissuade him from committing a new offence, then pick up the phone.

If your difficult subject does get further legal advice, make sure you give the subject another chance to comply.


2020.02.02 Exclusive Opportunity - Forensic Photography

Two men went into a room. One came out. The other died of a stab wound. What killed him?

Mr Camille, 2020 BCCA 32 shared a room with Mr Adolph. Security cameras in the building showed both went into the room. Only Mr Adolph emerged.

Did he kill Mr Adolph?

Mr Camille reported to the building manager that Mr Adolph died. Police attended, and found a stab wound in Mr Adolph's side.

Maybe he killed himself by accident?

Police found a knife of about the right size in a dresser, under some clothes. It had Mr Adolph's blood on it, as well as some of Mr Camille's DNA.

Mr Adolph's blood contained 400mg%. Really drunk. Really clumsy. A pathologist said Mr Adolf would have died in minutes.

There were no blood stains on the floor between the dresser and where the body lay. It wasn't likely that he put the knife in the dresser himself. Somebody else did that.

If Mr Camille removed the knife from Mr Adolph's side, why did he hide it other than to cover up his own misconduct?

The trial judge convicted Mr Camille, and the Court of Appeal upheld it.

I found the facts of this case interesting from an investigative standpoint. Getting the details right made this case stand. It's a short decision. You might find it interesting too.

"Exclusive opportunity" - we use this phrase when the evidence shows that nobody but the suspect could have been present when the crime occurred. When investigating whodunnit, it helps if you can account for every person. Video cameras sometimes provide this evidence. Other times, neighbours can give this evidence.

But exclusive opportunity didn't tell the whole story. In this case, subtle pieces of evidence made a huge difference:

  1. The absence of bloodstains on the floor tended to show that the deceased did not walk around after the stabbing. How do you investigate something that isn't there?
  2. the presence of clothing on top of the knife in the dresser tended to show that the killer hid the knife. The clothing was important. How do you know when innocent things matter?

Photographs help.

If taken properly, they preserve the scene so that after you figure out what's important, you can go back to them and look.

But they help only if you photograph the whole scene. With experience, officers tend to focus their cameras on more than the interesting thing. They photograph the area around it.

Inexperienced officer Experienced officer Forensic photographer
The dead body The dead body and the bed where it was found The bedroom, the floor, the bed and the body
The knife The knife in the drawer The clothing in the drawer on top of the knife
The wound The wound and some of the body for context The whole body - injured and uninjured parts

I don't suggest that first responders should spend hours photographing the whole residence where a domestic assault occurred. But a couple of shots of the crime scene will make it easier for the victim in court to describe the place where the assault occurred. I don't ask first responders to strip a battered wife naked and photograph every inch of her skin, like an autopsy. But you might photograph the absence of injuries on the suspect. Or if you're interested in a bruised left cheek, you might take another photograph comparing right and left cheeks.

2020.01.19 Cell Tower Dumps - Minimizing the Private Information - Who Correlates the Data?

A gang robbed commercial truck drivers. The investigators figured that the gangsters needed to follow their targets in several vehicles, and to communicate using cell phones.

Therefore, police sought cell tower dumps for all cell phones in the vicinities where the robbers went to track the their victims.

Once police got the data, they combed through it to find which cell phone numbers showed up in the dumps of each tower.

That led the investigators to Mr Baskaran, 2020 ONCA 25 and his buddies.

Once busted, they complained that the police obtained too much private information. Police didn't need to know the identities of all the people in the areas of those cell towers - that could amount to thousands of people. Police only needed to know the identities of the people whose cell phones connected all of the towers. That would be just a few.

The judges agreed that cell tower dumps do deliver large quantities of personal information. Production orders should minimize intrusions of privacy as much as possible, while still permitting police to pursue proper investigations.

The judges liked the fact that the police sought data relating to narrow windows of time: 40 minutes of data from one tower, 10 minutes of data from another, 15 and 20 minutes from the other two. The judges agreed that in future, police who seek tower dumps should try to narrow the data even more.

If the cell phone companies are willing to do a little bit of data sorting, there is a way.

If you think your felon used a cell phone in the vicinity of four different cell towers, your production order might ask for tower dump information and subscriber information for only those cell phones that two or more cell towers logged. That could dramatically reduce the amount of personal information you receive and sort through, without losing leads.

As a computer guy, I know of easy ways to do this kind of sifting. The telephone companies likely employ people who have greater proficiency in this than me.

2020.01.19 s.25.1 Authorization - Getting it Right

In order to investigate a drug operation, police staked out a residence. They trespassed on a neighbor's property to do it.

From there, and from a ditch, police officers heard gunshots, and saw people carrying guns. They got a warrant and busted Mr Roy and Mr Biesinger, 2020 ONCA 18 for guns and drugs.

At trial, defence attacked the investigaton. The police gathered evidence by breaking the law. They trespassed on the neighbour's land! Defence asked the court to stay the charges.

The investigating officers considered this. A senior officer got some advice about s.25.1 of the Criminal Code. It turned out to be bad advice, though I'm still not clear from reading the trial and appeal decisions what they got wrong. (I'd be grateful if someone who knows could fill me in.)

In any case, the ITO failed to mention this reliance on s.25.1. It should have. For some reason, the officer in charge didn't explain it to the affiant.

The trial judge found that the police acted in good faith by getting legal advice, and that the omission wasn't a big deal. The court of appeal agreed. The defendants remained convicted.

Section 25.1 authorizes police to do things that would otherwise be offences. It's exceptional. Those of you who use it should follow its requirements carefully. It requires public accountability. Write out your authorization carefully. Follow it. Make reports afterwards. Don't cover it up. Tell the courts what you did.

2020.01.19 Affiants and Subaffiants - Preparing for Cross-examination

When drafting the warrant to search a place, the affiant in R. v. Roy, 2020 ONCA 18 phoned officers who staked the place out, and saw interesting events.

Smart.

An affiant wants to get the evidence right. Phone them at home if you have to.

The affiant wrote notes about what they told him.

Smart.

An affiant can expect to be cross-examined on the details that s/he writes in the ITO.

The officer who received the phone call at home wrote no notes about the conversation.

Ooops.

At trial, that officer testified that he had no memory of even having the conversation. Indeed, by trial, he remembered the details a bit differently.

That made it look like one of them was a liar.

If you are an affiant, and you get information in conversations, you might want to emulate the smart affiant, and write some notes about that conversation.

If an affiant calls you and asks you questions about what you saw, you might want to write some notes about the conversation, in case you get cross-examined.


2020.01.18 Innovative Investigative Technique - Replacing the Murder Weapon

Someone bludgeoned Ms Gill in her own home, using a bar from a weight set. The attacker slashed her throat with a knife. After the killing, someone hid that bar in the basement, in Christmas present box.

When searching the home after the murder, police found and seized that hidden bar. But they suspected that the deceased's husband, Mr Gill might have killed her. So they put a matching bar in the Christmas present box. They got a warrant to watch the box, and installed a hidden camera.

That camera captured Mr Gill retrieving the box and hiding the replacement weight bar. Mr Gill's lover, Ms Ronald, 2019 ONCA 971, also hid evidence. Her DNA was on the knife, and the gloves that the killer used.

A jury found them both guilty of first degree murder: they planned it together, and she did the killing. On appeal, the court found that the trial judge made errors in the final instructions to the jury, and ordered a retrial.

I have no doubt that the next jury will see what the hidden camera recorded.

Drug investigators often replace intercepted drugs with innocuous substitute. I rarely see this technique used in other investigations. Tracking devices hidden cameras are cheaper and cheaper, but obtaining lawful authorization remains essential, and time-consuming. But this case illustrates that it can pay off.

I'll bet these investigators were glad that after looking inside the box, they did some outside-the-box thinking.

2020.01.18 Prompts and the Promptness of Statements

What access to independent material should you give witnesses before taking a statement from them? How much time should pass between a traumatic incident and the taking of a statement?

Not only do investigators think about this, but so too do the investigators who investigate investigators.

British Columbia's Independent Investigations Office investigates violent incidents involving police officers. Where the police did nothing wrong, it can exhonorate them. Where the evidence suggests that an officer committed a crime, it forwards a report to prosecutors.

After a Vancouver police officer shot a man dead, the IIO demanded that other officers involved in the case give statements. Before giving statements, the officers asked to review dispatch communications, radio broadcasts and videos that captured their words or actions.

The officers refused to comply. The IIO took them to court, asking for an order that requires police to cooperate with their investigations, in the manner that they decide. IIO of B.C. v. Vancouver P.D., 2020 BCCA 4

I suspect that the police officers worried about events like the death of Robert Dziekanski and the inquiry that followed. Police officers are human, and may make mistakes about what occurred. In that case, police officers killed a man when trying to subdue him. After the incident those officers provided similar descriptions of what occurred.  Video evidence established that their versions were inaccurate. That gave the impression that they colluded to cover-up what happened. One officer was convicted of perjury, and another of obstruction of justice.

No officer wants to be charged with offences of dishonesty. Police officers who review the communications, radio calls and video are less likely to make errors that can be contradicted.

But IIO investigators want to use that independent evidence to assess the reliability of the statements that they gather.

I sympathize with both sides.

It looks bad when a police officer gets the facts wrong.

High-stress situations like police killings cause human beings to focus selectively, and remember inaccurately. Some research suggests that it takes two sleeps for a person who underwent a stressful event to consolidate their memories. Police officers justifiably fear that they will get details wrong if they lack time to process what happened.

Officers may fear that without external information to sort out what occurred, they may get facts wrong, and be suspected of dishonesty.

On the other hand, the IIO has justifiable fears. Police work creates close bonds of camaraderie. Although the vast majority of police officers respond honourably and honestly, IIO investigators must collect information quickly in order to avoid deliberate or unintentional collusion between witnesses. IIO investigators want collateral information in order to assess the accuracy of an officer's memories.

People will continue to debate the ideal way to investigate police. But this case raises some principles common to all investigators:

  1. When investigating violent or traumatic incidents, investigators should be aware that the witnesses may not give their best account immediately after the event. For completeness, a follow-up interview may obtain more information. Investigators and decision-makers should never expect a perfect recollection of a stressful event. Human memories don't work that way.
  2. When investigating incidents which involve groups, investigators should try to get the witnesses' individual accounts before they discuss the events among themselves. Indeed, investigators should urge witnesses not to compare accounts until all legal proceedings complete. Never take joint statements.
  3. Investigators should always seek independent evidence that confirms or rebuts what the witnesses say in their statements.
  4. If a witness reviews that independent evidence before giving a statement, it may prompt more detail and greater accuracy, but the prompt is no longer independent. It no longer assists a decision-maker in corroborating the account. Therefore, you may want to obtain a "pure version" before prompting the witness with the independent information.

These principles apply to all investigations, whether your target is a graffiti artist, a violent spouse, a police officer or a mass-murder.


2020.01.12 Detention - "Non-Custodial Interview" During Execution of a Search Warrant

You know - or at least you ought to know - that a search warrant does not empower you to arrest anyone. When you enter to search, you need separate authority to arrest the people you find there.

However, you can control their movements to the extent necessary to secure the residence and perform the search.

Does that control trigger a "detention" for the purposes of s.10 of the Charter?

When police searched the residence of Mr McSweeney, 2020 ONCA 2, his wife and children were home. The warrant authorized the officers to search for child pornography. The officers sequestered the family in the living room and prevented them from using electronic devices. It was only 6:00am. A school day for the kids, but a bit early. The officers told the family that they were free to go if they wanted. They stayed.

An investigator invited the wife to step outside for an audio statement. She agreed, and answered questions. She asked for permission to get the kids ready for school.

The investigator invited the defendant outside for a recorded statement too. The officer gave no formal cautions or warnings, but did tell the Mr McSweeney that he suspected him of responsibility for child pornography in the residence. The officer told Mr McSweeney that he didn't want to interview the kids, and asked if it was his. Mr McSweeney admitted it. Later, after talking to a lawyer, he gave another inculpatory statement.

The trial judge found that the officers did not detain Mr McSweeney, and they did not trigger the obligation to offer him access to counsel as required by s.10(b) of the Charter. The trial judge admitted.

The appeal court disagreed. They found that the context qualified as a psychological detention. The failure to offer Mr McSweeney counsel violated his rights, and both statements should have been excluded from evidence.

The "non-custodial" interview does not trigger s.10. But merely telling a subject that he's free to leave does not necessarily stop the trigger. These officers made rules for the residents to follow in their own house. The officer who questioned McSweeney asked questions focussed on child pornography. The appeal court found the situation sufficed to cause a reasonable person to feel that he is detained.

I noticed that the investigator never gave Mr McSweeney clear advice that he did not have to answer the officer's questions. Although that failure really addressed the voluntariness of Mr McSweeney's answers, I think the judges disliked the whole set-up.

You might be able to avoid triggering s.10 of the Charter when executing a search warrant; but when you invade a man's home, and instruct him what he can and cannot do, that trigger will likely fire. To release him from that deemed detention, you probably need to do more than merely say "you're free to go if you want".

2019 Developments

2019.12.18 Good Bye "Promise to Appear" - The New Release Forms

Today, the Criminal Code changed again, this time affecting the documents you use to compel people to attend court.

You should have received new forms to use. You should have received some training. I hope that all of you did.

I heard a prosecutor today say that police should throw away the old "Appearance Notice", "Promise to Appear" and "Undertaking" forms in your possession. Those documents are repealed. Start using the new ones.

I agree.

But if an officer screws up and uses the old forms, not all is lost. If a justice of the peace or a prosecutor complains, ask them to review s.849 of the Criminal Code and s.32 of the Interpretation Act.

Backstop - Forms for the Forgotten Line Officers

But just in case your police force didn't deliver the new ones in time, here's something to keep you going until the standard forms and training arrive.

I copied the new forms right out of "Bill C-75", and turned them into word processor documents. I didn't make them pretty, but they do follow what the legislation requires. You can download them and print them. You might want to improve my formatting before you do.

Appearance Notice
Undertaking

If you serve one of these on the defendant, give the defendant a copy and keep the original for the court.

The new Appearance Notice you should use like the old appearance notice. But there's a new feature. When someone commits a victimless breach of bail, you now have the option of referring the defendant to a "judicial referral hearing" instead of laying a new charge. In my opinion, you should use this option for only the most minor of breaches until you and your prosecutors get used to this new process.

The new Undertaking combines the functions of the old PTA + Undertaking or Recognizance. One document, not two. The conditions and circumstances under which you use it are mostly the same as before.

New Principles, Just Like the Old Principles

The amendments introduced some new sections that tell you to maximize the liberty of defendants. They appear in the Part of the Criminal Code that governs arrest and release of suspects.

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) ....

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and

(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
495.1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524.

When you reviewed the new s.493.1, I hope you asked yourself "what does s.498(1.1) say?" If you didn't, then I suggest that you go back and read s.493.1 again.

Here's what s.498(1.1) says:

(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

I hope you're already doing these things anyway!

2019.12.16 Tunnel Vision - Hearing What you Want to Hear

Robbers shot an owner of a beauty salon injuring him. In-store security video recorded the events, but could not identify the robbers. They wore masks. Among other things, they stole watches.

A standard "Who-Dunnit?"

Investigators developed a theory and obtained search warrants. At trial, defence counsel complained that the warrants should never have been granted. The Court of Appeal agreed, and threw out the case.

Licence plate

An eyewitness saw the robbers leave the store. She told the 911 operator they got into a “silver or light blue car”. She said “I think the plate was B-M-P-2”, “B-M-P-T-0-2 something like that … I didn’t get a clear look”. In a police statement, she described the vehicle as “light blue or silver colour. It was clean, newer.” She then recited the licence plate as "BNPT02".

A man across the street saw two or three men in a “shiny silver/grey Dodge, maybe a Charger 4-door” parked in the parking lot across from the Pura Vida Salon. One of the men appeared to be wearing a red shirt. He said he “saw the same car later at the business”.

That night, police searched only the licence plates BMPT020 to BMPT029. 9 cars. They did not research any licence plates using the BNPT series.

They found that plate BMPT 020 was registered to a charcoal grey rental vehicle rented to the father of a known criminal, Mr Booth, 2019 ONCA 970. The rental agreement described the vehicle as "black".

They stopped looking for suspect vehicles, and focussed on Mr Booth. When watching him, they saw him associate with a guy named Rouleau.

Watch

The robbers stole two high-end watches. Security video from a taxi captured Mr Rouleau discussing his watch with an associate shortly after the robbery - something you would expect a proud new owner to do. Other security video showed the watch he was wearing. Police showed that video to the owner from whom it was stolen. They asked if he recognized it. He said "No, not this one."

Language Betrays Beliefs

Did the investigators suffer tunnel vision? What the officer wrote in the ITO suggests it. The investigative theory was that the "light blue or silver" car was actually the "charcoal grey or black" car rented to Mr Booth's father, and the watch which the owner didn't recognize actually belonged to him.

The application for a search warrant to search Mr Booth's house recited the information described above this way:

There are two possible explanations for these problems: police deliberately mis-stated the evidence because they believed that Booth and Rouleau were the felons; or haste and the excitement of the investigation made them sloppy.

Defence accused police of bad faith. (Did defence believe what they wanted to believe?)

But it's important to consider the alternative: the officer jumped too quickly on one suspect, without considering other possibilities. Would a search of other licence plates have led to other suspects?

Second warrant

The search of the residence turned up no evidence related to the robbery. But police did find a video security system, which they seized, in the expectation that it would reveal what Mr Booth wore at the time of the robbery.

It sure did.

It showed Mr Booth wearing clothes similar to one of the robbers.

But the second ITO was worse than the first one. This described only the evidence which supported the investigative theory, and omitted all inconvenient weaknesses. It failed to mention that a search of the residence found nothing related to the robbery.

Conclusions

The trial judge found that the police acted in good faith, but made mistakes. The appeal court held that those mistakes, once corrected, required exclusion of the security video. Without that evidence, the prosecution's case was too thin to support a conviction. Mr Booth beat the charges.

For officers who draft ITOs, the lessons are simple: check your facts. Quote the important stuff so that the justice knows what information you actually have. Tell the justice the bad news about your investigation.

For all investigators, the lessons are also simple:

An investigation is complete when you canvass all reasonably available sources of information.

For an investigator, confidence is a trap. Believing you know the answer is no substitute for complete investigation. The Booth investigation and prosecution would have been much stronger if the licence plate search established that no other similar licence plate was attached to a similar vehicle. If other similar vehicles bore similar licence plates, then someone needed to establish alibis for their owners.

This principle applies in small investigations too. When a witness tells you that they were assaulted, you should not stop investigating just because you believe them. You look for injuries on the witness and the assailant. Photograph the scene. Search out independent witnesses. Ask the alleged assailant what he or she says happened.

Tunnel vision is real. Humans suffer "confirmation bias" - the tendency to accept information which conforms to their beliefs, and to ignore contradictory information. (This tendency partly explains the current polarization of American politics.) For you to defeat it, you must accept that you are vulnerable to it.


2019.11.15 Small Fish, Big Fish, and Netting them Together

When you investigate the big fish, you often gather information about the crimes committed by the minnows around him. If you bust the minnows, the big fish will hide. Therefore, it makes sense to bust them all together.

Police investigated a weapons dealer, Mr M.D., using undercover officers, wiretap, and a crook acting under their direction. From the agent, they learned that Mr James, 2019 ONCA 288 supplied M.D. with cocaine, and spoke of a meeting in which a kilo would be bought.

23 days later, relying on information from the crook, the officers obtained a warrant to search Mr James' house and car for “Cocaine; Packaging Materials; Cellular phone(s) associated to [a specified number]; Debt List(s) (Handwritten and or Electronic).”

The police busted him, and found drugs and firearms.

The trial judge threw out the evidence for various reasons:

The trial judge didn't like the idea that the police waited 23 days to execute their warrant. If they wanted to bust Mr James, they should have acted immediately when they had grounds. If they considered him small fry, they they should have ignored him and pursued Mr M.D. instead.

The Crown appealed. Two of three judges in the Ontario Court of Appeal agreed with the trial judge. But not Justice Nordheimer.

The Crown appealed again.  James, 2019 SCC 52 Five of nine judges in the Supreme Court of Canada agreed with the Crown. Overall, more judges agreed with the defence than the prosecution, but the prosecution won where it mattered.

What does that teach you?

The appeal judges all agreed that the trial judge was wrong about the racist quotes. Summarize minor details, but quote key information, no matter how rudely it might be expressed.

The appeal judges all agreed that the trial judge was right about the missing information. Officers who prepare warrant applications routinely rely on police databases. Those record arrests, and sometimes charges. But what happened after the arrest? Judges work hard on trials. You offend them if you treat their work as irrelevant. If your ITO mentions an arrest, look up what happened to the charges after the arrest, and report that.

Was the ITO stale? The judges disagreed. But Justice Nordheimer pointed out that "stale" depends upon what the officers were searching for.

If the officers just wanted the cocaine, then maybe it was stale. Evidently, reasonable minds may differ. But these officers were investigating M.D.. If they found evidence that showed that Mr James did possess cocaine 23 days earlier, that would support the credibility of their shady agent. The officers didn't just want the cocaine. They wanted cell phones, packaging materials and debt lists. If they could corroborate their shady agent, then they would have a stronger case against the gun dealer. The cell phones were really important evidence because they would contain communications between M.D. and James.

A simple ITO will ask for authority to search for contraband ("cocaine") or the thing used in an offence ("the bloody knife"). A sophisticated ITO explains the need to search for evidence of the offence ("packaging materials", or "blood, or traces of human bodily substances"). If you keep the difference in mind, you can identify probative things that will likely still be in the place long after the cocaine or the bloody knife have disappeared.

Must the fisher always let the little ones go?

Justice Nordheimer also rejected the idea that you must always pick one target and abandon the others. So long as you have grounds to justify the searches at the time you do them, you have no obligation to reveal your investigation at the first opportunity. Depending on your evidence, the wisest course of action is often to net them all together.

Of course, other times you need to abandon the investigation of some in order to catch others. Good luck making those judgment calls!!

2019.11.13 Equipment Check

Have you checked the functioning of the devices you rely on?

When Ms Domanska, 2019 ONCA 893 crashed her car, she hurt others, and she hurt herself. She smelled of liquor. She admitted drinking ... but only two glasses of wine.

The hospital tested her blood. I'm pretty sure the result of that test showed she drank a lot more than two glasses of wine. But there the judge found a gap in the evidence which linked the sample which the hospital staff  took from Ms Domanska to the piece of paper that reported how much alcohol the lab found in it.

Proving continuity involves more than writing down which police officer seized an important exhibit. Who handled it before police seized it?

But there was another problem. An officer brought a breath-testing instrument to the hospital. It malfunctioned. No breath test evidence either.

Ms Domanska beat the charge because the equipment broke.

Is your equipment all in working order? In a recent case of mine, an officer recorded a crucial witness at a hospital ... until the batteries ran dry. (Most cell phones can act as back-up recording devices ... if you figure learn how to use them that way.) Is your camera set to the right date and time? (Remember, we just changed the clocks.) Do your defensive weapons work?

Be safe out there.

2019.11.12 Charter Breaches - Get out of Jail Early Card

Upholding the law by investigating offences does not give you the right to break the law by violating lawfully-protected privacy.

A man went shopping for a house. A real estate agent took him through an interesting place in the small town of Zealand, N.B.. On the deck and inside, he saw tools clearly marked "Charmac Construction". This man knew that Charmac Construction recently suffered a substantial burglary. The man went to local police, and told them what he saw.

The police didn't have time or staff to get a warrant that night. They decided to post a single officer outside the house to guard it pending the granting of a search warrant. So they went to the house, and arrested Mr Kennett, 2019 NBCA 52 and another man, whom they found at the place. The officers cleared the residence. And through the outside windows, they took some photographs of the tools inside. One officer seized a cell phone from Mr Kennett. That officer perused the cell phone's contents, looking for evidence. Without a warrant.

They came back later, and seized the stolen property ... and some drugs.

The trial judge didn't like the warrantless search of the house (neither clearing it, nor the photography). The trial judge didn't like the warrantless search of the phone. But the trial judge agreed that the search warrant was properly issued, and convicted Mr Kennett of possessing stolen property and drugs.

The Court of Appeal reduced Mr Kennett's sentence by 6 months by reason of the Charter breaches.

This case doesn't discuss the lawfulness of clearing a residence pending the execution of a search warrant. You don't have an automatic right to walk through the place. If you have reason to fear for the safety of officers holding the scene, or reason to fear that evidence will be lost, then doing so doesn't violate s.8 of the Charter.

But the other breaches were clearly a problem.

Officers should take photographs when looking for evidence. But when you're clearing a residence in order to hold the place pending the granting of a warrant, you have no right to search for evidence. Officers should search cell phones of culprits. But you need compelling reasons to do so as an incident to arrest.

Mr Kennett got a significant discount on his sentence as a result of these breaches.


2019.11.12 Diligence Confirming a Source

Back when marijuana was still prohibited, a tipster of unknown reliability told police that “Rob” was growing marijuana and possessed firearms and other weapons at an apartment. Police applied for, and obtained, a warrant to search the apartment. They found Mr Labelle, 2019 ONCA 557, wearing only a towel (he had just showered). And they found guns.

At trial, defence attacked the warrant application. To protect the informant's identity, police redacted much of the Information To Obtain before disclosing it to the defence lawyer and the trial judge. What remained did not clearly show why it was reasonable to believe the tipster.

At the trial, defence counsel asked the officer who applied for the warrant whether he checked apartment address on the firarms registry, to see if anyone who lived there could lawfully possess firearms. The officer admitted he didn't.

Then Mr Labelle's girlfriend testified that she possessed such licences at the time, and that it was her apartment.

Oops. Maybe the officer should have checked that registry.

Anyway, the case grew complicated. Crown cross-examined the girlfriend about who lived there. She testified that Mr Labelle never lived there, and visited only occasionally. Crown switched gears. Crown argued: if he was just a visitor who didn't live there, then he had no expectation of privacy in the apartment. If he had no expectation of privacy, then he had no standing to attack the search warrant.

That worked at trial. The judge dismissed the defence attack on the warrant.

The rest of the case proved that the girlfriend lied about his occupancy of the apartment.  The trial judge convicted him.

Then R. v. Jones, 2017 SCC 60 happened. The Supreme Court of Canada held it was unfair for the Crown to take conflicting positions at trial. The Crown can't argue both that the defendant lived there and that the defendant didn't live there.

Because of the change in the law, Mr Jones gets a new trial. He gets to attack the warrant again. Who knows what his lying girlfriend will say this time.

Before you apply for a warrant based on a confidential source, try diligently to gather information from independent sources that confirms or rebuts what the source told you.

2019.11.09 Proving Good Conduct can Help Prove Bad Conduct

Not long ago, a case came across my desk of breach involving the breach of an abstention condition. An analysis of the suspect's urine revealed that it contained the metabolite of an illegal drug. But some metabolites can linger in the body long after the drug is gone.

Did the suspect use the drug before or after the abstention condition took effect?

I asked the investigator to dig up more evidence. Fortunately, the suspect had provided an earlier urine sample. Analysis of that sample did not detect the metabolite. That 'clean' sample occurred after the abstention condition came into effect.

In order to prove the crime, not only did I need the evidence of bad conduct, but I also needed evidence of prior good conduct.

The same sort of issue arose in Zeitoune, 2018 ONSC 2846. Ms Zeitoune had a job processing passport applications. She approved 24 applications that turned out to be fraudulent. She didn't do the background checks that she was supposed to do.

Investigators had reason to suspect that she received money to issue fake passports.

The prosecution asked the trial judge to convict her of breach of trust, fraud and forgery. To succeed, the evidence had to prove that she knew that these applications were fraudulent when she approved them for passports.

The prosecutor pointed to the evidence that she failed to do the background checks that policy required her to do. The judge commented that this didn't prove knowledge. Maybe she was just bad at her job.

The evidence would have been more compelling if the prosecution showed that she did the background checks properly on other passport applications, but not these ones.

As it turned out, there was lots of other evidence, and the judge convicted her.

My point is that investigating an aberration from a routine may require some evidence of the routine.

In this case, her supervisor testified about what Ms Zeitoune should have done. What the prosecution didn't present was evidence that Ms Zeitoune actually followed the protocol on other occasions.

2019.11.02 Right to Counsel - Promptly Explained and Promptly Given

Section 10(b) of the Charter gives detained person the right to "retain and instruct counsel without delay", and the right to be told "promptly" about that right.

Police officers busted Mr Noel, 2019 ONCA 860 with a bunch of cocaine and money in his bedroom. When they executed a search warrant, they found him there. It seems that they had good reason to use a "dynamic entry" - that is, they went in hard and fast.

After handcuffing him, the arresting officers didn't immediately explain his rights to him. Instead, according to a pre-arranged plan, they brought him to a central place where another officer got it done within 5 minutes of the initial entry.

Mr Noel said he wanted to talk to a lawyer. Instead of arranging it there and then, the officers took him back to the police station. On the way, Mr Noel told the officer that the drugs were his, and not his brother's. When they arrived at the police station, the officers did nothing about giving him access to counsel for three hours. I gather that nobody could actually say whether he ever got the access to which he was entitled.

The Court of Appeal threw out the evidence of the drugs and money. Mr Noel beat the charges.The judges made it clear that they wanted police officers to learn from this case.

What can we learn?


2019.11.02 Chaos and Fundamentals - Keeping your Head when People Around you Lose Theirs

Shortly before Remembrance Day, the BC Supreme Court convicted the man who murdered Cst John Davidson, an officer who was executing his duty.

Before discussing the lessons one may draw from the trial, one can remember the officer, the man, and the respect he earned at such a price. I thank all officers who keep the peace in Canada, knowing the dangers.

A man went to a car dealership and test-drove a black Ford Mustang. He didn't return it. The action began in a mall parking lot where salesmen from the dealership found the vehicle parked in a stall. A salesman blocked it with a pickup truck. When a man turned up wanting to drive the Mustang, a salesman told him that police were coming. The man produced a rifle, and shot the pickup truck. He got in the Mustang, and tried to ram his way out. The Mustang then drove onto a sidewalk, and drove away.

Cst Davidson drove to the mall. He arrived at another part of the mall, in the parking lot. There, eyewitnesses heard shots fired. One of them saw an officer on the ground, and a man shoot him in the back. That man got into a black Mustang and drove away.  It ended a short distance away where police arrested Mr Arfmann, 2019 BCSC 1618 after forcing his car off the road.

Police officers poured in to help.

According to some, the result was "chaos" at the scene of the arrest.

Six officers remembered the positioning of the rifle in Mr Arfmann's vehicle differently. About 7 different officers possessed it before it reached exhibits. This gave defence an opportunity to attack continuity. Was the gun in court the same gun as the one taken from Mr Arfmann?

Someone wisely gathered all the eyewitnesses at the mall. Unfortunately, gathered together and waiting, they started to talk among themselves about what they saw. One of them had taken a picture of the man who argued with the salesmen. Eyewitnesses who saw the shooting saw the photo. It got into social media.

You can do a lot of damage to an identity case by showing an eyewitness a single photo and asking "Was that the felon?" Later, in court, does the eyewitness now recognize the defendant as the shooter from seeing the shooting, or from seeing the photo?

As a result of this concern, the judge discounted much of the identification evidence of the eyewitnesses.

Nobody showed those eyewitnesses photo lineups. The first time that they formally identified the defendant was in the court room. Defence successfully persuaded the judge that this kind of identification is worthless.

Defence criticisms of the investigation did Mr Arfman no good. Forensic evidence and security video proved that Mr Arfman was the man, and that the rifle in his possession fired the bullets.

But we can learn from this investigation, regardless whether you investigate big cases or a little ones. The fundamentals at issue remain the same:


2019.10.26 Reasonable Grounds - How Sure do you Need to Be?

Police officers watched Mr Glendinning, 2019 BCCA 365 stop his truck for brief interactions with two pedestrians. The officers knew that the first of the pedestrians used drugs, and was hanging around an area known for drug use. After the second interaction, the officers arrested Mr Glendinning. When they searched him they found drugs packaged for sale.

Mr Glendinning complained that the officers breached his rights. He said they acted without sufficient evidence to justify the arrest.

About a decade ago, the Criminal Code permitted officers to make breath demands when they had "reasonable and probable" grounds to believe they were too drunk to drive, but it authorized officers to arrest suspects when the officers had "reasonable grounds" to believe that the suspect committed a crime like drunk driving.

It looked silly. What was the difference between "reasonable grounds" and "reasonable and probable grounds"? Nobody knew.

Parliament fixed the problem by removing the words "and probable" from all the places where the legislation empowered officers to act on "reasonable grounds".

To arrest someone, you need "reasonable grounds".

The lawyer acting for Mr Glendinning asked the court to put those words back into the Criminal Code, and not just in the drunk driving sections, but everywhere. The judges refused.

But the idea raises a perennial question: "How sure does a police have to be before the officer can make an arrest?"

The court said at para 3:

In my opinion it is also well-established that “reasonable grounds” imports a test or standard that is lower than the standard of civil proof, or proof “on the balance of probabilities.”

That doesn't make any sense! How can officer to claim s/he "believes" in the guilt of the accused if the officer is only 40% sure? The standard of belief for a police officer must be more than 50%!

Actually, it does make sense. But only if I tell you the secret: There are two different decision-makers: judges and cops. For each there is a different standard. The court wrote the Glendinning decision for judges. The court did not answer the question "how sure must a police officer be?"

At the time that the cop exercises one of these powers, the officer must "believe" that the suspect is guilty. After the fact, the judge must determine whether it was reasonable for the officer to hold that belief.

In other words, the judge doesn't have to believe that the suspect is guilty even on a balance of probabilities. The judge needs to know you weren't just guessing, or relying on hunches, but acting reasonably at the time.

The astute officer will now realize that I have not answered the question "How sure do you have to be?" That astute officer is now saying "C'mon Henry, is it 50%, 75%, 99% or 100% sure?"

It depends. (Click for an explanation of "it depends".)

Okay. For those of you who clicked the button, here's what it depends on:

You.

Specifically, your ability to articulate.

If acted on a hunch, then it doesn't matter how sure you are. Even 100% sure isn't good enough. The judge won't find your action reasonable.

If you can explain how your observations and experiences linked together so that the judge sees why it was logical for you to believe that the suspect was guilty, then "51% sure" is good enough.

Read the decision to see how these police officers satisfied the court that they had "reasonable grounds".


2019.10.19 Search Warrants - Execution - Freezing the Scene

To freeze a scene pending the granting of a search warrant, you need reasons.

Using the name "Wayne Douglas", a man in his 60's used Facebook Messenger to communicate with poor children in the Philippines. He persuaded them to perform sexual acts for him on video, for money. He sometimes paid their mothers to participate. He often visited the Philippines, and promised to visit them, and have sex with them for money, if they retained their virginity for him.

Police suspected Wayne Douglas Brown, 2019 BCCA 346. They went to his place, and asked about him. A woman who lived there told police he was out at the A&W. The officers went there and arrested him. Then they returned and froze the residence until a search warrant could be obtained. Checking for people, they looked into his room and saw his laptop and an iPad.

They got a warrant, searched his place, and found lots of evidence that linked Mr Brown to the international luring.

Mr Brown complained that freezing the residence was a warrantless search, and that the officers lacked grounds in his case to do that. The trial judge agreed.

Usually, there are two justifications for clearing a residence of people before obtaining a warrant: safety of people or preservation of evidence.

At trial, an officer explained that both applied: He didn't want anyone to destroy the evidence on Mr Brown's electronic devices, and if they posted officers at the house, those officers might be endangered if there were unknown people in the residence.

The trial judge found those explanations too thin to justify this power of freezing the scene. There was little evidence from which to infer that someone would destroy evidence, and the only information known to police was that the woman was alone at the house.

The judges agreed that the police breached Mr Brown's rights of privacy by entering his house and his bedroom. In this case, however, they also agreed that the breach was pretty minor, and they allowed the evidence in. They had grounds to believe the place contained evidence; they got a warrant and executed it, searching the same places; and when applying for the warrant, they asked the justice of the peace not to rely on the information they obtained in the first search.

Lessons to draw from this case:

2019.10.10 Firearms - Tricky Definitions

The Criminal Code defines things in unintuitive ways.  Even when you're pretty sure what it says, read the legislation again. For example, what is and isn't a "firearm" depends upon what the thing does, and which charge the defendant faces. eyre

Consider Mr Eyre, 2019 BCCA 333. When a judge sentenced him for robbery, the judge prohibited him from possessing both "firearms" and "prohibited devices".

After he got out of jail, Mr Eyre acquired a pellet gun which closely resembled a Beretta semi-automatic pistol. Police caught him with it.

Section 84(1) of the Criminal Code defines "prohibited devices" to include "replica firearms".

Because this pellet gun looked so much like a real firearm, the Crown prosecuted him for possessing a "replica firearm".

You might think that a pellet gun isn't a "firearm", because there's no "fire".  But s.2 defines "firearm" to include barrelled weapons which discharge projectiles that are "capable of causing serious bodily injury or death". Therefore, a pellet gun can be a firearm if it discharges pellets with sufficient force to injure or kill people. Experts say that happens when the pellet gun can shoot projectiles at  65-75 m/s.

There's a catch.

For the purposes of many common gun charges, including s.91 (possession of a firearm without licence or authorization) or s.95 (possession of a loaded prohibited/restricted firearm), s.84(3) says a "firearm" isn't a "firearm" unless it shoots projectiles at 154.2 m/s.

A police expert examined Mr Eyre's pellet gun. He didn't measure the actual speed of the pellets it fired. He did research it, and concluded that it wasn't a "firearm" because it couldn't shoot pellets as fast as 154.2 m/s.

If Mr Eyre had been charged with one of the offences listed in s.84(3), the officer would have been correct. But the offence of possessing a prohibited device when prohibited (s.117.01) doesn't appear in that list.

Therefore, the judge really needed to know whether this thing could cause serious injury or death. Was the muzzle velocity above or below 65-75 m/s? The police expert report didn't say.

Because of that, Mr Eyre beat the charge of possessing a replica firearm. The judges saw that on the evidence before the court, it could have been a real firearm.

The court noticed that this result is absurd, because Mr Eyre was also prohibited from possessing real firearms. But he was charged specifically with possessing a replica firearm. The evidence failed to prove that specific offence.

This case offers lessons to lots of people.

Prosecutors faced with a similar situation should draft the charge to include both kinds of things: that Mr Eyre possessed a "firearm or a replica firearm" contrary to a prohibition made under the Criminal Code.

Gun experts who assess gun-like objects should give opinions which cover the field:

  1. It isn't a "firearm" because it can't cause injury or death (or because its muzzle velocity falls below 65-75 m/s).
  2. It is a "firearm" for the purposes of some Criminal Code offences because it can cause injury or death (or because it fires projectiles at or above 65-75 m/s)
  3. It is a "firearm" for all the Criminal Code offences because it fires projectiles at 154.2 m/s or faster.

Regular police officers who find people that possess gun-like objects should seek help in determining which charges apply.

Obviously, if Mr Eyre possessed the pellet gun, he was guilty. But he beat the charge. Who would I blame? The prosecutor? The expert?

I blame Parliament. I think that the weapons and firearms definitions in the Criminal Code need rewriting.


2019.10.10 Telewarrant - What to say if the Justice of the Peace calls

Discussing the contents of the ITO with the issuing judge or justice is a minefield. When it happens, take notes.

An officer applied by telewarrant to search the property of Mr DiBenedetto, 2019 ONCA 496 for a meth lab.

The first justice granted the application - but the officer couldn't execute it within the time it permitted.

The officer applied again, but the second justice denied the application - not enough evidence.

The officer corrected the ITO, added some information, and applied a third time. The third justice called the officer back asking which paragraphs in the ITO were new or different. Over the phone, the officer identified the differences. The third justice granted the application, and the officer took down the meth lab and busted Mr DiBenedetto.

At trial, defence attacked the telewarrant process. A justice must issue the warrant on the basis of sworn and recorded evidence. (Recording can be done on paper or by audio.) Although the ITO was properly documented and sworn, the phone call was neither on oath, nor recorded.

Fortunately, the ITO contained language which identified which parts of it were new or changed. The phone conversation was completely redundant, because what the officer told the justice over the phone was already stated in writing in the ITO. The warrant stood, the judge convicted Mr DiBenedetto, and he lost his appeal.

If you apply for a judicial authorization, and the judge or justice calls you to discuss your application, then:

And one more thing: the rule about oath and record applies to applications in person as well as telewarrants.

If you make multiple applications for a warrant, you might save yourself some grief by identifying in the later applications how they differ from the earlier ones.

2019.10.09 Keeping the Peace between Rival Protesters - Breach of the Peace

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

Mr Fleming, 2019 SCC 45 wanted to join a group of protestors. His path took him close to an opposing group. All alone, he carried a Canadian flag. He knew the flag would annoy the other group. So did the police watching the two groups.

Some of the opposing group started jogging toward Mr Fleming. Police figured that trouble was coming fast. Police officers got close to Mr Fleming and told him to back off. He kept going. An officer officer pulled him back over a fence and decided to arrest him to prevent a breach of the peace. Mr Fleming resisted and got hurt. He sued police for false arrest and interference with his Charter rights.

He won at trial. The Ontario Court of Appeal (Fleming) disagreed that the police did anything wrong. The Supreme Court of Canada unanimously restored the trial judge's verdict.

The majority of the Ontario Court of Appeal focused on the police duty to keep the peace, and concluded that the right to lawful protest ends at the point when it will cause violence or property damage to erupt.

The Supreme Court of Canada held that police "do not have the power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace".

Civil libertarians will relish the simplicity of this conclusion, because it limits police powers. Police officers who read the facts carefully will observe a fine line between civil liability for taking action, and civil liability for inaction. The members of the opposing group were 12-20 feet away when the officers first laid hands on Mr Fleming.

The Court of Appeal emphasized the history of violence between the two groups. The Supreme Court of Canada emphasized the lack of weapons in the hands of the approaching protestors, and the lack of verbal threats. They also pointed out that the police arrested Mr Fleming in order to prevent the other protestors from breaching the peace. There was no evidence that Mr Fleming intended to hurt anyone.

For the Supreme Court, the real problem was the arrest. At paragraph 19, they said:

"Where there are less invasive [ie restrictive of liberty] measures that would be effective in preventing the breach [ie violence from erupting], they must be taken instead." (my comments in square brackets)

What could the police have done to prevent violence without arresting Mr Fleming?

The judges did not say. Perhaps they would have been content if the officers had manhandled Mr Fleming away from the approaching danger, and then released him.

The ruling from the Supreme Court is pretty clear: don't arrest a protestor for breach of the peace if the protestor is neither acting unlawfully, nor about to commit a crime.

But they did observe (at paragraphs 93 & 94) that you can arrest people for obstructing peace officers in the execution of duty. If you take reasonable steps to prevent an impending breach of the peace, and a protestor resists you, then you may arrest the protestor for obstruction of a peace officer.

Because these situations often involve the right of freedom of expression, you should be trying to avoid arresting protestors except where the situation leaves you no reasonable alternatives. The steps you take to prevent violence from erupting must be "reasonable". The greater your proposed interference with freedom of movement or expression, the more compelling the evidence must be that you expect violence or property damage.

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

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

2019-10-05 Tainting Witnesses - Telling One What Another Said


James Erickson answered a knock at his door. When he opened it, someone fired a shotgun at his chest, killing him.

After Mr Gallant's 2019 BCCA 193 girlfriend broke up with him, she told police that she knocked on the door, but Mr Gallant pulled the trigger. Afterwards, she and Mr Gallant visited Mr L.C. and told him what happened.

Like many of the civilian witnesses in the case, Mr Gallant's girlfriend used drugs. She sold them too. Her criminal lifestyle earned her a lengthy criminal record. To get her to agree to testify, the prosecution negotiated an immunity agreement for all past unprosecuted offences.

But that rendered her evidence less credible. Defence counsel argued to the jury: Of course she points the finger at Mr Gallant! For the sake of that immunity agreement, she'll say whatever the prosecution wants her to say!

Investigators spoke to Mr L.C., another drug dealer. To nobody's surprise, he didn't want to talk to police about it. The investigators played hardball. They told him he would be charged. They told him the girlfriend had told all, and even played a portion of her video-recorded statement. Mr T.T. cracked, and told police that Mr Gallant confessed to the shooting.

At trial, defence complained: Of course Mr L.C.'s version of events matched what the girlfriend said! Police told him and showed him what to say!

These are good arguments. If a witness or police officer tells the story to another witness, then the match between accounts appears to arise because of the conversations rather than their observations.

People close to a sensational crime often want to know more. Many experienced criminals gather information, because knowledge is power. When two scurrilous people tell the same story, it's hard to prove that they are describing their own experiences rather than reciting information that they learned from others.

Even if the crime is ordinary, take care to obtain independent accounts. Separate witnesses, and interview them alone. Don't let one listen to another. Don't play one witness's statement to another. Caution witnesses not to discuss the events with each other.

In this case, the jury convicted Mr Gallant, and the Court of Appeal upheld the conviction. What did these investigators do right?

The officer that interviewed Mr TT played only a short fragment of LC's statement. That fragment did not include important details of the offence. Even still, TT told the officers lots of details that matched LC's version.

Because the two stories matched so well, and because the prosecutor could show that the important parts of the stories were independent, the jury could rely on the testimony of these two scurrilous people.

2019-10-05 Drive-by Identification - Do you Recognize the Driver?

- Knowing versus Proving

Sometimes an eyewitness gets a fleeting glimpse of a felon. Sometimes that eyewitness is a police officer. Even then, fleeting glimpses don't make great evidence.

An officer used his car to block an accident scene. As the officer spoke to a tow-truck driver, a guy in a van drove through the accident scene. The officer yelled at the driver to stop, but he sped through at 50km/h, passing within 15' of the officer. The van crashed a short distance away.

By the time the officer caught up to it, all the occupants had fled. Inside the van, the officer found a wallet containing photo identification of Mr Bao, 2019 ONCA 458, and prescription medication in his name. The officer looked at the photo, and noticed a resemblance to the driver he had just seen: Asian guy with black hair.  The van's engine caught fire, and so the officer removed property from it, including seven garbage bags of marijuana.

Possession of marijuana was still illegal then. Who possessed the marijuana?

A dogmaster followed a track from the van and found four Asian people - 3 men and one woman - hiding in bushes nearby. The van contained seating for 4 people.

Who possessed the marijuana? The trial judge thought Mr Bao did. The appeal court rejected that conclusion and acquitted him.

The judges remarked with particular interest on:

Doubtless, the investigating officer remains sure that he saw Mr Bao.

He may well be right. But the difference between believing and proving is the quality of the evidence. Fleeting glimpses aren't strong evidence. The wallet and medication strongly linked Mr Bao to the van at some time. But the appeal judges felt it left doubt that he drove it at the relevant time.

How could this prosecution have been made stronger? One idea that occurred to me was the value of photographing the other four Asians. Photographs might have shown that they looked so different from Mr Bao that the officer could not have been mistaken. Or if one of them closely resembled Mr Bao, his presence near the van would have made him the more probable suspect.

The lesson to learn from this investigation is not "always photograph every person". It's more general. In many police investigations, some evidence may lead you to a comfortable feeling that you now "know" the answer. Like the officer who saw Mr Bao's photo identification believed he knew who drove the car. But the difference between believing and proving is evidence. Have you gathered so much evidence that it will convince a skeptical judge?

Fleeting glimpses are weak evidence. They may cause you to feel that you "know" who committed the crime. But that's just a belief. By themselves, fleeting glimpses don't prove identity.


2019-09-17 24-hour prohibitions in British Columbia - Roadside or Later?

British Columbia peace officers can now serve 24-hour prohibitions at the police station!

In British Columbia, section 215 of the Motor Vehicle Act empowers peace officers "at any time or place on a highway or industrial road" prohibit an impaired driver from driving for 24 hours.

Cst Malcolm gave Mr Evans, 2019 BCCA 317 a prohibition at the police station. Mr Evans complained to the court that the prohibition was illegal. Sure, Cst Malcolm had good reason to believe that Mr Evans was too high to drive a car, but Cst Malcolm didn't obey the legislation.

The first judge agreed with Mr Evans but not the appeal court.

The appeal court found that these prohibitions could be served at other places, so long as there is a "sufficiently strong connection to impaired driving on a highway or industrial road".

It's amazing how courts can decide that legislation means something different from what it says. But they did so for a very practical purpose. It's silly to restrict the service of these prohibitions to people on the highway.

If you make a breath or DRE demand, I suggest that you serve these 24-hour prohibitions at the police station.

Why?

Because you also have an obligation to get the testing done "as soon as practicable". Don't delay that testing at the roadside, filling forms. Get the testing done promptly, and fill forms later.

2019-09-17 Cell phone data - Was the Cell Phone working properly?

Sometimes felons communicate about their crimes with friends or family by text messages. Those text messages can convict the felons.

But the rules of evidence differ when you dig those messages out of other people's cell phones.

That's what happened in the case of Mr S.H., 2019 ONCA 669. Police raided a house and found Mr S.H., a younger person C.H., drugs and a cell phone. Under the authority of a warrant, officers searched the cell phone.

It contained lots of messages which tended to show that S.H. was involved in drug dealing. But the messages also suggested that the phone belonged to his son.

Under s. 31.3 of the Canada Evidence Act, it's easier to get the court to accept electronic documents that belong to the defendant than electronic documents that belong to someone else.

For documents that belong to someone other than the defendant, the prosecution must prove that the electronic documents system was operating properly, or that any problems with it did not change the information stored in it.

Lots of you now know how to download electronic data from cell phones. When you do, make sure that you will be able to tell the judge that the cell phone's data appeared to be stored without any damage or change from the original.

In this case, the court looked at the text message history, and saw coherent conversations. The officer who downloaded the data testified that it appeared to be in good working order. That sufficed.

So those of you who know how to download cell phone data, you need to examine the data, and testify whether the phone was working, or whether the data in it appeared to be intact. It's not a high threshold, and you won't need to meet it in every case. But it's a good habit to get into.

Check your Celebrite systems. Do they detect problems with cell phone data integrity?

You can bet that defence will point to a crack in the cell phone screen and say "It's broken. Therefore the data in it is not admissible." When you analyze a cell phone with a smashed screen, investigate whether the electronics inside still work properly.

2019-09-07 DNA & DNA transfer - Arrest and exhibit handling

Experts will say that when you arrest a suspect and seize exhibits, you may transfer DNA from the suspect to the exhibits ... unless you take steps to prevent contamination, like changing gloves often.

After several convenience store robberies and burglaries, police focussed on catching Mr Franklin. They caught him, and his buddy, Mr Aikman, 2019 BCCA 312. Surveillance officers watching Franklin's house saw Mr Aikman load two sports bags into a taxi. Both men (and a woman) rode in the taxi to a mall parking lot, where police arrested Mr Franklin, but merely detained Mr Aikman. They looked in the bags and found loaded firearms and useful evidence.

This was a complicated investigation involving evidence from several scenes, and security video from a variety of sources. I imagine that the officers and prosecutors spent considerable time collecting and cross-referencing it all.

Because the culprits wore masks, identification came from little things, like the clothing that the suspects wore when arrested. In this case, the arresting officers had trouble saying just what clothing Mr Aikman was wearing on arrest. That's a common problem. Taking a few photos of the suspect, even at scene, can sometimes solve problems later.

Examination of the firearms found the littlest things - the DNA of the two suspects. But how did it get there? The excitement of arrest (and it was exciting) may have distracted these officers from careful forensic techniques when they handled exhibits.

The experts testified that the officers could have put Mr Aikman's DNA on the gun. Oops.

Change your gloves often. Try not to let exhibits contaminate each other.

It looks to me like there were many more lessons to be learned from this investigation. Mr Aikman challenged the officers' right to search the bags. It wasn't a search incidental to arrest: unlike his buddy Franklin, Aikman wasn't arrested. It wasn't a safety search - everyone was under control.

Because it ordered a new trial, the court declined to give a full analysis of the police exercise of powers in this case. After reading the case, what do you think?

2019-08-14 Bill C-75 Changes - Strangulation as a Specific kind of Assault

Starting September 19, 2019, s.267(c) of the Criminal Code will specifically address assault by strangulation, suffocation or choking.

This legislation forms part of a broader movement in western nations to identify and address this problem. For example, here an American website which advocates for greater attention to the problem.

After prosecuting thousands of domestic violence cases, I think the amendment is a good idea. The science suggests that strangling an adversary is a high-risk activity: a victim can die faster than the assailant expected. I find that the complaint of strangling by an intimate partner tends to reveal a troubled psychology in the aggressor.

Unfortunately, I find strangulation cases are often under-investigated. The first-responder often sees the victim so soon after the strangulation that the injuries do not yet show. In those cases, photographs taken at the scene tend to undermine her complaint, unless supplemented by follow-up photos.

I did have a recent strangulation case in which the first responder stayed with the complainant from scene to hospital. The officer documented how the victim's injuries developed over the hours that she spent with the victim. This proved invaluable at trial: The victim recanted, and alleged that the bruising arose from a hiking accident several days earlier. The officer's observations - and evidence from a fine E.R. doctor - helped turn a hopeless case into a conviction.

The doctor told us that strangulation can cause death in minutes. According to the advocates, it can inflict injuries which cause delayed symptoms - even delayed death. Just because your victim is upright and talking after the strangulation doesn't mean she's healthy.

A word of caution. Don't go overboard.

Social movements to cure injustices are necessary to change culture; but they are prone to excess. For example, in the 1990's, I saw a wave of enthusiasm to investigate historical sexual offences, and bring the offenders to justice. Some people "recovered" their memories of long-forgotten abuse. Research suggested that such memories could be unreliable. 

On the question of strangulation, it's probably a good idea to assume that you don't know enough yet. Let the advocates educate you on the science. I found useful material on the Americal Website. Take it seriously, but beware of excess. Investigate thoroughly, but objectively.


2019-08-09 Bill C-75 Changes - Search warrants

One of the last things that the Liberal government did before calling an election was to pass "Bill C-75". It amends the Criminal Code in many ways, including:

Search warrant backing orders;

Police and judicial release of prisoners

Breaches of bail

Summary conviction offences - the limitation period will be 12 months, not 6, and the maximum penalty will rise to 2 years less a day.

Indictable offences punishable by 10 years or less become hybrid offences. (Watch out, s.495(2) just got more important.)

Ordinarily, I recommend that officers read legislation, but C-75 is pretty turgid. I applaud those of you who tackle it. I hope to find or create something more understandable, and I'll let you know what I find.

It has over 400 sections. I'm still figuring it out. Here are some early observations.

Backing Orders

Starting on September 19, 2019 you no longer require backing orders for:

Curiously, it seems you will still need backing orders for Feeney warrants (s.529.1).

You never could get backing warrants for the following, and you still can't now:


2019-08-05 The Ugly Background - Avoiding Hearsay

It's not a police officer's job to know the many exceptions to the legal rules around hearsay. But whenever a lawyer asks an officer to tell a judge about an investigation, a clever police witness will hesitate before telling the court what another person told him or her.

Various people told police that Mr LeBlanc 2018 NBCA 65 transported drugs into Moncton. A drug section investigated. Another unit was already investigating him for proceeds of crime. The drug officers applied for a tracking warrant for a motorhome that they suspected Mr LeBlanc used for moving the drugs.

Data from the tracking device showed that the motorhome made trips to Montreal with very brief stays. Observations of the motorhome suggested that it was indeed transporting drugs.

The police stopped the motorhome and searched it. Inside, they found Mr Leblanc driving, and a passenger, Mr Bujold. Mr Bojuld pleaded guilty but refused to testify at Mr LeBlanc's trial.

Mr Leblanc chose to be tried by a jury.

At that trial, the prosecutor asked the investigating officer to explain how the officer got a tracking warrant.

The officer explained to the jury that:

Depending upon what issue the lawyers are contesting, this evidence could be completely proper and admissible. But not in this case. The only issue before the jury was whether the defendant was guilty of possessing the drugs for the purposes of trafficking. This evidence was essentially hearsay: "police officers and confidential sources say that this guy makes his money trafficking drugs."

Be very wary of talking about the background information you had, especially in front of a jury.

This case appears to have gone wrong when the prosecutor asked the officer to expand on the background.

All too often, police officers volunteer hearsay, usually because they worry that they need to justify their actions.

Wrong Right Why
Q: How did you come to be involved in this investigation?
A: Dispatch told me that the defendant assaulted Ms Pummelt
Q: How did you come to be involved in this investigation?
A: Dispatch sent me to 123 Main Street to investigate a domestic violence complaint.
What the dispatcher knew about the event is double-hearsay. But you can say what you knew - that you were investigating a domestic violence complaint.
Q: When you found Mr Fisticuffs, what did you do?
A: Because Ms Pummelt told me that he beat her up, I arrested him.
Q: When you found Mr Fisticuffs, what did you do?
A: I arrested him.
Q: Why?
A: Information I received from Ms Pummelt led me to believe that I had grounds. Would you like me to tell you what I saw, and what she told me?
The first question asks what you did. Don't explain why until someone asks you, or you need to justify your actions.

The smart witness checks before launching into all the hearsay information

A good officer can always justify his or her actions. A smart witness doesn't launch into the justification until it's needed.


2019-07-19 Not Dead Yet

To my faithful readers, I apologise. I've been buried in a trial for the last month, and I'm taking a holiday. I'll be writing again soon.


2019-06-16

 The Inconvenient Right to Counsel

A justice granted a warrant to search a house that contained a grow operation. While police searched it, Ms Do, 2019 ONCA 482 turned up, with a key to the house. An officer arrested her. She asked to speak with a lawyer. The officers kept her at the scene while they finished their search, and then transported her to a police station. She spoke with a lawyer 3 hours later.

This breached her right to retain and instruct counsel without delay.

At the trial, defence asked the judge to exclude all of the evidence.

Although the judges admitted the evidence, they did so only because this was an anomaly rather than a pattern of police behaviour.

Don't make a habit of delaying a prisoner's access to counsel.

2019-06-12 Arbitrary Detention - Finding a Fuzzy Line

In Le, 2019 SCC 34 and Omar, 2019 SCC 32, the trial judges, the appeal judges and the judges of the Supreme Court of Canada reached conflicting views about when police interaction with a citizen triggers a "detention", and what judges should do about the arbitrary detentions in those cases.

One of those judges, Brown J.A., specifically commented on the fuzziness of the line between "interaction" and "detention".

You need a clear line. Let's look for it.

You won't find it in the basic facts; but you need those basic facts for context.

Mr Omar, 2019 SCC 32, was not a big man, but he walked a city street at 1:00am with large man. A police cruiser pulled up. The officers asked the men to approach, and started asking questions. The two officers got out of the cruiser. One officer asked for identification. The other received the identification and started checking on the computer in the cruiser. Mr Omar kept putting his hands in his pockets, even when the one officer asked him not to. Then the officer saw a handgun in Mr Omar's pocket. The officer tackled Mr Omar and arrested him. The gun was loaded, and Mr Omar also possessed a bag of cocaine. The interaction took less than 5 minutes.

Mr Le, 2019 SCC 34, stood in the back yard of a townhouse at 10:40pm, talking with three other guys. A footpath led along the back of the townhouses. A low fence surrounded this back yard. An open gap without a gate permitted people to enter. Three police officers approached the young men and started asking questions. One of the officers hopped the fence. Mr Le, who carried a satchel, angled his body away from the officers, so that the satchel was behind him. An officer asked him what the bag contained. Mr Le fled. An officer chased him. After a significant struggle, police found that he carried a loaded handgun and 13g of cocaine. The interaction took less than a minute.

In both cases, the judges generally agreed that even before tackling Mr Omar or asking Mr Le what the bag contained, the officers' actions triggered "detentions" within the meaning of the Charter. The judges generally agreed on the law:

What were the factors which made these interactions "detentions"?


Omar Le
Location Public street Private property
Time 1:00am 10:40pm
Duration Less than 5 minutes Less than a minute
Officers 1 tall officer on street; 1 officer in car 2 and then 3 officers in a small back yard
Defendant's group 1 short black guy, 1 tall black guy 1 small Asian, 4 black guys
Questions Can I see your identification?
“What are you doing here?”
“What are you up to?”
“Where do you live?”
“You guys work?”
“You guys go to school?”
“How did you get to Windsor?”
How are you guys doing?
What's going on?
Who are you?
Do any of you live here?
Can I see your identification?
Directions Repeated directions to Omar to keep his hands out of his pockets A direction to someone else:
"Put your hands in front of you"
Or a yelled command:
"Keep your hands where I can see them"
Officer's actions When they first approached, the officers shone a very bright "alley light" on Omar and the other man as they walked.

While one officer asked questions, the other ran queries on the computer database.
Officers trespassed by walking into the enclosed area without invitation, and without explanation. They could have spoken to the defendant's group without entering the back yard.

When the first two officers walked in, the third officer walked the perimeter, and then stepped over the fence to join the group.
Effect on defendant Defendant felt scared. Defendant initially felt he could leave if he wanted.

Le - race relations - avoidable problems

The last line is interesting. The test is not what the defendant actually felt, but what a reasonable person in the defendant's position would have felt. Thus, Mr Le's admission in court that he didn't feel detained when the police first stepped into the yard didn't help the prosecution. Instead, the majority of the judges in the Supreme Court of Canada focussed on the general experience of visible minorities in poor neighborhoods: too much unjustified police intervention in their lives.

I think that the problems in the Le case were avoidable. By stepping into the small fenced patch of land behind a townhouse, the officers were trespassing. By walking in without invitation, they gave the impression that they were in charge and in control. If all they wanted to do was talk, they could have done so from outside the fence.

I suspect that's what offended the majority of the judges in the Supreme Court of Canada. In a rich white neighborhood, you wouldn't barge into someone's back yard uninvited. Treating poor people with coloured skin with less respect perpetuates mistrust of police.

Trespassing put Mr Le in a different tactical situation that Mr Omar. At law, both Mr Omar and Mr Le were free to go. Mr Omar could keep walking down the street, away from the officers. But where could Mr Le go? He was already in a private back yard.

I think the biggest lesson from the judges in Le is a demand that police treat poor people with respect.

Omar - tactical challenges

The conclusion in the Omar case poses tactical problems for police.

To be effective in discovering drugs and guns on the streets, you need to talk with people in the worst neighborhoods, at the worst times of the night.

To be safe when doing that, officers take precautions like:

By putting yourself in a position of control, you make reasonable people people feel like you are in control.

In Omar, three judges in the Supreme Court of Canada suggested that during such street checks or other similar conversations, you could give control back by saying words that make it clear to the target that he does not have to answer questions and that he is free to go. Those were the same three judges who gave the majority decision in Le.

Saying such words will likely reduce your effectiveness during each individual interactions on the street. These judges believe that the respect you show will pay dividends in the long-term. If the poor feel that police respect them, then the poor will cooperate with police over the long-term.


2019-05-20 Reasonable Grounds - Relying on Databases

Most people don't like being arrested. Some of them tell you that you have no right to arrest them. To do your job, you must develop a thick skin, and a clear understanding of your powers.

That does not mean you can ignore every objection.

Mr Gerson-Foster, 2019 ONCA 405 got bail. He persuaded his sister to go surety for him. After several months, his sister no longer trusted him to behave lawfully. She asked the court to remove her obligation. That meant Mr Gerson-Foster no longer had bail. The court issued a warrant for his arrest.

Mr Gerson-Foster must be a persuasive guy. He persuaded his mother to go surety for him instead. He voluntarily attended the court house, and the judge changed his bail documents.

But someone forgot to remove the warrant from the CPIC database.

A month later, officers found Mr Gerson-Foster and arrested him because of the warrant. He told the officers that the warrant was cancelled. The officers didn't check any further than CPIC.

His sister was right. Mr Gerson-Foster was misbehaving. The officers found lots of drugs on his person, for which they laid new charges.

At trial for the drug charges, Mr Gerson-Foster challenged the lawfulness of the arrest: the warrant was no good, and because of that the police should never have arrested him, and they shouldn't have searched him. He asked that all the drug evidence be thrown out. He didn't persuade the trial judge, but he did convince the appeal court.

This doesn't mean you must release every prisoner that claims that your arrest is unlawful. Indeed, Paciocco J.A. specifically remarked:

an arresting officer is not required to believe what an accused person says, and I appreciate that an arresting officer may “disregard information which the officer has reason to believe may be unreliable”

But if the prisoner tells you information that could reasonably be true, you ought to look into it.


2019-05-13 Reasonable Grounds - Believing and Knowing

The difference between belief and proof is evidence.

An Ontario detective received a Crime-Stoppers tip that Mr Chioros, 2019 ONCA 388 dealt lots of cocaine. The tipster said that parked in his driveway were a Harley, a Mustang and an Audi.

Two weeks later, the detective went there and saw the Audi. but not the other cars. The officer watched Mr Chioros. Three weeks after the tip, he saw Mr Chioros driving with Mr Daniels. The detective remembered Daniels from high school. At high school, Daniels had a reputation as a drug dealer. Confidential sources also told the detective that Daniels was a drug dealer. The detective saw Chioros and Daniels go to an apartment building. A guy who recently had a problem with a drug dealer showed up there, stayed for a short time, and then left. The next day, when police watched Mr Chioros, he drove in a manner consistent with trying to shake people watching him. Later that day, he went to an apartment building which contained 150 units. An anonymous tipster had previously told police that another drug-dealer stashed his drugs there. Mr Chioros emerged an hour later carrying a bag full of something.

In early November, the officer saw Mr Chioros in the company of yet another known drug dealer.

A few days later, Mr Chioros went to the 150-unit building. An hour later, he emerged carrying another bag. They arrested him and found lots of cocaine and marijuana.

The defence complained that the police lacked reasonable grounds to believe that Mr Chioros possessed drugs. The appeal court agreed, and threw out the evidence.

What went wrong?

If you start with the assumption that the first tip was true, then all the remaining incidents look highly suspicious. But if you start with the assumption that the first tip was false, it's easy to explain away the remaining events as minor coincidences, and not strongly probative.

I observed the judges used the phrase a "known drug dealer".

Avoid using the phrase "X is known to be a ....".

It fails to answer the question "how do you know it?". Try instead, to complete the sentence "I believe X to be a ... because____". If you fill in the blank with "... an anonymous and uncorroborated tipster said so", then you haven't got very strong grounds for that belief.


2019-05-15 B.C. Only - Tele-Information for Provincial Offences

*** 2019.05.18 Edit: I'm sorry. I later corrected this post. It's not as interesting as I thought.  I moved too quickly when I first wrote it. - HW ***

Today, section 13.1 of the B.C. Offence Act came into force:

13.1  (1) A peace officer may lay an information by any means of telecommunication that produces a writing.

(2) A peace officer who uses a means of telecommunication for the purpose of laying an information must, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the peace officer's knowledge and belief, and such a statement is deemed to be a statement made under oath.

See s.7 of the 2018 Miscellaneous Statutes Amendment Act (No. 3) (Bill 36)


2019-05-04 Voluntariness - Interview Tactics

I'll bet it took police officers in Alberta considerable time to prepare their interview of Cory Lavallee, 2018 ABCA 328.

Somebody shot Donnie Brown in the face. Four people could have done it. Cory was one of them.

Investigators had to work carefully. Cory associated with criminal gangs. Interviewing him wouldn't be easy.

The officers recorded Lavallee's mother and his sisters urging him to confess. They hung pictures of his daughter on the walls. Mr A.M., one of the four, sought police protection and cooperated. They arranged for A.M. to talk to Lavallee during the interview. They arranged for Mr Lavallee's girlfriend to attend the interview room, and urge him to tell the police the truth.

Cory confessed:  "[Y]eah, I shot Donnie. I'm sorry for shooting Donnie. Right. I am."

Defence urged the trial judge to exclude the evidence. All this pressure could have convinced Cory to confess falsely.

The judges disagreed. The police and their agents - A.M., the girlfriend, the recordings of his family - everyone used moral suasion. They told him to do the right thing. Tell the truth. None suggested that court or the judge or the prosecutor or the police would treat him better if he confessed.

As I reviewed the facts, I saw many ways this could have gone wrong. Indeed, A.M. made a remark which could possibly have meant "take the fall for this, or else gang members will come after you".

I presume that the rest of Mr A.M.'s remarks dispelled this concern. The judge's weren't worried about it.

Don't:

Do:


2019-05-04 Voyeurism - Terms of Engagement between Intimate Partners

Mr Trinchi, 2019 ONCA 356 had a long-distance girlfriend. He lived in Toronto; she lived in Thunder Bay.

Rarely did they see each other in person, so they spent lots of time on Skype. Sometimes she posed nude for him in provocative poses. He didn't tell her that he was taking screenshots.

When their relationship broke down, someone sent those screenshots by email to her friends and colleagues.

Distressed and embarrassed, she complained to police.

Charges of voyeurism and transmitting intimate images followed.

He beat the charge of transmitting intimate images. His lawyer elicited evidence at trial that maybe a different (vindictive) girlfriend used his computer and sent the pictures.

But the voyeurism charge stuck.

This decision is interesting for a legal point. Voyeurism occurs when the victim has a reasonable expectation of privacy, and the defendant "surreptitiously" observes or records her.

This victim's expectation of privacy was limited. She knew that Mr Trinchi was watching; indeed, she wanted him to see her nakedness.

But once he started taking screen shots without her knowledge, he committed a crime. She didn't pose for the world, just him. She didn't intend him to take pictures, and he knew it. That's why the voyeurism charge stuck.

This decision is interesting for a practical point: people can do interesting things to each other with cell phones these days.

I wondered whether a more complete investigation could have determined whether he or the vindictive girlfriend actually sent those nasty emails. The story at trial was more interesting than the summary given at the appeal. It's a tale of infidelity, jealousy, and devious cellphone technology. This was probably a difficult investigation and a difficult prosecution. I can't tell from the trial decision if there were investigative steps the officers should have taken; but you might find it useful to know about the existence of "Mobile Spy".

2019-04-28 Road Rage - Intimidation

I rarely see charges under s.423 of the Criminal Code. It lives under the heading "Breach of Contract, Intimidation and Discrimination Against Trade Unionists", which hints at its coloured history as a tool used against organized labour.

But it applies to other conduct too.

Mr Orton, 2019 ONCA 334 didn't like how another driver nearly cut him off. Mr Orton yelled at the driver to pull over. When the other driver kept going, Mr Orton attempted to block his truck with his car. The other driver drove around him. To catch up with the other driver, Mr Orton overtook other vehicles by driving on the wrong side of the road. When he caught up with the other car, he tailgated the other driver's vehicle "for a considerable distance".

That section defines the offence of intimidation 7 different ways. The core of it involves doing bad things for the purpose of compelling someone else to stop doing something they have a lawful right to do.

The Court of Appeal agreed that Mr Orton intimidated the other driver within the meaning of this section.

Don't lay that charge for every instance of road rage you encounter. Save it for the cases where one driver does scary or nasty stuff for the purpose of preventing the other person from doing something lawful. But if the charge fits, maybe we should use it a little more.


2019.04.22 Impaired Driving Regime - Applying the New Alcohol Screening Power

A reader from Lethbridge emailed me a series of questions about investigating impaired drivers. They're sufficiently interesting that I thought I should post my thoughts here.

1. A driver appears grossly intoxicated by alcohol. Should I use the ASD?

No.

Why?

There is no obligation to use a screening device, just because it's available. R. v. Beaudry, 2007 SCC 5 at para 45.

Heck, the legislation itself says that you shouldn't.

Section 320.28(1) governs breath analysis demands. It says:

"If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable..."

If you're gonna make a demand for breath analysis, you must make it "as soon as practicable". If you already know that this driver is too drunk to drive, then screening this driver's breath with an ASD will waste several minutes. All it will tell you is what you already know: this driver has too much alcohol in his/her body.

Using a screening device in these situations introduces doubt into what should be a clear situation. The defence will argue "the officer claimed that my client looked grossly drunk, but the officer wasn't sure enough of his/her opinion, and used the screening device to make certain. Therefore, my client didn't look as drunk as the officer suggests."

Please note that I phrased this question as "appears grossly intoxicated". That standard differs from the usual "reasonable and probable grounds". If you form your opinion from subtle indicia - a slurred word, some fumbling with a licence, an odour of liquor - then there's no harm confirming that opinion with an ASD. When the defence lawyer challenges your procedure, you can explain it this way.

Q: Officer, you told us that you formed the opinion that alcohol impaired my client's ability to operate a motor vehicle?

A: I did.

Q: But after you formed that opinion, you screened his breath with an ASD?

A: Yes, I did. But I'd like to explain why. The indicia of impairment that I observed weren't gross impairment. I was pretty sure your client had too much alcohol in him, but I used the ASD as a double-check, just in case I was wrong. Because if I was wrong, analyzing his breath was going to waste an hour of his day and mine.

2. After I form grounds to make a breath analysis demand, should I arrest or detain the driver?

The law says you should always detain, except if you should arrest. But if you turn your mind to it, in most cases, you will arrest. This apparently contradictory answer comes from careful consideration of the legislation.

If the driving caused no injury or death, then s.495(2) says you should never arrest ... except if you have a reason specific to this case.

In almost all cases - if you turn your mind to it - you will notice a reason to arrest.

You don't need to arrest the driver in order to get the breath demand. The demand itself lawfully requires the driver to accompany you.

But you might be concerned about identity, or the prospect that when you release this driver, he will drive, or assault someone. The computer might tell you that this guy is bad about attending court. Or perhaps you're concerned that there may be evidence relating to his impaired driving in the vehicle ... and you'll lose that evidence if you don't arrest the driver, and search the vehicle incidental to arrest.

Whatever your reason(s) for arrest, they must be specific to the case at hand.

3. I suspect the driver has alcohol in his/her body, but I don't have an ASD with me. Do I need the device in my hands before I read the screening demand?

No.

You should read the demand without waiting for the device to arrive.

Before she was elevated to the Supreme Court of Canada, Madam Justice Arbour concluded that the former screening device section required police to make the demand "forthwith". R. v. Pierman, 1994 CanLII 1139 (ON CA) aff'd R. v. Dewald, [1996] 1 SCR 68. The new legislation is so similar that I expect judges will continue to hold that your screening device demands should be made immediately.

Which should you do first, read the demand or radio for the device?

In my opinion, the difference is not sufficiently important to amount to a legal requirement. However, I think you should make your radio call first, then make the screening demand. Here's why I think the call precede the demand:

  1. Roadside screening interferes with the liberty of the driver. You should strive to keep that interference as brief as possible. If you call for a device first, then it will be on the way while you make your screening device demand. But if you make the demand first, then the overall delay will be just slightly longer.
  2. If you call first, you will discover whether or not a device can be brought to you within a short time. If no device is coming, you won't waste time making ASD demands, and will choose some other technique, such as Standardized Field Sobriety Tests.

4. How long can I wait for an ASD to arrive? How long is "as soon as practicable"?

5-10 minutes is about the maximum that most judges permit for you to wait for an ASD to arrive. There are lots of cases. Here are a couple: R. v. Janzen, 2006 SKCA 111; R. v. Singh, 2005 CanLII 40877 (ON CA)

5. ASD or MAS (Mandatory Alcohol Screen)?

The reader wrote: "if you approach a vehicle with the intent to conduct a mandatory alcohol screening, but you then gain a reasonable suspicion that they have alcohol in their body (ie: odour), would you revert to the ASD demand, or continue with the MAS?"

As drafted, this question raises several different questions:

  1. When may an officer approach a vehicle 'with intent' to conduct a mandatory alcohol screening?
  2. Which demand should should the officer prefer: ASD or MAS?
  3. If the officer starts with a MAS demand, and then develops grounds for an ASD, what should the officer do?

I think you should use this legislation cautiously. Many prominent members of the defence bar assert with confidence that the courts will strike down this legislation. Don't expect that the judges will give you an easy ride. In these early days, I suggest that you read the section carefully, and apply it only to clear-cut situations.

Under s.320.27(2), you may make a MAS demand only when:

If you don't have an ASD in your pocket, you better have one in your police car. Use this power in the context of motor vehicle enforcement - such as speed traps or seatbelt or alcohol checkstops.

MAS is controversial. ASD is not. The controversy arises because MAS permits random virtue testing. But if you have reason to suspect that a driver has alcohol in his/her body, then an ASD demand is not random, but justified.

Therefore, I suggest that you choose ASD in preference to MAS whenever you have sufficient grounds.

In my opinion, if you made an MAS demand, and then, before the suspect blows, you detect an odour of liquor on the suspect's breath, you should make an ASD demand as well.


2019.04.19 Undercover Operations Online

- Police Catching Creeps


An officer created a fake online profile of a 14-year-old girl. Mr Mills, 2019 SCC 22, aged 32 started communicating with "her" about sex, even sending her a picture of his penis. He claimed to be 23. He invited her to meet him in a park. "She" agreed. When he arrived, the officers busted him.

At trial, he complained that the undercover officer used software to make permanent "recordings" of his online communications. He claimed this violated his rights under s.8 of the Charter. He had taken particular care to encourage the 14-year-old to delete his messages and pictures. He said that by saving screenshots of everything they violated his expectation of privacy.. He complained that the undercover operation as a whole violated his expectations of privacy.

The Newfoundland Court of Appeal didn't agree. He appealed to the Supreme Court of Canada.

Back in 2017, I wrote "I do not think the judges of that court will find this case as simple as the Newfoundland Court of Appeal did."

They didn't. The judges found three rather different ways to conclude that his conviction should be upheld. Because of that, this is a difficult decision to figure out.

In brief, this case says that you don't need judge to authorize you to go online and pretend to be a child for the purposes of catching adults who are luring kids they don't know. And you don't need a warrant or authorization to make a permanent record of the conversations you have with those people.

But there are some limitations and gotchas:

  1. The adult and the child must be strangers. Suppose a child's adult relative sends electronic communications to the child grooming her for sex. You might want to continue the conversation, collecting evidence. Four of the seven judges would seem to say you need a general warrant to do that.
  2. This does not necessarily bless all on-line undercover operations. If you're pretending to be an adult for the purposes of catching an adult - perhaps an adult pimping a child - some of the judges might say you need judicial pre-authorization.

I'm still working on my understanding of this case. My comments here may change as I review it.

2019.04.18 Unreliability of Accomplices - Corroboration

A masked man attempted to rob a liquor store. He carried a pick-axe and a gym bag. The clerk fled, leaving the robber with an empty safe to loot. Security video recorded him.

The robber left in a van that belonged to a Mr Buxton. Police arrested Mr Buxton and searched his house. They found a pick-axe and a similar gym bag that contained clothing resembling the robber's clothing. When interviewed, Mr Buxton told police that he drove the van. He claimed that the robber was Mr Newsham, 2019 BCCA 126.

That story became more believable when police found Mr Newsham's DNA on an item of clothing from the gym bag.

At trial, Mr Buxton testified that "forgot" everything he knew about the robbery. "I used too much meth" he claimed.

Unless the judge would accept his recorded statement, the prosecution had no case.

The officers who interviewed him took the steps recommended in R. v. B. (K.G.), [1993] 1 SCR 740. They

Those steps helped the trial judge conclude that he should admit Mr Buxton's statement at trial. The appeal court judges ordered a new trial, because the trial judge didn't follow the analysis that the Supreme Court of Canada described in the subsequent case of R. v. Bradshaw, 2017 SCC 35. The appeal court judges wanted corroboration.

Judges don't like the testimony of accomplices: maybe Mr Buxton was the robber; maybe he named Mr Newsham as the robber so as to escape prosecution for the robbery himself.

Corroboration of Mr Buxton's story made this case stronger. Someone saw a man that looked like Newsham near Mr Buxton's place just after the robbery. (Too bad nobody showed that witness a photo lineup.)

Lessons to learn from this investigation include:

I observe that the police in this case made a real effort to find corroborative evidence, and they did go to the trouble of a KGB statement. Had they not taken these steps, there would have been no case.


2019.04.14 Traffic Stop - Detention of Passengers

When you pull over a vehicle for a traffic offence, do you "detain" the driver for the purposes of s.10(a) of the Charter? Of course. You need to tell the driver the reason of the stop, but if it's only a brief traffic stop, you don't need to offer access to counsel. Schrenk, 2010 MBCA 38.

Does a traffic stop detain the passenger? Nope. Mooiman 2016 SKCA 43

But what if you take the passenger's identification away from him and spend half an hour doing research on it? That's what a police officer did to Mr Loewen, 2018 SKCA 69.

Unsurprisingly, the court came to the conclusion that in those circumstances, Mr Loewen would not have felt free to go. And the length of this interference with his liberty was not brief. The officer triggered a detention, and during the detention, discovered the drugs that Mr Loewen carried for the purposes of selling.

There were extenuating circumstances that dragged this detention out. Parole authorities first told the officer that Mr Loewen was breaching his parole -- but they were incorrect.

Although the trial judge admitted the evidence, the appeal court disagreed, and Mr Loewen beat the charge.

2019.04.14 Arresting Parolees breaching their Conditions

The Parole board told Mr Loewen, 2018 SKCA 69 not to associate with known criminals.

A police officer pulled over a speeding car. He recognized the driver as a known criminal. The officer didn't know Mr Loewen, nor that Mr Loewen had drugs hidden in his pants.

The officer took Mr Loewen's identification, and did some investigation to find out who he was. Corrections Canada’s National Monitoring Centre told him - incorrectly - that Mr Loewen's condition was still live. It wasn't. It came to an end two days before. Mr Loewen explained this to the officer, but the officer arrested him anyway, believing that he was breaching his conditions.

I was surprised to learn that even if Mr Loewen's condition had been valid, the officer did not necessarily have the power to arrest him.

Of course, if the Parole Board issues a warrant, you can arrest a parolee. S. 137(2)  of the Corrections and Conditional Release Act reads:

137 (2) A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody.

But there was no warrant. The officer believed that he found Mr Loewen violating a parole condition. Section 137.1 sets out the power to arrest in these terms:

137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer

(a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to

(i) establish the identity of the person, or

(ii) prevent the continuation or repetition of the breach; and

(b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person.

The "gotcha" was (b). The officer didn't have reason to believe that Mr Loewen would stop reporting to his bail supervisor. And therefore, this arrest was unlawful.

I didn't know about this limitation on the police power to arrest disobedient Federal parolees. Now I do, and if you didn't know about it before, now you do.

2019.04.12 Executing Search Warrants - Knock and Announce - Interviewing Suspects

Mr Robertson, 2019 BCCA 116 installed security cameras on his house. He had a good reason. He wanted to protect his illegal gun collection, which he probably acquired in his drug-dealing business.

Police knew about the drug dealing. They obtained a search warrant for his house. Not knowing of the main entrance to his house, they knocked on the door to his garage.

The video system recorded them. They didn't wait long enough before forcing their way in. The judges didn't like that. The officers were pretty sure that the house was empty. The judges used that as a reason to believe that waiting was a safe option.

When Mrs Robertson attended the house, police detained or arrested her. She asked to speak with a lawyer, but the officers asked her questions about the guns and drugs that they found instead of acceding to her request. The judges didn't like that either.

Knock-and-announce rule requires you to exercise patience at a time when your adrenaline is running. It's hard to measure time in your head. Law requires patience and the prevalence of cameras may provide hard evidence when you act precipitously.


2019.04.12 Warrants to Search and Analyze Electronic Devices - When does the Sun Rise and Set? *

* I re-posted this story because I received an interesting email from a smart guy in Ontario. He agreed with me on some things and disagreed on others. He might change my mind, but he hasn't yet succeeded. I added asterisks to the debatable points.

After a judge or justice authorizes you to search a cell phone, when does the authority to analyze its contents cease? If your warrant authorizes you to search a phone for data today, can you re-analyze the data a year from now?

I repeat from another story (see "Life and Limb, Lies and Evidence"), Mr Nurse, 2019 ONCA 260 owed rent. But Mr Nurse was broke. He owed lots of people.

Mr Nurse's landlord suddenly died. On a busy road. In a pool of his own blood. Someone had stabbed him 29 times. Mr Nurse was at the crime scene. He told police conflicting stories about who killed his landlord.

Police arrested Mr Nurse. They seized his cell phone. They got a warrant which authorized them to enter their own exhibit vault, and search his phone for evidence of the offence. The warrant specifically authorized them "between the hours of 6:00 a.m. to 9:00 p.m. to enter into the premises" and search for the evidence.

Police did enter the vault that day and fetched the phones, but they didn't even give the phones to forensic analysts until 5 days later. Those folks extracted a digital copy ("image") of the data from the phone. However, the phone used password protection which mostly defeated analysis. From the image, the experts got only a little bit of of the contents of the phone. A year later, their software improved. They analyzed the data again, and discovered text conversations in which Mr Nurse plotted with another guy to kill the landlord.

Defence complained: The justice authorized only a 15-hour search. To re-analyze the data a whole year later, police needed a new warrant. Police didn't get an open-ended authority to search cell phones. They had 15 hours. The sun set on this search at 9:00pm. Even if the sun set later than that, it didn't continue to shine a year later.

The judges rejected this idea. The words used in the warrant authorized a 15-hour window to fetch the phones. But the ITO made it clear that the purpose of fetching the phones was to extract data from them. Even if the warrant didn't specifically say that the police could search the data later, that's what the justice implicitly authorized.

Ug. Warrants and ITOs are separate documents. They serve different purposes. In my opinion, even if an ITO explains everything, a warrant should clearly state what search the justice authorizes.

It appears to me that the problems in this case arose from:

  1. the antiquated drafting of s.487(1) - which mostly contemplates the searching of "places";
  2. the antiquated drafting of police precedents - which amplify the problems in the legislation.

At para 133, the judges accepted that digital devices aren't really "places". For residences, it makes sense to put time limits on police interference. When police are done searching, police should vacate the residence and let the people who live there move back in. If police want to search some more, they should get new permission from a justice.

But digital evidence is different. A phone or hard drive can be "imaged" (copied), but it may take a long time to analyze the data in the image.

The judges overlooked the badly-drafted warrant. They held that after lawfully obtaining the data, police may continue to analyze it even after the warrant expires.

In my view, section 487 needs redrafting to reflect how we use it today to search digital devices.

Similarly, in my view, your precedents for searching electronic devices should differ from your precedents for searching houses. Review them now. When you're in the middle of a murder investigation, you won't have time to fix the forms you use.

Don't:

Do:

* My correspondent and I disagree over the ideal form of the warrant, and whether you need to file a second report to a justice for the data you dredge out of a device. In Ontario, for examination of digital devices, they teach police to search the locker for the device, rather than to search the device for the data. They feel that if the exhibit has already been reported to a justice, there is no need to file another "Form 5.2" regarding the data obtained from it. Beware, though. Section 487.1(9) requires officers who execute telewarrants to report to a justice about the execution of the warrant - WHETHER THE WARRANT IS EXECUTED OR NOT.

We agree that the warrant itself should describe what kinds of data you intend to look for in the device. We agree that the legislation needs updating.

2019.04.08 Detention - All for one and one for all

Can you conduct a non-custodial interview with someone who is another police force's custody?

Generally, no. When one lawful authority arrests or detains someone in Canada, other officers from other law enforcement agencies can't evade the obligations of s.10(b) by telling the prisoner that he's free to leave the interview room. Police and prosecutors have tried several times with this argument, and failed. They tried again in the case of Mr Heppner, 2019 BCCA 108. It still didn't work.

Ms J.W. went partying, drinking and using cocaine. She woke up in a hotel room, in bad shape: fractures in her mouth, evidence of strangulation. Someone had beaten and raped her, but she had no memory of the events.

In August, shortly after the event, police interviewed him over the telephone as a possible witness. He denied involvement.

In September, before the DNA results tied him to the rape, West Vancouver police arrested him on a Wildlife Act charge. They gave him access to counsel, to get advice about that matter. They were going to release him, but noticed information that Vancouver police wanted to talk to him some more. Although the two cities have different police forces, the West Van officer called the Vancouver officer, who hurried across the bridge to chat with Mr Heppner.

Mr Heppner was the only suspect in the hotel assault case, but the officer still lacked sufficient evidence to arrest him.

The officer told Mr Heppner - who was still in West Vancouver Police's custody - that:

The officer didn't tell him he could call a lawyer about the hotel room case.

Mr Heppner wanted to talk. He told more lies, again asserting that he had never set foot in the hotel. Video surveillance established that he had.

At trial, Mr Heppner admitted having sex with J.W. at the hotel. But he claimed it was consensual, and she was uninjured when he left her. Crown Counsel used his lies in the August and September interviews to discredit him. The trial judge disbelieved Mr Heppner's innocent explanations, and convicted him.

Mr Heppner appealed. The September statement was inadmissible, because the Vancouver officer interviewed him about a different crime than the Wildlife Act matter. If the officer had waited until after the West Van police released Mr Heppner, the interview would have been okay. But while a suspect is detained for investigation for one matter, he is detained for all investigations.

The judges agreed. When police detain or arrest a person for one matter, he is detained or arrested for all matters for which police then interview him as a suspect. He needs to be offered legal advice about all the offences that police will investigate.

Some exceptions may apply to sentenced offenders, who you interview at the prison while they are doing their time.

Mr Heppner's counsel won the battle, but lost the war. Overall, the judges found that the case against Mr Heppner was so strong, that they upheld his conviction.


2019.04.07 Privacy of Medical Information - Investigating a Drunk Driver

Somebody drove a car in the wrong direction, and crashed into a car driven by Ms Campbell, 2019 ONCA 258. The other driver died. Ms Campbell suffered serious injuries. When police attended, they noticed evidence that Ms Campbell consumed alcohol. How much? Was she too drunk to drive?

At the hospital, someone analyzed Ms Campbell's bodily fluids. A nurse caring for Ms Campbell noticed a high level of alcohol in Ms Campbell's urine.

The trial judge found that a police officer asked the nurse for this information, and that's how he learned about it.

The judges didn't like that. There are legal ways for police officers to gather information. But informal requests for the information that goes into medical records isn't one of them. It's a breach of confidentiality.

At the hospital, don't ask the medical staff for the kinds of information that goes into medical records. If you do get medical test results "informally", do not rely on that information in an application for a search warrant.

Suppose you're writing an application for a search warrant, to get those medical tests and records legally. Suppose one of your colleagues proudly tells you that he persuaded a nurse to tell him the results.

Your ITO, must provide give full, fair and frank disclosure of the information you obtained in your investigation. But you can not rely on the illegally obtained information to support the application for the warrant. What do you do?

I suggest that you write a paragraph which discloses and discards the information: "Cst Ignorant told me that he obtained from a nurse the results of medical testing of Ms Campbell's urine. Because I fear that this information may have been unconstitutionally obtained, I the issuing justice not to rely on it in support of this application."


2019.04.06 Life and Limb, Lies and Evidence - Keeping your Head in Crisis

Mr Nurse, 2019 ONCA 260 owed rent. But Mr Nurse was broke. He owed lots of people.

When Mr Nurse's landlord came to collect rent, someone had stabbed him 29 times. The landlord fell onto a busy road, where he lay bleeding to death.

Police officers attended quickly, and started tending to him. One officer asked "who did this to you?" The dying man could not speak, because of injuries to his throat.

Mr Nurse approached. He said he knew the dying man, and that they were friends. He told one officer that he saw three guys dump the man from a van. He told another officer that the landlord came to his house to collect rent, and afterwards Mr Nurse saw a black man chasing him.

Although the dying man could not speak, he used his hands. He pointed at the stab wounds and then he pointed at Mr Nurse.

Because Mr Nurse claimed to be a friend, the officers interpreted these hand motions as reaching out to a friend. They were wrong. As explained in the next story, Mr Nurse was the killer, and that's what the victim tried to tell them.

Nobody can blame the officers for misinterpreting the hand gestures.

The judges understood that the officers - quite properly - focussed on saving the dying man's life. At the time that the dying man tried to tell them who the murderer was, the officers were distracted by the horror of the scene, and fooled by Mr Nurse's lies. The judges noticed that the two officers remembered parts of the same story differently. The judges forgave these inaccuracies: this was a traumatic scene.

The case does not mention officer safety. As armchair quarterback, I could not help but notice that the officer who bent over the dying man had a murderer at his back.

I mean no criticism of any mistakes they may have made. In this situation, I would have performed much worse than these officers.

You folks signed up to respond to emergencies. Your priorities are first to protect life and limb; but also to protect property, to uphold the law and to gather evidence. I can't teach you how to keep your head in a crisis like this one. You have other experts for that. Take their training, so that you can save lives - including your own. Repeat your training, so that you can think clearly when others lose their heads. Maybe, if you stay calm, you'll interpret crisis situations better too. Maybe, if you stay calm, you can avoid PTSD.

And here's the selfish side of the prosecutor: if you can keep your head, you'll probably remember the evidence better too. After the crisis, your notes will be more useful to me and my peers.

Thank you for taking on a job I could not do. Take care out there!


"building, receptacle or place"?

Opinions differ whether you should draft the warrant to authorize you to enter a "place" (your exhibit locker) or to search a "receptacle" (the electronic device). Section 487 empowers a justice to authorize entries into "a building, receptacle or place". Because you don't need authority to enter your own exhibit locker, I don't think you need a warrant to search a "building" or a "place". Because you do need authority to intrude on the privacy of the information in the device, I think "receptacle" comes closest.

Sunrise and Sunset - the period within which to execute the warrant

Naming the "receptacle" as the target of the search causes problems with drafting the sunrise and sunset on the face of the warrant. When should the search of the receptacle start? It's not when you take the cell phone out of the locker, but when the technician first starts getting into the phone. When will the technician first start imaging or downloading the data from the receptacle?

This case suggests that you need a warrant that authorizes the time frame when the technicians start getting into the phone, but you don't need to spell out when they should finish their analysis. The analysis of the data may continue after the warrant expires.

If you draft it like the precedent for a warrant in the Criminal Code (Form 5), the warrant need not set a deadline for the technicians to finish their task.  Beware. Because of the absurdity of s.488, the technician can't start that search at night without specific judicial authorization. I copied and pasted from Form 5, and, in italics, inserted some language which might work:

This is, therefore, to authorize and require you between <start date> and <end date>, between the hours of 6:00am and 9:00pm to enter into the said receptacles and start searching for the said data or evidence and when you find it, to bring it before me or some other justice.

Give your technicians a wide window between "sunrise" and "sunset".

But don't blindly copy and paste what I wrote. When drafting warrants, you take responsibility for the words in them. Make sure what you write actually means what you intend.

Postscript

The jury convicted Mr Nurse, and the other guy with whom he conspired. The Court of Appeal upheld the convictions.


2019.04.03 Right to Counsel - Facilitating Access

Mr Ector, 2018 SKCA 46 wanted to call his mother.

He said so after the police arrested him for impaired driving. Mr Ector explained that he wanted legal advice, but didn't know which lawyer to call. But his mother knew lawyers because she involved them in her land transactions.

"No," the officer said. "You can't call your mother, but I'll call her for you."

At trial, the officer said that the mother gave him the name of a law firm. He told Mr Ector, and Mr Ector wanted to call the law firm. It was after 10:00pm, when the officer called the law firm. An answering machine listed the names of the lawyers, and offered the option of leaving a message for any one of them.

Mr Ector wanted to call his mother again. The officer directed him to choose one of the lawyers. The officer dialed the number again, and Mr Ector chose a name at random. He left a message. No lawyer called back.

Mr Ector spoke with Legal Aid Duty Counsel for 30 minutes, after which he wanted a second opinion. The officer said "no", and took him for breath testing.

At trial, the mother testified. She claimed that she told the police officers the names of specific lawyers at the law firm. Mr Ector complained that if that's what happened, then the officer breached Mr Ector's rights by failing to tell him the names that his mother recommended.

The trial judge didn't think this was a problem, but the appeal court did, and ordered a new trial.

The right to retain and instruct counsel includes the right to get advice from someone about who to call. To the extent that you control the process of finding the lawyer, you are accountable for facilitating access. If mom named a lawyer, the officer had to pass that information along, correctly, to the prisoner.

The court did not say you must give the prisoner free use of the telephone to call anyone he wants. But if you become intermediary between the prisoner and the people who will help him choose and contact a lawyer, then beware. Someone, such as a loving and doting mother may contradict you about the information you received and conveyed to the prisoner.

2019.03.24 Child Luring - "Reasonable steps" to ascertain the age of a child on the internet

Mr Morrison, 2019 SCC 15 posted an ad on ad on the “Casual Encounters” section of Craigslist:

Daddy looking for his little girl – m4w – 45

"Mia" responded, telling him that she was 14. Mr Morrison soon turned the conversation to sex. He invited her to watch pornography and touch herself. He asked her for photos of herself. Eventually he suggested that they meet.

They never did. "Mia" didn't exist. A police officer played the role, carefully typing mistakes and expressing herself as a 14-year-old girl would.

Mr Morrison told the police officer who arrested him: “I was only talking to one girl.” But Mr Morrison also commented that he didn't know for sure how old the girl was. On the Internet, “you don’t really know” whether you are speaking to a child or an adult.

The prosecutor wasn't worried. Section 172.1(3) required the court to presume that Mr Morrison believed that "Mia" was under 14 just because "Mia" said so.

The judges found that section to be unconstitutional.

From now on, in such cases, we can expect every such defendant to make the same assertion: "on the internet, you never really know who you're communicating with."

Therefore, officers doing these investigations will need to provide much more convincing evidence that they are underage. Mr Morrison asked "Mia" to provide a photograph. Of course, the officer never did. In future, you may need photographs or live video feeds of what appears to be children.

Should you use real children to investigate people engaged in luring?

I don't recommend it.

But it might be worth investigating artificial images to use in these investigations. Recent AI developments are showcased at https://thispersondoesnotexist.com/. Refresh your browser a few times: it will generate children

I note that obtaining convictions without the presumption is not impossible. R. v. Harris, 2019 ONCA 193

2019.03.16 "Retain and instruct counsel without delay" - Section 10(b)

 of the Charter

When police officers executed a search warrant they didn't expect to arrest anyone. But Mr Nguyen, 2019 ONCA 178 turned up, so they arrested him. Mr Nguyen said he wanted to talk to a lawyer.

They kept him on scene for 50 minutes because they didn't have anyone to take him to the police station. When they got him there, they forgot to tell him that they had no luck reaching his lawyer. Instead, the officers released him.

The judges didn't like the delay in providing Mr Nguyen with access to a lawyer. After a prisoner says he wants to get legal advice, there need to be good reasons why you delay it. Section 10(b) says that your prisoner has the right to retain and instruct counsel "without delay".

In this case, the police obtained no evidence during the time that the prisoner was prevented from calling a lawyer. Furthermore, the judges didn't think it was a common police practice to delay access to counsel. The appeal court judges upheld his conviction.

Don't let it become a common police practice. Bad guys will find sympathy from the judges if you routinely ignore this right.

2019.03.09 Murder by Multiple assailants - Who "Causes" Death?

Mr Hong, 2019 ONCA 170 and his henchmen planned to rob a drug dealer at his residence. When they got there, one of his henchmen hit a guy twice in the head, using a baseball bat. The victim fell to the ground, and made noises which a pathologist identified as the noises of a dying man.

Mr Hong didn't like the noises. He told someone to stop the noises. Another henchman hit the dying man on the head with the butt-end of a pellet gun. That didn't stop the dying man's noises. Mr Hong said he would show them how to silence him. He took the pellet gun by the barrel, and swing it like a golf club at the dying man's head. The impact broke his jaw, and he stopped making noises.

The pathologist didn't think that the last impact inflicted the injuries that killed the victim.

At trial, the jury found his henchmen guilty of manslaughter. Although the jurors were convinced that the henchman caused death, they must have doubted that the henchman intended to kill or inflict mortal wounds.

But they convicted Mr Hong of murder.

Considering that the henchman inflicted the injuries that killed the victim, was this a legal route to follow? Mr Hong didn't "cause" the death.

Yes. Even though the golf swing did not inflict the fatal injuries, it did accelerate death. And if Mr Hong intended that the victim die or suffer injuries that could kill, then that's enough causation for liability for murder.


2019.03.08 Impaired Driving - Breath Testing - Belches, Burps and Regurgitation

After you demand breath analysis, you must take your suspect without delay to the breath tests. And you must offer access to legal advice, and provide that access without delay.

And in the last 15 minutes before the subject blows into the instrument, you should watch in case the subject belches, burps or regurgitates.

When investigating Mr Ruest, 2019 QCCA 335, the investigating officers didn't watch for that. The breath-testing instrument recorded concentrations of 111 and 103mg% of alcohol in his blood. At trial, Mr Ruest testified that he consumed only a little alcohol. Based on his claims of alcohol consumption, an expert calculated that his blood-alcohol concentration should have been 18mg%.

Defence asked the court to find that the police failed to operate the instrument correctly because they did not watch for belches, burps or regurgitations. The judges rejected this argument - but only because it involved speculation.

If Mr Ruest had also testified that he regurgitated just before the breath tests, he might have been acquitted. According to an expert, such mouth-alcohol could really affect the accuracy of the breath testing.

Interestingly, the expert said that burps are not a big deal. If the stomach contains undigested alcohol, then a burp may bring concentrated vapours of alcohol into the mouth, but this dissipate quickly. But regurgitation can bring the alcohol itself into the mouth, and that's a problem.

I'm not an expert in these things. Don't take my word for it. For reliable science, talk to a toxicologist.

But after a breath demand, your duties include:

2019.02.16 Sexual assault - intoxicated victim

Ten thousand years after people started making it, humans still like alcohol. As we all know, it:

  1. Anaesthetises - people feel less pain;
  2. Disinhibits - people dare to break out of their usual behaviours; and
  3. Obliviates - after enough, people don't remember the things they chose to do;
  4. Incapacitates - after too much, people can't think for themselves at all.

We can laugh about it, but these properties cause lots of trouble in sexual assault cases.

A 14-year-old girl went to the beach with a 15-year-old boy. They were friends, but not close. His initials were C.P., 2019 ONCA 85. They stopped a liquor store and persuaded an adult to buy them vodka. The girl drank heavily. At the beach, the boy and the girl kissed for a while. They also had sex. She could not recall the sex and didn't think she consented. Was she too drunk to consent, or just too drunk to remember things she now regrets?

Another friend of the girl, E.G., testified that after the sex, the girl was intoxicated to the point of incoherence. Too drunk to consent.

Did the girl get that way before or after the sex? Did E.G. arrive immediately after the sex or a substantial time later?

If E.G. arrived much later, then perhaps the girl's intoxication increased by reason of vodka she drank just before or just after the sex.

The trial judge convicted Mr C.P. of sexual assault. He appealed. The majority upheld the conviction. What's interesting in this case is the dissent.

One judge would have acquitted him because in his view, the evidence wasn't strong enough to be sure that E.G. didn't just recklessly say "yes" to the sex, before she got too drunk to decide anything.

When you investigate cases of sexual assault where the complainant doesn't recall the sex, the prosecutor wants more from the complainant than her assertion "I wouldn't have consented to sex with that guy". It's too easy for the judge to reason "maybe not when you are sober, but what about when you were drunk?"

This case demonstrates one way to get there - gather evidence of the complainant's condition just before or just after the sex. That judge complained that there were lots of people at the beach. Why didn't they testify too? Was this a failure of the investigators to locate all witnesses, reluctance of witnesses to talk, or failure to recall because they were too drunk to remember? I don't know because the decision doesn't explain. But I do know that a good investigator would try to get the evidence of the other witnesses, and anything else that would tell how much liquor (or other drugs) the girl consumed.


2019.02.12 Voyeurism - Reasonable Expectation of Privacy

Back in 2017, I wrote about Mr Jarvis, 2019 SCC 10, a teacher who used a camera hidden in a pen. He aimed it down the cleavage of his female students, and recorded video of their breasts.

Was it voyeurism?

The trial judge felt this violated the expectations of privacy of the students, but the evidence didn't prove that he did it for a sexual purpose. Mr Jarvis beat the charge. The Court of Appeal disagreed. Of course it was done for a sexual purpose, but the teacher only recorded what the girls displayed to everyone around them -- even the security cameras. Mr Jarvis beat the appeal.

Mr Jarvis lost in the Supreme Court of Canada. They concluded that the recordings did violate the expectations of privacy of these students. They might expect that the people around them might glance down their shirts, but they didn't expect someone to walk away with video recordings of their breasts.

This decision matters for two reasons.

It expands the interpretation of the luring offence to capture surreptitious recording of people in mostly-public places. Video-recording differs from just looking at people because it makes a permanent record.

But it also shifts lawfully-protected expectations of privacy.

Last week, if you were considering setting up a video-recording system in a mostly-public place for the purposes of investigating a suspect, you had less to worry about. This week, think some more. This decision does not say that you need judicial pre-authorization for every video camera you deploy in public. But trial judges are more likely to find that lawfully-protected expectations of privacy even in semi-public places. We can expect more debate about whether you need judicial authority to install video-recorders that observe places like underground parking lots of apartment buildings or residential back yards.

2019.02.13 Preserving Evidence during Investigation

Who wants to be a terrorist? Mr Hersi, 2019 ONCA 94 did. He quit his job and bought plane tickets to Somalia. But police arrested him at the airport.

He'd been talking about his radical and violent ideas for a while, including with his new friend at work.

That guy was an undercover police officer, who started working there after Mr Hersi's employer alerted authorities to Mr Hersi's scary ideas.

Mr Hersi even encouraged the officer to join the Jihad. The officer took careful notes.

Mr Hersi sent him text messages. The officer deleted the uninteresting ones.

At trial, defence complained that the missing text messages contained the key evidence that showed that Mr Hersi wasn't serious about terrorism. Because the police officer destroyed them, Mr Hersi wasn't getting a fair trial. Defence asked the judges to stay the proceedings.

The argument did not succeed. Mr Hersi got 10 years.  But the judges agreed that the undercover officer should have preserved all the text messages.

Preserving innocuous text messages seems like a waste of time and effort.

Not if it's evidence.

Is this case relevant to you? Most of you aren't working in undercover operations. But minor communications are often relevant. For example, many of you arrange to meet defendants for non-custodial interviews. Your communications arranging such interviews can become central evidence in a voir dire to determine voluntariness of the accused's remarks. Those text messages should be preserved because they will tend to show what wasn't said.

Just like in Mr Hersi's case.

2019.02.10 Evidence of Intoxication - Video-recordings

"How drunk was he at the time of the offence?"

The question arises often. In an impaired driving case, was she too drunk to drive? In a murder case, was he so drunk that she did not realize that by stabbing someone, he would probably kill them?

Mr Williams, 2019 BCCA 49 stabbed someone, and the victim died. At his murder trial, he said he could not remember the night: he was too drunk.

Homicide detectives obtained his bar bill, which showed he drank heavily up until 9:30pm. The stabbing occurred at around 11:00pm.

Nobody knew whether he kept drinking. Was he too drunk to form the specific intention to kill the deceased?

The officers that arrested him shortly after the stabbing took him to the police station. Security video showed him walking fairly normally. But security video doesn't capture everything.

A jury convicted Mr Williams of murder. The appeal court found errors with the judge's instructions to the jury, and ordered a new trial.

You can bet that at the second trial, the prosecution will play the security video again. But they'll wish they had something more. And the defence will wish they had more evidence to prove that Mr Williams drank lots more booze after leaving the bar.

In cases like this, first responders have too much to think about: "Who did what to who? Is everyone safe? Does the suspect need medical attention? Legal advice? Is the scene secure? Is there other evidence that needs capturing or preserving right now?"

In a case like this, the lawyers want reliable evidence of the accused's sobriety. Video-recordings of the suspect walking and talking can help.

Even the judges wanted more. The court observed "Unfortunately, no post-arrest investigative steps were taken to obtain a breath or blood sample from the appellant."

Hmm.

The court made it sound as if that was an investigative failure. If the accused is uninjured, getting those breath or blood samples is pretty tricky: if he's really drunk, he's in no position to consent; if he's sober enough to understand what's going on, he'll likely follow legal advice, and refuse to permit you to take them. Except in drunk driving investigations, the law does not permit you to compel him to produce breath or blood samples.

That doesn't mean you shouldn't try. But you'll need to step very carefully to get bodily samples by consent.

But you don't need consent to video-record your prisoner. For the purposes of documenting sobriety or drunkenness, can you video-record the suspect's conversation before access to counsel?

You can certainly do so for the purposes of documenting how you treated the suspect, how you explained the right to counsel, and the right to silence. During the period before the suspect gets access to counsel, you must be scrupulously careful not to ask the suspect for evidence about the offence. Even asking how much he drank is out of bounds until he has had access to a lawyer. But it's clear that even the judges appreciate good evidence which measures intoxication.

Do you whip out your video camera only when the suspect looks drunk or stoned? No. Immediately after a killing, evidence of the accused's intellectual functioning matters to all parties. The Crown wants to prove that the accused was sane and sober. The defence may hope that it shows him to be intoxicated or insane. Immediately after the suspect blows a "fail" on the screening device, the respective lawyers will hope for the opposite. Your job, as neutral investigators, is to capture the evidence, whatever it may be.

Whether you investigate an ordinary impaired driver, or a murder suspect, if you catch the suspect immediately after the offence, consider making a video-recording which documents the suspect's symptoms of alcohol or drug intoxication. Or at least preserve the security video from your police station.

2019.02.07 "Did you Detain my Client?" - Testifying about an Interaction

The defence lawyer asked Officer Stratton whether he "detained" the defendant. It was a dangerous question. Officer Stratton said "yes". It was a dangerous answer.

A police officer who "detains" a person triggers duties under the Charter. But the courts give a different meaning to the word than people in ordinary conversation. R. v. Mann, 2004 SCC 52 at para 19:

‘Detention’ has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

The question was dangerous because the answer would determine whether Mr Reid 2019 ONCA 32 went to jail.

Was Officer Stratton correct? Was it a detention?

Officer Stratton went to public housing complex with other officers. The management of the complex invited them there because the crime problem in the area. Strangers would come and cause trouble.

Officer Stratton and another officer were talking with some children when two men approached them. The officers engaged the two men in conversation. One was Mr Reid. Officer Stratton talked with him.

The officer asked Mr Reid whether he lived at the property, his name, whether he had been in trouble in the past, and his purpose for being there. Mr Reid gave his name and volunteered his date of birth and home address. He said that he did not live on the TCHC property, but that he had family in the “area”. He also said that he had been arrested a long time ago and that he was at the property to produce music and help children to not go down the “same path” as he once had.

"Officer Stratton used his portable radio to run a record check on the appellant’s name. The appellant could hear Officer Stratton speak into the radio, and the replies he received. Officer Stratton thinks that he told the appellant that he would be “on his way” once the record check was complete. Officer Stratton said that the purpose of the check was to determine whether the appellant was subject to any court-imposed conditions forbidding him from being on the TCHC property. As the check was being done, Officer Stratton recorded the appellant’s name, date of birth, and address on what was referred to as a 208 card."

Then the radio blurted out that Mr Reid had a weapons prohibition. Mr Reid turned, tapped an object on his hip and ran. He threw away a loaded handgun. The entire encounter lasted 5-7 minutes.

The trial judge found that that the interaction wasn't a "detention" within the meaning of the Charter.

The defence appealed: "Hey! It must have been a detention. Even Officer Stratton called it a detention!"

The Court of Appeal responded:

I agree with the trial judge that little weight can be placed on Officer Stratton’s use of the term “detention”, particularly in light of the officer’s qualification about what he meant by detention: “I was talking to him. If that’s ‘detain’, then, yes, then I was”. Clearly the officer was not using the legal definition of detention.

Officer Stratton was wise to qualify his words like that.

Because the legal meaning of "detention" differs from the everyday meaning of the word, you want to be careful answering the legal question with everyday language.

2019.02.01 Facebook Fact or Fiction - Authenticating Digital Evidence 

Who set fire to Mark's house and garage? A girl named Carmen showed police some Facebook communications from Jonathon Ball, 2019 BCCA 32, in which Jonathon claimed responsibility.

Did she fake them?

Mark's rock band practiced there. Jonathon - a member of the band - had a complicated love life. He had an on-and-off again relationship with Carmen. Without telling Carmen, he was also seeing a young woman named Brooklyn. But Brooklyn was Mark's ex-girlfriend. Jonathon's dalliance with Brooklyn broke up the band.

Jonathon got most of his equipment back from Mark's place, except an amplifier.

And then someone set fire to the place.

Two weeks after the fire, Carmen - the deceived girlfriend - told police that Jonathon admitted setting it. She showed them some Facebook messages:

"I was at Marks. There’s nothing left of the garage. I broke in the basement of the house and looked for anything of value, couldn’t find anything so I lit the basement on fire."

The timestamp was 2 hours after the fire - at a time when only the police, the firefighters and the arsonist could have known those details.

She showed the police those messages by signing onto her account from a computer at the police station. A police officer photographed the messages.

At trial, the prosecutor asked Carmen to explain how she received the messages. Carmen was no expert. She looked at the photographs of the computer screen. She remembered the messages, but could not confirm the timestamps. Nobody explained how the Facebook worked. Nobody checked Carmen's computer, to see if she had signed on as Jonathon, and faked the messages. Nobody got records from Facebook to discover what device signed into Facebook on the date and time the messages were made.

The Court of Appeal ordered a new trial. They said the prosecutor, the defence lawyer, the police and the trial judge all made errors.

The primary mistake everyone made was to assume that an exhibit speaks for itself. A photograph of a computer screen showing Facebook messages proves nothing. People establish exhibits by testifying about them. Testimony proves that the exhibit is "authentic". Testimony explains what the exhibit means.

The photographer can testify "this is what the screen looked like on the day I took that photograph". But that doesn't prove how the timestamps came into existence, or who put the messages there.

Someone familiar with Facebook needed to testify "Facebook creates the timestamps you see beside each message. They specify when the messages were posted onto Facebook." But that doesn't prove who typed the messages.

Carmen's testimony in this case was central ... and suspicious. She had reason to hate Mr Ball. She might have had access to his Facebook account - particularly if he ever used her electronic devices to sign onto it. She could have typed the messages, and framed him.

The appeal court said that the investigation needed to go a bit deeper - to confirm her allegation about who typed the messages. (I understand that the defence counsel made admissions, so the prosecutor told the investigators not to worry about that sort of investigation.)

This idea applies to all exhibits. If you have data, or a picture or an exhibit, don't just send it to the prosecutor. The prosecution needs witnesses who can explain the continuity and meaning of the thing.

2019.01.29 Ion Scanner - Unjustifiable Snooping or Electronic Dog?

If you swab a surface, an ion scanner will report whether it detects specific drugs. Is it lawful for a police officer to swab the door handle of a suspected drug-dealer's car, and submit the swab to an ion scanner?  Two judges recently disagreed.

R. v. Wong, 2017 BCSC 306; R. v. Wawrykiewycz, 2018 ONCJ 199

In both cases, the cars were in public places. In both cases the police had reasonable grounds to suspect that the drivers dealt with drugs.

Both judges agreed that testing a car for traces of drugs violated the driver's expectations of privacy. But the Ontario judge went one more step. She found the technique analogous to deploying a drug dog.

The Supreme Court of Canada held that deploying a drug dog to sniff for drugs intrudes on privacy, but when the officer has a reasonable suspicion that there are drugs to be found, the search is lawful. R. v. Kang-Brown, 2008 SCC 18; R. v. Chehil, 2013 SCC 49.

She felt that swabbing the exterior and using the ion scan violated Mr Wawrykeiwycz's privacy less than deploying a drug dog. Because the officers had reasonable grounds to suspect Mr Wawrykeiwycz of dealing in drugs, this search was lawful.

With respect to both judges, I prefer the reasoning of the Ontario judge. The B.C. judge did not consider the drug-dog case law.

I am aware of no decision in BC which overrules Wong. It states the law for the time being. Until this decision is overruled or clarified, police officers in BC who want to use ion scanners in this manner should seek legal advice.

I thank Jason Anstey for drawing these two decisions to my attention. Usually, I don't comment on trial decisions. But the Wong case has some impact on police investigations, not only on this topic, but also the deploying of cameras in public places.

PS: The Ontario Court of Appeal sided with the BC judge. You need a warrant to swab door handles and run the swab through an ion scanner. R. v. Wawrykiewycz, 2020 ONCA 269

2019.01.13 Drug Recognition Experts - Rolling Logs - Disclose your Performance

With the legalization of marijuana came increased enthusiasm for drug recognition experts (DREs).

Are they any good at recognizing drug intoxication?

DREs keep logs of the evaluations they perform.

When a DRE concludes that someone's impaired by drugs or drugs and booze, section 320.28(4) of the Criminal Code requires the DRE to "identify the type or types of drugs in question". Testing of bodily samples thereafter may confirm or rebut their opinion.

Naturally, defence will want to learn how many times a DRE got it wrong. Crown wants to emphasize how many times they got it right.

So the lawyers want copies of the DRE's log. Not only at the time of the initial disclosure, but also updated close to trial. The Ontario Court of Appeal says that the defence is entitled to a copy of the DRE's log. Stipo, 2019 ONCA 3.

If you are a DRE with a good track record, defence will then challenge your record-keeping. Is there any way that you could doctor your log to cover errors revealed by testing of bodily samples? Your log better be something more permanent than a word processor file.

If you are a DRE with a bad track record, consider getting out of the business.

If you are a beginner DRE, to conserve your reputation and protect your log from an accumulation of mis-identifications, you might want to make your assessments carefully.



2018 Developments

2018.12.31 Strip Search in the Field

Mr Pilon, 2018 ONCA 959 tended to carry drugs in his crotch. And police who knew him knew of this tendency.

Those officers executed a CDSA warrant to search for drugs in a room at a motel. In the room, they found Mr Pilon and two other guys. The officers arrested the three men - I gather they had grounds. The other two guys put up no resistance, but Mr Pilon struggled and resisted. He kept trying to put his hands down his shorts, even after the officers handcuffed him.

An officer pulled his waistband away from his body. To his surprise, he saw that Mr Pilon wore no underwear, but a rubber band was attached to his penis.

A pat-down search did not discover any weapons. To prevent Mr Pilon from concealing evidence, the officer decided to search him at the motel. He put on gloves, and in the bathroom, away from the observation of anyone else, he searched Mr Pilon, and recovered drugs.

At trial, Mr Pilon complained that the officer who searched him violated his s.8 rights by strip searching. The trial judge rejected this complaint, but the appeal court found a breach.

Even if Mr Pilon had been wearing underwear, pulling his waistband away from his torso to look into his groin area constituted a "strip search". Police must not do so except according to the strict limits of such searches (read the decision to remind yourself). That was a breach of Mr Pilon's rights.

You can pat someone down for weapons. At the scene, you can search under clothing if you have reasonable grounds to believe that there are weapons that pose you or others a risk. But you can't search for evidence unless there are strong reasons to expect it will be destroyed or hidden before you can get the suspect to the security of your police station.

This officer didn't believe Mr Pilon had weapons. He knew Mr Pilon carried drugs in his crotch, and Mr Pilon was acting like he had drugs in his crotch.

The judges felt that a handcuffed suspect would have great difficulty concealing or destroying drugs in his crotch. Therefore, there was no urgency to searching him. He should have been carefully watched until he arrived at the police station, and there, searched for the evidence he was carrying.

But the judges also agreed that the breach of rights was not outrageous. After the initial breach, the officer did take steps to limit the intrusion on Mr Pilon's privacy. They found that the drugs could be admitted into trial. Mr Pilon's conviction stuck.

I found this case interesting because many officers may think "strip search" means taking off clothing. But it includes less overtly embarrassing searches. It includes pulling away outer garments to look at underwear.

2018.12.13 How Sharing affects Privacy in Computers and Privacy in Houses; Oh yeah, also Form 5.2

Every so often, the Supreme Court of Canada delivers a decision which declares broad principles that affect police work. This is one. It expands upon the idea that nobody can waive the privacy rights of another person. That idea can complicate police work. I recommend that you read this decision and debate it.

Mr Reeves, 2018 SCC 56, and his common-law Ms Gravelle owned a house together. Ms Gravelle and her sister complained that he assaulted them. As a result of his charges, a "no-contact" order prevented him from entering the house without Ms Gravelle's permission. She revoked that permission, and she told a probation officer that a computer she shared with Mr Reeves contained child pornography.

A police officer came to the house to ask her about the child pornography. She welcomed the officer in. She signed a consent which permitted the officer to take the computer away, which he did. He did not report to a justice that he took the computer, but 4 months later, the officer persuaded a justice of the peace to issue a warrant to search the computer for child pornography. And it did, indeed, contain child pornography.

At the time that he took the computer, the officer did not believe he had sufficient grounds for a warrant.

The first judge decided that the police officer violated Mr Reeves' rights three ways:

  1. Although the officer entered the home with Ms Gravelle's permission, he did not have Mr Reeves' permission. Therefore, he violated Mr Reeves' reasonable expectation of privacy in the residence.
  2. The officer "seizure" of the computer, and failure to report it to a justice, as required by s.490, violated Mr Reeves' expectations of privacy in the computer.
  3. The application for the search warrant gave a falsely strong impression of the evidence that the computer contained child pornography.
1. Consent of a Resident isn't Enough?

The first finding should frighten you: if a resident invites you into a shared house and you accept, you may be violating the Charter rights of other residents.

Most of the judges of the Supreme Court of Canada realized that this idea was complicated. They'd worry about it some other time. This wasn't the right case for them to express an opinion.

Côté J. - all alone - suggested that consent of one resident lawfully permits you to enter the common areas of a residence.

Moldaver J. - also alone - said it might be okay to enter a residence to take a witness statement if:

  1. you give the resident an alternative to inviting you in,
  2. the resident invites you in anyway,
  3. for the purpose only of talking to the resident or getting a statement,
  4. in a common area or an area private to the resident who invite you in, and
  5. you stay only as long as you are welcome.

The judges may have the luxury of time to decide what's proper for a police officer. You don't have that luxury.

I can't accurately predict what rules the judges will ultimately set for you.

Even before this decision, you required clear authority to enter a residence without the permission of the residents. After this decision, you should be thinking twice about entering shared residences, even with the permission of one of the residents. Your obligation to save lives obviously overrides privacy concerns. But this decision gives greater force to the complaint of the other residents "I didn't let that cop into MY HOUSE. My rights are violated!!"

2(a) Taking the box without looking into it affects reasonable expectations of privacy

Because this officer did not believe, at the time of the seizure, that the computer contained child pornography, he could not seize it pursuant to s.489(2). His idea of asking the woman to sign a consent was a good one, but it turns out that step was not good enough.

Most of the judges agreed that one computer owner/user can't give you permission to take away a computer that contains the private data of another owner/user. Even if you don't look at it until later, with the authority of a warrant.

The officer didn't seize the computer from the woman. She gave it away freely. But by taking the computer away from her, he also took the computer and its data away from Mr Reeves without his permission. But for the officer's actions, maybe Mr Reeves could have made his peace with Ms Gravelle, and deleted the data.

2(b) Report to a justice and detention order

A seizure happens when you take something without consent. After you seize something, you must report it to a justice. This officer probably thought he received the computer from Ms Gravelle, and therefore, he "seized nothing". A reasonable thought. But the Supreme Court of Canada says there was a seizure -- from Mr Reeves. That's why the officer should have completed a Form 5.2.

So get used to filling out form 5.2. When in doubt, fill it out.

3. Warrant Drafting

It's really easy to exaggerate the strength of the evidence justifying a warrant. Any officer pursuing a lead should be enthusiastic, but enthusiasm generates confidence. Overconfidence can cause one to state inferences as facts.

The investigating officer learned that the women saw files that they believed were child pornography.

The officer who wrote the ITO:

To ensure that your application is correct, return to the source material, and check what it really says, instead of the conclusions you draw from it.

2018.11.26 Apologies

I posted no new material over the last month. I promise I will, but not for a couple more weeks. I've been busy. The new impaired driving legislation comes into force in 3 weeks. I worked up a presentation for lawyers. This week and next, I'm preoccupied with a lengthy trial.

I have lots to tell police on the topic. Here's a tidbit for today:

Police officers used to tell drivers that the penalties for failing the breath analysis are the same as the penalties for refusal. That's not true any more. After December 18, 2018, for first offenders, the fine for refusal is higher than the fine for impaired driving, and depending on whether the Blood-Alcohol Concentration is double the legal or lower, the fine is the same or lower if the suspect blows into the instrument. But the penalties for repeat offenders are the same.


2018.10.27 Identification Evidence - Showing a Single Photo

Mr Ali was talking on his cell phone with his cousin, when someone shot him. At the hospital it looked like he might die, but Mr Ali survived.

Mr Ali told police that the shooter was "Gucci" from Jamestown, a guy he recognized from high school. Police looked up this nickname in their files, and found Mr Jimaleh, 2018 ONCA 841 used it. Fearing that Mr Ali would die, police sent a single photo of Mr Jimaleh to an officer at the hospital, and that officer showed it to Mr Ali. Mr Ali confirmed that this was "Gucci".

Mr Jimaleh was charged with attempted murder, and convicted.

Defence appealed: those dumb cops should have used a proper photo lineup procedure!

The judges rejected that argument.

When the victim does not know the culprit, then showing a single photograph can cause the victim to remember the face in the photograph instead of the face of the culprit.

But when the victim knows the culprit well, showing the victim a photograph of the wrong person won't change the victim's memory.

Only because Mr Ali knew Mr Jimaleh did the judges find no fault with this police procedure.

2018.10.25 Non-Custodial Interview of a Suspect - Do You Have to Say "you're a suspect"?

You don't always know who dunnit. When you have some strong suspicions, do you have to tell them?

Police interviewed Mr Campbell, 2018 ONCA 837 about a missing person. He told them the deceased did not come to his house. That was a lie. He told them he was concerned about people driving by his residence.

Then the officers found the victim's body. Dead in his car. Four bullet holes in his upper body.

They went back to interview Mr Campbell some more.

Like Mr Campbell, the officers didn't tell the whole truth. They suspected him of killing the deceased, but they didn't say "you're a suspect in a murder". They told him that they wanted to talk to him because they were having trouble reading the notes of the first officer who interviewed him. They said they wanted to ask more questions about the people driving by his place.

And then the officer gave this stumbling explanation:

Um, I am a police officer. Um, I am investigating a murder. Um, so anything that you say to me could be used. If your were gonna be charged ... for murder. .. what you'd tell me I could use. Um, and I can use that in court. Um, and then the other thing is, is that if you spoken to any police officer or anybody in authority that says you know, if the police come by you have to talk to them ... don't pay any attention to that, okay?

It was a horrible way to say something simple:

I'm investigating a murder. If you were charged with that murder, what you tell me now could be used as evidence in court. You don't have to talk to me.  And if any other officer told you that you have to talk to me, they're wrong. You don't."

The officer did not offer him an opportunity to get legal advice. The officer did not give him any document to sign explaining that he understood his rights.

The officer just asked him more about the victim. And Mr Campbell said some things that helped get him convicted.

Defence appealed. They pointed out that the police lied about their motives. And they never told Mr Campbell he was a suspect. The trial judge should have excluded the second statement.

How did the appeal court judges respond to these complaints?



2018.10.20 Warrantless Safety Search of a Residence

 - The 911 Call

Someone called police from a pay phone. He said something like this:

"My dad is alone in my house. He's 80, and he speaks only Romanian. He just called me, and said he's afraid because he thinks intruders are trying to break in."

The caller named his father as Pavel Serban. The caller gave the address to the operator. When 911 operator asked for the caller's name, he hung up.

On the way to the residence, officers learned that previous tips asserted that marijuana grew in the residence.

When they arrived, nothing seemed amiss, except for the strong smell of marijuana and the sound of fans. Romeo Serban, 2018 BCCA 382 emerged from the house, and asked what was going on. He denied making any 911 call. An officer asked him for identification. Mr Serban invited the officer in while he fetched some identification. When the officer stepped in, he smelled a much richer odour of growing marijuana. The officer arrested Mr Serban. Several old Romanian people occupied the upper floor of the house. None could speak English. Nobody appeared in distress. Two people produced identification; but the last one could not. Was he Romeo Serban?

Could they search downstairs, to be certain that nobody was in danger?

They went down and looked. Instead of finding victims to rescue, they found a large-scale grow operation.

At the trial, the defence argued that the officers had no authority to search the basement.

The officers themselves conceded that when they saw the old people upstairs, they realized that probably the 911 call was false. A ruse. But they went downstairs just in case.

Csts Prihar and Shaw explained their reasoning very well. Read the decision for a quotation.

The duty to preserve life triggers when you have "reasonable suspicion" that life or limb is in danger. This duty trumps privacy rights.

An officer may hold still a reasonable suspicion of danger even when presented with more persuasive evidence that everyone is safe. Although peace reigned upstairs, and nothing appeared amiss, there was still a real possibility of harm downstairs. The 911 call raised a concern of violence. Grow operations make attractive targets for violence. Even though probably nobody was in danger, there remained a reasonable possibility that downstairs, an 80-year-old man was struggling to survive.

The judges all agreed with these officers: the possibility that an old guy was downstairs in terrible danger justified the search. It wasn't likely, but it was reasonably possible.

But good articulation in the court room only works if you turn your mind to the correct issues at the scene, and act on them.

These officers determined that their concern was life and safety. That was the only justification for searching the residence without a warrant. Even though they knew they had a grow operation to bust, they searched the basement only for people, not evidence. They did not stop along the way to photograph or seize exhibits.

Don't mess with this warrantless search power. Use it for its purpose - saving people. Don't invoke it as an excuse to search for evidence, because you'll look like a liar. On the other hand, if you have reason to suspect that someone needs saving, exercise that power. It's your duty.

Don't use this power to search a house if you have alternatives by which to determine that everyone is safe. The judges would have agreed if there were a practical alternative. But in this case, there wasn't one. The defence suggested that the officers could have questioned the occupants that they found. That was silly. Only one of the residents spoke English. And if the one who did speak English was an accomplice, questioning him would not assure the safety of the potential victim.

2018.10.17 Search & Seizure - Drafting ITOs in a team - Writing in the Third Person for the Affiant

Cst Dyck and Cst Chetwynd worked as a team investigating a grow operation at a residence belonging to Mr Beaumont, 2018 BCCA 342. Cst Chetwynd drafted the Information To Obtain the search warrant. Cst Dyck drafted summaries of his part of the investigation for Cst Chetwynd to include in the ITO.

To save re-drafting, Cst Dyck wrote his summaries in the third person, in paragraphs designed for Cst Chetwynd to copy and paste into the ITO. For example, Cst Dyck wrote his report using this language:

On February 22, 2013, I was advised by Cst. DYCK of the Royal Canadian Mounted Police, Kelowna Municipal Drug section, that he is a trained thermographer and utilized a thermal imaging device, also known as Forward Looking Infa Red (“FLIR”) while conducting an examination of [the appellant’s residence].

Defence were outraged. Cst Dyck's report was misleading!

"No it wasn't," the judges replied. Cst Chetwynd received Cst Dyck's paragraphs, read them, and included them in the ITO. The fact that Cst Dyck had drafted them for Cst Chetwynd to copy and paste was just fine.

As long as you read what you copy and paste, you can do this too.

As long as you read it.

Read it.

Really, I mean that. Read it.

In this case, Cst Dyck wrote a line of his own opinion:

"In my experience, a hot hydro box is typical with a higher than normal hydro consumption, causing the box to heat up."

Cst Chetwynd copied and pasted that part into the warrant, and failed to modify it so that it said "Cst Dyck informed me that in his experience, a hot hydro box..."

That was embarrassing. More than one of such errors could be embarrassing.

Read what you write, and make sure that it's true. Ask someone else to read it too.

If you write in the third person for the purpose of copying and pasting into an ITO, then you might make an annotation for the purposes of disclosure of what you did:

I, Cst Subaffiant, took the steps described below. I described my work in the third person so as to assist another officer in preparing a Information To Obtain.

2018.10.17 Welcome to Weed - Changes to Impaired Driving Investigation

As part of the Liberalization of marijuana, Parliament passed "Bill C-46" and associated regulations which changed the investigation and prosecution of driving offences. It comes into force in stages June 21, July 11 and December 18, 2018.

How does it change investigation of impaired driving?

New Offence

To start off, it added a type of offence.

Section 253 - the current "impaired driving" section - traditionally defined two driving / care or control offences:

  1. Impaired by alcohol or a drug or a combination.
  2. Exceed a specified concentration of alcohol in the blood (80mg%).

They're different. A judge can convict someone of driving while over 80mg% even if there's no evidence that the alcohol impairs their ability to drive. Likewise, a judge can convict someone of impaired driving even if they have less than 80mg% in their blood.

In June, Parliament created an offence of having too much drug in your blood. The judge doesn't have to find that it impaired the you, only that the concentration of the drug exceeded the legal limit. Except Parliament didn't publish the legal limits until July.

But marijuana is special. If the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it's a crime, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it's punishable by the same penalty as impaired driving or over 80mg% of alcohol.

And driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving.

Within 2 hours instead of time of driving

With drug concentrations, Parliament defined drugged driving differently than alcoholic driving. The alcohol offence is driving while having a blood-alcohol concentration (BAC) of 80mg%. The driver commits the drug offence if their blood contains the prohibited concentration of drug anytime in the 2 hours after driving.

There's a reason for that. Even if it takes more than 2 hours to test a driver's blood-alcohol concentration, there are simple calculations we can do to figure out how much alcohol was in the driver's blood at the time of driving.

Although the legislation always did require you to test for alcohol "as soon as practicable", if unavoidable events - like legal consultation - delay you past two hours, it's not a disaster. Even if we test the driver's BAC 4 hours after driving, we can calculate the blood-alcohol concentration at the time of driving.

Drugs don't work that way.

Calculating a person's blood-drug concentration at the time of driving isn't simple.

Therefore Parliament defined the offence in terms of the blood-drug concentration in the 2 hours after driving. (They added a defence for the innocent consumption after driving.)

That means if you're going to test blood for drugs, there is greater urgency to get it done no later than 2 hours after driving. It sounds simple, but it ain't.

The only people who can draw blood are medical doctors and qualified technicians.

That means after a blood demand you need to take the suspect to someone qualified to draw blood. And if the suspect wants legal advice you need to give the suspect access to counsel in private before anyone takes blood. It seems to me that you'll be arranging access to counsel by cell phone while the suspect sits in the back of your cruiser.

New Drug Screen Demand

How does an officer get that blood? By demands similar to breath demands.

As of July, at roadside you can, on reasonable suspicion that the driver has drugs or alcohol in their blood, demand pursuant to s.254:

Even if you have no special Drug Recognition training, if you have reasonable grounds to believe that a driver is impaired by alcohol or drugs, or has more than 80mg%, or an illegal concentration of drug in their blood, then you can demand:

If nobody did an alcohol screen, DREs can, after forming reasonable suspicion that a driver has alcohol in their body, demand the driver to blow into a screening device

DREs can, after forming reasonable grounds to believe that drugs or drugs and alcohol impair the driver, demand saliva, urine or blood.

Probably blood gives the most precise results, but DREs must consider how long it will take to get blood tested.

More changes on December 18, 2018

On December 18, 2018, all the section numbers will change. You need to update your cards.

On that day, the over 80mg% offence changes to match the drug offences. It will be a crime to have too much alcohol in your blood in the 2 hours after driving - unless you drank after driving, not expecting that a police officer would want to test your BAC.

Because of changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you're a breath technician, and you haven't seen the new certificates, start asking for them. In my view, you should be using them now.

Some changes will certainly generate constitutional litigation:

Suggestions

How will all this change police work?

Demands and testing are more complicated, and for drug testing require more steps. Complication leads to error and litigation. Multiple steps take a long time to complete, and that may result in blood testing more than two hours after driving.

How does a practical officer respond to those complications?

It's good to know the technical steps. But don't forget to investigate impairment!

As a prosecutor handling one of these cases, I'd much rather present a video of a driver who can't walk or talk straight than get the following witnesses to say:


2018.10.14 Expert Reports - Drafting & Peer Review

Judges and lawyers worry about experts. When discussing their topic of expertise, they know more than everyone else in the court room. It's hard to for the rest of us to know when they're slanting their evidence for one side or the other. But if a lawyer can show that an expert is biased, then the court may reject or distrust the expert's opinion. One way lawyers search for bias is by examining earlier drafts of the expert's final report.

When Ms Natsis, 2018 ONCA 425 drove away from the bar, her car collided head-on with an oncoming vehicle. The other driver died. Police attended. Ms Natsis told them that the other car crossed the centre-line and came into her lane. It turned out to be a high-profile case.

An officer trained in reconstructing accidents noticed that marks on the road and certain damage to the vehicles suggested that Ms Natsis was to blame: her vehicle crossed into the oncoming lane before the collision.

That officer prepared a preliminary report, but wanted some technical data downloaded from one of the vehicles. He submitted his draft report to another expert, who noticed some errors but not others.  For example, the body of the report said that Ms Natsis' vehicle was on the wrong side of the road, but the conclusion said that she was in her own lane. They both missed that.

After making some changes, the expert destroyed the preliminary report.

The final report still contained the erroneous final opinion. It omitted key information, for example there were other marks on the road that the expert thought other vehicles placed before the accident. But if they occurred during the accident, then his opinion would be wrong.

Defence attacked from several angles: disclosure, bias and competence.

The judges agreed with defence that the draft report which the expert sent for peer review should have been preserved. Because the draft report was no longer available, Crown disclosed the expert's emails which showed what discussions the expert had with other experts. Those emails contained language that made the expert look biased against the defendant.

The judges agreed that there were reasons to suspect that the expert was biased. His emails contained, for example the following remark: "NATSIS may claim that [the deceased] was in her w.b. lane", and then discussed ways to rebut this claim.

On the question of bias, the judges agreed that the evidence exhibited indications of bias.

Defence attacked the quality of the expert evidence. The expert testified that Ms Natsis' vehicle was in the wrong lane, but the conclusion of his report said it wasn't. Worse still, the second expert who reviewed the report failed to notice this contradictory conclusion. If peer review never noticed that the report came to the wrong conclusion, then how good was the peer reviewer anyway?

Despite these mistakes, the trial judge admitted the expert report and convicted Ms Natsis of dangerous driving causing death and impaired driving causing death. The appeal judges upheld these conclusions.

Although this case discusses accident reconstruction, the principles apply generally. For experts of any kind, the trial decision and the appeal decision provide cautionary tales about what can go wrong:


2018.10.10 General Warrant - Limits

Section 487.01 confers on a judge the power to authorize a wide variety of intrusions into privacy. But it's not a blanket authority.

Officers in Cornerbrook, Newfoundland applied for a creative new use for s.487.01. It didn't work. Let's look at why.

Someone committed an aggravated assault. For some reason (the decision doesn't say), this suspect wound up in a hospital. The officers believed he posed a great public danger. They wanted the hospital to alert them if it appeared that the suspect would be discharged.

They sought a general warrant which compelled the hospital staff to alert the officers in advance of the patient's release, and to update police about changes in his medical condition.

The judge refused to grant the warrant. In the matter of an application for a General Warrant pursuant to section 487.01 of the Criminal Code of Canada, R.S.C. 1985., 2018 CanLII 39387 (NL PC).

What seemed like a great idea falls apart when you actually read the section of the Criminal Code that defines general warrants. I added some relevant emphasis:

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

A general warrant authorizes peace officers to do things. But these officers asked the judge to command the hospital staff to do things. It was really a kind of ongoing production order. Maybe the officers should have added an assistance order. Even so, the warrant needed to identify things that it empowered the officers to do.

A general warrant can only be granted for the purpose of gathering information about a specific crime - even a crime that hasn't yet been committed. The decision does not recite what the officers said about future crimes. But this application was based upon a past crime. The proposed warrant would not gather information about that past crime. It would only help prevent a future crime.

The judge commented that there was no explanation why the police had not arrested the suspect. I speculated why not: Maybe his medical condition complicated the process of arresting him. Maybe Cornerbrook police lacked sufficient officers to post an officer at the hospital to guard the prisoner for however long it would take him to recover. If so, this was a creative solution to a practical problem. It failed because it didn't fit within the legislation.

Creativity is good. Sometimes, you can solve problems in new and efficient ways. But when being creative with legislation, read the legislation carefully first.


2018.10.08 Eyewitness identification - Photo Lineup for an Alternate Suspect

When a drug rip-off goes bad, and someone gets killed, police officers must work with unsavoury witnesses.

Someone shot Husam Degheim dead in the course of a marijuana sale. Did Shawn Vassel, 2018 ONCA 721 or David Grant pull the trigger?

Two of Degheim's associates who were with him believed they could identify the shooter. Police showed those guys photo lineups containing Mr Vassel's image. Neither picked him out. When shown a lineup which contained an image of one of the guys with the shooter, both picked out a guy named Agba, and said he was not the shooter, but was present. Mr Agba admitted being present, but denied pulling the trigger.

At trial, Mr Vassel testified that David Grant went on the drug rip-off expedition, not himself. His lawyers pointed out that  David Grant resembled Mr Vassel. The features of the shooter which the victim's associates described matched Mr Grant as much as Mr Vassel.  Defence argued that Degheim's associates had good memories for faces. They didn't pick out Mr Vassel's picture because the real shooter was Mr Grant.

This evidence didn't work at trial, but the appeal court ordered a retrial. Their decision relied in part upon the alternate suspect theory.

The judgment doesn't indicate whether the police considered Mr Grant as an alternate suspect during the course of the investigation. But I'll bet they now wish they had showed photo lineups containing Mr Grant to the victim's associates.

In identity cases, always investigate the alternate suspects.


2018.10.08 Computer Searches - Focus and Documentation

A police officer applied for a warrant to search a computer belonging to Mr John, 2018 ONCA 702 for child pornography. The officer promised that the technicians who searched it would "focus and minimize the scope" of the search, but warned that to do it properly, the technicians would "mirror" the computer's hard drive, and search all types of files. Child pornography can be hidden in innocent-looking documents.

The warrant asked to search for:

Smart work. The warrant targeted not just child pornography in the computer, but also evidence of who put it there.

The technicians found child pornography and evidence that linked Mr John to the computer at the times that the child pornography was sought or accessed.

Defence complained that the technicians snooped into too much data on the computer. Defence asserted that the application should have specified exactly what kind of searches the technicians were permitted to undertake.

The court rejected these arguments. The witnesses satisfied the judge that it's impossible to know before looking at the computer what searches will be needed to locate the data. But more importantly, the witnesses were able to recount for the judge the exact steps they took to locate the data, and why those steps were appropriate.

When applying for a warrant, consider carefully what to look for, like these folks did.

When executing the warrant, make sure you look only for the data you got permission to look for. Document each step, so that you can explain to the trial judge why that step was necessary.

2018.10.07 Suspending Access to Counsel pending Execution of a Warrant

Drug raids need planning.

When police arrested Mr Rover, 2018 ONCA 745, they prevented him from calling counsel until they executed a search warrant on his house. At trial, the officers explained that this was routine in cases like his. The Court of Appeal rejected their explanation, and Mr Rover beat the charges.

It started, as many drug investigations do, when an anonymous tipster described a black man dealing drugs from a particular residence. Police watched the residence for 5 hours, and saw a pattern of traffic come and go, consistent with drug dealing. Police arrested two women who came and went. The women admitted buying drugs from the house.

The officers arrested Mr Rover when he left the building at 10:41pm. They told he he could talk to a lawyer, but they gave him no access to a lawyer until after they got a search warrant and finished searching the building.

The trial judge said that the officers could have given Mr Rover access to counsel at 3:01am, when they first entered the building. There was no reason to delay his access until 4:20am, when the search completed.

Not only did the officers prevent Mr Rover from talking to a lawyer, they also prevented the two women from talking to a lawyer until after the search of the residence. And they didn't even tell Mr Rover why he couldn't talk to a lawyer.

The police explained at trial that they routinely delayed access to counsel in investigations of this sort.

Doherty J.A. roundly rejected this idea. Police may delay access to counsel only for reasons specific to the particular case, and not for a general possibility that in some cases, someone might destroy evidence before police arrive with the warrant. It bothered him that police did not choose to execute the search warrant before arresting the suspect. And he didn't like how the officers kept Mr Rover in the dark about his access to counsel.

If you're planning a raid, try to organize it so that key events - searching the place and granting access to counsel - occur in parallel, rather that one after the other.

If you fear destruction of evidence, identify the reasons, specific to this case, which underpin that fear. The person with the most information should make decisions about warrantless entry to preserve evidence or suspending access to counsel. That person will need to justify those decisions at trial. That person must identify reasons specific to the particular case.

If you suspend access to counsel, then your search team needs to assign a person to inform the officer holding the prisoner when to permit access to counsel.

PS: see also La, 2018 ONCA 830

2018.10.04 Arrest - Explaining why - Too many cooks spoil the broth - A s.10 trap

When you arrest someone, s.10(a) requires you to explain why. Once the prisoner knows why they lost their liberty, they can get advice from a lawyer about what to do.

In a rural community, Mr Lance, 2018 BCSC 1695 attacked a police officer. He and another officer pepper-sprayed him and hit him with a police baton, and eventually subdued him. The victim officer told him he was under arrest for assaulting a peace officer, but did not tell him that he caused bodily harm to the officer, nor that he was arrested for uttering threats.

Arranging access to a lawyer took some time because Mr Lance was drunk, the officers needed to get him medical treatment, and they had to move him to a larger centre. But he did get legal advice.

A different officer took over the investigation next morning. I think that was very wise. When someone assaults a peace officer, a different officer should investigate, so as to preserve the independence and objectivity of the investigation.

But introducing someone new to an arrest can create a problem.

The next morning, that officer told him he was under arrest for assaulting a peace officer and threatening, and tried to interview him. Mr Lance balked. He wanted more legal advice. The officer - thinking that Mr Lance had already got legal advice for this incident - did not let him. Then the officer got a confession from him.

The defence complained that the police had not told Mr Lance of his specific jeopardy - assaulting an officer causing bodily harm, and threats. Therefore, when Mr Lance first got legal advice, he lacked some of the information he needed. The interviewing officer should have given him a second opportunity to get legal advice.

The judge disagreed that the bodily harm part was a problem. You must give your prisoner a general idea of what he's under arrest for, but you don't need to identify the specific charges. But the judge agreed with defence that Mr Lance needed to know about the death threat allegation before he got legal advice.

Considering that the threats were part of the assault, I'm not sure I agree with the judge on the specifics of this case. But I do agree with her about the overall principle.

It's not enough that a prisoner speaks to a lawyer after an arrest. Someone needs to tell the prisoner all about the trouble he faces.

When one officer arrests a prisoner, and a different officer interviews him, the second one needs to be sure that the first one fully explained the prisoner's jeopardy before the prisoner exercised his right to counsel. If the jeopardy differs, then the second officer must explain it, and give the prisoner further access to counsel.

2018.09.30 Dial-a-Dope - Orders for Drugs after the Arrest

When you bust a dial-a-doper, his phone may ring. If you answer it, someone may order some drugs.

In R. v. Baldree, 2013 SCC 35, the court found that a single such call should not be admitted into evidence because it was hearsay. Why didn't the police investigate the caller, and have that person testify at the trial about how he or she knew that the defendant sold drugs?

A police officer answered that question when he testified in the trial of Mr Omar, 2018 ONCA 787.

The background was simple. Following up on a tip, police had followed Mr Omar drive to a bunch of drug hotspots. He stayed at each location for a short time. When they arrested him, he had four cellphones, $1,175 in cash, and crack cocaine in his underwear. And his phone kept ringing. Three or four people ordered drugs. No officer tried to interview the three or four customers.

Why not?

An officer explained that they tried in other cases, but none of the customers would cooperate. The trial judge said it was a "common sense reality" that such customers would not help police.

Where does that leave you?

Baldree suggests that if the phone rings once, and someone orders drugs, the court will pay no attention to that piece of evidence. Omar suggests that if it rings several times, then a court may pay attention to that evidence ... but but the judge may still require you to try to contact the callers for statements, or at least be able to explain why attempts to interview them would not likely produce evidence.

Baldree changed the law because it determined admissibility of those calls by recourse to the hearsay rules instead of treating it as circumstantial evidence. I've always had trouble with that decision. Omar nibbles at its edges.

2018.09.29 Arrest and Bail - Maximum of 24 hours to bring a prisoner to a Justice

At 7:30am, police officers arrested Mr Burroughs, 2018 ONCA 704 for a serious robbery. He wanted to talk to his lawyer, but it took till 10:30am to arrange access to counsel. In that jurisdiction, bail hearings could only be done at 1:00pm. Police started interviewing Mr Burroughs at 12:33pm, and didn't finish until 4:34pm. By then it was too late to get him before a justice. They had to wait until the next day - long after the 24-hour deadline required by s.503 of the Criminal Code.

At trial, Mr Burroughs asked the judge to stay proceedings. It didn't work, but it could have.

Beware of that deadline.

2018.08.26 Warrants - Drafting Your Application - Confidential Source's Criminal Record

In an application for a warrant or other judicial pre-authorization, the law requires you to summarize the investigation, but give full disclosure of the important things. "Keep it short but don't leave anything important out."

You can achieve this difficult balance of short-and-complete when you know what's important.

Obviously, you need to tell the judge or justice what evidence and information supports your application. But you must also disclose evidence and information in your possession that weakens it. You owe the judge or justice all the information, not just that which helps.

Confidential sources complicate the task. You need to reveal what's important, but you must also prepare to redact anything that would tend to identify the source. "Tell all, but reveal nothing." Another difficult balance.

Investigation and trial is a two-step process. The judge or justice who issues your warrant needs to see all the important information you have. The trial judge and the defence lawyer need to see as much as possible of your ITO, to understand why the first judge or justice issued your warrant.

When summarizing a confidential source's tip, what's important includes:

Because of these difficult balances, Mr Szilagyi, 2018 ONCA 695 beat some drug charges.

A source told the police that Mr Szilagyi had a firearm and trafficked drugs. The ITO explained that the source:

"had no convictions for perjury or lying to the police",

but did not spell out what the tipster's criminal record contained.

The judges didn't like that language. Maybe the source had convictions for fraud or false pretences. Because the source provided the key information to justify the warrant, the issuing judge needed more information about the source in order to assess whether to rely on him/her.

Generally, the source's criminal record is important.

But if you describe every conviction in your ITO, won't that tend to identify the source?

There's another way. If the record is important, then reveal it to the issuing judge, and summarize the parts you can reveal:

Source A has a criminal record, which I attach and mark as appendix B to this ITO. That document tends to identify Source A. In order to honour the police agreement to withhold his/her identity, I ask that it be sealed, and not disclosed to anyone.

At trial, nobody can suggest you withheld negative information from the issuing judge or justice. Because you included the record, nobody can say you mislead the issuing judge or justice in any way.

But don't just rely on CPIC. Here in BC, I find that CPIC rarely lists all of the offender's criminal convictions. Look to other databases. In BC, that means JUSTIN.

The judges had another complaint about the ITO. It did not explain how the main source knew about the gun and the drugs. It recited the source's fairly detailed description of the gun. It repeated the source's assertion that the suspect dealt drugs. It did not say whether the source claimed s/he saw this, or heard about it on the street.

Suppose he said:
"I saw the gun on Wednesday morning at 9:15 when I asked him for an 8-ball from him. At that time Mr Szilagyi pointed a gun at my head and said 'you better pay your debts by the end of the day or else this gun spits the next ball into your head'. On the table he had about half a kilo of cocaine he was cutting. He said it was fresh from Colombia. I'd seen that gun before. It's a sawed-off shotgun with a black stock and a silver barrel."

Leaving this quote in your ITO would identify your source. Redacting it removes all information. Try creating a summary that the defence can see, and providing the quote for the issuing justice. If it does not endanger the source, something like this would make the judges happier:

"The tipster told me that he knew from personal observation and/or remarks that Mr Szilagyi made in the tipster's hearing that Mr Szilagyi possessed a sawed-off shotgun, and he had cocaine for sale. The tipster explained the exact circumstances under which he obtained this knowledge. S/he reported:'...'."

Of course, before disclosing to defence, you would redact the exact quote. The issuing justice sees all the information. The defence lawyer and the trial judge learn that the tipster claimed to have pretty good information and the ITO makes it explicit that the issuing justice got the full tip.


2018.08.25 Inventory Search - a Duty to Protect Property in Police Custody

"Where a vehicle is lawfully taken into police custody (in this case, pursuant to statutory authority) the police have the authority, if not the duty, to conduct an inventory search of its contents."

The night when Mr Russell, 2018 BCCA 330 drove his car back to Summerland, BC, his tail-lights weren't working. That caught the attention of a police officer. Mr Russell wasn't supposed to be in Summerland. Indeed this officer previously released him on his undertaking not to return.

When the officer pulled him over, Mr Russel stopped his car so that it straddled the fogline of the highway. Not a safe spot.

After arresting Mr Russell for breaching his undertaking, the officer considered the car. Because it posed a hazard to other drivers, the motor vehicle legislation empowered the officer to move the car or take it into his custody by having it towed. He chose the latter.

The officer then searched the car for property. He found a wallet and a laptop bag. Mr Russell told the officer to put them back. The officer didn't. Instead, he looked inside for valuables. He found drugs in the bag.

At Mr Russell's trial for the drugs, he complained that the law did not empower the officer to search his laptop bag:

The judges agreed that it was not a search incidental to arrest, but disagreed about looking inside the bag. The law permits officers to make an inventory of valuables when seizing property, so as to ensure that the owner gets his valuable stuff back afterwards.

Beware. If you're going to use this power, make sure you use it properly.

When an inventory search discovers contraband, defence lawyers are quick to suspect that police used the power for ulterior motives, and they complain of unlawful search.

If you have suspicious circumstances, but not reasonable grounds, your "inventory search" will be attacked.

Read this decision. You will see that the officer gave very clear reasons why this was an inventory search, and nothing else.

If you have suspicions, try to separate the inventory search from your dealings with the suspect. If you have backup, perhaps you should explicitly assign the task of towing the car and checking it for valuables to another member. Both of you should write down in your notebooks your respective roles in the investigation before any searching occurs.

Only according to its purpose and limits.

For example, s. 251(6) of the Motor Vehicle Act says:

(6) Personal property present in a motor vehicle that has been impounded under subsection (1) or section 215.46, other than personal property attached to or used in connection with the operation of the motor vehicle, must be returned to the owner on request.

The inventory search is to protect and preserve property. If Mr Russell had asked for his laptop bag, I don't think the officer could have searched it as part of the inventory search. (Of course, for officer safety, I think the officer might have been able to check it for weapons before putting it in the police car with Mr Russell.)


2018.08.25 Circumstantial Proof - Alternate Theories

In April, man walking his dog came across a woman's corpse lying in the flood plain of the Grand River in southeast Kitchener, Ontario. Her mother had reported her missing back in January. Although the autopsy could not determine the cause of death, police suspected that Mr Thomas, 2018 ONCA 694, her intimate partner, killed her.

They had good reason. She went on alcoholic binges. He suspected that she cheated on him. He beat her up often. He threatened to kill her and dump her body in the woods. She sometimes needed medical treatment. She told many people about his violence.

Police executed a search warrant on his residence. They watched him approach the residence. When he saw police cars around it, he turned and went the other way, instead of inquiring what was going on.

The last people to see the deceased also saw Mr Thomas with her. It was New Year's Eve. He and she went to a bar. She danced with another man. He confronted her, yelling. The bouncer made him leave. Later, he returned, and apologized. They hugged, and left together.

Mr Thomas told people several different versions of his last contact with the woman. He did say that the last time he ever saw her was that New Years' eve, at the bar. He claimed that they quarrelled and parted ways.

Police found traces of her blood in the passenger side of his car.

The Crown presented a circumstantial case of motive and opportunity.

The jury convicted Mr Thomas of murder. He appealed on technical grounds. The court of appeal upheld the conviction.

When I first read the decision, I noticed that the evidence pointed towards guilt. Then I noticed alternative explanations for major parts of the evidence:

Then I noticed that the judges' decision did not discuss alternative theories and what evidence set those alternative theories to rest.

Perhaps the officers did try to find anyone else in the woman's life who had a reason to harm her. Perhaps the prosecutor presented evidence to the jury that those efforts failed. Perhaps the officers did try to find evidence that the woman expressed suicidal thoughts, and but found instead evidence that she had much to live for. Perhaps that part of the evidence was so boring that the Court of Appeal never mentioned it.

But the absence of discussion of these things made me think of echo chambers and tunnel vision.

Investigating alternate suspects and alternate explanations may be boring, but it matters. Failing to do so sometimes leads to disaster. Just ask Thomas Sophonow. But usually, the extra investigation makes the case stronger.

This principle applies to investigations large and small. After the woman alleges her partner attacked her, did you check to see if he suffered any injuries? If you suspect a guy of committing a B&E because you found his fingerprint at the scene, did you consider innocent explanations for how it got there? For example, if the print is on a pop can in the residence, maybe your suspect works at a corner store, and sold the can to the burglar. Or if the print is on a window outside the window, maybe your suspect worked as a window-washer, and left his print there.

Tunnel vision can happen to anyone. Just look at our American neighbours discussing Trump. Many are trapped in echo chambers that promote or denigrate their president. There are intelligent people on both sides who fail to consider the evidence from the opposing perspective.

How do you avoid tunnel vision? Here are some ideas:

2018.08.23 Jurisdiction - Crossing Borders - Transporting Children for Sex

Warren Jeffs, the Prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints,  directed James Oler, 2018 BCCA 323, a bishop of the sect, to bring Oler's under-age daughter from Bountiful, British Columbia to the USA, where Mr Jeffs, aged 48, would marry her to a man of Mr Jeff's choosing.

The next day, another man drove Mr Oler's wife and daughter just across the border to the USA, where Oler met them in a secluded park. From there, the group drove to Mesquite, Nevada, where Jeffs presided over a marriage of the girl to a man.

Section 273.3 of the Criminal Code made it an offence to transport a minor to another country so that acts will occur to the minor which would be a sex crime in Canada.

But section 6(2) of the Criminal Code prevents the court from convicting people for crimes that occur "outside Canada".

Could a Canadian court convict him? No evidence established that Mr Oler was in Canada when he received the direction from his prophet. No evidence established that Mr Oler was in Canada when he gave directions to his wife and daughter. Everything that could be proven against him occurred in the USA.

The judges held that they could convict him because there was a "real and substantial link between the offence charged and Canada". He must have communicated to his wife in Canada, and organized the removal of his Canadian daughter from her home in Canada. The transportation crime directly affected people in Canada - but hurt nobody in the USA. Even if he orchestrated it entirely from the USA, Canadian courts could take jurisdiction.

Why do you care? s.273.3 hardly ever comes up.

I'm not sayin' that Canadian courts assert jurisdiction over everyone who does something in another country that hurts Canadians. But section 6 isn't as simple as it appears. If part of the offence you're investigating occurs in another country, don't always shrug and say "Canada doesn't care". This decision reminds us that Canadian courts do care about some foreign activity that affects people in Canada.


2018.08.11 Warrants - ITO drafting - Conclusions and Judicial Duty to Inquire

I fell down a rabbit hole.

Ordinarily, I write about recent decisions. A paragraph in a recent decision caught my attention, and led me to Restaurant Le Clémenceau Inc. v. Drouin, [1987] 1 SCR 706. Judges sometimes refer to that case when rejecting "conclusory statements" in ITOs. Here's a loose translation of the ITO in question. Can you spot the "conclusory statements"?

  1. As an official of the Ministère du Revenu du Québec, I conducted an investigation in the "Restaurant le Clémenceau Inc." concerning evasion of a meals and hotels business tax of Québec.
  2. As a result of certain facts revealed by this investigation, I have reasonable grounds to believe and believe that "Restaurant le Clemenceau Inc." made false or misleading statements in a PR4 report for the month of August 1977 by failing to include in the said report an amount of $ 299.20 of tax collected, thus committing an offense under section 62 (a) of the Act respecting the Ministry of Revenue, RSQ, chapter M-31.
  3. I also have reasonable grounds to believe that documents, books, records, papers or other things that may be used as evidence of an offense under a tax law or regulation made by the Government under such a law, are kept in the premises and outbuildings of "Restaurant le Clémenceau Inc." located at 649, boul, Laure, Sept-Iles, province of Quebec.

Except for paragraph 1, the whole ITO was a conclusion. The Supreme Court of Canada did not like it.

When you apply for a warrant, the judge or justice who receives your application must determine for him- or her-self whether there are good reasons for your belief that a crime occurred and the proposed search will recover evidence of it. How can the judge do that if the application does not explain the "certain facts" which led the applicant to believe that the crime occurred and that the evidence sought would be in the place to be searched?

To be clear, paragraphs 2 and 3 are not wrong. Indeed, they make a fair summary or introduction. But the ITO needs to explain the evidence or information the investigator gathered or received which led him to those beliefs.

But that's not why this decision caught my eye. The court said:

In order to perform his duty of supervision, the judge had to determine whether the facts on which the informant's belief was based were such that his belief was indeed reasonable. None of these facts are disclosed by the information. The judge then had a duty to ask for further information, which he elected not to do.

The issuing judge or justice has a "duty" to ask for more information when your ITO fails to spell it out.

For justices and judges, this leads toward a danger zone. If they advise you how to draft your application, then they compromise their independence. Gray 1993 CanLII 3369 (MB CA) and Gordon,1999 CanLII 18640 (MB CA)

But they can ask questions relevant to the exercise of their powers, Clark, 2015 BCCA 488. They ought to give reasons when they reject an application, so that if you apply again, the next judge or justice can know what went wrong in the first application. Duchcherer and Oakes, 2006 BCCA 171.

If they do ask you questions, disclose what they asked and what you answered in your report to Crown. If you do apply a second time, then disclose in your second application the fact that you previously applied and the reasons the first justice or judge gave for turning you down.


2018.08.06 Plain view, s.489(2) and "lawfully in a place" - photography during the seizure

Five days ago, I worried that photographing what you seize pursuant to s.489(2) might be seen as a "search". (See the next article.) Two days later, the Ontario Court of Appeal addressed that concern. I'm grateful.

A 15-year-old girl told police that her friend's father, Mr A.H., 2018 ONCA 677, lured her using Facebook. The interviewing officer saw Mr A.H. hurrying away from the police station, and worried that Mr A.H would destroy evidence. The investigator sent police officers attended to Mr A.H.'s residence to arrest him. They did so, at the door of his apartment. Mr A.H. "told the officers he needed to get his shoes, turned around and went back into the apartment. The officers followed him in. One accompanied him into his bedroom while the other stayed in the kitchen where he observed the open computer and the cell phone. He took a photograph of the screen of the computer, which showed an open Facebook page, which displayed the appellant’s email address and read: 'Your account has been deactivated'. The officer then seized both items." (para 28)

Mr A.H. argued that the officer needed a warrant to enter his house and seize the computer.

The court disagreed. Because the officers had already arrested him, they had him lawfully in custody. When he re-entered the residence, they could lawfully follow, to keep control over him and prevent him from destroying evidence. The power to seize under s.489(2)(b) does not include a power to search, but these officers did not "search". Photographing the thing and then seizing it was not a "search" but a "seizure".


2018.08.01 "Plain view" and s.489(2) of the Criminal Code

"He's in the house, drunk. There are lots of guns laying about in there. I'm scared for my safety, and the safety of the children."

That's what she told police when they responded to her 911 call regarding domestic violence. The attending police couldn't help but notice that Mr Warren, 2017 MBCA 106, the man she complained about, came out of the house a couple of times, agitated and belligerent.

The officers arrested him outside the house because they feared he would assault her.

One of the officers went into the house, with the complainant's sister, to check on the children. As soon as he went in the front door, he saw four unsecured firearms and ammunition in plain view. He seized them, and Mr Warren was charged with firearms offences.

At trial, Mr Warren convinced the trial judge that the officer should have secured the residence and got a search warrant. The judge agreed with the officer that he was entitled to enter the residence for the purpose of ensuring the safety of the children. But when the officer's purpose changed from protecting life to gathering evidence, he lost his authority to remain in the house. The trial judge felt that the common law "plain view" doctrine didn't apply, because it requires that you encounter the evidence "inadvertently". This officer knew, going in, that he would find guns.

The Court of Appeal disagreed. Section 489(2) of the Criminal Code authorized the search. It works similarly to the common law power of "plain view", but does not require "inadvertent" discovery of the evidence.

The officer lawfully seized the guns.

This scenario of domestic violence and guns in a residence arises often. But the details bedevil any effort to create a standard operating procedure. I see lots of mistakes, because general duty officers often work under too much pressure to assess all the principles which apply. Here is a list of the main ones:

  1. A police officer can not enter a private residence without one of:
    1. lawful authority or
    2. consent of a person who as authority to give it
  2. Reasonable suspicion that a person inside my in in danger of serious physical harm ("exigent circumstances") provides lawful authority to enter and put those fears to rest. However, you may not search for evidence when doing so.
  3. Reasonable belief that evidence inside the residence may be lost or destroyed if you don't enter also provides authority to enter and search. However, you should minimize the intrusiveness of this entry. Generally, the best procedure is to freeze the scene, and get a warrant.
  4. Section 117.02 and 117.04 authorize you to enter into the residence and seize the firearms where there are exigent circumstances. Generally speaking, by arresting the guy who poses the danger, you generally terminate the exigent circumstances.
  5. If you do have consent or lawful authority to enter, then you can seize evidence that you notice while inside. 489(2) But you can't search for evidence unless you have lawful authority or consent from a person who can give you that permission.

Before you seize the gun pursuant to s.489, perhaps you should document carefully where you saw it. Careful! If you photograph too much, there's a good argument that you expanded the seizure into a search for evidence. If you don't photograph, then the defendant will allege that you could not have just seen the gun, because it was stored in a hidden spot.

2018.07.29 Impaired Drivers who crash - Right to Counsel

Ms Culotta, 2018 ONCA 665 aff'd 2018 SCC 57 didn't drive drunk. She operated a boat.

She and her friends were holidaying at the family cottage, on an island in Lake Muskoka. They attended a social event at a yacht club, where she drank.

At 2:00am, they headed home ... in the dark, with rain pouring down. Ms Culotta went fast. The boat hydro-planed.

There are hundreds of islands on Lake Muskoka. Her boat hit one of them. The crash injured her and her passengers. Help came. A boat took them to a marina, where ambulances met them at about 3:00am. A police officer attended.

The officer asked the less-injured women "who drove the boat?" Ms Culotta said "I was the driver".

The officer saw some ambiguous indicia of alcohol consumption: Ms Culotta slurred her words - but her face was injured. She had watery eyes - but she had been out in the rain, and crying. The officer arrested her for impaired operation of the boat. The judges found that his grounds were insufficient.

The officer did not tell her about her right to counsel because he did not want to interfere with the medical treatment that the ambulance attendants were giving her. Only after arriving at the hospital did he tell her she could get legal advice. When asked if she wanted to consult a lawyer, she answered:

“No, my parents should be here soon. We have a family lawyer.”

The hospital staff took extra samples of her blood, because they expected police would need them. The officer sealed the extra vials.

At 5:30 am, after Ms Culotta received treatment, the officer released her unconditionally, but explained she was still under investigation. He explained her legal rights to her. She declined another offer to get legal advice, and gave a statement. The officer did not have recording equipment, and so he simply wrote down questions, asked them, and wrote down her answers. When it was done, he asked her to review it, and sign it. She did.

The officer investigated further. He developed good grounds for a search warrant, and with it, he obtained medical records and blood samples from the hospital.

The hospital's tests showed that Ms Culotta's blood contained more than 80mg% of alcohol. So did the police analyses.

At trial, Ms Culotta's lawyer's arguments included:

  1. The arrest breached her right not to be arbitrarily detained - s.9 of the Charter - because the officer lacked reasonable grounds.
  2. Failing to tell Ms Culotta about her right to counsel before the hospital staff took blood samples violated her rights under s.10(b) of the Charter.
  3. The investigating officer persuaded the hospital staff to take extra blood samples. That was a seizure. Sealing the extra vials of blood constituted a seizure of her private bodily fluids. Because the officer lacked grounds to believe that Ms Culotta committed an offence, this violated s.8 of the Charter.
  4. The statement should not be admitted because it was not audio- and video-recorded.

Reasonable grounds

Vehicle crashes complicate the task of determining whether you have reasonable grounds to believe that alcohol or a drug impaired the suspect's ability to control the craft. Did booze, injury, or shock cause the suspect to slur their speech or stagger? Sometimes, you can examine the crash scene for clues that suggest that bad driving caused the crash. This officer couldn't. Sometimes passengers or rescuers can tell you about bad driving or other symptoms. The decision indicates none of that.

Serious vehicle crashes arise sufficiently infrequently that many officers don't know what to do. If you're not sure, I suggest that you read the demand quietly to yourself before reading it to the suspect. The demand language contains a checklist which covers most of what you need to know:

Right to Counsel

All the judges agreed that the officer disobeyed s.10 of the Charter by failing to tell Ms Culotta about her right to counsel right away after the arrest. The judges (and the prosecutor) agreed that the police analysis of the extra blood samples should not be evidence in the trial. One judge felt that this breach of Ms Culotta's rights was so serious that the court should exclude all blood-analysis results.

The judges disagreed whether Ms Culotta's comment about her family's lawyer was a request for legal advice.

You can draw two things from this:

  1. After a detention or arrest, you want to move quickly to telling the suspect about legal rights, if at all possible.
  2. Some judges will find that quite ambiguous remarks are actually requests for legal advice. It doesn't matter what you think the prisoner meant, but what the judge thinks. Therefore, when you get an ambiguous remark, you would do well to clarify.

I noticed that the officer put Ms Culotta's health ahead of his investigation of her crime. I think he got those priorities correct. I suspect that the judges felt unsympathetic because he didn't get around to telling her about her rights for 45 minutes. The judges probably felt that the officer could have found the 20 seconds necessary to mention lawyers earlier than he did.

Extra blood samples

Don't ask medical people to gather evidence for you while they treat your prisoner, unless you have lawful authority to gather it yourself. This officer testified that he did not ask the technician to take extra samples. Nor should you.

Putting bits of tape over the hospital's vials and marking them with your initials for the purposes of continuity is not a seizure - if you give control over the vials back to the hospital. I don't know why this argument had any traction. R. v. LaChappelle, 2007 ONCA 655 at para 41.

Handwritten statement

None of the judges found that the investigating officer erred by handwriting Ms Culotta's statement - because the circumstances prevented him from recording it any other way.

But if you can video-record a suspect's statement, then do so.

If you can't, follow this officer's procedure. Write the questions. Write the answers. Ask the person to review the written statement to ensure that it is correct.

But hey! Don't you carry a smart phone on duty? Most phones - even the dumb ones - can record audio. Learn how to make your phone record audio - or even video.

2018.07.27 Informer Privilege

When someone offers you information on the condition that you not reveal their identity, it seems simple: you get information that will help you bust bad guys. It's not simple. Your obligation to protect their secret is a heavy burden, which you must carry even to your personal prejudice.

When police investigated "the Surrey Six" and their involvement in a high-profile murder, 80 people gave information to police on condition that police not reveal their identities.

Something went wrong. Sgt Brassington, 2018 SCC 37 (and several other officers) are now charged with breach of trust, fraud, obstruction of justice. Publication bans prevent disclosure of the details.

In order to make full answer and defence, these officers wanted to tell their own lawyers details about what they knew about the confidential sources. The lawyers (quite properly), asked the court if that would be okay.

Nope.

The Supreme Court of Canada required the officers to keep these secrets even from their own lawyers, unless they could show that disclosing the identities of the sources was necessary for the purpose of showing the innocence of the officers.

That's hard to do. I have not yet seen a case in which the defendant succeeded in showing it.

I doubt that any of you will find yourself in former Sgt Brassington's position. I sure hope not. But this case is relevant to any officer who receives information from a confidential source. The take-home message is: this stuff is messy and dangerous.

If you rarely handle such information, get advice and read your procedural manuals. If you often handle such information, review your procedures, read your procedural manuals, and seek advice.

Don't identify confidential sources unless you know you must.

2018.07.25 Arrest and Detention - Right to Counsel

A town north of Regina held a country music festival. Lots of people went. An experienced officer went there to help.

He caught Mr Knoblauch, 2018 SKCA 15 driving over .08.

The officer recorded in his report that after he explained the right to counsel, Mr Knoblauch declined to call a lawyer.

An in-car video camera recorded the event. It showed that the officer did explain the right to counsel, but never asked whether Mr Knoblauch wanted to call a lawyer. Mr Knoblauch never "declined".

The trial judge convicted Mr Knoblaugh. The appeal court found that by failing to ask the question, the officer breached Mr Knoblauch's rights under s.10 of the Charter.

The appeal court restored the conviction. The Charter imposes on you a duty to explain the right to counsel to a prisoner, and to facilitate the prisoner's access to counsel if the prisoner chooses to exercise the right. The Charter does not impose on you any duty to force the prisoner to choose.

But it's a really good idea to ask "Do you want to call a lawyer?" The answer helps show that the prisoner understands his or her right, and it shows the judge that you were actually interested in facilitating the prisoner's access to counsel - if that's what the prisoner wants.

The video recording proved that even an experienced police officer can make mistakes. How does one maintain the vigilance necessary to avoid making such errors? Fear of humiliation might help. I don't think this officer enjoyed discovering on the witness stand during cross-examination that his report asserted a fact which the video recording proved was false.


2018.07.24 Police investigative technique privilege

A "Stingray" (cell site simulator), helped police bust Mr Truax, 2018 ABQB 113. It assisted their judicially-preauthorized wiretap operation collect conversations that inculpated him.

At trial, Mr Truax sought technical details about the device. The trial judge ordered disclosure. Police objected on the basis of police investigative technique privilege. Basically, they argued:

"If we disclose how this device works, then the bad guys will build a device that detects or defeats it. That that will harm law enforcement efforts."

The superior court agreed with the police argument because the technique:

  1. is used by police in their law enforcement functions,
  2. is not publicly known, and
  3. if disclosed may assist offenders to interfere with or defeat police investigative functions.

However, this privilege must yield to fair trial rights. If the defendant needs this information in order to ensure that his trial is fair, then the judge will order disclosure.

This device did not intercept conversations. It identified phones. The court found that the accused's right to a fair trial did not depend upon receiving information about how it worked. Mr Truax didn't get the disclosure he asked for.


2018.07.24 Execution of a Search Warrant - Empty House

When you execute a search warrant, s. 29 of the Criminal Code requires you to bring a copy along with you, if possible, and show it to people in the place, if they ask to see it.

Do you have to leave a copy of the warrant at the place when you're done? If the place was empty, and you got the warrant by telewarrant, then s.487.1(8) requires it.

What if you applied in person to a justice, you get a warrant, and you find the place empty when you execute it? No legislation says you need to leave a copy. Some would say it's just good practice, but the judge in Boekdrukker, 2018 ONSC 266 held that it's a legal requirement too.

When you execute a search warrant, and someone in the place demands to see the warrant, then s. 29 of the Criminal Code also requires you to show it to him or her.

Do you need to show it to the homeowner if you arrest her outside the house, before the search begins?

The same judge concluded that you do.

Because the officers in that case failed both requirements (and strip-searched her in a room which had no door), the judge excluded evidence of drug trafficking.


2018.07.24 Expectations of Privacy - Hallway in an Apartment Building

Hallway cameras in apartment buildings will usually require judicial pre-authorization.

Mr Batac, 2018 ONSC 546 complained that police video-recorded the hallway leading up to an apartment where police found lots of drugs. He asked the judge to exclude evidence because the video-recording violated his expectation of privacy.

He didn't own the property, but he did have a key. It was a large apartment building, which recently installed lots of surveillance cameras and electronic locks. Police didn't get a warrant to record who came and went from the apartment. When the door to his apartment opened, the camera could record activity as far as 10-12' into the apartment.

The trial judge agreed with Mr Batac: the police did violate his expectation of privacy. The judge did not say that all hallways in all apartment buildings enjoy an expectation of privacy. It depends upon all the circumstances.

If you want to use electronic equipment to watch such areas, you might want to read this decision and the decisions it refers to, to see what factors persuade judges whether people in the apartment enjoy a reasonable expectation of privacy in those areas.

Mr Sandhu, 2018 ABQB 112 complained of pretty much the same thing, for pretty much the same reasons. This camera did not view any of the interior of the apartment. None-the-less, the judge excluded evidence of the drugs found in the apartment in question.


2018.06.29 Three Ways to Identify the Felon - Recognition Evidence

Two men took a taxi to the Surrey Central Inn. Shortly after the taxi arrived, two men in masks robbed a clerk inside. Next, just outside, two men attempted to car-jack a car. Evidence suggested that the two men in the taxi were the robbers.

The big question was "whodunnit?"

At trial, the taxi driver and the victim of the car-jacking pointed at Mr Field, 2018 BCCA 253 in the dock and told the court that they recognized him as one of the two men in question.

The judge ignored the identification evidence from the two eyewitnesses. The judge knew that eyewitness identification of strangers often goes wrong. He had good reasons. The taxi driver meets way too many customers for these guys to make any real impression on his memory. The car-jacking victim saw two masked men, under highly stressful conditions, for only a short time. Both of these guys came into a court room and saw one prisoner in a dock. It was easy for these witnesses to believe that the guy that looks like a criminal was the criminal.

The in-court identifications didn't prove the case.

But there was more evidence.

A video-recording system inside the taxi captured images of the two men who went to Surrey Central Inn.

The trial judge compared Mr Field to the taxi security video. Although he probably noticed some resemblance, he also knew from other testimony that Mr Field's appearance changed between offence and trial. Therefore, he refused to rely on his own impression of the similarities between the robbers and the defendant.

Showing the video to the judge didn't prove the case.

But there was one more kind of evidence.

Early in the investigation, police suspected Mr Field. They sent pictures from the security video to probation officers who knew him, but they didn't say who they suspected. One probation officer recognized Mr Field. That probation officer forwarded the picture to another probation officer, again not naming Mr Field. The second probation officer also recognized him.

That persuaded the court beyond a reasonable doubt that Mr Field committed the robbery.

Mr Field's appeal failed.

The court noted the three ways to prove identity:

  1. Eyewitness identification of a stranger.
  2. Judge's comparison of the defendant to images of the offender.
  3. Recognition by people who know the defendant.

The eyewitness identification would have been much stronger if the eyewitnesses picked Mr Field from a photo pack shortly after the offence. Showing a witness one person and asking "is this the man?" can have the effect of telling the eyewitness "this is the man." This kind of eyewitness identification formed part of many wrongful convictions. Judges don't trust it. As an investigator, you want to show eyewitnesses lots of faces to choose from, not one suspicious one.

If security cameras capture really clear pictures of the felon, then the judge can compare the defendant to the culprit. Beware. Some defendants change their appearance while in jail. To prevent that problem, take good pictures of your suspect, and supply them to Crown as part of your report.

As this case demonstrates, recognition evidence can prove the case, if you do it correctly. When you send images to the person who knows your suspect, don't supply the suspect's name. And ask that witness not to name the culprit to any other potential recognition witnesses.

As Steve Jobs used to say: and one more thing....

In some police reports, when describing video of the offence, officers will write a summary of what the video captured "the accused" or "the suspect" doing.

Sloppy thinking!

Security video captures "the culprit" or "the felon" or "the robber" or "the assailant" or "the exhibitionist" committing the crime. "The suspect" is the person you think did it. "The accused" is the person on trial. Don't mix 'em up. The big question in an identification case is whether they are the same person. Even if you believe that they are, use different words for "the felon" and "the suspect", to show that you understand the issue.

2018.06.16 Impaired Drivers - Serving Documents

Mr Fitzpatrick, 2017 CanLII 85809 (NL SC) drank too much to drive. Police busted him. After he blew into the instrument, the technician who analyzed his breath prepared a certificate which could be filed at trial, proving how much booze was in him at the time. The investigating officer served him with a copy of the breath technician's certificate ... or at least ... the officer thinks he did, based on his "usual practice".

Section 258(7) of the Criminal Code prohibits the court from accepting such a certificate "unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate."

The trial judge refused to accept the certificate because the officer didn't give sufficiently persuasive evidence that Mr Fitzpatrick received a copy. The appeal court agreed.

Routine events are easily forgotten. Some officers routinely swear an affidavit of service of the certificate. Doing so - or at least making notes of the event - may help you when such a case comes to trial.

2018.06.16 Youth Statements

After consuming ecstasy, 16-year-old N.B., 2018 ONCA 556 went for a walk with his cousin to a convenience store. He returned without his cousin, and got changed. He went to a friend's residence where he told everyone that his cousin was in trouble and needed help. Someone "told" him that his cousin had been attacked and dragged into "Lackie's Bush". He took some friends and relatives there, and found his cousin, dead. He freaked out, and hugged the body.

Police were called, and they attended.

N.B. pestered one of the officers for information, interfering with his efforts to investigate. The officer punched him and arrested him for causing a disturbance. A different officer took N.B. back to the police station for questioning about the death of his cousin. They put him in a locked interview room.

When they started a witness statement, N.B. asked if he was arrested. The officers told him he was arrested for breach of the peace, and he would be released. They knew that the cousin died, but they did not tell N.B., for fear of upsetting him.

N.B. gave conflicting statements about what happened. At first, he told police that he and his cousin split up at the convenience store. When the officers told him (falsely) that there was security video, N.B. changed his story. He said he went to Lackey's Bush with his cousin to smoke pot, and a group of guys attacked his cousin, and N.B. ran away.

The change of story led the officers to arrest him for murder. The trial judge convicted him, but on appeal he got a new trial.

Why? The officers didn't follow the requirements of s.146(2) of the Youth Criminal Justice Act. At no time prior to the interview did the police tell N.B.:

The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.

The appeal court made several main points.

The officer who punched N.B. was later convicted of assault causing bodily harm and obstruction of justice. Those events occurred in the execution of his duties on some other occasion, but his explanation of that event resembled his description of events with N.B.

What lessons emerge?

2018.06.16 Statements & Corroboration - Exception to the Rule against Hearsay

General duty policing teaches young officers some bad habits.

In the daily rush from file to file, the duties of an officer who first responds to a call for service make it seem that an investigation ends when all the witnesses give statements.

When a suspect or an important witness reveals what happened, that's not the end of the investigation, but the beginning. The good investigator asks "What parts of these statements can further investigation confirm or refute?"

Corroboration matters.

Mr Larue, 2018 YKCA 9 and his girlfriend Christina didn't like Christina's previous boyfriend Gordon Seybold. Gordon Seybold died when fire consumed his grow-op. The forensic pathologist couldn't say what killed him - heart attack, fire or violence? But his blood on the business end of a baseball bat tended to suggest violence. Mr Larue's blood turned upon the handle of that same bat.

Christina found a great new job with an organization run by Mr Big's sister, Ms Big. She told Ms Big that she and Mr Larue killed Mr Seybold. Mr Larue fought with Seybold first. Then both of them hit Mr Seybold on the head with a baseball bat.

Mr Seybold also got involved in the organization. He told a similar story.

Mr Larue and his girlfriend underwent separate murder trials. At Mr Larue's trial, the girlfriend refused to testify. Could the Crown use the girlfriend's statement?

The trial judge said "yes". Then the Supreme Court of Canada gave its decision in Bradshaw, 2017 SCC 35. To admit hearsay statement of an accomplice, generally the courts will need corroboration of "material" parts of the accomplice's statement. Was there independent evidence that confirmed her assertion that Mr Larue participated in the assault?

Yup.

His DNA on the handle of the bat, and his admissions of involvement to Ms Big made the difference.

You only find corroboration if you look for it.

A uninterested investigator merely interviews witnesses. A biased investigator tries to find evidence which matches the complainant's version (and ignores anything that doesn't). An interested investigator makes a real effort to capture all the evidence, and ask the suspect what happened. A good investigator reviews what the witnesses and suspect said searches for evidence which confirms or rebuts their various versions.

That takes more time that general duty likes to give. Rarely does general duty teach young officers to become good investigators.

2018.06.16 DNA - secondary transfer

The remarkable sensitivity of forensic DNA testing becomes a curse to police.

When police officers examined the crime scene in Larue, 2018 YKCA 9, they seized some guns and a baseball bat. The officer who handled the exhibits did not change gloves. That opened the door for defence to argue that police transferred the suspect's DNA from one exhibit to another during exhibit processing. That mistake caused one judge to dismiss the value of a forensic discovery of Mr Larue's blood on the handle of the baseball bat that killed the victim. Other judges took a different view.

Have you recently checked your supply of disposable gloves?

2018.06.15 Entrapment - Confirming Tips about Dial-a-Dopers

A tipster gives you the phone number of a drug trafficker. You call it, arrange a purchase, and bust the guy. Simple.

Not so simple.

Your job as a police officer is to prevent crime, not encourage it. If you persuade someone to commit a crime that they would not otherwise have committed, then the courts call your behaviour an "abuse of process".

Except.

Where you have a real reason to suspect that a person, or place, or phone line is involved in the commission of crime, you may create an opportunity for someone to commit a crime, and then bust them if they do.

Doesn't the tip give you real reason to suspect a phone line?

It depends a bit on the quality of the tip, and the conversation you have with the person who answers when you make your call.

Separately, police got tips about Mr Williams and Mr Ahmad 2018 ONCA 534. Investigators did minimal investigation of the Williams tip, and no investigation of the Ahmad tip. The trial judge in Williams case found that the police entrapped him, and stayed the trafficking charge. The trial judge in Ahmad's case relied upon the conversation during the call to find that the police used the phone call to investigate the tip, found no entrapment, and convicted.

The loser in both cases appealed.

The Ontario Court of appeal analyzed what makes for entrapment in dial-a-dope cases. They found no entrapment in either case. But the judges disagreed on the analysis.

If you engage in such operations, you need to read this decision, because it highlights the ground rules.

After you get a tip, and before you make the call, consider investigating the tip:

If, after that effort, all you have is a bare suspicion, you can still make the call, but you need to let the person who answers establish that there are drugs for sale.

Read the decision to see how that's done.

2018.06.14 Cupid's arrow in the Workplace - Stinchcombe and the Secret Affairs of the Heart

Police suspected Mr Biddle, 2018 ONCA 520 of three rapes committed in 1986. By 1987, he was convicted of all three. He successfully appealed two convictions: the Supreme Court of Canada ordered new trials. That process took so long that by the time the court ordered the new trials, one complainant didn't want to proceed again, and the other case was too weak to go on its own. The prosecution gave up.

Mr Biddle's third conviction depended upon the complainant's identification of Mr Biddle. That wasn't done very well. A police officer took her to a courthouse where he was appearing on his other matters, and asking her if she recognized him.

Not exactly a great lineup.

He lost the appeal on that conviction in 1993, but he never gave up fighting.

In 1999, the complainant and the officer who showed her Mr Biddle revealed that through the course of the investigation and prosecution, they fell in love. They married, and later, divorced. But they never revealed their blossoming relationship through the course of the prosecution.

Both swore up and down that the officer did not reveal information about the investigation to the complainant. But there are hints in the proceedings that he did. Those hints could have been used effectively by defence counsel to create doubt.

And so, 25 years later, the Ontario Court of Appeal ordered a new trial.

I can not imagine that it will proceed.

There are some tough lessons here.

Identification: It seems simple to show the suspect to the victim and ask "is this the culprit?" If the incident happened months before, you create a suggestive event which may cement a false identification. Even if the identification is correct, the evidence looks weak.

Disclosure: The defendant is entitled to know all information which may assist in the defence of the case. The existence of a romantic relationship between an investigator and a key witness is something defence needs to know.

In the early stages of a romance, the lovers rarely know where the relationship will go. It seems like a fragile flower - the chill of outside criticism might kill it like a late frost. It seemed offensive to these two new lovers that professional obligations should require disclosure of such a personal matter.

And yet the court ruled that they did. The professional obligations of a police officer intrude into personal life.

2018.06.03 Note-taking - Never enough

A police officer stopped Mr Lotfy's 2017 BCCA 418 pickup-truck because it speeding between Whistler and Vancouver. The cab stunk of air-fresheners, and the driver was nervous. A computer check indicated that other police officers arrested Mr Lotfy with a large quantity of marijuana a few months earlier. Then the officer smelled the smell of fresh marijuana. He arrested Mr Lotfy, and found lots of marijuana in the truck.

At trial, defence challenged the officer's grounds for arresting Mr Lotfy.

The officer wrote in his notebook only one of the things that made him think Mr Lotfy's truck contained marijuana: the odour. No note about the nervousness. No note about the air fresheners.

Defence attacked: if the officer didn't write a note about these things, then they may not have happened. Maybe the officer is making up observations after the fact to justify jumping to conclusions at roadside.

The attack failed: the officer could point to notes he made about these topics in the report to Crown Counsel. He wrote that within days of the incident.

But I bet he wishes he made more notes.

When your investigation moves from innocent interaction to search to discovery of contraband, what you observed at the beginning of the interaction makes all the difference. After the excitement of arrest and discovery, you need to take your mind back to the beginning, and record all the observations which led you to take action.

2018.06.02 Loose lips sink ships - Revealing evidence to Witnesses

On July 26, 2005, someone murdered Mauricio Castro. At trial, the Crown argued that it was a killing related to drug trafficking. One of the witnesses was Mr Khananisho.

Mr Khananisho told police that he put Mr Deleon and Mr Restrepo in touch with Mr Allen, 2018 ONCA 498.

On the witness stand he was pretty reluctant.

Years after the conviction, after a meeting with Mr Allen's girlfriend, Mr Khananisho recanted.

He claimed that the police told him enough detail about the killing that he could invent a story that matched. He said police told him to tell "the truth" (meaning their truth), or he would be charged with conspiracy to commit murder.

On the strength of this recantation, the defendants appealed a second time. Had Mr Khananisho been a more important witness at trial, or a more consistent witness on appeal, the court might have permitted a second appeal.

Several lessons for officers flow from this case:

2018.05.26 "Person of Interest" - What does it mean?

At the morning briefing, four officers learned of a homicide that occurred the night before. They saw images from security video of people of interest. Although one officer thought he recognized someone, he did not identify that person at the briefing.

The four officers went to the crime scene to pick up more security video. On their way back they talked with two guys who looked like the people in the video.

Those two guys were later charged with murder. They asked the judge to exclude the evidence that those officers obtained during their conversation. They said that they were "detained", and did not receive information about access to counsel.

The four officers testified poorly. They did not make notes at the time. They reconstructed events. They contradicted each other.

All of them tried to assure the court that this was not a "detention" because the defendants were only "persons of interest", not suspects.

It didn't work.

The judgment is pretty clear: "Person of interest" isn't a magic phrase that turns a detention into an innocent encounter. (R. v. Jama, 2017 ONSC 470 at para 47). These officers were investigating a homicide. The judge found that these four officers stopped these two guys and talked to them for quite a while. The officers did not tell them why, nor did they offer an opportunity to get legal advice.

I think this case provides a good example how routine work can go wrong quickly, when done in a "routine" fashion. General duty officers, read and beware!

2018.05.24 One-party consent to prove Lack of Consent - Date Rape - Sexual Assault Invevstigation

Date rape allegations arise often. Proving them is hard because:

When an 18-year-old woman complained about Mr Colling, 2017 ABCA 286. She said that when she told him she didn't want to have intercourse right away, he told her he would wait 14 dates. Investigators encouraged her to call him in a recorded conversation, and discuss the incident. The conversation went like this:

Her: I don’t know. I’m just . . . I don’t know. I’m kind’a upset. I said no. It has been bugging me. I said no. Why did you do it?
Him: Yeah, there’s a difference between no, don’t and no, okay, go ahead.
Her: I didn’t say no, okay, go ahead. I just said no, don’t. And you said we wouldn’t. You said we’d wait for the fourteen dates or whatever.
Him: Yeah. So it happened. I wasn’t really thinking. It was in the moment. I’m sorry.

That proved pretty compelling at trial. Even though he said she consented, this recording persuaded the judge that she didn't.

The decision doesn't say much about the work that went into setting up this conversation. I infer from the phrase "lawfully intercepted telephone call" (para 82), that the police applied for an authorization to intercept ("wiretap") the conversation, based on her consent.

If she had recorded the conversation of her own accord, it would be admissible. s.184(2)(a) of the Criminal Code. But when police suggested that she make this call, they turned her into an agent of the state. When an agent of the state records a private telephone call, the state needs judicial pre-authorization. R. v. Duarte, [1990] 1 SCR 30. You get that if you ask a judge for it pursuant to s.184.2 of the Criminal Code.

This sort of evidence can a huge difference - if you can get it. Many "date-rape" complaints come from minors.

Getting consent from an adult to record her conversation with her rapist is one thing. But there are legal and ethical impediments to involving a minor in a criminal investigation. Don't embark on such an investigation without getting legal advice from your lawyer.

(The Supreme Court of Canada upheld the conviction. The legal arguments did not relate to 1-party consent.)


2018.05.21 Search of a Residence - Exigent Circumstances - Mental Health

Mr French, 2018 BCSC 825 possessed a restricted handgun, a prohibited assault rifle, a silencer for the handgun, and some prohibited magazines. Police found them in his apartment, but at trial, the judge excluded all the evidence. Why?

Police first attended Mr French's apartment in response to a 911 call that people broke into his apartment, and someone got punched in the face. Officers who attended discovered that there was a party next door; the neighbors were drunk. One of them explained that Mr French sent suicidal texts. A group of partiers broke into his house. Mr French punched one of them in the face. Another neighbor also told police that Mr French suffered from mental illness. A police database confirmed that at some time in the past, Mr French had been diagnosed with a mental illness.

Police asked Mr French to come out and talk with them. He did. Although sweating profusely, he denied feeling suicidal.

Police searched the residence for the safety of anyone who might be in it, and for officer safety.

The trial judge found that they lacked sufficient reason to go in:

Efforts to justify the intrusion into his residence under s.117.02 or 117.04 foundered. The officers had no reason to believe that the residence contained guns, nor that Mr French's current condition endangered anyone.

The trial judge's decision highlights many common failings of police responses to ambiguous situations:

This situation became complicated. These officers made common mistakes.

I recommend that general duty officers and their supervisors read this decision. It's  a good decision to discuss and consider. Ask themselves: "How should I handle a similar situation if it came up?"

This decision does not give you answers for every possible situation that will arise. Your next mental health call differ from it. But the decision does help you identify when you should enter a residence to check on the safety of people inside, and when you shouldn't.

2018.05.21 Impaired Driving - Drugs

Mr Jackson, 2018 ONCA 460 fell asleep in his car with his foot on the brake pedal. He left the engine running and the transmission in drive. His vehicle was at an intersection.

Police officers tried to wake him up. It took considerable effort. When he woke, he couldn't put the transmission into park. Mr Jackson's car rolled forward and bumped into the police cruiser. When they got him out of his vehicle, he moved slowly, slurred his speech, and stood and walked unsteadily.

Drunk driver?

Nope. He consumed no alcohol.

But on the passenger seat were several bottles of prescription pills.

He told one of the officers that he had ingested Diazepam and Benzodiazepine, but had not consumed alcohol.

Lengthy delays in giving him access to counsel and conducting a DRE exam resulted in exclusion of significant evidence of his drug consumption. Even his remark about drug consumption was excluded because he had not received access to counsel before he made it. Defence pointed out that nobody tested the pills in the bottles to see if they matched the labels.

But the judge convicted him anyway.

Why? Because:

If you delay access to counsel, or delay DRE exams, you won't always be so lucky. If you suspect impairment by medication, perhaps you should get the medication tested.

What led to this conviction was careful observation of the suspect's symptoms, and the match to an expert's description of the effects of the drugs.

If drug-impaired driving is on the rise, then you should get into the habit of making careful observation at roadside of all the symptoms and behaviours of the driver. And as time passes, continue observing and recording those symptoms. And interview the suspect after he gets access to counsel. The judge will generally not admit evidence of what he told you at roadside before access to counsel. Video cameras are your friends. Security video cameras in police detachments continuously create disclosable evidence.


2018.05.20 Impaired Driving - Screening Device & Mouth Alcohol

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

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

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

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

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

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

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

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

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

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

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

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

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


2018.05.07 Impaired Driving - What are the Units?

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

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

The officer got the units wrong. He meant:

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

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

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

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


2018.04.23 Workplace Conduct of Police - Private or Public?

Sex is touchy. Especially in the chain of command.

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

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

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

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

2018.04.08 Arrest and Interview - Explaining the Whole of the Investigation

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

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

The interviewers did several smart things.

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

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


2018.04.12 Exhibit Retention

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

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

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

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

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

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

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


2018.03.29 Reasonable Grounds - After the Arrest

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

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

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

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

But I found what happened next particularly interesting.

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

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

Defence argued that this showed uncertainty.

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

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

The conviction stuck on Mr Canary, 2018 ONCA 304.

2018.03.29 Drug Analysis Certificates

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

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

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

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

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

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

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

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

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

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

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

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

Clever.

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

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

Too clever.

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

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

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

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

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


2018.03.20 Interviewing Children - Instructions and Promises

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

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

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

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

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

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

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

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

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

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

2018.03.19 Continuity - Paperwork or Essential Evidence?

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

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

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

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

Because DNA transfer can happen innocently, continuity really matters.

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

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

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

2018.03.09 Expert Testimony - Fingerprint Comparison - Articulating Evidence

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

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

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

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

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

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

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

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

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

2018.03.07 Nomenclature - "Suspects" and "Culprits"

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

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

Wrong.

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

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

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

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

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

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

2018.03.07 Experiments - Test Drives

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

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

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

Defence attacked this evidence:

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

2018.03.07 Search & Seizure - Examination of Electronic Devices

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

Beware also of requesting too little.

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

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

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

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

Key ideas you should draw from this are:

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

2018.03.05 Voluntariness - Promises or Threats

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

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

But implicit threats have the same effect.

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

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

That story helped convict him of manslaughter.

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

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


2018.02.22 Right to Counsel - Eliciting Information after Arrest or Detention

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

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

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

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

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

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

2018.02.18 Impaired driving - Screening Devices - One for the Road

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

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

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

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

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

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

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

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

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

2018.02.17 Investigative Techniques

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

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

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

Police found his DNA on the gloves.

Case closed? Well, that makes it much stronger.

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

Ahh. That's better.

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

2018.02.17 Trespass and Reasonable Expectations of Privacy

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

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

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

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

But did the police violate his Charter rights?

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

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

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

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


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

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

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

He won.

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

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

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

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

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

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

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

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


2018.02.10 Detention & Delay

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

It depends.

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

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

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

They called for a drug dog.

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

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

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

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

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

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

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

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


2018.02.10 Disclosure & Delay

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

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

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

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

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

Nope.

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


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

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

You need another way in.

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

Can a judge make him decrypt it?

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

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

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

The case of Marakah returns to visit us already.

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

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

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

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

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

What does this mean for you?

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

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

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

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

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

2018.01.23 Noble cause corruption - Letting your job get you down

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

Not any more.

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

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

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

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

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

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

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

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

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

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

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


2018.01.20 Whodunnit - Third Party Suspects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2018.01.06 Whodunnit - Third Party Suspects

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

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

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

Naturally, your attention would turn toward Roger.

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

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

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

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

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

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

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

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

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

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

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

"Why didn't you investigate these alternatives?"


2018.01.04 Weapon - When is a Knife a Weapon?

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

It depends.

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

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

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

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

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

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

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

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

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

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

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


2018.01.01 Search & Seizure - Warrantless Search - Third Party Consent


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

It depends upon the expectations of privacy as between them.

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

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

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

That was complicated.

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

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

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

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

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

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

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

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

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

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

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

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


2017 Developments

2017.12.10 Suspicion vs. Belief - General Warrants

Mr Christiansen, 2017 ONCA 941 looked suspicious. He came and went from an apartment, taking one box in and leaving with another. He associated with another suspicious guy. It looked like a drug operation. The officers watching him wanted to know more about what was in the apartment.

So they got a judge to authorize covert entry into the apartment "to gather information that the evidence of trafficking is presently located inside the [Unit], to support the issuance of a Controlled Drugs and Substances Act (CDSA) Warrant to search".

They found drugs. The got a warrant under s.11 of the CDSA, and busted Mr Christiansen.

But there's a problem.

Judges can not generally authorize covert entry except under s.487.01. That section requires that the ITO establish reasonable grounds to believe that the offence was, is being, or will be committed. If the officers lacked enough evidence to say that they believed the crime was being committed, then they lacked grounds to get a general warrant.

Furthermore, judges can not grant a warrant under that section if there is another warrant that would do the job. Like, maybe, a search warrant under s.11 of the CDSA.

You can use general warrants to sneak and peek. But only if the ITO establishes that probably:

  1. the offence happened (or is happening, or is going to happen),
  2. information about that offence will be found in the place, and
  3. an overt search will prevent you from recovering as much information about the offence as a covert one.


2017.12.10 Text Messages in a Drug Dealer's Phone

 - Hearsay

If you're involved in drug investigations, it's worth reading this case to see what kind of evidence makes received calls and texts on a drug-dealer's phone admissible.

When police searched the residence of Mr Bridgman, 2017 ONCA 940, they found lots of prescription drugs, many stored in bottles bearing the wrong labelling.

When police searched the phone they found on his person, they found text messages which seemed to request drugs.

At trial, the Crown wanted to put the text messages into evidence. Defence said "that's hearsay".  Defence was right. Suppose I send you a text message saying "sell me 1kg of cocaine" from my (throwaway) phone. If your boss reads the text message, the boss will infer that you are a drug dealer. Why? Because my text says so. At your trial, you can complain "Wait a second! Whoever sent that text is not taking the witness stand, swearing to tell the truth, and explaining what made them think I sell drugs. And I can't cross-examine the jerk. This is no better than a 911 tipster."

Those were the winning arguments in a case called Baldree 2013 SCC 35.

But Mr Bridgman lost this argument.

That's because his phone contained lots of texts from lots of different people. Whoever used his phone responded to one of those messages indicating that he did have drugs to provide. The odds that someone texted the wrong number were way lower than the single call at issue in Baldree.

And one more thing. A police expert in drug investigations explained why it would be really difficult to get the people that sent the messages to testify: they don't like being identified as drug users because that's socially embarrassing; and they don't like being identified as informers because it becomes harder to get drugs from dealers.

Those answers helped the Crown prove that it was "necessary" to rely on the hearsay. And the multitude of texts made the evidence "reliable". And that justified admitting it. (See my page on Hearsay).

2017.12.09 Text Messages in the Recipient's Phone - Sender's Expectation of Privacy

You may enjoy an expectation of privacy in the text messages you send me, even after they arrive on my phone.

Mr Marakah, 2017 SCC 59 sent text messages to Mr Winchester regarding the illegal firearms transactions they were engaged in. An informant alerted police. Police obtained warrants, and busted both men. Police seized and searched their cell phones.

But there was a problem. The trial judge found flaws in the searches of both phones. The text messages from Mr Marakah's cell phone were excluded from the trial.

Crown tried a clever tactic: they tendered Mr Marakah's text messages from Mr Winchester's cell phone. They argued "standing": the idea that Mr Marakah could complain about unlawful searches of his own phone, but he could not complain about unlawful searches of someone else's property.

That worked at trial and in the Ontario Court of Appeal (2016 ONCA 542), but a majority of the judges in the Supreme Court of Canada didn't buy it. They said:

"a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it"

Because Mr Marakah sent it to a specific person, and had told him to delete the text messages after reading them, and because of the relationship between the two men, the court found that Mr Marakah retained a reasonable expectation that the state would not read the text messages in Mr Marakah's phone without judicial pre-authorization.

This extends an "expectation of privacy" further than many of us predicted. I found this a surprising decision.

Does this mean that a victim of harassment can not give the police texts and emails she received from her tormentor without police first obtaining a warrant?

I don't think so. (Beware: some of my colleagues disagree with me.)

Note that in the Marakah case, the recipient of the private texts - Mr Winchester - did not give the texts to police. Police just took 'em. An action of the state. No consent. No intervention by the recipient. (I think the intended recipient's consent makes a big difference.)

Suppose a harasser sends nasty messages to a victim. I figure that the analysis differs if the victim gives them to the police. If the victim sends copies of the texts to you, then you merely receive, rather than seize the texts.

Some might say this distinction doesn't make any difference. The Supreme Court has found that police can violate expectations of privacy even by merely receiving private information (R. v. Dyment, [1988] 2 SCR 417). I figure that this situation differs enough from Dyment that the courts will find victims and witnesses can decide who sees the messages they receive. Surely, the victim, who has rights to life, liberty and security of the person, has the right to give police the key information which will secure those rights.

What does this decision mean for police?

When your investigation leads you to text messages, phone messages or emails from one person to another, you should ask the recipient "are you giving these message to me?" Don't seize them, but receive them.

If you get those messages from some third party, rather than the recipient, consider whether the participants in the communications expected privacy.This might be the anxious parent of a child who received luring communications. If so, you need authority to intrude on expectations of privacy. Perhaps exigent circumstances apply. If not, perhaps you need a warrant or production order.

Marakah will generate lots of litigation. How do you avoid it?

Make sure that any time you intrude on the privacy of any person, you have lawful authority. Don't rely on "standing". Every time you do, you admit that you're acting unlawfully.

2017.12.09 Identifying a Suspicious Person

Many police officers suffer from a persistent legal misunderstanding. I receive queries about it regularly. It arose again in my trial work this week. My trial isn't done, so let's consider an older case.

The Calgary City Police had a problem. Thieves kept breaking into the officers' private vehicles, parked in a lot near the police station.

One night, an officer saw a young woman in a black leather jacket emerge from the area of the lot. He asked her to stop, but she kept walking. He asked her what she was doing in the lot, but she walked away. They grabbed her and demanded that she identify herself. She refused to explain, and she refused to tell them that her name was Patricia Guthrie, 1982 ABCA 201.

She was charged with obstruction for failing to answer their questions. She beat the charge.

In most situations, Canadian enjoy the right to silence. They law does not require them to answer a police officer's questions, even about identity.

There are exceptions.

Today, the Guthrie case might go a little differently. If an officer has reasonable suspicion that a person committed a specific offence, the officer may detain the suspect. (That wasn't clear in 1981.) But even after a formal detention, you still can't compel the suspect to identify herself ... unless you arrest her.

But there's no harm in asking for identification. No problem explaining why you want the identification. I think you can photograph people you detain, even if they won't identify themselves. R. v. Multani, 2002 BCSC 68.

Just don't arrest them for obstruction just for failing to tell you who they are.

2017.11.26 Security Video Evidence - Tips and Ideas

Chad Davidson shot Tyler Johnson dead. Three guys (Barreira et al. 2017 ONSC 1665) accompanied Davidson at the murder scene, just outside a pita shop in downtown Hamilton. They left in a hurry.

Police collected 80 hours of security video from businesses in the area. Clips from these videos showed the four guys and Mr Johnson before, during, and after the killing. Clips also showed the various witnesses observe the action and run for cover - which was useful for corroborating their testimony about what went down. People who knew the defendants identified them from the videos.

Certain clips permitted the viewer to identify the four guys. For example, a Tim Horton's camera captured good quality images of their faces. But most of the video provided insufficient detail to identify the guys. By watching other clips, the officers track the guys as they left Tim Horton's and went to the scene.

One video system used infra-red technology, which tended to distort colour.

A certified forensic video analyst assembled all the useful footage into a composite video, with a single running clock. It did not include the aftermath.

Establishing the accuracy of that clock took some work. The clocks on the security systems differed from each other. One system recorded no time-stamp at all.

The officers who collected the video footage carefully compared the times on their cell phones with the clocks on the security systems. But most cell phones display only hours and minutes. Not seconds. Synchronizing the videos required some guesswork. But the officers did have one known event from which to work. On video, a guy in the Timmy's phoned 911 to report the incident. One can see him turn his phone off at the end of the call. The 911 system provided the exact time that his call ended.

The trial judge had no problem with a composite video which contained unmodified clips from the original videos. Because the expert testified about the effects of infra-red photography on colour, he did not find any problem including that footage either.

The judge did worry that the police could select video clips to make the accused look guilty. However, the judge saw enough of the raw footage to realize that this compilation was fair. Defence counsel did not identify any additional clips they thought needed to be added.

The final composite video displayed a running clock superimposed over each clip showing the best estimate police could make of the actual time of the events displayed. It also included circles and captions which identified each of the key participants.

Because the expert used special skills to link the times together, the court allowed the jury to see video containing the super-imposed clock. But the circles and captions came from hearsay. The judge excluded all those annotations.

At the end of the trial, the jury convicted the defendants. I guess this video made a difference.

We can learn plenty from this investigation.

  1. Security video can prove a great deal.  Collect it.
  2. Security video systems don't always use the correct time. When collecting security video, compare the time on the system to the time on your cell phone.
  3. In the video, look for an event whose time can be accurately placed (in this case, the 911 call). Use that as an anchor to measure time before and after it.
  4. Where you have many videos, preparing a composite video can make understanding them much easier.
  5. Infra-red cameras distort colour. If you get unexpected colours, consult an expert.
  6. Be cautious about annotating a composite video to explain your theory of the case. The judge may exclude the video if you mark it up.
  7. Include all relevant footage. Disclose all footage to defence. Offer to add more footage at the request of the defence.

The judge didn't like the the clock on the composite video because it showed seconds. This suggested false accuracy. Because officers recorded video-system accuracy only to the nearest minute, it was accurate to 1 minute at best.

In some cases, the exact time doesn't matter. In others, it makes or breaks the case.

One can do better than minutes. You can get it down to seconds:

  1. Establish the accuracy of your cell phone's clock by pointing its browser at Canada's National Research Council's time website. (My computer is about .5 seconds slow. My phone is about 1.5 seconds slow.)
  2. Your cell phone records time and date information every time it takes a photograph. Learn how to access that data. Take a picture today, at a known time. Send the picture to a Windows computer. Use the "Properties" function to examine the metadata. It will show you several date and time stamps. Beware. The computer created one when it received the file. That's the wrong timestamp. Look for the time stamp that the camera created. On a Mac, open the photo in Preview, and use "Show Inspector".  Look for the "Exif" information.
  3. When you collect security video, take a picture of the system's clock using your cell phone. Compare the Exif data from the photo to the time on the video-system clock.


2017.11.07 Condolences - Abbotsford Officer Down

Yesterday, a police officer died on the job in Abbotsford, B.C.. It is the worst news his family, his friends and his colleagues could receive. I add my small voice to the multitude who honour Cst John Davidson, and I wish his family healing through their grief.

2017.11.05 Dangerous Driving - Hazards of the Job

A guy named Romano, 2017 ONCA 837 drove an F-150 at 109km/h in a 60km/h zone. He struck and killed a beautiful 18-year old girl who was trying to jay-walk across the street.

He wasn't drunk. He wasn't high.

He was just trying to catch up with some people he knew.

What do you think. Was his driving criminal?

The first jury didn't think so. But the trial judge made a mistake. The Court of Appeal ordered a new trial.

Why am I telling you this?

'Cause Romano was a police officer driving an unmarked vehicle. He wanted to catch up with the rest of the surveillance team.

Now a girl is dead, and the family sued for $2M.

Probably Romano thought that it was important to watch this particular target. Today, I'll bet he wished he drove slower.

I hope you think your work is important. Passion for the job gives you the energy to do it well. But too much passion distorts one's priorities.

It's a question of striking a sober reasonable balance.

So let's all try to be simultaneously passionate and dispassionate.

I still work on that balance. I hope you do too.

Be safe out there.

2017.11.05 When to Stop Investigating - Confidence or Completeness

A guy in a mask robbed a bank in Oakville.

A cop across the street responded just as he ran out. The cop saw the robber jump into a car. The cop drew his gun and attempted to open the driver's side. He and the robber faced each other for a 10-20 second standoff. Because the robber had removed his mask, the officer saw his face.

The robber drove off, but police soon found the car, abandoned. It still contained the mask.  The mask had 2 DNA profiles on it. One belonged to Thomas McConville, 2017 ONCA 829.

That day, other investigators prepared a photo lineup containing his face. They showed it to the officer, who picked Tom's face.

Closed case?

Not quite.

Tom's brother Shawn was in Oakville that afternoon.  Shortly after the robbery, he hired a taxi, which took him to Hamilton, 30k away.

Maybe he did the robbery.

Brothers tend to resemble each other. Brothers often associate with each other. Sometimes, they share property. One might let the other borrow his mask for a while. Shawn's picture wasn't in the photo lineup. Maybe Tom's picture was the one that looked most like the robber because Shawn did it.

And besides ... brothers have similar DNA. Those huge odds that the DNA experts quote don't apply to related individuals.

The prosecution tendered no DNA evidence from Shawn.

That could have been a problem.

The trial led to a conviction, but only because of the presence of mind of that first police officer when challenging the robber. In court, this one wasn't the slam-dunk that it probably seemed to be when the DNA and the photo-lineup led to Thomas.

Sometimes, you get a comfortable feeling that you've collected all the evidence you need. Beware.

I think an investigation is complete when all the evidence has been collected. Not "enough" evidence, but "all" evidence. In this case, Shawn's DNA profile was relevant.

Okay. To make police budgets balance, I'll concede some wiggle-room: "An investigation is complete when all reasonably available sources of evidence have been canvassed." What's "reasonably available" differs depending you're investigating a murder or a shoplifting.

2017.10.31 Oops. Should I tell Defence I made a Mistake?

Yes.

The earlier the better.

In R v Mamouni, 2017 ABCA 347, lots of disclosure came tumbling out just before trial. Some examples included:

  • The exhibit officer revealed that he made a mistake in his testimony at the preliminary hearing.
  • During pre-trial interviews, several officers revealed details about the crime that appeared nowhere in their notes or reports.
  • And by the way, during the investigation, the officers obtained a General Warrant which wasn't revealed anywhere in the disclosure.

When new information comes in at the last minute, it can change how the trial proceeds. If the trial changes too much, defence can ask for an adjournment. And blame Crown for the delay.

In this brave new regime of Jordan, that can kill a perfectly good prosecution dead.

What must you disclose? Mr Justice Watson explained it this way:

The point is that "likely relevant" can be distinguished from "barely relevant" as well as from "not relevant". The Crown should never presume that even barely relevant evidence acquired as a product of an investigation need not be disclosed and in a timely way. To say that the Crown has no such obligation is not the law, largely because it is not up to the Crown to decide what use the defence may make of any evidence, howsoever limited the relevance may be. As it was put in Vallentgoed, at para 63 "the Crown must produce records unless it is beyond dispute that they are not relevant".

Naive police officers may read this paragraph and relax. The judge keeps talking about 'Crown' not 'police'. True. But the 'Crown' can't disclose any information in the possession of 'police' unless police disclose it. Therefore, a wise police officer reads this paragraph to say:

The police should never presume that even barely relevant evidence acquired as a product of an investigation need not be disclosed and in a timely way. It is not up to the police to decide what use the defence may make of any evidence, howsoever limited the relevance may be. The police must produce records unless it is beyond dispute that they are not relevant.


2017.10.26 Impaired Driving - Screening Device Demands - Blow a Second Time

Around 2:00am, an officer saw a speeding car. 94km/h in a 60km/h zone.

A strong odour of liquor wafted out of the car when the officer stopped it. Did it come from the driver or the passenger? The officer asked the driver, Mr Norrie, 2016 ONSC 4644 aff'd 2017 ONCA 795 to step out of the car. Mr Norrie had bloodshot eyes, and said that he last drank 2 hours earlier in a bar. He had difficulty producing paperwork.

The officer suspected he had alcohol in his body, and therefore read him a demand that he blow into a screening device. It registered a fail. The officer arrested Mr Norrie and secured him in the police car, and spoke with Mr Norrie's passenger.

That's when the officer noticed a partially-consumed beer in the front console of Mr Norrie's car.

The officer believed that Mr Norrie lied about when he last drank. If Mr Norrie had recently been drinking, then the "fail" result would not be reliable. The officer formally released Mr Norrie from arrest. He removed the handcuffs, but demanded a second breath test. He explained why.

While the officer waited for mouth-alcohol to dissipate, the officer offered to help Mr Norrie contact counsel. But that didn't work out.

The officer read the screening device demand a third time. Mr Norrie blew, and it registered "fail" again. Re-arrest. Back to the police station. Access to counsel. Blow. Busted. Released on a Promise to Appear

Things got messier after that. The charges did not get sworn before the court date. Once they were sworn, the summons didn't reach Mr Norrie. This caused some delay, which led to a separate issue.

The trial judge stayed the charges, finding that the second screening device demand arbitrarily detained Mr Norrie, and prevented him from getting legal advice to which he was entitled. The trial judge was greatly upset by the delays in bringing Mr Norrie to court.

The summary conviction appeal judge disagreed. Because the officer had good reason to think that the original screening test was wrong, the officer proceeded correctly in making a second demand. And during that time, the right to counsel remained suspended.

Do drivers ever lie about when they had their last drink? Of course they do. Are you required to believe them? Of course not - if you have good evidence that they are lying. When you're not sure, how hard must you investigate to discover the truth?

Ahh. That last question is the trickiest.

As a practical matter, breath screening is supposed to be done quickly. If the driver lied to you about that last shot of tequila before he started driving, I think he deserves to take a detour to the police station for a breath test. But if the open beer is right by the driver, then perhaps, like the good officer who investigated Mr Norrie, you should proceed more carefully.

One more thing. Remember that the officer read the screening device three times? Be careful of that. You can only make that kind of demand "forthwith" after you form reasonable suspicion. If the officer "made" a second or third demand, then he was wrong, because he made them long after he formed his suspicion. On the other hand, if made a single demand, but reminded Mr Norrie of it after he realized that the first test was not "a proper analysis", then he was right.

How many times you read a demand doesn't matter. But the timing of making a demand does.

2017.10.22 Re-enactment Video

Re-enactments of a crime are hard to do well.

Mr Gosse, 2017 BCCA 356 drove an SUV that hit a motorcycle. Security video cameras in the area provided much information about how the collision occurred.

A police officer wore a GoPro camera on her head and recorded what she saw when she drove the route Mr Gosse drove before the crash. She intended to show the judge what the driver should have seen when his vehicle approached and hit the motorcycle.

Unfortunately, someone placed a motorcycle in the wrong spot.

After the trial judge convicted him, Mr Gosse appealed. He said this mistake caused the trial judge to get the wrong idea of what happened.

Re-enactment videos like this can be really helpful. But it's hard - often impossible - to recreate the exact same conditions as the offence under investigation.

Outdoor video is affected by time and date. Light changes depending upon the time of day. Even if you return at the scene two months later, lighting changes depending upon the time of year and weather. In some driving cases, changes in foliage matters. A springtime video of a winter event may mislead the court.

If you make one, Murphy's law says you'll get something wrong. If you don't make one, the judge may not understand the case properly. Damned if you do, damned if you don't.

Despite the challenges, such videos can help. In this case - even with the mistake - the officer's video did help the trial judge and the appeal judges understand just how visible the motorcycle would have been to Mr Gosse when he ran it down. Mr Gosse lost his appeal.

Particularly in accident cases, police officers tend to document the wreckage. But the crime happens before the crash. Good investigation of the crime involves recording how the road looked to the felon before the crash happened.

2017.10.21 Journalists are now Special

Bill S-231 came into force on October 18. It enjoyed all-party support in Parliament, on the basis that it provides some protection for journalist's sources.

It goes much further than that. It protects journalists.

It creates special rules for search warrants against journalists generally:

  1. If you are drafting a warrant for production of information from a news outlet, you have new rules to follow. Read the legislation.
  2. Even if you don't want to discover a journalist's source, or get the raw footage from their video coverage of a crime, special rules apply.  If you want "a journalist's communications or an object, document or data relating to or in the possession of a journalist", you must apply to a superior court, not a lowly justice of a provincial court.
  3. This applies even if you are investigating a journalist for a crime. Suppose a journalist texts his ex-wife and threatens to shoot her with the handgun he keeps in his bedroom. If you want a warrant to enter his house and seize the gun, you need to ask a superior court judge. If you seize his phone, then you need to ask a superior court judge for authority to search it for the texts.
  4. If you get one of these special journalist warrants, you don't get to look at any of the documents you obtain right away. You seal up the documents, and give them to a superior court judge. You give notice to the journalist that you want to look at the documents. The journalist may apply to a superior court judge for an order preventing you from looking at the documents because they reveal a journalistic source. For the example involving the homicidal journalist's cell phone, that will slow your investigation considerably.
  5. If you execute a regular warrant or production order and wind up obtaining a journalist's communications or "an object, document or data relating to or in the possession of a journalist", then the rule in #4 applies to any documents you seize. The language is so broad, it might apply to a drug dealer's score sheet or a call girl's client list - if the document contains the name of your local reporter.

I am troubled by this bill because it was advertised as protection of journalistic sources. If that's all you think of when investigating journalists who commit crime, you will fall into the technical traps it creates.

The new legislation requires you to jump through extra hurdles. If you forget, then journalists who commit crimes may beat the charges.

2017.10.21 Voyeurism - Reasonable Expectation of Privacy - Search of Digital Devices

Mr Jarvis, 2017 ONCA 778 worked as a teacher at a secondary school.

He bought an interesting camera. It looked like a pen, but it recorded video of whatever he pointed it at.

He took it to work, where he aimed it down the cleavages of his female students (and one teacher). He surreptitiously recorded video. 19 times. 33 victims. No consent.

Did he commit voyeurism, contrary to the relatively new section 162.1?

The trial judge said "no", because the evidence didn't prove he did it for a sexual purpose. The Appeal Court said that the trial judge was wrong about that. Only a prurient interest in the breasts of these young women could explain Mr Jarvis's recordings.

The appeal court had a different concern. The section says it's a crime to snoop like this only if the victim "is in circumstances that give rise to a reasonable expectation of privacy". While agreeing that what Mr Jarvis did was deeply immoral, two of the Court of Appeal judges felt that an open classroom is not a sufficiently private place to engage the section. It's not a bedroom or a washroom.

I sense that the Crown will appeal.

But there are other reasons to find this decision interesting. Like search and seizure.

A police officer first responded to the complaint from the school. The principal told him that he and other teachers had seen Mr Jarvis holding an unusual pen as if using it to video-record students. A red LED emitted light from the top of the pen. He aimed it down toward the students' breasts. After the principal saw the Mr Jarvis pocket the pen, he cornered Mr Jarvis and asked for the pen. Mr Jarvis lied, saying he left it in the classroom. When challenged, he relinquished the pen.

The principal gave it to the school superintendent, who briefed the police officer and handed over the pen.

Would you search the pen without a warrant?

The officer figured he lacked grounds to arrest Mr Jarvis. He figured he needed more information to get a warrant. So he did a cursory search of the contents of the pen. He found videos of breasts. He relied on that cursory search to justify the warrant. The judges didn't like that.

They found that Mr Jarvis enjoyed an expectation of privacy in his electronic device. The officer should have sought permission from a judge or justice before looking inside it. And they found that the officer should have known that he needed a warrant.

Then the judges observed that this expectation of privacy did not go very deep. The principal and the superintendent had authority to seize the pen-camera and search its contents. The device contained only videos of the students and no other private information. Because of that, they found that the videos could be admitted into evidence, notwithstanding the breach of the Charter.

The judges observed that if the officer had interviewed all the eyewitnesses, their evidence would have justified the granting of a warrant. The officer should not have taken the short-cut.

This last point bears consideration. You don't need proof beyond a reasonable doubt that the contraband is in the place you want to search. Just reasonable grounds to believe it is there.

The lessons to draw from this case include:

The officer could have said to the principal: "I don't have authority to look inside this device. Do you? If you do have authority, and you decide to exercise that authority, I'd like to know what you find." If you have a conversation like this, take a bundle of notes. If the teacher acts as your agent, then what the teacher finds is inadmissible.


2017.10.16 Evidence of Opportunity


In any "whodunnit", it helps to figure out who had the opportunity to commit the crime.

75 women independently complained that someone sexually assaulted them during surgeries. The only medical person common to all those operations was Dr Doodnaught, 2017 ONCA 781, an anesthesiologist.

His lawyer asked obvious questions: how could anyone do such things in busy operating rooms without getting caught? Maybe the anesthetic gave the women sexual dreams. Maybe somebody else did the things these women suggested.

Investigators studied how operating rooms work: to prevent infection, the surgeon and nurses drape the patient to separate the sterilized surgical area from the rest of the patient's body. Some of the drapes reach up quite high. But the anesthesiologist works on the other side of the drapes - where the surgical staff cannot see.

He had opportunity.

Opportunity does not prove the identity of a felon. Maybe somebody else did the crime.

Dr Doodnaught liked those drapes extra-high. The women all complained of sexual acts done to parts of their bodies that were on the non-sterile side.

The surgical team stayed on the sterile side of the drapes. To move to the anesthesiologist's side would breach medical protocol because it risked infection when they returned to the sterile side.

Therefore, Dr Doodnaught had exclusive opportunity - nobody else could have done the deeds complained of.

Okay. I took some liberties. In fact others could sneak into Dr Doodnaught's side of the room, but they rarely did. You can read the decision for yourself to get the full sense of it.

But the point remains, proving exclusive opportunity establishes identity. Partly proving exclusive opportunity partly proves identity. But even just proving opportunity helps prove the case. Proving opportunity means showing who was there at the scene of the crime, and who wasn't.

You discover that by learning as much as you can about the place and the people in it. The place could be an operating room, a drug house or the scene of an arson:

Who had access? How? What did they do there? Could anybody else have been there at the key moment?

2017.10.16 Applying for a Warrant with Weak Grounds

After investigating for a while, you know some things for sure, and you make reasonable inferences about other things. Beware of those inferences. It's easy to believe too strongly in them.

After a robbery, it took investigators 2 months to gather enough information to justify a warrant to search a residence connected to Mr Silva, 2017 ONCA 788. They had plenty of reason to believe that Silva's girlfriend lived there. They say Mr Silva attend there once shortly before they executed the warrant. And a phone that was loosely associated with the robbery was registered to 'Mike Silva' at that address.

They got their warrant, and found firearms.

The trial judge felt that the grounds contained in the ITO did not sufficiently connect Mr Silva to that address to justify searching it for evidence of the robbery. The trial judge felt that the officers should have investigated more. The decision doesn't say what he was looking for, but I suspect he wanted some evidence to show that Silva stayed there so often that he would leave his possessions there.

After all, that's what a warrant application needs to establish: "the stuff I'm looking for will probably be in the place I want to search".

The judges had mercy on the officers, and admitted evidence anyway.

Why?

Because they acted in good faith. They asked a justice if their evidence sufficed, and the justice said "yes".

But beware: when drawing weaker inferences, it is easy to overstate the evidence. If you do, the judges won't be so merciful.

2017.10.16 Recording all Interaction

When police arrested Mr Silva, 2017 ONCA 788, he gave a statement taking responsibility for the guns they found. At trial, he told the judge that the police threatened to charge his girlfriend unless he made the statement, and promised to release her if he did.

The officers denied making such threats or offers.

It's easy to see how such a conversation might arise. Imagine that the conversation actually went this way:

Suspect: Did you arrest my girlfriend?
Officer: Yes.
Suspect: If I tell you I'm responsible, will you let her go?
Officer: We'll see.

At trial, the defendant will say "the officer promised me that my girlfriend would go free if I confessed".

How do you defend against that?

The best defence is a recording device, which records all conversation from the point of arrest until you're done speaking with the suspect.

2017.10.07 Swearing Affidavits - Hearsay and Process

What's the difference between knowing and believing? Lawyers may explain that you "know" what you experienced, but you "believe" what you learned from credible sources. When you swear an affidavit or information to obtain, lawyers are going to read it. It pays to distinguish between what you saw and what you learned from others.

In B.C., serious administrative penalties hit drivers who get caught with too much alcohol in their bodies. The police officer sends a sworn report to the Superintendent of Motor Vehicles. The driver can contest those penalties by challenging the sworn report. Mr Brar, 2017 BCCA 322 challenged such a report. He complained that the officer swore to the truth of facts that he had no personal knowledge of. He did this by attaching calibration certificates to his report, and swearing to the truth of the report. But he didn't do the calibrations, therefore he could not swear that the certificates were accurate. The affidavit would only be true if he swore that he believed that the instruments were properly calibrated.

It was a clever argument, but the BCCA did not buy it. The legislation permitted the Superintendent to consider unsworn documents ... and besides, the preamble to the officer's report could be interpreted to mean that he knew only his report to be true.

Such arguments do not always fail. Whenever you swear to the truth of a fact in an ITO, check it a second time. You can swear to the truth of thing you experienced. But avoid asserting that you know something to be true - even if you believe it to be true - just because someone told you so.

For example, if you didn't calibrate the instruments, but you must swear to its calibration, then you should choose your language carefully:

Wrong Right
I tested the driver's breath using instruments I know to be correctly calibrated. I tested the driver's breath using instruments which I believe were correctly calibrated because I received certificates of calibration for those instruments from a colleague. I attach copies to this affidavit.


2017.09.28 Confessions - Outside Pressure

The private security company Brinks cares about money. And when they suspect their staff are up to no good, it appears that they ask questions.

Brinks issues guns to some of its staff. It protects money. Some money disappeared. So did a gun.

Brinks reported the missing gun. Brinks management suspected their own employee took it. The security director told Mr Foster, 2017 ONCA 751 if he returned the money, they would not pursue the theft with the police. Mr Foster returned most of the money. Then the security director told him they had reported the gun. He asked Mr Foster where the gun was. The security director did not promise to withhold his confession from police, but did say he would be prepared to tell the court that he had cooperated. Mr Foster confessed that he threw it in the lake, and he took them to spot.

Brinks told police everything they knew. Police found part of the gun. Police interviewed Mr Foster. He confessed.

The lawyers saw a problem with the Brinks interviews: a "quid pro quo".  If you do something for me, I'll do something for you. And not just any kind of something: the offer was a confession in exchange for legal immunity. If you, as a police officer, even intimate such an arrangement with a suspect, then the judge will exclude any confession you receive. A confession tainted by such an offer will taint subsequent confessions, unless something breaks the connection between them.

The basic rule is that judges won't accept a confession to a person in authority unless the suspect gave it "voluntarily". There are lots of ways for a statement to be obtained involuntarily. If you don't know them, read Oickle again. (If you are a police officer and you have never read Oickle, then it's like you have an STD. Don't tell anyone, but get the problem fixed immediately. I made it easy for you, click this link.)

Inducements which suggest that the suspect will get legal immunity in exchange for a confession generally don't meet that test.

The investigating officers could have taken greater care to separate themselves from the Brinks investigation. They referred to it during their interview. Lucky for them, those references did not elicit any information.

The appeal court expressed substantial reservation that the Brinks security director was a "person in authority".

Huh?

Doesn't management have "authority"? Kinda. Management has authority over employment, but in this context "person in authority" refers to criminal investigation and prosecution. Management doesn't control that.

The appeal court found a sufficient break between the Brinks interviews and the police. See para 11.

The lawyers proceeded on the assumption that the Brinks security direct was a person in authority. In a similar situation, you should too.

If the confession to management was clearly voluntary, then go ahead and refer to it in your interview of the suspect.

But if there were offers of immunity, then make sure that the suspect understands that you're starting with a clean slate. And when asking questions about the offence, don't refer to the confession that the suspect gave to management.

2017.09.23 Disclosure - 911 Calls - Save Now, Spend Later

A friend of the family overheard Mr M.G.T., 2017 ONCA 736 fight with his wife. The friend called 911. Police attended, and took statements. Mr MGT was charged. The friend testified, so did the wife. The judge convicted Mr MGT of sexual assault.

Mr MGT appealed. During the appeal, the Crown noticed that the friend's 911 call was never disclosed to Crown or defence.

Mr MGT added that failure to disclose relevant evidence to his other complaints. Those complaints failed on appeal.

With respect to the 911 call, it would not have added anything to the case.

But it might have.

You have a duty to disclose all evidence relevant to the charge. It's hard to see how the content of 911 calls is not relevant.

The police had a standing agreement with the Crown not to disclose the 911 calls unless the Crown or defence ask for it. My office has a similar agreement with our local police. It's expensive to download, redact and disclose every 911 call, especially considering that so few cases go to trial.

This cost-saving policy means that after any conviction, the defence can ask for the 911 call, in the hope that it will reveal something new. If it does, the appeal court may well order a new trial, which is very costly.

I generally prefer to get the 911 calls before trial. Those dispatchers often elicit information that the investigators miss. Costly in the short term, but cost-efficient in the long term.


2017.09.22 Sex and Murder

To understand this case, one needs to review some easily-forgotten basics about murder.

Sexual activity - consensual or not - does not turn a killing into a murder. "Murder" involves intentional killing, (or intentional infliction of mortal wounds.)  If a man kills a woman during a rape, it isn't murder ... unless the evidence proves that he meant to kill her (or inflict mortal wounds).

But if he did mean to kill her, then he's in big trouble. Murdering someone in the commission of a sexual assault is first degree murder. s. 231

Mr Niemi, 2017 ONCA 720 intentionally killed a woman by strangling her. Then, with a knife, he sliced her sweater and bra, exposing her breasts. He cut a line along the bottom of one breast. He stripped her lower clothing off. He dumped her body. He explained to an undercover officer that he took these steps to make the killing look sexual, to throw investigators off the track. He denied any sexual purpose in the killing.

Sexual assault involves violation of sexual integrity of a person who could consent but didn't. If a person is already dead before a sexual assault begins, then it's not sexual assault. No matter what sexual indignities a person commits to a corpse that they find, it isn't sexual assault.

Was this murder "first degree" or "second"?

Surprise! It's first degree.

Someone who does sexual things to a corpse without regard to whether they are alive or dead is attempting to engage in sex without consent. And that suffices to raise murder from second degree to first degree. And a guy who assaults his victim with the intention of doing sexual things to her without her consent is committing a sexual assault already, even if he ends up killing her before getting to the sexual part of the attack.


2017.09.20 Detention for Motor Vehicle Safety - "Not on a Highway"

Mr Nield, 2015 ONSC 5730 leave to appeal dismissed 2017 ONCA 722 caught the attention of a police officer when, at 1:22am, he ran across the parking lot of a MacDonald's. He got into a car that was parked at a hotel, and drove 300m along a highway, and pulled into the parking lot of a nearby motel.

The officer suspected that Mr Nield might be drinking. The officer approached the vehicle, and opened the driver's door. The officer quickly learned that his suspicions were true.

Mr Nield complained that the officer had no authority to stop him.

The Supreme Court of Canada repeatedly affirmed that you can rely on powers conferred by vehicle safety legislation (in Ontario, the Highway Traffic Act) to stop drivers at random. In Ontario, the HTA defines "driver" to be a person operating a vehicle on a "highway". Most parking lots don't meet its definition of a "highway". Therefore, the officer could not rely on that power to stop Mr Nield.

The trial judge agreed, and threw out the case.

The Crown appealed, pointing out that police officers have other powers. Under the common law, the Crown argued, a police officer may stop a vehicle for public safety regardless whether it is on a "highway" or not. The summary conviction appeal judge agreed.

To appeal again, Mr Nield needed "leave" (permission) from the Ontario Court of Appeal. They denied leave, saying that this question is not really much in debate.

I dunno. I can think of people who might debate this topic vigorously.

If you suspect some driver might be drinking, but the car is not on a "highway" (by whatever definition applies in your province or territory), I suggest that you take a moment to assess whether that driver poses a real public risk. If you detain someone in a car at a campsite because of the possibility that he might drive drunk, I think you might encounter an unsympathetic judge.


2017.09.17 Journalists accompanying Cops - Balancing Openness and Privacy

Democracy thrives when the public knows the truth about how the government exercises power. The courts understand this well. They try to avoid publication bans except when necessary, and try to accommodate the press. CBC v. Canada (AG), 2011 SCC 2

Police are also an arm of government. Police should also want the press to explain to the public how and why officers act as they do.

It appears that senior officers at the York Regional Police understand this principle. They permitted news reporters to watch officers operating Ontario's "RIDE" programme.

The officers stopped Mr Gautam, 2017 ONCJ 577.

The reporters video-recorded the interaction. Mr Gautam failed the screening device. The officers took Mr Gautam into a breath-testing van, and offered him access to counsel. Mr Gautam talked to a lawyer in a phone booth. The reporters aimed a camera through the window and recorded that too. They recorded him providing breath samples at 152mg% and 146mg%. And they interviewed him afterwards. He explained that he had only one drink. (I guess it was a really big one.)

A few days later, the local TV station aired a story starring Mr Gautam.

At trial, the judge threw out the evidence and acquitted him.

Why? Mr Gautam complained that he could not speak frankly with the lawyer while the camera recorded him. The judge believed him. The judge felt that broadcasting the interaction violated Mr Gautam's privacy rights. The judge did not blame the officers on the street, but their management, for permitting unrestricted recording and publication.

I sympathize with both sides.

In this era of "fake news" and anti-police rhetoric, the public benefits from learning the truth about what police officers do. The senior officers had a good idea. But they should have set limits.

Legally-speaking, the worst part was how the camera interfered with the privileged conversation with the lawyer. That's an obvious breach of s.10(b) of the Charter.

But there's another problem. Our new media make privacy a precious commodity. "The internet never forgets"  Mr Gautam did not consent to the video-recording. Police compelled him out of his car and into the baleful gaze of the camera. The journalists were not assisting the officers to investigate, they were making a story for public consumption which affected Mr Gautam's privacy.

You should welcome the press and let them see how law enforcement is done. But set limits on the journalist which protect the privacy of the people under your control. Although the distressed citizens make great stories, you can only consent to aim the camera at yourselves, not the citizens. "No. While we execute this search warrant, you can't come in. We wish you could, but the judge granted permission only to us." "Yes, you can video-record the officers at this roadblock, but you must not air anything that identifies the people we stop." "No, that guy is conferring with his lawyer. Turn off the camera and give him privacy."

I thank Louis-Philippe Theriault for pointing out this interesting case to me. But for him, I would have paid it no attention.

2017.09.01 Right to Counsel - Eliciting Information after Arrest or Detention

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

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

When an officer arrested Mr G.T.D., 2017 ABCA 274 for sexual assault, the officer dutifully advised him of his right to counsel. Yes, Mr GTD wanted legal advice. Next, the officer recited that warning.
 
Mr GTD responded that he "did not think it was rape", because he and the complainant had a prior relationship.
 
That comment hurt him at trial.  He appealed. He complained that the officer asked him to talk about the offence before he got a chance to get the legal advice he required. That violates his right under s.10(b) to legal advice without delay.
 
All three judges of the Alberta Court of Appeal agreed.
 
Two of the judges reviewed the history behind this language. I found it interesting. Long before the Charter, judges recommended that police ask the question, in case the accused had something exculpatory to say about the offence, like "no no, I wasn't there. You need to talk to my twin brother Harold" or "Sleasy Simon lent me this car. I didn't know it was stolen."
 
That was then, this is now.
 
Right after you arrest someone, avoiding discussion about the offence right after you arrested someone is like not discussing the rhinoceros in the room. It's hard to find some other subject of conversation.  After arresting a person for a crime, many an officer has asked "why did you do it?" Bad idea.
 
Lots of people want to start talking about the crime. But if the suspect wants legal advice first, then the police officer can't ask about the crime until after the suspect gets legal advice.
 
Opinions vary whether you need to shut down a guy who just starts talking on his own.  Some argue: if you didn't ask him questions, then you didn't breach his rights. Others say: to show the judge how fairly you treat the suspect, you should stop him from talking about the offence until after he gets legal rights.
 
I think both answers have merit. I suggest that you choose your path depending upon how vulnerable the suspect is. If she's a seasoned offender with lots of experience with cops, let her talk. If he's a rookie, or suffering a mental disability, or drunk, maybe slow the conversation down. Whichever you do, take abundant notes (or audiorecord) what the two of you said.


2017.09.01 Privacy - Can you Ask a Corporation to Snitch on its Customers?

No. But they can snitch if they want. If their privacy policy permits it. Maybe.

It's complicated.

The Personal Information Protection and Electronic Documents Act (PIPEDA) tells corporations to use customer information for business purposes, but not to pass it around in ways the customer wouldn't expect. Corporations should publish privacy policies which tell their customers how much customer information the corporation will share with other people or agencies. And that helps set the customers' reasonable expectations of privacy over their data.

s. 7(3)(c.1)(ii) PIPEDA seemed to say that if a police officer told a corporation that they were involved in a criminal investigation, and ask for information about a customer, the corporation could - if they wanted - disclose information about their customer. Nobody was quite sure because PIPEDA was drafted badly. Some of its provisions are circular.

The confusion ended after R. v. Spencer, 2014 SCC 43, when the Supreme Court of Canada noticed that the provision required that police have "lawful authority to obtain the information". The court said that means police needed a warrant before they could rely on this provision. I found that interpretation weird because a different section already permitted corporations to comply with court orders. Besides, when police have judicial authority to get information, the officers don't have to ask a corporation to comply, and the corporation can't refuse. Essentially, with their strange interpretation, the court erased s.7(3)(c.1)(ii).

PIPEDA is a Federal act, and it applies only to Federal corporations. What about provincial ones?

Many provinces created similar legislation which achieves similar goals. The provincial legislation was drafted more clearly.

In R. v. Orlandis-Habsburgo, 2017 ONCA 649, the court considered Ontario's Municipal Freedom of Information and Protection of Privacy Act. (MFIPPA)

Basically, an Ontario electric company shared information with police about Mr Orlandis-Habsburgo's power consumption on request. That led to a bust. Mr Orlandis-Habsburgo complained that it was unlawful for the power company to share information with the police when they asked. What do you think? MFIPPA says:

An institution shall not disclose personal information in its custody or under its control except,

(g) if disclosure is to a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

I thought that's pretty clear. The judges didn't.

They came to the conclusion that the power company can give information if they choose, but the police can't ask for information unless they get a warrant.

I find that a troubling conclusion. Historically, police work relies upon the consent of the populace. A "good citizen" cooperates with investigators by telling what he or she knows about the offence under investigation. But it's all by consent. Citizen enjoy the right to decide not to tell what they know. If they don't like the investigation, they can stay silent. But a citizen doesn't make that decision until a police officer asks.

The court's interpretation prevents police from asking corporations to be "good citizens".

I may have over-simplified the logic of the decision. But as I read this decision, it blocks police investigations.

Suppose there's a murder in the parking lot of a building, and you think the killer may have walked in or out of the lobbies of nearby buildings, then you need a warrant or production order in order to persuade the management to let you review the security videos of their lobbies.

Of course, if all you have is the possibility that the killer walked through these lobbies, then you lack sufficient grounds to justify the warrant.

No security video to assist your investigation. Whether it catches the guilty or clears the innocent, apparently, you can't have it.

I still don't believe it. I procrastinated several weeks before writing about this case because I'm still not certain I fully understand it. The logic in the decision is more complicated than I have described it in this description. I've got more thinking to do. I may modify this post later.

2017.08.22 Search & Seizure incidental to Detention - Guns

If you have reasonable suspicion that a car contains an unlawful gun, can you search the trunk?

At 8:23:10 p.m, an anonymous tipster called 911. The dispatcher typed a summary of his information:

WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR STORE IN A WHITE VEH -BKND714 [the licence plate number]
COMP SAYS HE SAW A LARGE BAG
IT WAS IN THE TRUNK OPEN
COMP BELIEVES HE SAW A GUN - 1M/A.SIAN-30-40'S

COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN
THINKS THIS MALE IS DEALING DRUGS
COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE CAR AND BELIEVES HE SAW IT IN THE MALE'S POCKET

SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVER'S SEAT
VEH COMES BACK AS RENTAL CAR
TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING BY-CHANGES HIS MIND
BELIEVES HE SAW IT

MALE ALSO HAS A BRN HAT ON
COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE

Attending officers drove arrived at the the liquor store at 8:24:53pm but did not see the vehicle in the parking lot. A few minutes later, they did find a matching vehicle and driver pulled over, engine running, on a nearby road. Licence plate and car, and the driver - Mr Lee, 2017 ONCA 654 - was indeed Asian, and wore a hat.

They told him that they were investigating a gun complaint. He responded "no no no". They did not tell him about his right to counsel, but nor did they question him. They patted him down, and checked the vehicle for weapons. No gun.

Another officer arrived. He stepped into the driver's seat and pulled a lever which opened the trunk.

There, indeed was a bag in the trunk. It contained 23kg of cocaine.

And no gun.

The trial judge convicted Mr Lee. He and two judges of the Court of Appeal agreed that the police searched the trunk lawfully. One judge in the Court of Appeal agreed with Mr Lee's lawyers that this search went too far.

This decision does not declare open season on the trunks of cars driven by suspicious people. The majority said:

"... this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention."

The majority said that the details in the tip (gun, bag in trunk, possible drug dealing) raised a specific concern about public safety. When the officers searched the driver and the cabin of the car, they found no gun. Because so much about the tip was confirmed, they had real reason to fear that a gun remained unaccounted for. That justified opening the trunk.

The other judge looked at the same facts from a different angle. The pat-down and search of the cabin resolved any immediate concerns about public safety. Even if there was a gun in the trunk, it wasn't going to hurt anyone immediately.

It's the kind of case that would divide the judges of the Supreme Court of Canada.

In the mean time, don't go popping trunks just because of this decision. To go into a trunk during an investigative detention:

  • tell the suspect why you're detaining
  • tell them about the right to counsel
  • this case suggests asking questions before they talk to a lawyer may be problematic (though opinions differed)
  • don't go into the trunk unless you have specific reasons pointing at a live risk to police or the public.


2017.08.19 Identification - Security Video

A fight broke out at a bar. A guy walked up and fired a handgun several times, hitting several people. Who was the guy?

Two officers and a server at the bar testified that they watched the security video and recognized Mr M.B., 2017 ONCA 653 as the shooter. The officers knew him from watching him on the street (he was involved in drugs). The server knew him because he showed up at the bar from time to time. She did not say he was there that day.

The three witnesses were sure, but the video quality was poor.

The trial judge convicted. The appeal court threw the conviction out.

Security video always looks more convincing to the investigator than it does to the judges. If the face is hard to make out in the video, you probably want independent evidence.

In this case, other evidence could have included:

  • did Mr M.B. have a dispute with any of the people that got shot?
  • did anyone see Mr M.B. in the bar or near it that day?
  • are there any witnesses who can say Mr M.B. possessed a handgun at the time?

2017.08.12 Exhibit Destruction

In 1999, some guy broke into the home of a 75-year-old woman. He lay on top of her and covered her face with the sheets. He told her to relax. She yelled. It appears he stole some money, and moved an orange juice container from the fridge, and emptied it.

The investigating officers threw out the orange juice container. They wish they had kept it.

Twice more in the months that followed, a guy broke into the homes of old women. He took drinks from their kitchens. He stole their money. He went into their bedrooms and assaulted them in their beds. He raped one of them. DNA from the rape matched Mr Nicholas, 2017 ONCA 646. On the other one, DNA from a drink container matched Mr Nicholas. But did he do the first one?

The Crown prosecuted him for all three B&Es. Several times over. The Crown wished that the officer had kept the juice container. If it had Mr Nicholas' DNA on it, the case would have been easy. Instead, they had to use similar fact evidence to prove he did it - which is more difficult. (The jury found him guilty none-the-less.)

The officer wished he had kept the juice container. At the last trial, the defence lawyer cross-examined the officer long and hard about why it was thrown out.

Would you keep it today?

2017.08.12 Taking DNA by Consent


When Mr Nicholas, 2017 ONCA 646 went on the rampage, police had no DNA to match against. They collected around 100 names of possible suspects, and asked each in turn to provide DNA.

They went about it the right way. They prepared a form which made sure that each fellow knew he could decline to give DNA. They offered access to counsel. They recorded most of the process with an audio-recorder. You can read the form in this earlier decision: Nicholas (2004 Ont CA).

The first time Mr Nicholas went to trial, he complained that when taking his DNA, the police detained him and coerced him. But he didn't testify about how he felt at the time. That trial judge found that the DNA was properly taken. That trial judge made other legal errors which led to a retrial.

The next time Mr Nicholas went to trial, he testified that the police detained him and coerced him into giving his DNA. Because of the form and the audio-recording the next trial judge concluded again that he gave it voluntarily. You might want to look at that form.

But the police did make a mistake. They did not accurately record on the form all of the offences that they were investigating. That breached Mr Nicholas' rights under s.8. The judge admitted the evidence anyway.

Getting DNA by consent from a hundred suspects is a boring business. You won't know which one (if any) did the crime. It's easy to slip up on the 75th suspect, and hard to remember him from all the others. But if your offender gives you DNA (and it's amazing how often they do), you can expect an enormous court battle over what happened.

In addition to audio-recording, I would suggest that you also take a picture of each suspect, so that you can identify the person from whom you got the DNA. (Is the electronic date and time correctly set on your camera?)

  I recommend that you record the process of obtaining consent on audio or video.

2017.08.08 Expert Witnesses

Some of you give expert evidence about unusual areas or topics.

Don't fudge your results.

It's not professional, and can cause untold costs and grief. In Abbey, 2017 ONCA 640, an expert claimed to have strong evidence about the meaning of teardrop tattoos among gang members. Perhaps he did have special knowledge, but he fudged the statistics he offered to support this opinion. Lawyers eventually figured it out, destroying his reputation. But not before he cost the public masses of litigation costs. Now, his evidence is worth nothing. It is possible that a murderer will walk free, or that an innocent man suffered a decade of litigation.

2017.08.07 Warrantless Search - Guns and Gangs

A member of the Hells Angels started talking to police.

Three days after a B&E and theft of 29 firearms and lots of ammo, police arrested this guy for the crime. Where did the guns go? The HA member told police that he sold the guns to Mr Strauss, 2017 ONCA 628, but he did not know where Mr Strauss stashed them. He told police where the exchange occurred. Strauss stashed the guns and returned 45 minutes later. Because this occurred in a rural area, police figured the guns could be no more than a 20-minute drive from where the informant gave the guns to Strauss.

Eight days after the B&E, the officers started searching properties in the area. Without warrants. No luck.

Thirteen days after the B&E, police discovered a property in the area belonging to Strauss' parents. Still without a warrant, they went to a barn on the property. They picked a lock, and searched. They found 17 guns, lots of ammo and drug trafficking paraphernalia.

Mr Strauss was arrested on other matters, and happened to be in custody with the Hells Angel informant. (Was it really a coincidence?) The Hells Angel informant then told police that Mr Strauss commented that the police failed to search the false wall in the barn, where more guns were hidden.

This time, police got a warrant, and found the guns, just as the informant said.

The judges were pretty annoyed by the warrantless search, and excluded all of the evidence from the first search of the barn. The trial judge liked the honesty of application for the warrant to search the barn a second time. He admitted the evidence from the second search.  The appeal judges were too outraged by the campaign of warrantless searches. They excluded all of the evidence from the searches of the barn, and Mr Strauss beat the charges.

To search private property, in the absence of exigent circumstances, you need consent from an authorized person, or a warrant.

In these situations, I can see why police might view the warrantless search as necessary in the public interest. They likely had reason to believe that these firearms posed a general danger to the public, even if the guns did not pose a specific imminent danger at the time of the search. By proceeding with a warrantless search, they would get the guns off the street, whether or not there was a conviction.

Great policy. Lousy law. The trouble is, I know of no lawful authority to proceed in that fashion. And unless you get lawful justification under s.25.1 of the Criminal Code to do an act which violates s.348 of the Criminal Code, you're exposing yourself to criminal prosecution.

What can you do to pursue such a policy? In the past, police have been secretive or euphemistic about "no case seizures" to remove guns or drugs from circulation. I think the transparency of s.25.1 of the Criminal Code provides a better model. Or perhaps you need legislation which - in cases of high public risk - permits you to search suspicious places with less than probable cause. That legislation might prevent you from using evidence so discovered from being used to incriminate people whose privacy you violate.

2017.08.07 Arrest - Reasonable Grounds - Eyewitness Descriptions

Eyewitnesses make mistakes. They mis-remember or fail to see crucial detail, even moments later. There are abundant psychological experiments which prove this: Gorilla. Murder mystery. Card trick. Person switch

All these tricks show that what we focus on affects how much we notice of the rest of our surroundings.

When a victim of a violent attack describes it, or the people involved, they may make mistakes. That affects how you should assess their evidence.

Police attended an assault complaint at Dundas & Wellington in Toronto. They spoke to the complainant inside a Mac's convenience store. He told the officers that two men and a woman assaulted him. He knew one man and named him. He said that the other man had dark skin and was dressed in baggy hip-hop style clothing.

The complainant was missing a shoe. An officer found the missing shoe in the alley where he said the assault occurred. They officers had good reason to believe he was assaulted.

But whodunnit?

As the officers spoke in the store with the complainant, two men and a woman walked by outside. The complainant pointed through the window: there they are now. Police stopped the group. The man that the victim named was one of the three, but the other man did not wear baggy hip-hop clothing. The other man did have dark skin, but he wore a black pea coat, black jogging pants, brown boots and a black baseball cap.

Police arrested all three people. When searching the "other man", Mr Aviles, 2017 ONCA 629, police found drugs and a scale. He was charged with PPT.

Mr Aviles complained that the officers lacked grounds to arrest: he wore different clothing than what the victim described.

The court found that his presence with the man and the woman shortly after the incident, the victim's purported recognition, and the dark skin sufficed to make this arrest reasonable.

The misdescription of the clothing did not make the arrest unreasonable. People can make mistakes.

This case was about the drugs in Mr Aviles' possession, and reasonable arrest. Would a court have convicted Mr Aviles of the assault based on this evidence? No way.

A victim of an assault may make some mistakes when describing the assailant. It was reasonable for the arresting officer to believe that the victim mistook the second guy's clothing. But beware. Those same frailties undermine proof of identification at trial. After an eyewitness identifies a stranger as "that's the guy who attacked me", look for other evidence linking your suspect to the crime.

2017.07.31 Entrapment - Reasonable Suspicion

Those of you undercover officers who ask people whether they would like to commit a crime need to make sure you can explain to the judge why you picked a particular target or location.  All you need is a "reasonable suspicion".

A tipster told police that Mr Seymour 2016 MBCA 118 trafficked illegally in firearms. Mr Seymour ran a hunting supply business in Fort Alexander, Manitoba. The police assessed the tip and concluded it was reliable. An officer pretended to be a hunter who broke his rifle. The officer asked Mr Seymour if he could borrow a firearm to finish his hunting. The officer claimed to have no firearms licence. Mr Seymour obliged. The officer asked if he could buy a firearm for parts to fix his broken gun. Mr Seymour obliged.

At trial, Mr Seymour complained of entrapment.

The trial judge and the court of appeal judges agreed.

The problem, they explained, was that the police assessed the quality of the tip, but the evidence led at trial did not let the judge assess the quality of the tip. The judge could not determine whether the police had a "reasonable" suspicion that Mr Seymour would commit the crime.

Therefore, when you get a tip that inspires you to test whether someone wants to commit a crime, you should:

  • assess the quality of the tip to make sure that it's reasonable to think that the target mght commit a crime if given the opportunity; and
  • determine how much of that assessment you can disclose to the defence and judge.

I didn't notice this decision when it first came out. Even 7 months later, I think it may be useful to some of you even now.

2017.07.27 Holdback & Sympathy

When you don't know who did the crime, keep what you do know to yourself.

Mr Kelly, 2017 ONCA 621 reported that his wife went missing. Four years later, a land surveyor found her body in a wooded area. Police investigated:

  • An autopsy showed that someone shot her in the head with a .22 rifle.
  • Someone wrapped her body in a carpet, and
  • hid it at a specific location in the woods.

This is the kind of information that a bereaved husband might want to know. Six years after the murder, an investigator told him all three of these details.

Eight years after the murder, Mr Kelly told an undercover police officer that he killed his wife. Mr Kelly told the officer those same details he learned from the investigator.

The undercover operation made Mr Kelly believe that he would get $400,000 if he could persuade the undercover officer that he did the murder. That incentive meant that the jury would not convict Mr Kelly if all he did was repeat the facts that the investigator told him two years earlier.

But he mentioned other details which the investigators had carefully kept back from public knowledge: three loops of yellow rope bound the carpet around the body; the killer fired a single bullet to the back of the victim's head; the carpet was blue (actually black and blue).

Those details convicted him.

There could have been more holdback to match against Mr Kelly's confession. Mr Kelly mentioned other details which matched what the police knew about the killing. Unfortunately, at trial, some of the investigators contradicted each other about which of those details were holdback, and which ones were disclosed.

Holdback ain't holdback if you tell family members, other witnesses, or the press.

Bereaved family members often want to know exactly how their loved one died. But they also want justice. If you tell them too much about the investigation, you may prevent them from getting justice.

Junior officers, beware of your enthusiasm. Everyone likes to know a secret. But holdback is dangerous. Avoid learning the holdback information if you can. If you do learn it, disclose it to nobody without first obtaining permission from a senior investigator tasked with tracking the holdback. If you do accidentally leak holdback to someone (your spouse, your brother, your secretary), report it, and ask the person not to mention the details to anyone. You just turned that person into a witness in the case.

Tracking holdback is hard. Senior officers: keep the circle small. You want to avoid the problem which arose in the Kelly trial. You want to be sure exactly what information was held back. Set rules: who decides when to release holdback? what documentation do you want from people in the circle about disclosure? Don't just track what your people told he suspect. Make sure everyone in the circle knows the rules. Make sure you know the name of everyone who knows the secret.

2017.07.27 Undercover - Some of Mr Big's Relatives have big Harts

In R. v. Hart, 2014 SCC 52, the court set special rules for the admissibility of evidence obtained in Mr Big operations. They said those rules apply to operations in which officers pretend to be a criminal organization which can and does use violence, they engage the suspect in simulated crime, they demand loyalty and honesty, and a powerful leader in the organization interrogates the target to ascertain the truth, and dismissing his denials as untrue.

The new rules told investigators what many already knew - don't intimidate or control your target too much.

The undercover operation in the case of Mr Kelly, 2017 ONCA 621 (see above) didn't look much like the traditional Mr Big operation.  An insurance agent contacted him about about life insurance on his wife: a $3,000 payout. Did he want the money? Oh, yes, Mr Kelly wanted the money. The agent alerted him to a weird provision in the release form: it included a requirement that Mr Kelly waive any claims he might have under any other insurance policies. The agent thought that was weird, and he'd check into it. The agent got back in touch with Mr Kelly: yes, there was more insurance  on his wife worth $570,000. But the insurance company wanted proof that Mr Kelly didn't murder his wife.

Luckily for Mr Kelly, the agent had a dying friend who wanted money for his daughter to go to university. If Mr Kelly told the dying friend exactly how he killed his wife, then the agent and the friend would take $150,000, and Mr Kelly could keep the rest. But the plan would only work if Mr Kelly told them exactly what he did.

This was an innovative operation. Not Mr Big, but it got results like Mr Big.

Did the restrictive new rules for Mr Big operations apply to this one?

The judges said "yes". The officers offered a powerful inducement: $400,000. And they involved Mr Kelly in a conspiracy to commit fraud, which would make him look bad to a jury.

But applying those new rules, they found that this operation fit the guidelines easily:

  • No threats of violence.
  • No pattern of simulated criminal acts.
  • No control over Kelly's life.

And Mr Kelly's confession matched the holdback.

The jury convicted him, and Mr Kelly lost his appeal.

But because the court said Hart applies, you must test your future operational plans against Hart even when you plan something different from the traditional Mr Big.

2017.07.26 Deceived by the Obvious - Proof Beyond a Reasonable Doubt

Too much experience in the field can sometimes blind you to the burden of proof in the court room.

Over two days, some officers watched known drug addicts visit a hotel room for short periods of time. The officers got a warrant, kicked in the door, and found two beds. The officers arrested the three men lying on them. All three men had bundles of cash in their pockets. Two of the three men also possessed cocaine -- but not the third man, Mr Douglas, 2017 ONCA 609.

The room contained several bags of larger quantities of what looked like crack cocaine. The lead investigator had abundant experience busting cocaine dealers, and easily concluded that the other bags also contained drugs. I suspect for that reason, he did not send the other bags off for testing.

The trial judge relied on the investigator's experience and knowledge, and came to the conclusion that the other bags contained drugs. That helped lead him to believe that Mr Douglas participated in the drug transactions. Their locations, and the presence of scales probably added to the inference the trial judge could draw.

On appeal, Mr Douglas's lawyer complained: the officer was not a qualified expert. (I observe that even if he sufficiently qualified, he might be seen as biased by reason of his involvement in the investigation, and therefore disqualified from giving expert opinions.)

In the absence of admissible evidence that the other bags contained cocaine, the court only had proof that the other two men possessed cocaine in their pockets. All Mr Douglas did was occupy a room which contained two men with cocaine in their pockets. Even if the others were dealing cocaine, all this showed was that Mr Douglas might have been present, but not that he participated.

The appeal court upheld the trial judge's conviction because there was lots of other circumstantial evidence. But I draw this case to your attention because because it illustrates a trap that's easy to fall into.

At the time of arrest, the defendant's guilt often looks so obvious that investigators are tempted to take short-cuts investigating guilt. In this case, the other (larger) bags "obviously" contained drugs, and so nobody asked the lab to test their contents. In another case, it will be the defendant's obvious sobriety, or intoxication, or lack of injuries. At trial, judges need clear evidence of the obvious facts before they can rely on them.

Sometimes, it really is a waste of time proving the obvious. You don't need to ask the forensic lab to test the red stuff oozing out of a cut in the victim's hand to determine whether it's blood. On the other hand, when the drunk driver threatened to punch the breath technician, you really should preserve the security video in the police station from the time that he or she arrived to the time he or she departed. And you should get every eyewitness to write a statement.

How much time and money you should spend to investigate the obvious depends upon the seriousness of the case and the strength of the other evidence. Guilt usually appears more obvious to the investigators at the time of arrest than at trial. Slow down. When deciding what short-cuts to take, remember that in court everything gets challenged, and when challenged, most witnesses sound only half as impressive as they did at the time of the investigation. Many cops included.

2017.07.20 Undercover Officers on the Internet - Screenshots

A great way to catch internet predators is to pretend to be internet prey. Can you make screenshots of the communications a suspect sends you?

An officer created a fake profile of a 14-year-old girl. Mr Mills, 2017 NLCA 12, aged 32 started communicating with her about sex, and invited her to meet him in a park. He claimed to be 23.

To record the communications, police captured images of the screen using a program called "Snagit".

Defence complained that this constituted "interception" of private communications. It required a 1-party consent authorization under s.184.1 of the Criminal Code.

The trial judge agreed.

The appeal court didn't. Without mentioning the seminal case of Duarte, [1990] 1 SCR 30, they overturned the trial judge's finding that police breached Mr Mills rights.

Mr Mills didn't like the appeal court's conclusion, and applied for leave to appeal to the Supreme Court of Canada.

At present, it appears that you do not need authorization to capture screenshots of undercover internet chats. I think it's a logical conclusion.  But if the Supreme Court grants leave, I do not think the judges of that court will find this case as simple as the Newfoundland Court of Appeal did.

2017.07.17 Destruction of Exhibits - Live Long and Prosper

How long after the conviction should you keep the exhibits?

In 1983, part way through his first degree murder trial, Mr Tallio, 2017 BCCA 259, pleaded guilty to second degree murder. In 2016, he filed an appeal, based upon DNA testing of a few of the exhibits that remain. One contained DNA that doesn't match him, but there is evidence to suggest that it was contaminated by a hospital employee.

Most appeals start within 30 days of the final decision. 33 years is unusual. The decision makes it clear that finding those exhibits took considerable effort. Many exhibits are gone.

Your exhibit storage systems are expensive, and contain masses of stuff that nobody wants. You want to clear them out. Avoid destroying evidence without first checking with people who could be affected. Mr Tallio asserted his innocence ever after his conviction. He would have wanted that stuff kept. Other convicts might not care so much.

2017.07.17 Right to Counsel s.10(b) - Wait Long or Prosper

Section 10(b) of the Charter assures Canadians who are arrested or detained that they will be able to "retain and instruct counsel without delay". How long can the suspect spend contacting his or her lawyer? When can you override the suspect's delay?

At 1:30pm, police officers arrested Mr Fountain, 2017 ONCA 596 for a home-invasion robbery. They told him about his right to counsel. He told them he wanted legal advice. He asked that his girlfriend contact his lawyer for him. When he arrived at the police station, at 2:10pm, he gave the name and phone number of his lawyer. It wasn't until 2:35pm that the police first called the phone number he gave. Someone at the lawyer's office said he was out, but would call back. The lawyer didn't call back. Police called again at 6:15pm, and left a message. At 7:00pm, Mr Fountain's girlfriend told police that a lawyer would be at the lawyer's office in the morning. At 8:15pm, the arresting officer told Mr Fountain about the two calls, and what the girlfriend reported. The officer offered Mr Fountain a call to Legal Aid.

Mr Fountain turned down Legal Aid because he wanted to talk to his lawyer in the morning.

The arresting officer then interviewed Mr Fountain. Twice, Mr Fountain objected to the questioning because he had not yet spoken with his lawyer. The arresting officer pointed out that he turned down Legal Aid. The second time, Mr Fountain spoke to Legal Aid. During the interview, Mr Fountain said the essential things necessary to get him convicted.

The trial judge admitted the confession. The appeal judges threw it out. They said that Mr Fountain did not waive his right to counsel. The officer should have:

  • waited until the morning before questioning Mr Fountain, or
  • read him the Prosper warning (the Supplemental Charter warning) before forging ahead with the interview.

Mr Fountain beat the charge.

What went wrong?

The arresting officer gave Mr Fountain the choice to wait until the next morning to talk to his own lawyer, and Fountain accepted that choice. That was fair. The officer then questioned Mr Fountain before he spoke with his lawyer. That approach prevented Fountain from getting the legal advice he wanted.

Why did the officer change the time-line?

Maybe the officer's shift ended that night. Maybe interviewing the suspect next morning would have required the officer to return to work on his day off.

How fast the suspect must get legal advice depends upon the urgency of the investigation. If other culprits are currently at large, posing a danger to the public or destroying evidence, then you may push the suspect to get legal advice quickly, so that you can question him sooner, and try to solve the evolving situation. If the situation is under control, then you should let the suspect wait until morning to speak to the lawyer of choice. An impaired driver doesn't get till the next morning to contact counsel because his body metabolizes the evidence with each passing minute. But a trafficker may be entitled to delay that long because no evidence will be lost in the interim, and no people are endangered.

Seriousness matters too. In a small fraud case, a judge might permit an officer to hurry things along to accommodate the officer's work schedule. For serious cases like home invasion or murder, judges won't care so much about conveniencing police officers.

Sometimes, when you call the suspect's chosen lawyer, you get no response. If you think waiting for a response will take too long, know that a judge will second-guess you. Before telling the suspect to get legal advice from some other lawyer, assess how urgent the situation is.

In Prosper, [1994] 3 SCR 236 the court set a high standard for "waiver". This case applies when a suspect first says he wants legal advice, but later decides to do without it. The judges decided that in those situations you must give a supplemental Charter warning, so that the suspect knows he is entitled to a reasonable opportunity to get legal advice.

If you decide you won't wait, you need to make the ground rules clear to the suspect, because you are setting him up to waive his right to counsel:

  1. You have a right to a reasonable opportunity to get legal advice.
  2. I have to hold off eliciting evidence from you until you get that opportunity.
  3. Waiting until tomorrow isn't reasonable because .... I'm not going to wait until tomorrow to interview you.
  4. We've done the following things to contact the lawyer you named: ...
  5. Is there anything you can think of that would put you in touch with your lawyer tonight?
  6. No? That leaves you with three choices:
    1. Choose a different lawyer to talk to tonight.
    2. Call Legal Aid - they're available 24 hour a day.
    3. Proceed without getting any legal advice.
  7. Just to be clear, I'm not going to ask you questions about the crime until you've had a reasonable opportunity to get legal advice. If you want legal advice, let's make it happen. But let's do that tonight.

Read my second paragraph, thinking about the suspect's experience of access to counsel. He may have got the impression that the police officer put a low priority on putting him in touch with counsel. There may be good reasons for the officer's delays - other matters may have occupied the officer. But judges assess infringements of rights from the point of view of the suspect, not the police officer.

2017.07.17 Reasonable grounds - Confirming Tipsters

How much confirmation of a tip do you need before you can act on it?

It depends. On the quality of the tip, and the amount of confirmation you already have.

An officer watched the house of a suspected cocaine dealer when a silver Honda Accord drove up. A tall slim black guy got out, and went into the house. The officer ran the plate, and then remembered that another officer told him of a tip relating to that plate and car: the tipster said it belonged to a high-level drug supplier. The tipster said the supplier was a tall slim black guy in his 30's. The other officer said that the tipster was reliable, and had first-hand knowledge.

About 20 minutes later, the officer saw the suspected cocaine dealer show the tall slim black guy out of the house. When the tall guy drove away, the officer arrested him for drug trafficking. Mr Dunkley, 2017 ONCA 600 had 6 cell phones in his clothing and in his car. Behind panels in the car were US$440,000, and 5.5Kg of cocaine. And a handgun.

At trial, the defence urged the judge to find that the officer's evidence failed to prove reasonable grounds to make the arrest. The arresting officer:

  • had no personal dealings with the tipster;
  • did not know how the source handler came to the conclusion that the tipster was "reliable", and therefore
  • could not explain to the trial judge why it would be reasonable to trust the tipster.

The trial judge and the judges of the Court of Appeal rejected this argument. The tip enjoyed some credibility because the tipster claimed to know from personal observation. The officer's observation coroborrated the tip because the car described by the tipster went to a drug dealer's house, and the driver the description given by the tipster. He stayed for a short time, consistent with a delivery of drugs to the dealer. The appeal judges said:

The high degree of suspicion attached to these non-criminal acts was sufficient to remove the possibility of innocent coincidence.

Note what the judges focussed on. If you observe only "non-criminal acts", then think twice before arresting anyone. On the other hand, if the information you have can "remove the possibility of innocent coincidence", then go ahead.

That analysis works whether you're considering whether to arrest the driver who emerged from the bar, or the street dealer that you're watching.


2017.07.09 Street checks - Identifying the Passengers in a Traffic Stop

When meeting shady people in shady places, diligent police officers try to identify all the people involved. The Charter limits what you can do and when.

Near a crack house house, a black Honda drove slowly by. A police officer watching the car noticed that one passenger was not wearing a seatbelt. The officer stopped the car. That passenger, Mr Mhlongo, 2017 ONCA 562 got out and tried to walk away. The officer stopped him, and asked for identification. Mr Mhlongo produced picture ID which satisfied the officer that he knew who he was dealing with.

The vehicle carried the wrong licence plates. Some investigation at the scene led to the driver's arrest.

After that, without releasing Mr Mhlongo, the officer consulted a database available in his police car to find out more about Mr Mhlongo and the other passenger. Under cross-examination, the officer agreed that the computer checks were investigation into possible criminal matters, but he didn't know of any crime at that moment. He wasn't letting go of Mr Mhlongo until he knew. Meanwhile, Mr Mhlongo tossed something under a nearby car. It turned out to be cocaine. Police detained and then arrested him for possession of cocaine. They found lots more cocaine in the car.

Mr Mhlongo complained at trial that the police arbitrarily detained him. He conceded that the initial detention was lawful. The passenger who should have been wearing a seatbelt tried to walk away: that gave the officer a reason to stop him. But after the officer arrested the driver, the seatbelt investigation was over. There was no further need to hold Mr Mhlongo. The continuing detention after the arrest was not for highway traffic matters, but to investigate Mr Mhlongo for possible criminality. Because the officer admitted he had no grounds, this was an arbitrary detention.

And furthermore, Mr Mhlongo complained that:

  • just by asking Mr Mhlongo to identify himself the police breached his s.8 right to be free from unreasonable search and seizure.
  • when they continued the detention, the officers failed to offer Mr Mhlongo legal advice. They breached his rights under s.10 of the Charter too.

The appeal court judges agreed.

Of course you want to know who you're dealing with. But you can't detain people without reasons.

Sometimes, careful consideration of the evidence under your nose can justify a detention. But the rest of the time, you must release people when you have to reasonable suspicion that they did or are doing something illegal.

I'm troubled by the s.8 conclusion. A decade ago, in , Harris, 2007 ONCA 574 the court first asserted this idea: collecting names from non-suspects for the purpose of looking them up in a database may breach their s.8 rights. Back then, I thought the dissenting judge made a good point: one doesn't enjoy much privacy in one's name. I also think that if police arrest one guy, they should attempt to identify all the others. I can conceive of situations in which failing to identify the other parties present may breach a defendant's s.7 rights. In any case, collecting intelligence on the inhabitants of crime-ridden areas seems to be a necessary technique for police to protect the life, liberty and property of innocent inhabitants.

Some day, some prosecutor will need to take this issue to the Supreme Court of Canada for clarification. Mr Mhlongo's case is not the right one. In the mean time, if they haven't already, Ontario police forces should develop policies about asking non-suspects for identification or investigating the non-suspects during detentions.

2017.07.09 Detention & Reasonable Suspicion

Here's a close call. Are these reasonable grounds to detain?

A residential neighborhood in Markham, Ontario suffered a spate of day-time B&Es. Some houses were under construction. A plainclothes officer drove there in an unmarked police car for the purpose of investigating the burglaries. He saw a brand-new rental van come from a dead-end area, drive an unnecessarily complicated route, and pull into 31 Hislop Drive. Two young men occupied the truck. Five days later, while patrolling again, he saw the same truck. The occupants stared at him as they drove slowly through an intersection. It drove by 31 Hislop, made a U-turn, and parked 4-5 houses down the street. The officer pulled in behind the van. The vehicle then drove a block away.

The officer felt suspicious, but had observed no driving infractions.

He pulled it over and asked the driver, Mr Gonzales, 2017 ONCA 543 for his licence and registration.

Mr Gonzales asked why the officer stopped him. The officer said he wanted to check his licence. The officer didn't mention the burglaries. Nor did he comment on the skunky smell of marijuana emanating from the truck.

The officer called for backup before arresting the men. In the van, they found 252 pounds of packaged marijuana and $105,000 in cash.

Was the initial stop an arbitrary detention? The investigating officer testified that he stopped the vehicle to investigate the burglaries. The trial judge very generously found that the officer also stopped the vehicle to investigate licencing and insurance. The appeal court rejected this finding. The officer went there to investigate burglaries, not drivers. For vehicle stops, of course, you don't need a reason - if the purpose is genuinely to investigate licencing and vehicle safety. For criminal offences, you need reasonable grounds.

The judges found that the officer's observations did not add up to reasonable grounds to suspect that the young men in the van participated in the burglaries.

I think it's a close call. I suspect that a highly observant and articulate officer might have been able to make sufficient inferences and deductions from the unusual behaviour of the van and its occupants to justify a detention.

But the facts left no uncertainty about the vehicle safety detention. This officer couldn't justify stopping the vehicle to check licencing and insurance. He was specifically investigating burglary. The van committed no driving infraction. To pretend otherwise is to lie (and to be clear, the officer did not try to use this justification for stopping the van).

To avoid telling this lie in court, don't use the traffic safety excuse to explain why you stopped a suspicious vehicle unless it's actually true.

2017.07.09 Detention - s.10(a) - Not Telling Why

In the previous article, did you notice that the officer never told the occupants of the vehicle what crime he suspected when he first detained them?

Section 10(a) of the Charter obliges you explain the reason for a detention. Mr Gonzales, 2017 ONCA 543 also complained that the officer failed to do so, and therefore he sought exclusion of the evidence.

The plainclothes officer explained that he delayed telling the suspects why he was stopping them until he could bring in back-up. The officer was not wearing his bullet-proof vest and various other gear. It took 7 minutes for backup to arrive. When they did, he arrested the suspects without further delay, explaining their jeopardy at that time.

The court accepted the "officer safety" explanation for delaying the explanation of the true reason for the detention.

If telling a suspect the real reason why you stopped him could get you hurt or killed, then you may delay the explanation. But take immediate steps to make yourself safe, and then get to the explanation right away.

2017.07.09 Strip Search - You need a Reason

After police arrested Mr Gonzales, 2017 ONCA 543 (see above), they took him to a police station and strip-searched him.

Problem was, the officers could not identify any evidence they expected to find by so doing. You can't strip search someone for evidence just because you lawfully arrested him or her. You need reasons to believe that a strip search will discover evidence, weapons or contraband.

There were no such reasons to justify this strip search. The judges didn't like that. Gonzales beat the charges.

I think the Gonzales decision is worth reading and discussing. It's well-written and clear. How might you have gone about this investigation differently?

2017.07.08 Who Gets the Goods? Disposition of Exhibits

Mr Colyer may have stolen a $40,000 diamond. Police received information that he pawned it at Floward Enterprises Ltd., 2017 ONCA 448. The investigators found a diamond at the pawn shop. Believing it to belong to the victim, they seized it.

I gather Mr Colyer beat the charge. Perhaps the victim's death deprived the prosecution of an essential witness.

When the trial was done, the pawn shop owner asked for the diamond back.

The police told the pawn shop owner that they would not decide who gets the diamond. There's a procedure for that, set out in s.490 of the Criminal Code. The police also tried to inform the victim's family about s.490: the people who want the diamond back should ask a provincial court judge to decide who gets the property.

The pawn shop owner applied for return of the diamond. He didn't formally notify the victim's family about the hearing. The provincial court judge gave him the diamond. Then the victim's family found out, and they appealed.

The technicalities of this decision don't matter to police. The big point is that you can and should duck property disputes over seized property. The Criminal Code provides a procedure. Tell the competing claimants about the procedure. Heck, you can apply to the court yourself asking for a decision. Try to make sure everyone interested in the property knows when the hearing will be. Give notice in writing too.

2017.07.08 Timely Photographs

Two prisoners occupied the same cell during a lockdown. One died of head injuries. Did he just fall, or did the other prisoner attack him? Four days after the death, someone photographed an injury pattern on his head. It looked like tread marks from the other prisoner's shoe. But the photographs weren't clear enough for the expert to give a definitive opinion.

The jury convicted Mr Bye, 2017 ONCA 528 of murder anyway. And the appeal court upheld the conviction. I think the shoe pattern on the victim's head helped the jury to their conclusion. A clearer picture might have helped.

Photographing injuries solves lots of problems, when done correctly. But lots of officers take lousy pictures.

Some people say "the camera never lies". It's not true. Here's a list of common problems:

  • Too new - Bruises take time to develop. If you take photos minutes after a violent event you may miss many marks. If you arrive minutes after the incident and photograph the victim before taking a statement, try taking some more photos an hour later. I have one case of a recanting spouse who blamed her injuries on an incident days before. However, the investigating officer noticed that the bruises on the victim's face swelled over the several hours they were together. This turned out to be important evidence in the case.
  • Too old - Scratches heal; swelling subsides; bruises fade. Get those photographs before the injuries dissipate.
  • Too bright - Flash cameras can hide the injury you seek to capture. If you orient a flat surface (like a bruised arm) directly at the camera, the flash can reflect off the skin, and conceal what you hoped to preserve. Try oblique angles, and natural lighting.
  • Too dark - Night photography is difficult. In the dark, the flash captures only nearby objects. If you photograph at night, plan to return in the morning.

If it's worth photographing, it's probably also worth making a note of what you saw. If the camera lies, then after checking you notebook, you can set the record straight.

2017.07.04 Parallel Investigations create Disclosure Problems

I'm seven months late commenting on this case. Better late than never. This case matters to investigations big and small.

The drug squad figured Mr Chu, 2016 SKCA 156 conspired to traffick cocaine. They investigated and put together a case. A separate team investigated him for his dealings with the proceeds of crime. The drug squad finished first. They laid charges and gave Crown the fruits of their investigation. Crown disclosed to defence. Nobody told the prosecutor about the proceeds of crime investigation until a few days before trial.

Two days before trial, the prosecutor told the defence lawyer that the other police investigation produced 1,900 documents, some of which might be relevant to the trial.

This rather upset the defence lawyer, who asked for an adjournment.

The trial judge felt no sympathy. He ordered the case to proceed, and convicted Mr Chu. The judges of the Appeal Court ordered a new trial. They felt sympathetic. Here's why.

Imagine you were about to buy a beautiful old house. It will cost you your life savings, and a commitment to pay most of your disposable income for 20 years. Minutes before you complete the transaction, you learn that 20 different building inspectors examined the house over the last 10 years. Each one wrote a report. All the reports are collected in a folder for you to read. Only a fool would sign on the dotted line before reading the contents of that folder.

The defence lawyer was in a similar position. Maybe those documents contained nothing of importance. But he didn't want to proceed with the trial until he knew.

Parallel investigations of the same suspect for related offences automatically create this disclosure problem. Heck, even if the offences are unrelated, there's a distinct risk that two separate investigations will discover information relevant to the other case.

For those of you involved in big investigations, you may easily overlook the possibility that the evidence you gathered may relate to the defence of the other case. If you know of a parallel investigation to your own, think big picture: do these two investigations overlap at all? What disclosure obligations will trigger when we lay charges on the first one?

For those of you involved in little investigations, don't wait until the day of trial to disclose evidence or information to the prosecutor. When the prosecutor discloses it to the defence lawyer, that lawyer will get an adjournment. Adjournments derail good cases.

In Mr Chu's case, I suspect that the delay caused by the late disclosure prevented further prosecution. The busts occurred in 2011. Will that delay survive a Jordan application?

2017.06.17 Warrant Drafting - Offence, Place, Items Sought ... and When

Mr Saint, 2017 ONCA 491 was no saint. He kept drugs. Police officers learned about this, and applied for a search warrant under the CDSA. The warrant they got said the officers could execute the warrant "at any time", but didn't mention any expiry date.

After police collected Mr Saint's drugs and charged him, he complained about the warrant. He was right. Judges can't grant permanent authority to search a residence. There needs to be a deadline.

The judges agreed with his argument, but he lost. The judges found that this warrant implicitly authorized the search on the day it was granted. Mr Saint was convicted and lost his appeal.

Don't play with fire. Make sure your warrant specifies an expiry date. If you need an expiry date weeks or months into the future, then explain why in the Information to Obtain.

Language like in the ITO that helped save this warrant. The ITO specifically asked for authority to search the residence on the same day as the officers applied for it.

2017.06.17 Investigative Techniques - Dirty Tricks

Innovative investigative techniques can bear much fruit. But stay on the right side of the law.

Durham Regional police sought to bust a drug ring. They knew who they wanted to bust, but they did not know where gangsters stashed their drugs. They obtained lawful authorities: wiretap to intercept the targets talking; tracking devices to find out where they went; and general warrants authorizing staged break-ins to inspect those places. No luck. One of their targets even found a tracking device.

Surveillance noticed Mr Dunstan, 2017 ONCA 432 engaged in a short transaction with one of the targets. Later, surveillance noticed Mr Dunstan's vehicle parked at a particular residence in York Region.

"Somebody" called 911 to report a break-in at that place. That caller wouldn't identify himself. York Regional police officers responded. They found the door was kicked in, but large quantities of drugs and cash remained in the place.  Durham Regional police got involved, and claimed credit for the bust.

Defence counsel suspected that the Durham cops took a short cut. They figured that Durham officers staged a break-in and called 911, knowing that this would justify a warrantless entry by York Regional officers. Defence counsel listened to the voice of a Staff Sargent Gillis as he testified about the case, and noticed similarity to the voice in the short 911 call.

Defence applied for permission to use a high-quality microphone to record S.Sgt. Gillis' voice while he testified, so that their voice comparison expert could compare it to the 911 recording. The trial judge said "no". The defence could not gather enough evidence to prove that S.Sgt. Gillis cheated. The court admitted evidence from the search of Dunstan's, and the jury convicted Dunstan. The appeal court said "yes", the trial judge should have permitted defence to record S.Sgt. Gillis's testimony. Dunstan got a new trial.

All the judges agreed that the short-cut - if taken - was unlawful, and would likely result in exclusion of evidence. It circumvents the judicial pre-authorization process for searches. If you don't have enough evidence to justify searching a place lawfully, then you are not permitted to convert your suspicions into adequate grounds by making an anonymous 911 call and tricking other officers into making the search for you.

There's a temptation to try it anyway. How is anyone going to find out?

Don't kid yourself. Justifying illegal activity in the name of law enforcement is called "noble cause corruption". It's a slippery slope which leads to an ugly place. If you get away with it the first time, you might want to give it another go. But you work in a zone of transparency. Police disclosure obligations are very broad. Your electronic systems track you. It's easy to get caught.

I'm not saying S.Sgt Gillis broke the law. But read the decision, and you'll see how much information defence counsel did obtain, and how much more they'll get next time.

Back in April, I lauded innovative police investigative techniques. ("Mr Big's cousin"). But the public pays you to obey the law. Don't go breaking it instead.

2017.06.16 Child Pornography - Possessing or Accessing?

When Mr M.N., 2017 ONCA 434 and his spouse reported finding child pornography on their computer, police examined it. They reached the conclusion that he used his browser to look at child pornography. They charged him with possession of child pornography.

The trial judge convicted him, but the Court of Appeal acquitted him.

The computer contained temporary files in the browser's cache. This indicated that he used his browser to look at child pornography, but he did not deliberately download images so that he could look at them later. The evidence proved he accessed child pornography.

The appeal court found that they are different offences. Mr M.N. did not commit the offence charged, and therefore must be acquitted.

There is a concept in criminal law of "included" offences. At the conclusion of a trial of a serious offence, the judge can convict the defendant of a less serious but "included" offence. For example, the offence of assault causing bodily harm necessarily includes an assault. If the evidence at trial proves that the defendant assaulted the victim, but the victim's injuries arose from some unrelated incident, then the judge will convict the defendant of the less serious offence of common assault.

The court held that accessing child pornography (s.163.1(4.1)) is not "included" in the offence of possessing child pornography (s.163.1(4)).

When drafting search warrants or laying charges, consider carefully: does the evidence show that he stored the illicit images, or just looked at them?

2017.06.11 Abuse of Police Powers and Resources

Cst Heron, 2017 ONCA 441 smuggled cheese.

He and another officer bought it cheap just across the border. Using their credentials as police officers, they brought it across the border. They sold it to local pizzarias. No import duties. Lots of profit. Hundreds of thousands of dollars. When he feared that authorities were closing in, Cst Heron searched CPIC to see whether other police officers had recently searched his partner's vehicle.

Both officers got busted for smuggling. Cst Heron also got convicted for using the same database that you use every day. The only difference was, he put it to personal use. In this context, that CPIC search was a criminal breach of trust.

Heron went to jail. His buddy got busted too.

I don't know why these guys went bad. The judge's decision offers hints: alcohol, substance abuse, relationship trouble. I suspect those were merely symptoms of deeper losses of purpose and integrity.

Police work ain't easy. The public demands high standards. Courts demand high standards. The clientele delivers constant abuse. Labour disputes undermine morale. It's easy to feel entitled to extra compensation. Extra perks seem easily plucked. The badge gives you access where others cannot go.

Don't do it. CPIC tracks every search. Just use police databases for work.

The badge gives power and access. And lots and lots of accountability.

If you feel tempted to reward yourself on the sly, pull back before it's too late. Ex-constable Heron will now tell you it's not worth it. Too late for him. Not too late for others. If you feel trapped or embittered in your work or life, there is lots of help, if you just look.

Most officers who read this website don't feel tempted. From the emails I receive, I think you are keen to do the right things. You're the ones that the embittered officer ridicules for too having much enthusiasm. As I read the sad case of Cst Heron, I hope that you, your co-workers and your managers can save the next one before he or she falls. It takes effort to rescue a sour comrade, but it takes less work than repairing the damage after a colleague turns to crime.

2017.06.11 Police Expert Evidence - Independence of the Expert

Police officers develop unusual areas of expertise. For example, when you investigate enough drug cases, you learn the language and methods of drug dealers. Few people other than police officers and drug dealers know these things. And DREs learn know little-known facts about drug intoxication.

Courts accept as experts those people who have specialized knowledge that other folks don't have. Therefore, courts do often accept expert evidence from police officers about drug dealers' coded language, and methods of handling drugs and money.

By reason of such experience, an Ontario officer got to know these things, and could give expert opinions about them.

But not in the case of Mr McManus, 2017 ONCA 188.

For four years, that officer received information that McManus was dealing in drugs. The officer participated in surveillance of Mr McManus, and in the search that led to Mr McManus' arrest. The officer testified at Mr McManus' bail hearing that he believed Mr McManus was involved in organized crime.

All of the officer's opinions are likely accurate and true, but does he look independent and unbiased? The court thought not.

The Supreme Court of Canada recently insisted that all experts be fair, objective, and non-partisan. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The prosecution should have found an expert who had not participated in the investigation.

Taken too simplistically, the McManus decision could cause mayhem:

  • If a fingerprint examiner attends the scene of the crime, and "participates in the investigation" by lifting fingerprints, should she be prohibited from testifying that in her expert opinion, the accused's fingerprints match the ones from the crime scene?
  • If an accident reconstructionist attends the accident scene and "participates in the investigation" by examining skid marks, should the trial judge prohibit him from giving expert opinion evidence that the accused's vehicle did not brake before the collision?
  • Should a DRE be prohibited from expressing an opinion about the ability of a driver to operate a motor vehicle?

Of course not. And that's not what the judges said.

They contrasted this case with other cases in which a police expert's opinion was properly admitted. In the other cases, the expert received only the information necessary for the opinion, and the expert did not participate in the rest of the investigation.

Don't involve your police experts in more of the investigation than is necessary for them to provide an opinion. The more information they receive about your theory of the case, the greater the appearance that they might suffer from confirmation bias. The more they participate in busting the suspect, the greater the appearance that they want to see the suspect convicted.

2017.06.10 Continuity of the Suspect - Voluntariness and Charter Rights

Just after a crime, when you find a suspect, an almost impossible conflict of duties arises.

  1. You swore to keep the peace: you should not let culprits walk away from crimes.
  2. Section 9 of the Charter prohibits you from detaining anyone without reasonable suspicion.
  3. You must ask questions, so ensure you stopped the right person.
  4. At common law, you must not compel anyone to confess.
  5. If you detain anyone, s.10(b) of the Charter requires you to offer them access to counsel without delay.
  6. If you detain anyone, judges interpreted s.7 of the Charter to require you to tell them about their right to silence.
  7. At common law, when you have reasonable grounds to believe you found the right person, you must warn them about their right to silence.
  8. Courts interpreted s.10(b) to require you to hold off questioning detained or arrested suspects until they get the legal advice they request.

Every officer who deals with the suspect must obey these duties. Breaching one can taint what happens next.

Three men robbed a Rogers Wireless store in Vaughan, Ontario. A police officer found Mr Hamilton, 2017 ONCA 179 nearby. Because Mr Hamilton resembled the broadcast description of one of them, the officer detained him, and asked where he was coming from (breach #1). "Tim Horton's" replied Mr Hamilton. 20 minutes later a second officer arrived and arrested Mr Hamilton for robbery. Mr Hamilton wanted legal advice. Never-the-less, that second officer asked him about where he had come from (breach #2). Mr Hamilton gave a more complete account which omitted any visit to Tim Horton's.

Police took Mr Hamilton to a police station, where he got 4 minutes of advice with duty counsel.

After that, a third officer questioned him. That officer told Mr Hamilton about his right to silence. Nobody told the third officer about the conversations with the two preceding officers. Unsurprisingly, the third officer did not tell Mr Hamilton that nothing he and the previous officers discussed should cause him to think that he must speak again.

Mr Hamilton told the third officer that he already explained it all to a previous officer. Instead of giving the secondary warning at that moment and making a fresh start, the third officer asked Mr Hamilton to tell him what he told the previous officer.

When you first find a suspect, you want answers. When your adrenaline runs, you may forget your other duties.

To solve problems that result, add more duties. When you catch a suspect, tell all the subsequent officers what you have done with him or her.

In this case, the breaches led to problems, and a retrial. Every officer who deals with the suspect is a link in the chain. The excited officers at the beginning caused troubles all the down the chain.

When you catch someone interesting, keep calm, and carry on doing your duties - all of them. Tell the next officer(s) what you have done. And report the whole chain to the prosecutor.

2017.06.10 Bail Hearings - Undertaking or Recognizance - Cash or Surety

Last week, the Supreme Court of Canada instructed us about bail hearings. R. v. Antic, 2017 SCC 27.

First, surety is as good as cash. If a defendant can post security, but not cash, then the security suffices.

Second, in a bail hearing, the defendant is entitled to the most lenient form of release available on the facts.

Section 515(2) creates a ladder of forms of release:

  1. Undertaking
  2. Recognizance without deposit or surety
  3. Recognizance with surety
  4. Recognizance with cash deposit (with consent of prosecutor)
  5. Recognizance for people from out of province, or who live 200km away.
  6. Detention

The court directed justices and judges that they must consider and reject each rung of the ladder before moving on to the next one up the list.  (Note that number 5 is a special case)

This may change how bail hearings proceed. When you seek a recognizance or a detention, you may need to spell out why other forms of release are insufficient.

2017.05.28 Arrest and Transport - Talking with Another Officer's Prisoner

Another officer arrests a suspect and turns him over to you. It's not your investigation. Notes don't matter, right?

Wrong.

If the suspect later gives a statement, you will testify about the conversation between you and him. All of it.

When one officer arrested Mr Richards, 2017 ONCA 424 for trafficking, he needed to execute a search warrant on Mr Richard's house. The officer entrusted Mr Richards to another officer. That officer spent 30 minutes with Mr Richards, but took minimal notes. Probably, they discussed nothing of importance. A year or more later, that officer could recall nothing of the conversation.

That was a problem. After those 30 minutes, Mr Richards confessed to the lead investigator. The prosecution needed to prove he did so voluntary. Mr Richards testified that the secondary officer improperly persuaded him to confess. That officer couldn't really say what was discussed, because there was no record.

After arrest, handling a prisoner is something like handling an exhibit. With exhibits that might contain DNA, you must prevent physical contamination. With prisoners, "contamination" can arise through conversation. When you seize the murder weapon, you don fresh gloves, so as to avoid putting DNA on it. You place it in a bag to minimize the number of people who could accidentally transfer DNA onto it. You investigate who touched it besides the murderer. You take these steps so that, at trial, the court can conclude that no DNA got onto it except the murderer's. You document what you did so that you can assure the court afterwards that you did not accidentally contaminate the exhibit with DNA from some other source.

Handling prisoners is similar.

When someone arrests a prisoner who later confesses, the prosecution must prove that no police officer said or did anything to the suspect which undermined the voluntariness of his confession. No "contamination" by threats or promises. The only way to prove that is by asking all of the officers who had the suspect in their custody. "What did you discuss with the prisoner?"  Like DNA, you should minimize the number of people uniforms who speak to the subject. Like DNA, you should document what you did or discussed.

The weakest link is always the officer least involved in the investigation. They rarely think that their involvement matters, and so they take no notes of their innocuous conversation with the suspect. I've seen this problem over and over for decades. I saw it in a trial last week. And the Ontario Court of Appeal saw it in this case.

Don't be the weak link. If you conversed with the prisoner before his interview, make a note. Even if you only discussed the weather.

2017.05.19 Impaired Driving - Search Incidental to Arrest

The day after a murder, a police officer driving an unmarked police car noticed Mr Pearson, 2011 ONSC 1913 drive a vehicle with excessively tinted windows. The officer pulled him over to discuss the unlawful tinting. When Mr Pearson opened his window, an odour of marijuana wafted out. Mr Pearson's slow movements and red eyes led the officer to require him to perform sobriety tests. Mr Pearson failed. The officer arrested him for driving while impaired by a drug.

Could the officer search Mr Pearson's trunk for drugs?

A knapsack there contained shotgun shells which linked Mr Pearson to the murder.

Defence argued that an arrest allows an officer to search only to arm's length. When arresting for impaired driving, the officer can not look in the trunk.

The trial judge said that an officer who arrests a driver impaired by drugs may search the trunk for the drugs that impaired him. This week, the Ontario Court of Appeal agreed. Pearson, 2017 ONCA 389.

Caution.

This decision does not say that every time you arrest someone in a car, you can search the trunk. There must be a reasonable prospect that you will find evidence of the offence in the trunk at the time that you search.

Mr Pearson was charged with murder and with impaired driving. A jury convicted him of murder. He lost his appeal. I don't know what happened to the driving charge.

2017.05.19 Unprompted Admissions while awaiting Legal Advice

A month later, another officer stopped Mr Pearson, 2017 ONCA 389, again because of the excessively tinted windows. This officer saw a shotgun shell lying on the back seat. The officer arrested Mr Pearson and his passenger for unsafe transportation. Mr Pearson wanted to talk to a lawyer. Before giving him that opportunity, the officer asked questions about the shell. He answered.

Later, on the drive to the police station, Mr Pearson asked the officer what charges his passenger faced. The officer told him his passenger faced the same charge. Mr Pearson then asserted the he was responsible for the shotgun shell, not his passenger.

That proved to be an important remark in the murder trial. The trial judge denounced the officer's initial questions, but admitted the remarks in the police car, because the officer did not elicit them. Talking about them was entirely Mr Pearson's idea.  The appeal court agreed.

This case demonstrates several lessons:

  1. Don't ask questions about the offence after detention or arrest, but before the suspect gets the legal advice he requested.
  2. Don't deliberately set up the suspect to make remarks about the case before the suspect gets legal advice.
  3. Document carefully all unprompted remarks that the suspect makes during this period. Heck, keep a recording device going during all your interactions with him.  (But tell him you're recording.)

2017.05.06 Consent Seizure - Warrant drafting

Mr Reeves, 2017 ONCA 365, was on parole. He and his common-law spouse owned a house together, but because he have been violent to her in the past, he could visit only with her express permission.

His common-law spouse looked into the computer they shared, and found evidence of child pornography. She told his parole officer, and she told the parole officer she didn't want to see him any more.

Mr Reeves got into more trouble, and was arrested.

Word reached police. An officer visited the common-law, and asked for her consent to seize the computer. He did a smart thing. He got her written consent.

He got the computer, but he did not report it to a justice for 4 months. No "5.2". The judges didn't like that.

Another officer applied for a warrant to search the computer. That officer also did wise and unwise things.

The officer included lengthy quotes from the statements of the common-law spouse and her daughter, to explain why the officers thought that the computer contained child pornography. That balanced out his exaggerated and inaccurate summary about what they saw. Seeing a filename in a computer suggestive of child pornography is one thing. Seeing child pornography is another. Don't pretend one is the other. Judges don't like it when you exaggerate the strength of the information you have to support your application.

This exaggeration results from a natural human tendency to draw inferences from information, and to recite the inferences instead of the information. We all do it. One can limit this tendency by returning to the raw evidence and comparing it to your summary.

The officer also forgot to mention the years of strife between the common-law spouse and Mr Reeves. The justice should have been told of them, in case bitterness inspired her to make false allegations against him. You have an obligation of full and frank disclosure. When applying for a warrant, include the information you know about that makes your witnesses look less reliable.

I liked this judge's analysis of what consent of one party means when you seize property that belongs to two people. Give paragraphs 54-71 a read.

I was somewhat troubled by the judges' finding that the officer's failure to report the computer to a justice violated s.489.1. A "seizure" occurs when the state takes something without consent. This officer plainly received the computer with consent. Perhaps the judges got it right. I doubt the officer would have returned the computer to the common-law spouse if she had asked for it back. The officer did understand it to contain child pornography, and had the right to seize it under s.489(2).

Remember to write your report to a justice. If in doubt, complete your Form 5.2.

2017.04.30 Big Investigations - Pre-Charge Delay in Big and Little Investigations

When Hickman Equipment Ltd went bust in Newfoundland, investigators found reasons to suspect corporate fraud. The investigation took 10 years. At trial, Mr Hunt, 2017 SCC 25 and other senior managers of the corporation persuaded the judge to throw the case out because it took too long to get started. Two of three judges in the Court of Appeal agreed. But one appeal court judge said the trial should proceed. Most of the judges of the Supreme Court of Canada agreed with her. These charges should proceed.

The Supreme Court of Canada recently changed the rules for post-charge delay. The clock starts ticking loud and clear when charges are laid. But this case involved pre-charge delay. There are some lessons to learn here.

Mr Hunt complained that the collapse of the company and the loss of his job caused him harm. But the police didn't cause any of those problems. These complaints did not provide reasons to drop the charges.

Mr Hunt complained of the injury to his reputation by reason of the publicity and gossip around the collapse of the company. He couldn't get another job. And he feared for many years that he was under investigation.

This complaint cuts closer to you as investigators. If you leak details of your investigation improperly, you might cause harm to your suspects.  But these investigators didn't. Too bad for Mr Hunt.

The trial judge thought charges could have been laid earlier. It turns out that doesn't matter.

The highest court agreed that haste in laying charges is a bad idea.

Except for s.505 of the Criminal Code, the law does not require you to lay charges at the earliest opportunity. Indeed, if further investigation might make the case clearer, perhaps you investigate before swearing charges. Before deciding  to turn someone's life upside-down, you should generally gather all available information.

The post-charge delay clock starts when you lay charges. Prosecutors in BC like - whenever possible - to wait until the investigation completes before starting that clock. (Offenders who pose ongoing risks to society often force our hand.)

There is no pre-charge delay clock. But if your investigation will take a long time, then take care not to conduct it in a manner which inflicts lengthy harm on the suspects.

Those are the big investigations.

Now let's talk about s.505, and the little cases. When you release someone on an appearance notice or PTA, that section requires you to lay an information "as soon as practicable thereafter".

I think it's foolish legislation because it rushes police officers into laying charges even before they finish their investigations. What a formula for injustice!

Don't ignore this legal obligation. But try not to let it prevent you from investigating properly. Don't let it force you to lay unjustified charges.

2017.04.13 Undercover Operations - Mr Big's Cousin Works at a Furniture Store

Mr Big's fame undermines his effectiveness. His relatives can sometimes help.

When Mr Cyr had an affair, 'someone' murdered his wife. Mr Cyr stood to collect lots of life insurance money.

Who?

Mr Cyr worked at a law firm as a paralegal. His wife's dad's law firm. He had an affair with a secretary there. When the affair came to light, dad must have been unhappy. Cyr got fired.

Naturally, Mr Cyr told uniformed investigators he knew nothing about who killed his wife.

Mr Cyr knew all about Mr Big. Investigators needed some other way to win his trust.

When he got fired, Mr Cyr needed a job. He signed up to become a salesman at a furniture company called "Bad Boy". (Seriously. I am not making this up.)

Shortly after he got that job, another guy signed up with "Bad Boy". That guy already had a job. As a cop. A UCO.

They became friends. Mr Cyr talked about his dream of buying a canoe business. The UCO thought that was a great idea. He wanted in on this opportunity. Somehow, the UCO managed to persuade the owner to sell, and got lots of documents to prove it. Cyr agreed to be partners with the UCO, along with Cyr's good friend Zvolensky, 2017 ONCA 273.

But the UCO had a problem. His evil ex-wife. If only she were dead.

She even called the UCO when he was with Cyr and Zvolensky. She was toxic. Zvolensky suggested he'd kill her. The group started making plans. During those discussions, they revealed how Zvolensky and his buddy Qahwash at Cyr's request killed Cyr's wife in a manner to make sure that it couldn't be linked to Cyr.

Good buddies indeed.

The UCO operation led to discovery of the murder weapon, bearing fingerprints of Qahwash and DNA of Zvolensky. All this evidence came out at trial. The prosecution called evidence at trial that the canoe company and "Bad Boy" cooperated with the undercover operation. "Bad Boy" ain't so bad after all.

All three good buddies got convicted of first degree murder.

At trial defence complained that the UCO's evidence was unfair:

  • the operation made them look bad to the jury: they're on trial for a murder, and the police made them participate in planning another murder. This would prejudice the jury against them.
  • The operation interfered too much with their lives, thus affecting their s.7 right to liberty.

This operation involved no interrogation like the Mr Big interview. No threats. No inducements. The judges liked that.

This operation did involve making the targets look like bad guys. That makes judges skittish. But the probative value of the evidence obtained, particularly the murder weapon, made the judges comfortable with its admission.

If you plan UCO operations, this case is mandatory reading.

While I'm impressed by Mr Big's work-ethic, I've long felt that other members of his family should earn their keep. I'm glad to see that his cousin finally got a job. Even if it was just at a furniture store.

Inventive work pays off, but keep the principles of Hart in the back of your minds when you plan your scenarios.

Bad Boy Furniture Icon

2017.04.01 Warrantless Search of a Residence - Exigent Circumstances or Social Work?

Someone noticed a 4-year-old boy standing alone near a busy intersection, wearing only a diaper. The passer-by called 911. When police arrived, they found the boy in his mother's arms, wrapped in a blanket. The dad arrived minutes later.

The dad, Mr Davidson, 2017 ONCA 257 explained that the boy suffered autism, and tended to wander from their home, which was 50m away.

The attending officer wanted to look inside to see if the house was safe for the child.

He didn't get a written consent, but basically invited himself in.

While looking around to see if the kitchen contained food for the boy, the officer noticed a smell of marijuana. Down in the basement, where the smell became particularly strong, he found a locked door. When the officer asked for a key, Mr Davidson kicked the door open, and behind it police found a grow operation.

The trial judge thought that a police officer's powers of search in cases of imminent harm justified this intrusion into Davidson's home. He relied on the well-known case of 911 calls, Godoy.

The appeal court disagreed. When discussing the power to enter a residence to preserve life, they said:

The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property.

...Godoy does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents.

The boy was safe. The police had no reason to believe that anyone else was in danger. Although the search was to prevent harm to a child, the officer lacked reason to suspect that there was any imminent danger. This was a social work investigation, not an imminent harm investigation.

There's one phrase in this decision which raises a red flag: "reasonably believe". In MacDonald, 2014 SCC 3, the court split 5:4 whether you needed "belief" or "suspicion" that violating privacy was necessary in order to protect life. The majority chose "belief" in the existence of an "imminent threat" before police can violate the privacy of a residence. I've always thought that a reasonable "suspicion" that someone will suffer serious injury or death suffices.

Perhaps it's just semantic games. Is there really any difference between believing that someone may get hurt, or suspecting that someone will get hurt?

To enter someone's residence without consent, you need reasonably reliable information suggesting imminent danger to someone. When you go in, limit your search to its purpose: resolve the danger and get out.

2017.03.26 Production Orders to the Press - Same Standard as the Rest of Us ... sort of

A Canadian member of ISIS chatted online with a reporter in Vice Media. What he said might convict him in Canada of terrorism crimes.

Canadian police wanted copies of the communications. They applied for a production order requiring the reporter to give them the evidence.

Vice Media objected. They fear that people like the terrorist won't reveal newsworthy stories if what they tell reporters becomes evidence against them. Heck, ordinary witnesses might not talk to reporters if doing so puts them on the witness stand. Vice Media asked the courts to set a higher standard for issuing production orders against the press. They said judges should refuse to grant a production order unless the police can prove that a prosecution wouldn't get started without the evidence possessed by the reporter.

No way, replied the judges. R. v. Vice Media Canada Inc., 2017 ONCA 231 The press enjoys the same rights of privacy as the rest of us. A reporter's notebook is no more nor less private than a psychiatrist's notebook, a doctor's chart, or a bank record.

But the judges agreed that a free press protects our democracy. How else can we discover the flaws in the politicians we might elect? How else can we learn of the world around us? They said if there are better sources of evidence out there, then you should leave the reporters alone.

2017.03.26 Sealing Orders - Bikini, Beach Blanket, or Sun Dress?

When police sought a production order against Vice Media Canada Inc., 2017 ONCA 231, they asked for a sealing order, to protect the nature and scope of the police investigation. They also wanted it to protect some information relating to national security, and to protect a witness in the case.

Vice Media challenged the orders. On review, everyone agreed that the information that identified the witness and the national security matters needed sealing up. That part of the sealing order stayed. The judges pointed out that the nature and scope of this investigation was pretty obvious, and didn't need secrecy. But publishing the evidence collected so far could prejudice a jury, if ever a prosecution gets launched. Instead of a sealing order, the judges imposed a publication ban.

In the early stages of an investigation, you often ask for a blanket sealing order. It hides the whole of your beautiful investigation from public view.

But conspiracy theories thrive when government operates in secret. For example, right now, Americans wallow in theories about Obama's secret wiretaps or Trump's secret connections with Russia. Public doubt undermines public trust in government. A justice system which hides from public view raises suspicion.

To retain public trust in the justice system, judges want to protect your ITOs with the least secrecy necessary.  In this case, the judges replaced the blanket sealing order with a time-limited publication ban. A focussed sealing order protected only the most sensitive paragraphs in the ITO.

Your ITO is like a beautiful model - an example of good police work which justifies a search or seizure. The conspiracy theorists are like the guys at the beach who want to ogle her. A blanket sealing order hides her entirely from view like a beach blanket draped around her. The guys are unhappy, and suspect she's ugly: "Did the police cheat?" A focussed sealing order is like a bikini, which reveals all but the most secret things. The lecherous guys may want to see yet more, but most of them understand why they won't. A temporary publication ban is like a sun-dress over top of the bikini. It promises greater exposure, when the time is right.

When you apply for warrants in haste, you usually ask for a blanket sealing order, because you don't yet know which information is sensitive. Later in your investigation, you forget to remove it. If you obtain perpetual sealing orders in every case, even when you don't need them, then you undermine the system you rely on.  Put a sunset clause on the blanket sealing order. Or consider a publication ban instead. Here's the outline of a bikini, a sun dress, and a beach blanket, all in one application:

I provide with this original Information to Obtain, a redacted copy. Subject to further orders of this court:

  • For the purposes of preventing the identification of confidential sources described in this information to obtain, I ask for an order that the original of this information to obtain be sealed in an envelope marked "Unredacted - permanent sealing order", and stored in a secure place, and its contents not be disclosed to anyone not involved in the investigation.
  • For the purposes of protecting the defendant's right to a fair jury trial, I ask for a an order that no person shall publish any information from the Information to Obtain until after the trial completes and the appeal periods expire.
  • For the purposes of protecting the ongoing investigation, I ask for an order that the redacted Information to Obtain be placed in a sealed envelope marked "Redacted - sealing order pending charges", and stored in a secure place until charges are laid in respect of this investigation. When such charges are laid, the redacted Information to Obtain may be removed from that envelope, and its contents may disclosed to interested persons.

I made this order up in a hurry. If someone out there has better language to suggest, I might use it in place of this rough draft.

2017.03.25 Detention for Officer Safety - How Much Force?

I missed this decision when it first came out. Better late than never.

2012. Midsummer. 2:20am. St Johns, Newfoundland.

An anonymous caller told 911 of "a male in a black jeep across from the Froude Avenue Community Centre with a firearm, possibly a shotgun or rifle." Froude Avenue is row-housing. Two officers arrived in separate vehicles. They found a lone black SUV in the parking lot. One occupant. One officer recognized him as Mr Squires, 2016 NLCA 54, and knew he was prohibited from possessing firearms.

What would you do?

This officer drew his firearm. He directed the driver to show his hands out the window. He complied. When the second officer arrived, they instructed him to get out, and lie face down on the road. He did. They handcuffed him and put him in the back of a police car. In the SUV, they found a sawed-off shotgun and ammo. The serial number was defaced.

The judges thought the officer went overboard with officer safety. They held that the excessive force violated Mr Squires' right not to be arbitrarily detained.

I dunno. Two years later, police officers in Moncton responding to a similar call encountered Justin Bourque, who shot five Mounties, killing three.

I won't instruct you police officers on how to keep safe out there. I'm a lawyer. I am not an expert on defensive tactics.

But you are.

In the Squires case, the prosecutors unsuccessfully urged the judges not to play Monday morning quarterback. The judges don't get training on how to handle risky situations.

But you do.

You need to know what to do in these situations, and why. Doing the "what" properly protects your life.

But if you can't justify what you did, then judges will limit your authority to act. Like they did in this case. In the long run, explaining the "why" properly protects other officers' lives.

In the court room, many officers make a simple mistake: they identify what they didn't know, instead of what they knew. Ignorance doesn't justify action. For example:

Ignorance justifies nothing Knowledge justifies action
I didn't know why he was there nor what he was doing. The SUV matched the tip. I thought the behaviour - possessing and displaying a firearm at 2:00am in a residential neighborhood - suggested preparation for violence rather than an innocent pursuit like hunting.
I didn't know if there was someone else in the vehicle. I was told of one person, but I could see that the vehicle could hold more people. I needed to get the one person I could see under control and away from the SUV before I looked for others.
I didn't know whether the driver had a weapon. I could see the driver's head, but not his torso. He was in a position to hide a weapon from my view, and aim it at me before I could react.

I don't know whether the officer in Squires went overboard or not. I wasn't there, and I have little expertise. Read the decision and decide for yourselves.

My example explanations may not describe real tactical concerns. But you can use that style to explain the risks to the judge.

The truth is, when responding to such a call, many officers don't think thoughts like the ones in the right hand column. They just follow procedure from years of practice. When they reach the court room, they can explain what they do but not why. During practice, then, discuss the reasons for your tactics. Try using language like the right hand column.

One more thing. Let's think about the point the judges wanted to make. Don't use unnecessary force to arrest or detain suspects. Don't even use unnecessary rudeness even with guilty people. Why? Nasty guys grow nastier when every cop they meet treats them like dirt. Some people, like Bourque, get the idea that cops need killing.

Try not to plant that seed.

2017.03.25 Reasonable Belief - Who wants to Stand on Soft Grounds?

An anonymous tipster said Mr Quilop, 2017 ABCA 70 sells cocaine. A team of police watched him for a couple of days.

They saw him go to a suite connected to another guy that they had reason to suspect dealt drugs. They saw him drive to a house, visit briefly, and emerge carrying something about the size of a baseball in his hand. An hour later, he made a short visit to an apartment, and emerge carrying a small pouch.

So they arrested him, and found drugs, money and cell phones.

At trial, defence challenged the arrest. You can't arrest a suspect unless you believe he's guilty, and the evidence establishes that belief is reasonable. On that legal point there is no controversy.

The team leader saw none of the action. What he knew did not justify an arrest. Defence said he was responsible for the arrest, and he lacked grounds. The team leader responded that he had the authority to stop an arrest, but he didn't decide whether to make the arrest. That was the responsibility of the primary investigator. The court liked that answer.

The primary investigator took responsibility for the decision to arrest. Another officer acted on his direction. That's fine too. But the officer who decides to arrest must have reasonable grounds.

The appeal court found these grounds too thin. They provided reasonable suspicion, but not reasonable belief.

But the cops were right - the drugs were there. Doubtless, the arresting officer felt certain his arrest was justified.

This can happen to you. How do you avoid it?

  • Detail: When we humans see a pattern we've seen before, we tend to reach a conclusion about what's happening, and remember the conclusion rather than the details that make up the pattern.You need to record the details that make up the pattern, so that you can recount them later. For example "slurred speech" is a conclusion that you might draw when the suspect says: "Whash duh pahblum offisher?" Make a note of the suspect's words.
  • Note-taking: what did you know and when did you know it? Some details weren't recorded in notebooks at the time. Recalling them later looked like making stuff up.
  • Attenuation: What seemed obvious when you saw it will become unclear in the court room. Observations pack less punch in the retelling. Therefore, "reasonable grounds" require something more than "I think so". It needs that little bit more, so that a skeptic will agree that you're probably right.

2017.03.18 Unhappy Juror after the Verdict

After the jury convicted Mr Lewis, 2017 ONCA 216, one of the jurors phoned the defence counsel to complain about what happened in the jury room.

The defence lawyer did a smart thing. He stopped the phone conversation and referred the juror to an independent lawyer.

That lawyer wasn't so clever.

She prepared an affidavit which the juror swore. It complained of aggression, bullying and hostility in the jury room. It complained that one of the nasty jurors told him "the accused was of bad character, likely had a criminal record and was in a gang".

Neither the trial judge nor the appeal court were impressed.

"Section 649 of the Criminal Code makes it an offence for any juror to disclose “any information relating to the proceedings of the jury when it was absent from the courtroom.” [The second lawyer] put herself and the juror in jeopardy by filing an affidavit detailing the juror’s complaints about the deliberation process."

Basically, the lawyer helped the juror commit a Criminal Code offence.

I read cases every year in which problems like this arise. What do you do if a juror comes to you, complaining about what happened in the jury room?

The better course of action if the juror has a problem with the verdict is to bring the matter to the attention of the trial judge as soon as possible. Work with counsel.

If a juror comes to you complaining about what occurred in a jury room:

  1. Stop the juror talking about what deliberations. The juror can't tell you anything about the deliberations of the jury.
  2. Keep people safe. The juror can tell you if he or she is in danger, and from whom. They can tell you if they've been threatened with harm, or assaulted.
  3. Get advice from lawyers.
  4. If the juror is concerned about the verdict, bring the juror's concern to the trial judge as soon as possible.

2017.03.18 DNA or DNA+?

Did Mr Lira, 2017 ONCA 214 and his buddy Mr Ismail rob the "Cash in a Flash" store back in November 2010?

Security video showed one of the robbers limped like Mr Ismail, and wore an unusually striped jacket like Mr Ismail. The other one wore tan shoes with red laces, just like Mr Lira. Oh yeah, and down in the boiler-room of Mr Lira's apartment, police found gloves and a balaclava that looked like what the robbers wore. And they had Mr Ismail's DNA on them.

DNA evidence often helps bust bad guys. But don't stop investigating when you get the DNA hit. DNA works best if you can collect independent circumstantial evidence.

Toronto Novembers can get cold enough for gloves and a balaclava. Mr Ismail's DNA on those items doesn't - by itself - lead to conviction. But these officers collected more evidence, which busted both guys.

2017.03.18 Completeness of Investigation

Most police officers feel pressure to move quickly from one investigation to the next. Junior police officers in general duty feel this pressure most acutely.

It's a trap.

When investigating the guilt of the suspect, you should also investigate the suspect's innocence.

Ms Dunkers, 2017 BCCA 120 worked for a charity. She stole $200,000 from them, or so it seemed. The investigating officers received a quantity of documents from the directors. Those documents showed that Ms Dunkers wrote herself a bunch of cheques that the directors never authorized.

Ms Dunkers made some vague remarks to suggest that she covered some of the charity's expenses from her own pocket. These cheques merely reimbursed her for those expenses.

The charity kept files on expenses. It would have been easy to review them at the time of the investigation. By the time it got to trial, those files were packed away in storage.

At trial, defence counsel accused the police of shoddy investigation. The trial judge wasn't impressed by the defence complaint, but nor was he impressed by the police investigation.

They had some idea what Ms Dunkers' explanation was. Why didn't they preserve the documents which related to it?

This idea of investigating innocence arises in every investigation. Whether it's a commercial fraud, a murder, a domestic assault or a shoplifting. Try to get more than the complaint. Investigate innocent explanations, even if the suspect refuses to give you a statement. Does the shoplifter have a receipt? Does the alleged batterer have any injuries? Are there other people who wanted the deceased dead?

What was the result? It's a short decision. If you really want to know, click the link and find out.

2017.03.14 Fentanyl is a Problem in B.C.

Mr Smith, 2017 BCCA 112 sold fentanyl as "down" to an undercover police officer. The officer pursued charges. At trial, Mr Smith's Charter arguments failed, and he pleaded guilty. He had never been busted before. He told the judge that he thought it was heroin, not fentanyl.

The trial judge imposed 6 months jail. The Crown appealed, complaining that BC has the biggest Fentanyl problem in the country, and yet the lowest sentences.

The Court of Appeal agreed this was a problem. Fentanyl is killing people. The judges agreed that the appropriate sentence should be 18 months. But Mr Smith committed his offence when the Fentanyl problem was just emerging. Two of the three judges figured the trial judge wasn't in error at the time, and upheld the 6-month sentence.

If he didn't know, then he might tell his customer it was heroin, and his customer might use too much and die. If you obtain "down" from a suspect, you might ask during the transaction what kind of "down" you're getting.

2017.02.18 Video-Recording Witness Statements - Not Just Children


You likely know that video-recording children's statements can result in the video becoming part of their evidence at trial. It started years ago with sexual offences, but Parliament broadened the section to make it work for all witnesses under 18.

It also works for people with mental and physical disabilities. s.715.2

Mr Osborne, 2017 ONCA 129 and his circle suffered developmental delays and mental disabilities. He told one of them that he intended to kill his exgirlfriend. And he did. At trial, the friend could not remember the conversation, but could remember telling the truth to the police. Was his video-recorded statement admissible?

Yes.

This section applies more broadly than just young folks with intellectual challenges. And it applies to all crimes, not just murder and sexual offences.

Aged victims often deteriorate after a crime. Video-record their statements when possible too.

2017.02.16 Police Powers - Exercise them Accountably

If a guy gropes a woman's breasts, and pulls her shirt so that he can peer at her breasts, we call it sexual assault.

Cst Khan, 2017 ONCA 114 said it was a search incidental to arrest, to ensure that she carried no weapons.

To be fair, he just busted the woman for buying cocaine. But the way she remembered it, he seemed more interested in flesh than weapons.

The trial judge believed the woman. Khan lost his job and his reputation.

When you exercise powers of arrest, you do what would otherwise be called an assault and kidnapping. Use those powers respectfully, and accountably.

If you read her description at the beginning of the decision, you may get ideas on good and bad search procedures.

The remainder of the decision discusses a technical legal issue. Most police won't find it interesting.

2017.04.05 Right to Counsel after a Detention - How Fast?

An officer arrested Mr Patrick, 2017 BCCA 57 for possessing a sawed-off shotgun (see above). Even though Mr Patrick wanted to talk to a lawyer right away, she didn't let him call a lawyer from the scene, using a cell phone. She took him to the police station.

The trial judge thought the officer flagrantly violated Mr Patrick's rights. The Court of Appeal wasn't so sure.

Section 10(b) of the Charter, requires you to give a suspect his legal rights "without delay". But the courts find that you may delay that access to counsel where circumstances so require.

That doesn't mean you can always delay access to counsel until you reach the police station. If access can be given at the scene of arrest, without risk, then handing the suspect a cell phone to use in the back of a police car may be appropriate.

But many prisoners can abuse their access to a cell phone.

  • Will the wife-beater text his partner, threatening her with harm if she gives a statement?
  • Will the drug-dealer call his associates to interfere with your road-side arrest?
  • Will the drunk driver delay breath-testing to call the owner of the car to explain why it won't be home tonight?

Some scenes are too chaotic to permit you to give that access: Accident scenes. Feuding neighbors.

If you have a reason specific to this prisoner or this situation, then you can delay his or her legal calls until the situation is under control.

2017.02.04 Charter Rights of Third Parties

Mr Mauro, 2017 BCCA 45 picked a bad time to crash his Audi. It carried $100,000 worth of cocaine when it hit another vehicle. Instead of worrying about the injured woman in the other car, Mr Mauro phoned his mom, and instructed her to bring his Jetta to the scene. He took a shopping bag out of his car and held it until his mother arrived. He put the shopping bag into the Jetta, and his mom drove it a short distance away.

Police attended to deal with the car crash. The injured woman's husband told the police about Mr Mauro's strange behaviour with the shopping bag.

A police officer questioned the mom. She denied having anything in "her" car. The officer figured she was lying, and cautioned her sternly against public mischief. He told her it would be in her best interests to give him the bag.

He scared her. She gave him the bag.

At trial, Mr Mauro complained that the police searched his Jetta without a warrant, thereby breaching his s.8 rights.

The judges agreed.

Defence complained that the officer detained Mauro's mother without telling her that she could get legal advice.

The judges agreed.

Defence said that the evidence should be excluded.

The judges disagreed.

Mr Mauro had standing to complain about the warrantless search of his car. He didn't have standing to complain about police treatment of his mother. But having established a breach of his s.8 rights, he needed to persuade the trial judge to exclude the evidence. At that stage, the trial judge could consider all the breaches of Charter rights that the police committed during the investigation. Including violations of the mother's rights.

But mom tricked the police into thinking the Jetta was her car. She lied to the police about the object in it. The judges sympathized more with the police than with the defendant. Evidence admitted; drug dealer busted. Thanks, Mom.

You are sworn to protect everyone's Charter rights all the time. Because trial judges can sometimes consider the Charter rights of 3rd parties, when investigating suspects, you need to protect the Charter rights of the people they hang around with.

2017.02.04 Ontario Traffic Tickets - Correcting Mistakes before Filing

Have you ever issued a traffic ticket, and later found you forgot to fill in the year, or the municipality where the offence occurred?

In York (Regional Municipality) v. Wadood, 2017 ONCA 45, court decided that you can correct minor mistakes before filing the ticket with the court.

But don't add an extra offence or change the charge. For that, you'll need to issue a new ticket.

To distinguish between a major and a minor change, you should ask yourself whether the person who received the original ticket would still understand what the charge was about, even though she or he did not receive the correction.

This case applies to the Ontario Provincial Offences Act only. Don't assume the same rules apply elsewhere in Canada.

2017.02.04 The Non-Custodial Interview

Two vehicles raced. One crashed, killing the driver. Police broadcast a plea for the driver of the other vehicle to come and talk to them. Mr O’Leary, 2015 ONSC 1346 aff'd 2017 ONCA 71 showed up at the police station unannounced. An officer asked him why he came. He explained that he responded to the request on the radio.

The officer told him he could get the advice of a lawyer. The officer told him he "may" be charged. The officer told him that he was free to go, and that he did not have to say anything about the crash. The officer never searched him, nor told him where to go (except once when indicating where to sit). He stayed. He talked. His statement convicted him.

He appealed, complaining that the police:

  • Induced him to give a statement by what they said in the radio broadcast.
  • Tricked him into thinking he was a witness rather than a suspect.
  • Detained him by words or conduct.
  • Failed to get a full waiver of the right to counsel.
  • Prevaricated in the court room about whether they had reasonable grounds to arrest Mr O'Leary when interviewing him.

The judges rejected all of these arguments. But there are lessons to learn from them.

  • Press releases require careful consideration - if your request for cooperation includes suggestions that the suspect will get better treatment from the courts if s/he confesses, then the judge will consider that offer as a reason not to admit what the defendant says in your interview.
  • When interviewing someone you suspect of a crime, tell them about the crime you suspect they committed, and tell them that they have the right not to tell you about it.
  • Section 10 of the Charter only requires you to tell a suspect about the right to get legal advice when you detain the suspect. But nothing stops you from telling a suspect that they can get legal advice if they want. Doing so does not create a detention. Especially when interviewing unsophisticated suspects, you can prove to the judge that you treated the suspect fairly by mentioning the right to counsel even though the suspect was not detained.
  • Mr O'Leary testified that he thought he was detained even though the officer told him he could leave. This tactic can work when an officer says the words "you can leave" but then behaves like suspect has to stay. Therefore, if you say those words, then act like you mean them.

Defence counsel asked the interviewing officer to say at what point he had reasonable and probable grounds to believe that Mr O'Leary committed the crime, and complained that the officer should have arrested him at that point.

That's silly. Defendants don't have a Constitutional right to be arrested just because an officer starts to believe in their guilt. You can be completely convinced of a fellow's guilt, and still decide not to arrest him.

I suspect that this police officer may have felt uncertainty on this topic, and tried to duck that question. As a result, he may have looked evasive on the witness stand.

If you decide not to arrest someone, then it's perfectly fine to admit that you had grounds: "Yes, counsel, after your client admitted driving the vehicle I believed that he was guilty. But I had decided not to arrest or detain him, so I didn't."  If counsel presses you, you can respond: "Are you saying I had an obligation at that point to arrest or detain him? I am unaware of any such legal obligation, but I would be grateful for the judge's guidance on that point. I certainly told him of my suspicions and his right to silence. I certainly wanted his side of the story."

2017.01.30 Photography of Suspects

Do you photograph just the face or the full appearance of your suspects?

A couple of guys robbed a convenience store. One wore a mask. The clerk complained to police and described the clothing of the two robbers.

45 minutes later, police apprehended two guys wearing remarkably similar clothing. One was Mr McKay, 2017 SKCA 4. A smart officer photographed all their clothing carefully, and later compared it to security video in the store.

It matched.

Unfortunately, the trial judge mishandled the evidence, requiring retrial. But there wouldn't be a case without the careful documentation of the clothing these guys wore when police found them.

In some cases, you don't care about the suspect's clothing or appearance. But in routine investigations, it's easy to ignore valuable evidence. Did the drunk driver have bloodshot eyes? Sometimes the absence of evidence means something. Did the suspect in a domestic assault suffer damage to his clothing or injuries to his body?

When you need to solve a whodunnit, photographs of your suspect's appearance before and after the event can shed much light on whether you caught the felon.

2017.01.30 Right to Counsel - Reminder to Listen

When you explain the right to counsel, listen to your suspect’s responses, and record them. React when they express any hesitancy.

Mr Dunford, 2017 SKCA 1 drove on a highway, feeling happy that his Canadian immigration papers arrived. Too happy. He ignored some construction road signs for 13km. When some big trucks slowed for a flagger, he overtook them. He was going full highway speed when he hit the flagger, killing her.

Mr Dunford’s mood changed from happy to distraught. He cooperated with the police investigation and gave a full statement. The officer who interviewed him explained his legal rights to him. Mr Dunford said he understood. He didn’t want a lawyer. At the beginning of the interview, “Mr. Dunford indicated that he did not mind going without a lawyer and said he just wanted to ‘get it done’.”

When a suspect declines counsel, defence will look for even the slightest ambiguity. In this case, defence argued that the officer breached Mr Dunford’s rights by failing to clarify. The court responded:

“The police do not have an obligation to respond to a detainee’s misunderstanding of his rights or how to implement them if that misunderstanding is not communicated to the police or if there are no other indicators suggestive of a lack of comprehension.”

So you don't have to read minds, but you must watch to see if your suspect appears confused about his or her rights.

2017.01.20 Search Warrants - Telewarrants - "Impracticable" does not require "Urgency"

I previously wrote about Clark, 2015 BCCA 488, a decision from BC which clarified whether you can rely on the telewarrant process in non-urgent search warrant applications.

You can.

The problem was, judges in other provinces disagreed.

Not any longer.

Yesterday, the Supreme Court of Canada agreed with the BCCA: R. v. Clark, 2017 SCC 3.

In case you missed it last time, here's what I wrote:

During a night-shift, Cst Marshinew finished preparing an application for a warrant to search a residence where Mr  lived. No justice of the peace worked in his vicinity at that time of night. Must he stay up until the morning to apply in person, or could he apply at night by telewarrant?

Defence argued that there was no urgency.  The investigative plan involved assembling the search team in the following afternoon.  Therefore, the police didn't need the warrant immediately.

The trial judge accepted the idea that telewarrants can only be granted where there is a need for the warrant to be issued before a personal application could be arranged.  The appeal court disagreed. At para 68, Frankel J.A. said:
"The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week.  Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued.  The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated."

The judges agree that you should state, in the ITO, the circumstances that make it impracticable for you to appear personally before a justice.  That generally means explaining how you know that no judge or justice of the peace (in B.C., a "judicial justice") is not available.  Some provincial courts like BC issued directives from which you can quote when explaining why a Justice is not available to hear your application in person.

2017.01.14 Demeanour in Public

Mr Koopmans, 2017 BCCA 10 tried to kill Mr Martin by shooting him. Mr Martin was the most important witness in the case.

Mr Martin used drugs. During the investigation, he suffered paranoia. He suspected that police were conspiring against him, and told the investigating officer so. Apparently, he also told her that an officer who attended the scene was "dancing and skipping" in front of him. At the jury trial, defence counsel sought to make an issue of this, either to undermine Mr Martin's credibility or to undermine the police in the eyes of the jury.

I suspect that an officer who attended the scene shared a private joke with another officer, unrelated to the investigation. Mr Martin interpreted the officer's antics as malice toward himself.

Even regular folks carry plenty of misconceptions about police. In your work, you tend to meet the people at the margins of society, who have drug addictions and mental disorders. Those folks can easily misinterpret you.

You deal with the misery of broken lives on a daily basis. It's hard to stay compassionate, respectful and professional all the time. To relieve the emotional toll, you need a place to laugh and joke together. If that place must be the crime scene, look around for witnesses and security cameras before you crack a joke or pull a gag.

And don't play with the exhibits.

2017.01.07 Context Evidence

M.B., 2016 BCCA 476 had a teenage problem: she didn't like her boyfriend's previous girlfriend ("C.B."). That girl was pregnant. And she still liked M.B.'s boyfriend ("I.S."). Might the birth of the baby distract the boyfriend from M.B.?

M.B. wrote a text message to the previous girlfriend:

“I hope you know that you’ll get stomped if you come to this school, dirty bitches like you aren’t welcome here”

Did these words constitute a criminal threat?

It all depends upon the context.

In this case, investigators collected all of M.B.'s communications to the ex-girlfriend:

“Cool. You'll have like no friends. Our school is really cliquey and no one likes fat pregnant bitches.”

“Ha ha. Been at my school for three years. I think I know how things go and I bet the kid's not even [I.S.]'s. Lol.”

“Lol cause you're a dunce ha hahahahaha wow. And I said I bet the kids not even [I.S.]’s cause you’re a dirty slut who probably sleeps with everyone just to get attention”.

“fight me?:)”.

“Loool. Scared?”

They also acquired messages M.B. sent to her boyfriend about his old girlfriend C.B.:

“[C.B.]'s so annoying. I'm going to like kick her in the stomach when she moves here.”

“If she wants to fight with me I will own her ass. Just sayin'. You know I don't take people's shit.”

“Ya. So will your kid be when I fuckin' kick [C.B.] in the stomach. Joke.”

“I'm not afraid to hurt her [smiley face] because I’m a heartless bitch, rememberrrrr.”

“Holy tits. Get [C.B.] to stop fucking messaging me or I'm gonna rip her face off.”

“K well blah I’m gunna fucking hurt her.. Dude I can make myself look more preggo then [C.B.] could lol”.

By itself, the disputed message would not prove a criminal threat. But this context, persuaded all the judges that M.B. meant to frighten C.B..

When investigating relationship violence, many investigators focus too narrowly on the last bit of unpleasantness. Without context, it may appear less or more serious than would be revealed by some history.

You want more. Some current communication systems like SMS, voice-mail and Facebook permit you to recover the words exchanged before the final event. Get as much as you can.

2017.01.07 Evidentiary Value of a GPS

In your investigations, if you find an GPS device device, you may get a great deal of information.

I stumbled upon R v Didechko, 2016 ABQB 376 today. The GPS in that case automatically recorded everywhere Mr Didechko went: to the bar; to the place where the hit and run occurred; to his parent's house; and then where he dumped the car. He reported the car stolen, but the GPS showed that he never gave the thief any opportunity to take it.

The trial judge found this evidence pretty compelling.

If you find such a device would produce interesting evidence, then get judicial authority to download it.

2016 Developments in the Law

2016.12.20 Reasonable Grounds - Can you Trust a 911 caller?

A guy called 911 to complain about two guys carrying handguns at Tim Horton's. He said that he and his buddy were following the car the gunmen got into. He gave vague descriptions of the people, but provided a licence plate. He gave updates where to find the car. He offered to stick around to tell police what happened. Police found the car he described, where he described it. It went 60km/h in a 40km/h zone.

An officer stopped the car.

Would you arrest the occupants based on this information?

These officers did.

They found drugs, but no guns.

One of them, Mr Carelse-Brown, 2016 ONCA 943 complained that the officers lacked reasonable grounds to believe that the occupants committed a crime. The officers knew nothing about the caller, and therefore had no reason to trust him. The officers should have detained the car and investigated.

The judges disagreed. Finding a car that matched the description, location and direction described in the call tended to confirm the caller. The caller seemed willing to identify himself fully by meeting with police.

Because of the high public risk, the court approved of quick and decisive police action. "This was a dynamic, dangerous and rapidly changing situation involving a serious threat to public and officer safety."

Judges might want to to work slower - detaining first and investigating - if the crime complained of did not pose immediate public risk.

2016.12.20 Arrest & Detention - s.10(a)

When you arrest or detain a suspect, you don't need to tell him in precise legal language what offence you're investigating, but he needs to know the extent of his jeopardy. At the early stages of an investigation, you often know little. Based on what you do know, err towards describing the more serious offence. That way, the suspect can get relevant advice.

Mr Moore, 2016 ONCA 964 drove his car into a pedestrian. The pedestrian had been driving, and got out to confront Mr Moore about his driving. The arresting officer told Mr Moore that he was under arrest for dangerous driving. Mr Moore got legal advice from duty counsel. Then the officer told Mr Moore that they were also investigating him for assault with a weapon. Mr Moore wanted legal advice, but could not reach his lawyer. Police proceeded to interview him.

At the trial for assault with a weapon, Mr Moore complained that the officers did not sufficiently advise him of the charges, and that he did not get the legal advice to which he was entitled. The trial judge rejected this, but the appeal court agreed.

The s.10(a) warning tells the suspect what kind of trouble he's in. The s.10(b) process ensures that he can get legal advice relating to that trouble.

If you aim high at the s.10(a) stage, then you need go through the s.10(b) stage only once. If the jeopardy increases, then the suspect needs fresh legal advice.

Don't allege offences for which you have no evidence. For example, don't tell the suspect that you're investigating a "murder" until you have information suggesting that the victim died. But if the victim's condition is critical, then tell the suspect so. And if you give informal information like this, write down what you said. You need to show the court that you really explained to the suspect what trouble he was in.

2016.12.17 Warrant drafting - What to say about Unreliable Sources

When applying for judicial authorization to intrude on someone's privacy, you must tell the judge or justice everything that you know. What do you say about about someone you don't trust?

When investigating a murder, police in Ottawa received a tip that the suspect's father was overheard saying it was better the victim was killed rather than his son. When applying for wiretap, the affiant cautioned the issuing justice “to take a skeptical view of the informant’s information because, to my knowledge, it is second hand information and not direct knowledge.” He aid that this information did “not advance investigators in this case and can only be treated as intelligence…” Although he asked for permission to intercept the father's communications, he omitted this information from his “summary of grounds for belief” in respect of the dad.

The officer had better information to suggest that the suspect's dad knew about the murder. When investigators came asking questions about the murder, the dad lied to police about his son's whereabouts. Shortly after the dad met with other suspects, he drove in a manner that would prevent police from following him.

The officer got the authorization.

The decision doesn't say whether the police busted the suspect for the murder. But the dad's communications revealed him to be dealing in drugs. As a result of the interceptions, police busted him with heroin and lots of cash.

Mr Hafizi, 2016 ONCA 933 persuaded the trial judge that the warrant should not have been granted. The investigating officer forgot to tell the issuing justice that the dad was on bail for drug trafficking charges. His "heat checks" could have been unrelated to the murder.

The trial judge even found that the affiant "deliberately withheld relevant information that would have completely negated the inferences he sought to be drawn by the issuing justice". The court of appeal disagreed with this conclusion too, but agreed that the officer should have included the information about the trafficking charges.

I think that the Court of Appeal liked the caution with which the affiant dealt with the unreliable source information.  It may have helped them conclude that the officer did not act in bad faith.

Beware of leaving information out. Probably, the officer should have included information about Mr Hafizi's outstanding drug trafficking charge.

If you have information you think is untrustworthy, you can say so in your application. That's a lot better than leaving the information out.

2016.11.26 Photo Lineup Procedures & Lineups of Acquaintances to the Witness

Two men attacked Mr Pierre inflicting wounds that nearly killed him. At the scene he said "Carl" or "Carlton" did it. He sank into a coma for a month. When he first awoke, he wrote a name "Karl Atire" on a piece of paper. At trial, Mr Pierre said that was a mistake brought on by medications. He meant Carl Renous.

Police collected photographs of various people of interest, including Mr Pierre's friends. Each face was quite different from the others. The day after he awoke, police showed him these photographs. Mr Pierre picked out Mr Charles, 2016 ONCA 892 as one of his assailants. He later told police that Carl Renous was the other. Defence complained that this did not follow proper lineup procedure.

Bad news: the investigators misplaced the picture of Mr Charles that they used in this lineup. This made for some embarrassing testimony. Good news: the investigators video-recorded the process, showed each picture to the camera. and preserved that video-recording. Bad news: the officers did not give Mr Pierre the standard instructions for a photo lineup. Good news: Mr Pierre claimed to know his assailants.

Later, when less medication flowed through Mr Pierre's veins, the investigators did a fresh photo-lineup process with him, using pictures of people that resembled Mr Charles. He picked Mr Charles again.

Ordinarily, one uses a photo lineup to see whether a witness can distinguish between a suspect and similar-looking people unrelated to the offence. When the witness only met the suspect during the offence, this method discriminates between recognition, and mere similarity of the suspect to the felon.

When the witness knows the felon, this procedure packs less punch: of course the witness recognizes an acquaintance in the photopack.

Because Mr Pierre knew his attackers, the first photopack served a useful purpose - it identified the felon. If he had not known his attackers, it would have undermined any subsequent identification.

Because the officers video-recorded the procedure so well, that one could see in the video what picture Mr Pierre chose. That reduced the impact of the misplaced photo.

That's unusual. No video-recordings I've seen of photo-lineups captured clear images of each picture as the witness examined them. In a recent trial I ran, it would have helped. You might consider reviewing the video quality, camera angle, and presentation methods you use when showing a photopack to a witness.

Regardless how formally or informally you present pictures to witnesses, carefully preserve the pictures you showed. Mark or annotate the ones which the witnesses pick.  Keep the others as well. They are all exhibits. You'll need them at trial.

2016.11.26 Proving the Obvious

In the case of Mr Charles, 2016 ONCA 892, described above, police found cell tower records showing Mr Charles' cell phone travelled to the town where the attack occurred, and returned to Toronto just afterwards.

The decision doesn't explain how police learned Mr Charles' phone number. I suspect that an investigator relied upon hearsay from a police database, or information from an uncooperative or unavailable witness.

At trial, Mr Charles' probation officer testified that Mr Charles gave him that phone number about 2 weeks before the attack. Defence complained that the probation officer was a person in authority, and Mr Charles did not give his phone number voluntarily. The judges sided with the prosecution; but they won't always.

I suspect that the idea of proving Mr Charles' phone number through the probation officer was an afterthought, not a result of considered investigation. I think this because I encountered a similar problem this week, which I solved in a very similar way.

Investigators often work from what they "know" rather than what can be "proved". When the matter comes to trial, the prosecutor suddenly demands evidence to prove things that seemed obvious during the investigation. And at the last minute, sometimes you can't find witnesses to prove the obvious.

If the probation officer's evidence had been inadmissible, I'll bet that the prosecution would have had a hard time linking the phone number to Mr Charles.

If a fact like that underpins the whole case, take time to find admissible evidence to prove it. For example, how do you prove that a suspect used a particular cell phone number?

  • Find acquaintances who communicated with him at that number.
  • Get phone company records.
  • Seize the phone and (with a warrant) examine its contents.

2016.11.25 Obstructing a police officer by resisting arrest

Some folks use words to tell you that they don't like being arrested. Some use body language. Words of unhappiness do not constitute resistance. At what point does the body language become a crime?

During Mr Kennedy's 2016 ONCA 879 arrest for armed robbery:

  • an officer told him to keep his hands above his head, but he reached into the pocket of his leather jacket and pulled out and lit a cigarette instead;
  • an officer told him to keep his back turned to the officer speaking to him, but when handcuffed, he instead turned around periodically;
  • an officer instructed him to lift his jacket, but instead he took it off and set it on the car;

One officer also said that Mr. Kennedy tried to pull away.

Did any of this amount to resisting arrest?  The judges agreed: "the offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance." The pulling away would be resistance. But what about the other actions? Although Mr Kennedy's actions sat "at the very low end of the scale of acts of resistance", these actions constituted resistance. Anything less is not.

You often arrest or detain difficult and impolite people. From paragraphs 31 to 35 this decision reviews a variety of situations in which courts decided what constituted criminal resistance and what did not. Most officers will profit by reading them. I take from these paragraphs that "resistance" involves applying force to the officer, or doing something which requires force or energy which prevents or interferes with the officer's arrest.

2016.11.20 Joint Statements and Instructing Witnesses

Good investigators never take the statements of two witnesses in circumstances where one can hear the other's version of events. It's all too easy to interview several people at once, especially when eyewitnesses feel urgency to report to police what they saw. But it undermines the statement they give together because to the court looks like collusion - each witness learns what the other saw, and may deliberately or inadvertently start to describe the event the same way.

But that's just part of the problem.

Consider the unfortunate case of Ms Clause, 2016 ONCA 859. She invited Mr Martin to her house for a birthday party. It went badly. Other guests beat up Mr Martin. He left the party, but felt so angry, he returned to fight with his assailants. He lost that fight too. And then someone stabbed him in the eye. He and two eyewitnesses said Ms Clause was the stabber.

A jury convicted her, but for various reasons, the appeal court ordered a new trial. One of the reasons involved collusion.

The eyewitnesses were Mr Martin's roommates. Only Mr Martin gave a statement to police around the time of the attack. Their close relationship raised a real concern with the court that they might have deliberately agreed to name Ms Clause, or that by discussing the case, some may have affected the memories of others. The appeal court thought the jury should have been instructed to consider that possibility.

How do you stop eyewitnesses from comparing their recollections with each other? All you can do is ask:

"Before I turn off this recording device sir, I'd just like to ask you one more thing. It sounds like you and your roommate are important witnesses in this matter. Until this case finishes, could you please avoid discussing with her the details of what you saw?"

2016.11.20 Impaired Driving - Screening Devices - Reasonable Suspicion

Although Mr Schouten, 2016 ONCA 872 looked sober, an officer noticed an odour of liquor on his breath. It was the morning after "a local motorsports event". The officer was checking the sobriety of drivers emerging from the grounds.

Mr Schouten told the officer that he had not consumed any alcoholic beverages for 10 hours, but he could not remember how much, nor what he drank.

The officer believed that alcohol would be eliminated from the body in 10 hours, but because of the odour, the officer demanded that Mr Schouten blow into a screening device.

The screening device read a fail. Later, breath tests showed Mr Schouten still had too much booze  in his body to drive: 120 and 109mg%.

At trial, defence attacked the officers grounds: if the guy looked sober, and last drank so long ago that he would not have any booze left in his body, then it was unreasonable to suspect that he had any booze in his body.

He won at trial. And at the first appeal. But he lost the appeal that mattered.

All three judges in the Court of Appeal agreed: an odour of liquor on the breath of the driver justifies making a screening device demand.

But notice that judges at two levels of court thought otherwise. Some judges sympathized with the defence argument. Those are the sorts of judges who may find other arguments persuasive. Here are a couple of typical arguments, and ways you can investigate in order to answer them:

Argument
Investigative tactic
The officer mistook an odour emanting from the car or the clothes of the suspect for an odour coming from the breath.
Take more than one sniff. Distinguish between breath and body odours.
The odour of liquor is subjective - especially when the odour is faint.
Get a second opinion from another officer, especially if the suspect denies consuming alcohol.


2016.11.19 Truck Drivers who Cheat

Mr Bhangal, 2016 ONCA 857 fell asleep while driving a commercial vehicle. The truck drove into oncoming traffic and killed someone.

Was falling asleep a crime? No.

But driving for too many hours without rest is. He faked his driving logs, making it look as if he got enough rest. Investigation into those driving logs discovered that he kept himself awake and driving for way too long before the crash. And a jury considered it criminally negligent to keep driving in that state.

When a commercial truck driver crashes, you might want to examine his log book.

2016.11.15 Murder or Assisted Suicide

Mr Elton, 2016 BCCA 440 stabbed his wife with a bayonet and strangled her. At his murder trial, he said he did so because he honestly believed that she wanted to die, and that she had attempted to kill herself by consuming Valium. He asked the judge to acquit him because if he was guilty of anything, it was aiding a suicide, not murder.

The trial judge convicted him, and the appeal court upheld the conviction.

"Aiding" is merely helping another person to do something, not doing it yourself.

Intentional killing another person is murder. He intended that his actions kill her, and they did. He was guilty of murder.

People often confuse "intention" with "motive". Even if his motive was to help her, his intention was to kill.

2016.11.10 Conversation with Prisoners - Voluntariness

Most police officers turn on a recording device before interviewing a suspect about the alleged offence. That's good, because it provides a complete record of what you said to the suspect. The judge needs that recording to determine whether you put any unfair pressure on the suspect to talk.

If you do that, and you interview properly, then you can expect lawyers to focus on conversation which occurred before you started the recording device.

Mr Carr, 2016 ONCA 837 claimed that during the 2-minute walk from the cells to the interview room, the investigator implied that unless he talked about the offence, he would not get released from custody.  The investigator testified that he usually said nothing while walking a suspect from cells to the interview room, but could not recall if he talked with the prisoner on that occasion.

The trial judge didn't buy Mr Carr's claim, but another judge might. Those brief interactions matter.

Most investigators take care to record their interactions with their suspect. But in my experience, the less an officer participates in the investigation, the less care the officer takes to record his or her interactions with the suspect. For example, the officer who transports a suspect from the arrest to the police station will often turn on no recording device and take minimal notes. When that officer testifies, s/he has virtually no memory of the conversation.

And then the defendant says "that's when the officer told me that unless I explained what happened, I wouldn't get out of jail" or "the officer told me that judges and prosecutors go easy on guys who fess up".

Every officer who interacts with a suspect between arrest and interview is a witness, and must be able to account for their conversation and treatment of the suspect.

2016.11.05 Inspecting Mail

You can't inspect mail in the possession of Canada Post. You can't get a warrant to inspect mail. Canada Post Corporation Act s. 40(3)

What do you do if you think there's contraband in the mail?

Well, there are lots of things you can do. One of them is to involve the authorities at Canada Post. But you must do that carefully.

American law enforcement officials complained to Canadian police that Mr King, 2016 CanLII 11698 (NL SCTD) was selling ephedrine over the internet, and shipping it to the USA. Police investigated, and found some evidence to support this complaint.

In a letter, a Canadian officer asked Canada Post to inspect Mr King's outgoing mail.

That's a problem. You can't search mail. If you direct Canada Post to search someone's private mail, then Canada Post acts as your agent.

The officer realized this problem, and sent a second letter which explained why this exportation was unlawful, and suggested that Canada Post might examine these packages as "unmailable", and if they found ephedrine that they might turn it over to police.The judge still found that the officer turned Canada Post into a police agent, even with the second letter. To this judge, it still looked like the police were telling the postal inspector what to do, and turning him into their agent.

There was a better way to write the letter. In situations like this, your "request" should not read like a command but the humble submission of information.  It should state the grounds which might move the postal inspector into action. But it should leave the decision whether to inspect up to the postal inspector:

Dear postal inspector:

I received the following information, which suggests that Mr King is using your postal service to ship ephedrine to the USA:
 ....

I asked a lawyer at the Department of Justice, who told me that doing this is an offence because ... .

I have no authority to search mail in the course of post, nor can I request or require you to search mail on my behalf, and so I make no such request.

Only you have the authority to inspect mail. Only you can decide whether to inspect any of Mr King's mail.

Schedule 4 of the Non-mailable Matter Regulations defines any " item transmitted by post in contravention of an Act or a regulation of Canada." as "non-mailable". Section 4(d) of those regulations require you to deliver such mail to police. If you do encounter this kind of non-mailable matter in relation to Mr King, I would be the appropriate person to contact.

Please contact me if I can be of any assistance.

...

2016.11.05 Missing Persons Reports

Some "missing person" reports waste your time. And sometimes you meet a killer.

Mr Shafia, 2016 ONCA 812 didn't like his daughters' boyfriends. By disobeying his commands about their love lives, they offended his sense of honour. Other members of his family shared his offence. The four offended ones murdered the girls, and those members of their family who supported them. The victims were bashed on the head, placed in an old car, and pushed into a canal.

Then the four killers went to the police station to file a missing persons report.

Subsequent investigation proved that their reports were false. Their statements became important evidence against them.

Most missing persons reports come from genuinely worried people. But if it turns out that you interviewed the killer, won't you be glad you recorded it?

2016.10.22 Undercover Operations - Police Tricks that Cross the Line

A police investigation into a 2011 murder stalled, and the prime suspect had fled the country. The lead investigator thought that police could intercept his friends discussing the murder with him if sufficient stimulus inspired the friends to call him. Undercover officers would talk to the friends. Because organized drug trade appeared to motivate the murder, the undercover officers pretended to be connected to Montreal drug suppliers, interested in "getting rid of" a "rat" - a witness who spoke to police regarding the murder.

The original plan would have caused no difficulty. The U/Cs would talk to each of the suspect's friends in public places where they could walk away.

Instead, they cornered Ms Derbyshire, 2016 NSCA 67 one morning, and pressed her for information about the murder. To everyone's surprise, she told them how she helped the suspect dispose of evidence and flee the jurisdiction. For the day, the officers controlled her movements: they took her cell phone, and they demanded and received answers.

She was charged with accessory to murder. The case depended upon her remarks to the police officers.

Through her lawyers, she complained to the trial judge that the U/Cs terrified her with implied threats of serious harm or death. In violation of her right to silence, they compelled her to give information against herself. And she complained that the officers' failure to record their conversations with her violated her right to a fair trial.

I find irony in that last complaint. In Duarte, [1990] 1 SCR 30, the court agreed with defence complaints that without prior judicial authorization, covert recording of a suspect's conversations violated his s.8 rights. Now a defendant complains that failure to make such a recording violates her s.7 rights. The judges rejected this complaint.  But the fact that defence argued it suggests that defence counsel value police accountability very highly. You can use transparency as a factor to support the issuance of 1-party authorizations.

The judge believed Ms Derbyshire's version of the events. The U/Cs were controlling and terrifying: the officers extorted a confession from the accused by threats of violence. The judges found that unacceptable, and excluded the confession.

The officers painted a less frightening picture of their interactions. Perhaps a recording of the interaction might have supported their version. But their testimony did not impress the judges. One of the U/Cs did most of the talking; the other seemed to recall very little of the conversation. The two U/Cs and their cover man each described the operation and its purposes in significantly different terms. The planning and execution differed greatly.

This case offers suggestions for all police:

  1. It illustrates a boundary police officers should not cross: don't use threats or violence to extort evidence from anyone - suspects or witnesses.
  2. In court, the testimony of the secondary officer matters as much as the primary officer. Even if you attend in a merely supporting role, pay attention and take notes.
  3. Innovation and flexibility during investigation can harvest good evidence. But know the limits under which you operate.
  4. If you do operate lawfully, transparency protects you. Whenever dealing with important witnesses, record what you (lawfully) can.

2016.10.22 Confessions - Voluntariness - What to Do with a Volunteer

Two cases this week show how judges like it when police treat suspects fairly. Here's the first.

Mr Fernandes, 2016 ONCA 772 walked into a police station and told the clerk he wanted to confess to burning down his mother's house. An officer came to speak to him. Mr Fernandes explained that he was homeless and wanted to go to jail. The officer explained that arson is serious, and punishable by imprisonment. The officer urged him many times to get legal advice, and reminded him several times that he was free to leave at any time. At first, Mr Fernandes refused, but after a while, he relented, and spoke with duty counsel. After that, he confessed.

Because police laid charges, I guess somebody did burn down Mr Fernandes' mother's house.

At trial, Mr Fernandes' lawyer argued that the confession was not "voluntary", for two reasons:

  • Mr Fernarndes' homelessness constituted such dire circumstances that he would say anything to get a roof over his head. Therefore, the confession was the product of oppression.
  • Mr Fernandes wanted to go to jail. The officer "promised" to put him in jail if Mr Fernandes would just confess.

The trial judge agreed, and excluded the confession. Mr Fernandes beat the charge.

The Court of Appeal rejected these ideas. The concept of "voluntariness" protects the suspect from unfair pressures that the police put on the suspect to get him to confess. In this case, the officer didn't cause Mr Fernandes' homelessness. The officer did nothing to coerce or tempt a confession from the suspect. Quite the opposite. This officer put roadblocks in the way.

At first blush, I thought the officer went too far to persuade Mr Fernandes to get legal advice. Mr Fernandes was not detained, therefore section 10(b) of the Charter had not triggered. But Mr Fernandes explained that he wanted to go to jail.  By doing so, he alerted the officer that the usual incentive to remain silent did not apply. By urging Mr Fernandes to get legal advice first, the officer showed the judges that he was not going to take unfair advantage of Mr Fernandes' desperate situation.

The appeal court liked this fair treatment, and ordered a new trial.

2016.10.21 Right to Counsel v. Haste to Test Breath: Getting the Priorities Right

When you make a breath demand of a driver, several obligations trigger.

  • S.10(b) of the Charter requires you to arrange for counsel " without delay" when a detainee wants one.
  • Section 254(2) and (3) require you to test the driver's breath "as soon as practicable".

Which one comes first?

Mr Rowson, 2015 ABCA 354 caused a bad motor vehicle accident. At the scene, officers feared that victims might die. When an officer asked him to blow into a screening device, Mr Rowson wanted to call a lawyer. Knowing the seriousness of the matter, the officer let him talk to a lawyer for a short time before testing his breath. Mr Rowson failed. The officer demanded breath for analysis, and he later blew 117 and 105 mg%.

At trial, defence argued that the officer did not test Mr Rowson's breath "as soon as practicable". Because the officer "searched" Mr Rowson's body contrary to law, the officer therefore breached Mr Rowson's rights under s.8 of the Charter.  The officer should not be permitted to rely upon the "fail" result to justify the breath analysis demand. Defence asked the court to exclude the results from the breath analysis.

The appeal court agreed that the officer breached Mr Rowson's s.8 rights by allowing Mr Rowson to call a lawyer before blowing into the screening device. But they disagreed that the breath tests should be excluded. They sympathized with the officer, who plainly recognized the seriousness of the situation, and properly worried that Mr Rowson should get legal advice.

The Supreme Court of Canada agreed with the Alberta Court of Appeal.

To answer the question I posed, the correct priority of events is:

  1. Breath screen / SFST
  2. Legal advice
  3. Breath analysis / DRE

But judges like it when you really care that the suspect gets legal advice when he faces jeopardy.

2016.10.16 Prisoners Talk

When police arrested Mr Day, 2016 NLCA 52 for drug trafficking, he shouted out to his girlfriend not to say anything to police. At trial, he testified that he had nothing to do with the pound of marijuana in the trunk of his car, and suggested that maybe his girlfriend put it there.

The judge didn't find his testimony persuasive. What Mr Day shouted to his girlfriend did not easily mesh with his innocent explanation.  And besides, his girlfriend had recently texted him "the bags you gave me are done" and Mr Day replied, “Don’t worry, I’ve got you”.

All too often, prisoners in police custody call out to each other with advice or instructions about what to say during the investigation. Those remarks can make a significant impression on the trial judge, if you take the trouble of writing them down.

2016.10.16 Employees Talk

Ms McCarthy, 2016 NLCA 33 worked in a Newfoundland police station. Posted on the wall in the drug section of her office, she noticed a picture of her cousin.

She warned her cousin that he was being watched. Indeed he was.  But investigators found out that she violated her oath of confidentiality.

She lost her job. She got charged with obstruction of justice. The trial judge sent her to jail. (The appeal court reduced the sentence to a conditional sentence, but only because she confessed, she apologized, and she pleaded guilty.)

Leaks do happen. Beware of conflicts of interest. Supervisors might want to tell this cautionary tale gently, not to threaten staff, but to remind them of the harm they can do to themselves when they feel the improper tugging of family ties.

2016.10.09 Security Video

Security video can prove independent events to a high degree of confidence.  I hope that you routinely look for security video in the area of offences you investigate. Here's a case from earlier this year which illustrates what to do.

Dean Saddleback, 2016 ABCA 204 drove a stolen truck. He took it to a 7-11, where he had the bad luck to be noticed by an off-duty police officer. The officer watched Mr Saddleback get gas, and pay for it inside the convenience store. Because Saddleback looked particularly suspicious, the officer called in other officers. Those officers pursued the truck. Mr Saddleback fled and escaped. The store security video was the only way to prove the driver's identity.

Security video evidence tends to suffer from some routine - and avoidable - flaws. Those problems arose in the trial:

  • Authenticity: In general, a video recording isn't evidence until a person testifies, explaining where it came from and what it shows.  When an officer asks a private business for a video clip, the business often delivers the video without identifying the person who downloaded it from the recording system. In Mr Saddleback's case, someone gave the 7-11 clerk the relevant video. The clerk testified, but he couldn't say from personal knowledge that the recording captured the right date and time. Defence objected to its admissibility.
  • Time stamps: Organizations don't always accurately set the date and times on their security systems. And then, every spring and fall, they forget to change the system time to match changes of the clock. This clerk thought that the clock was wrong by an hour.
  • Quantity: People tend to download only the exciting part of the recording: the part where the crime occurs or the criminal passes by the camera. In this case the prosecution played only the portion of the recording which showed Mr Saddleback, but did not show any of the recording where the off-duty officer appeared.

Everything turned out okay. The clerk remembered Mr Saddleback from that day, and was able to testify that the video accurately depicted what occurred when Mr Saddleback attended. The court accepted the clerk's testimony that the video accurately showed what happened when Mr Saddleback attended.

You won't always be so lucky.

  • A security video is not evidence unless you also identify the person who can testify what it shows, and what period of time it captured. Usually, this is the person who downloads the video. That isn't always the person who gives you the video. Find out who. And beware. Those folks rarely make notes of the date and time of the video they download unless you instruct them to.
  • Always investigate the date and time stamp on the video. By how much does it differ from the actual time?
  • You want all the evidence in the video-recording, not just the few clips that show the felon best. That may include minutes or hours before the crime (when the felon surveyed the scene), and the minute or hours after the event (between the departure of the felon and the arrival of known persons, such as the police).

2016.10.04 Detaining a Suspicious Vehicle

Cst Vachon-Zee recognized a frequent offender sitting in the passenger seat of a Chrysler Cirrus. He didn't recognize the driver, Mr Mr Ali, 2016 ABCA 261. A computer search reported no concern that the car was stolen. But the officer was suspicious. In his experience, thieves often stole this model of car. He wanted to know what the passenger "was up to", and to check whether the car was stolen. He decided to check the ownership documents.

The car stopped when signalled to do so. An odour of fresh marijuana wafted from the driver's window. The officer arrested the driver, and on a search incidental to arrest, found crack.

At his trial, Mr Ali argued that an officer who stops a vehicle to investigate crime needs reasonable grounds to suspect that someone in the vehicle was involved in crime. The appeal court agreed. If you're going to stop a vehicle to investigate crime, you need more than mere suspicion.

But this officer also wanted to check vehicle ownership documents.  You don't need reasonable grounds to suspect that a traffic safety offence is being committed to stop a car.

Courts call this a "dual-purpose" stop. Defence counsel distrust you when, after the fact, you try to justify a stop as a stop for vehicle safety enforcement. If you find something interesting, they will cross-examine you for a long time.

Therefore, when your instincts tingle, and you want to pull over a suspicious vehicle, think about what you're investigating. If you have solid reasons to suspect crime, pull it over. If you don't have solid reasons, consider whether licencing and registration, sobriety and roadworthiness interest you.

If they do, actually investigate those issues. Make inquiries over the radio or the on-board computer (if you have one). Ask questions about that topic.

By the time you encounter drugs or stolen property, it's too late to come up with excuses for stopping the suspect.

2016.09.30 Disclosure - Confidential Sources - Debriefing Reports and Handler's Notes

Sometimes, confidential sources provide good information. Judges issue warrants and authorizations. Police bust bad guys.

Defence counsel then attack the process by which police obtained the warrants and authorizations: did the officer who applied for the warrants and authorizations accurately describe the reliability of the sources, and the information they gave? Should the officer have mentioned other information which tended to undermine the source's credibility or suggested the warrant should not have issued?

To ask that question, defence counsel ask for documents relating to the information that the confidential sources gave: Source handler's notes, source debriefing reports, everything. "Full answer and defence", counsel cried.

Many judges agreed.  But that risks identifying the confidential source. Some judges assumed that redacting the documents would suffice to protect the identities of the informant.

Today, in R. v. McKay, 2016 BCCA 391, BC's top court responded.

No. Defence is not entitled to everything. Only what's relevant to what the officer knew (or should have known) when he or she applied for the warrant.

No. Redaction does not always protect confidential sources. Little bits of information can burn a source.

Defence is still entitled to disclosure when challenging an authorization or warrant, but they need to show why disclosure of the material may assist in showing that the authorization should not have been granted.

This decision solves some problems in BC, particularly for the RCMP's Human Source Unit.

2016.09.28 Wiretap - Who's a "known"?

When you apply for an authorization to listen to private communications, you must identify an offence, and all the persons you "know" whose communications you have reasonable grounds to believe may assist in the investigation of that offence.

Those people are "knowns". You need to identify them in order to intercept their conversations lawfully. And if you knew about them, and failed to identify them in the application, then even if you do intercept their conversations, the court may exclude the recordings from evidence.

So how much do you need to "know" to make a person "known"?

Two separate teams of police investigated what appeared to be two separate schemes to import cocaine from Argentina to Kelowna, BC. The two teams shared some information. There were enough similarities to raise suspicion that they may be related. It turned out that Mr Montgomery, 2016 BCCA 379 and an associate participated in both. The first operation identified them. Wiretap captured their conversations in the second investigation. They complained that the police should have identified them as "knowns" when applying for the authorization in the second investigation.

The court had no difficulty rejecting this argument. "Known" needs to be reasonable belief, not mere suspicion.

But the test remains slightly weird.  You must have reasonable grounds to believe that "probably", listening to this person's conversation "may" assist the investigation of the offence. The court noted at paragraph 92 the prospect of further litigation on this topic.

2016.09.26 Impaired Driving - Taking Breath Tests "As Soon as Practicable"

"On a dark desert highway, cool wind in his hair," Cst Ferguson stopped a car driven by Mr Prestupa, 2016 SKCA 118. Okay, it was prairie, not "desert". And "cool" understates the chill of Saskatchewan in January. A screening device registered a "fail" when Mr Prestupa blew into it. Cst Ferguson read him a breath demand.

That triggered an obligation to test Mr Prestupa's breath "as soon as practicable". Cst Ferguson's police station lay 75 or 80 km away; other police stations were a bit closer. Mr Prestupa asked the officer to let his parents pick up his car, rather than allow it to be towed. Cst Ferguson agreed. They called his parents. Meanwhile, Cst Ferguson called for a breath technician to attend his detachment to test Mr Prestupa's breath. It took a while for the parents to arrive. He left the scene 47 minutes after the initial stop.

Cst Ferguson drove rather quickly back to his detachment. 75 or 80 km in 33 minutes. Hmm.

Mr Prestupa blew 190 & 180mg%.

At trial, Mr Prestupa complained that the officer did not test his breath "as soon as practicable": there were closer police detachments to which they could have gone.

The trial judge agreed, but the appeal courts didn't buy it. The phrase is "as soon as practicable" not "as soon as possible".  And besides, there was no evidence that the other detachments had breath-testing equipment and breath technicians at the ready.

Several ideas emerge from this case:

  1. The phrase "as soon as practicable" means you need to account for how you spend your time after making a breath demand.
  2. The judges did not mind Cst Ferguson's decision to wait for Mr Prestupa's parents to take his car. But beware. If another officer could have watched the car, Cst Ferguson should have started driving.
  3. The judges liked how Cst Ferguson called for a breath technician before departing for the police detachment. "A stitch in time saves nine." A little forethought can save lots of time.
  4. "As soon as practicable" does not mean "as soon as possible". Although the judges noted Cst Ferguson's quick trip back to the police station, I would caution against high-speed driving. In B.C., I don't think s.254(2) of the Criminal Code authorizes police officers to drive at emergency speeds for the purposes of breath testing.  See s.122 of the Motor Vehicle Act, and the associated regulations.
  5. After demanding breath, ask yourself "what can I do to get the breath testing done promptly?" The defence argument in this case failed not because it was okay to take Mr Prestupa to a detachment far away, but because defence did not show that a closer detachment would have tested Mr Prestupa's breath sooner.

Many tasks will slow you down. Impaired driving prosecutions can fall apart if you:

  • Take inadequate notes of symptoms and times
  • Fail to explain legal rights so that the suspect understands
  • Give the suspect inadequate opportunity to exercise them
  • Divert your attention from the suspect, allowing him/her to burp or consume stuff before testing

2016.09.10 Jordan - Right to a Trial within a "Reasonable Time"

Some of you encouraged me to write about the Supreme Court of Canada's recent decision R. v. Jordan, 2016 SCC 27.

It discusses trial delay - the legal wrangling, adjournments and court scheduling conflicts that seem to have no relation to police work.

Why did these police officers care? Because all their hard work will go to waste if the court throws out a case that took too long.

What can police do about delay? Doesn't it all happen at the Crown office and the court house?

There are some things you can do little about. If the government won't pay for prosecutors, judges or courthouses, then delays may mount.

But the courts often blame police for delays. Usually for late disclosure.

Some officers find it difficult to sympathize with this criticism. Collecting, vetting and packaging every little bit of paper, digital information, photograph and video is a colossal chore. It's boring, and the little bits of information that you miss are usually unimportant in the big picture.

If you feel that way, try imagining that you were about to buy a house. An expensive one. You will commit all of your money, and you will sign up for a large mortgage. This purchase decides your finances for the next 20 years. On the day of the deal, the vendor hands you a folder containing 1,000 pages of documents including maintenance receipts and at least 30 reports from property inspectors who examined the house in the last 5 years. Would you sign on the dotted line without reading the folder? At least 30 purchasers paid for property inspections, and walked away without buying this house. Are you sure about this?

That's how defence counsel feels when "new disclosure" shows up just before trial. They don't want to start the trial until they know everything about the case. The diligent defence lawyer will ask for an adjournment. Judges sympathize. They grant the adjournment. And they blame police for failing to provide the disclosure in time for trial.

Clever defence counsel capitalize on this sympathy. I've seen cases where the late disclosure of a single page of trivial information resulted in an adjournment. And the court blamed the delay on the police.

Delays lead to stays of proceedings.

What can you do?

General duty officers

  • Disclose BEFORE trial. If you arrive at court on the day of trial carrying a couple more photographs of the scene, or a page or a statement that was not previously disclosed, you may cause an adjournment. In many cases, that delay could have been avoided if you delivered it to the prosecutor as little as 2 or 3 days before trial.
  • Earlier is better. Like the home-buyer, defence counsel wants time to consider all the evidence. So does Crown. If the charge is laid, and you have more information, don't wait. Disclose promptly.
  • Completeness matters. If you took 7 good photos of the scene and 3 lousy ones, disclose all 10.
  • Completeness matters. It's easy to forget stuff.  Like the fact that security cameras in your police station recorded the actions of the drunk driver that you arrested. He wasn't violent. For a guy who blew 200mg%, he didn't even look all that drunk. Crown and defence need to see this evidence.
  • Completeness matters. What the victim told the 911 operator may include details that she omitted from her statement.
  • Completeness matters. Other officers who participated in this investigation may forget to give you everything they obtained. Ask them.
  • Your availability affects trial dates: make sure that the right people or computer systems know when you can't attend court.

Plainclothes officers

  • Organize your disclosure from the beginning. Your next investigation will start before this one completes. Use a system which guarantees complete disclosure.
  • Organize disclosure from outside your unit. When you call in outside units like identification services or DNA analysis, ask for and track their disclosure to you.
  • Completeness and promptness matters. Neither Crown nor defence want to make deals nor set trial dates until they know what the case is really about. That new file in your queue could distract you from finishing the old one.
  • Your availability affects trial dates too: make sure that the right people or computer systems know when you can't attend court.

Supervisors

  • The bigger the investigation, the bigger the disclosure headache.
  • After the arrest, allow no investigator to escape the team until they have provided complete disclosure of their own.
  • Ensure that sufficient people remain on the team to complete the package to Crown. Likely, there will be more work to do on the file.
  • Revolving file managers guarantees confusion.

Upper Management

  • Big picture - When your people suggest systems and infrastructure to manage disclosure, think big picture. Disclosure problems can destroy good work.

Disclosure ain't the only problem you can fix.

When a warrant issues for an accused, when the charge is laid, or later, make real efforts to find him. And if your first efforts fail, make sure you follow up regularly. If the guy leaves Canada, even failure to pursue extradition promptly can count against the state.

This post is long, but I did not explain the Supreme Court of Canada's decision. I don't think that fine points matter much to police. In a 5:4 split decision, the majority concluded that a judge should generally kill a prosecution if the Crown or court delay it more than 18 months ... unless there's a good explanation.  Cases in superior courts get 30 months. The minority predicted problems with this one-size-fits-all approach. The judges all agreed that delay is a bad thing, and that the prosecution and its partners bear the burden of bringing accused people to trial promptly.

The court breathed new life into the right to a speedy trial. Defence counsel will look for reasons to blame you for delay.

2016.09.09 Impaired Driving - Oops, I forgot to Read the Breath Demand at the Scene

Section 254(3) requires you to make breath demands "as soon as practicable" after you realize that the suspect's ability to operate a motor vehicle is impaired by alcohol.  Some officers arrest the suspect but forget to read the breath demand at the scene. By the time they reach a police station, it's no longer "as soon as practicable".

This case suggests an interesting solution.

Mr Guenter, 2016 ONCA 572 crashed his car into another car, injuring the people in it. He had been drinking. The attending officer got distracted by the chaos of the accident scene. At the scene, he arrested Mr Guenter for impaired driving causing bodily harm, but he only got around to reading the demand at the police station.

Lucky for him, the breath technician had his own way of dealing with things. The breath tech always:

The court found that the investigator's breath demand was not made "as soon as practicable", but the breath technician's demand was. The breath tech learned from the investigator that the suspect drove while impaired, and then promptly demanded breath samples. That (new) demand lawfully required Mr Guenter to blow, even if the first one didn't.

About 2 hours after the crash, Mr Guenter blew 170mg%. The evidence was admitted, and Mr Guenter was convicted.

Does that mean every breath technician should now emulate this breath technician in every case?

I don't think so. Not only must the demand be made as soon as practicable, but you must test the suspect's breath as soon as practicable too. In ordinary cases, where the first breath demand was properly made, defence can argue that making another one wastes time.

If your colleague arrives at the police station, and then remembers to read the breath demand, you can save his or her investigation by asking your colleague for the evidence and information which suggests that this person - within the preceding 3 hours - operated or had the care or control of a motor vehicle while impaired by alcohol. If the answers satisfy you, you can make the demand "forthwith or as soon as practicable". After your demand, let the suspect speak to counsel again if desired.

Until I read this decision, I would have doubted the lawfulness of this procedure. If you use it, expect prosecutors and defence counsel to challenge your actions. Bring them copy of Guenter, 2016 ONCA 572 to explain yourself.

2016.09.09 Statements of Suspects - Compelled, Elicited or Volunteered?

In some provinces, including Ontario, when drivers crash their cars, legislation requires them to tell police what happened when police ask. But the right to silence means that suspects of crimes can't be compelled to explain their involvement. This case explored the interaction between right to silence, statutory compulsion, and a police officer's duty to hold off eliciting evidence before a detainee got his right to counsel.

Mr Guenter, 2016 ONCA 572 was drunk. His car crashed into another car injuring its occupants. But who drove his car?

The first police officer to attend asked Mr Guenter if he was hurt.  Mr Guenter replied "No. My heart hurts because I feel bad for hitting this vehicle with a family in it."  After an officer arrested him for impaired driving causing bodily harm, he banged his head on the hood of the cruiser. He later blurted out - of his own accord - things like "drank too much J.D.”; “I smoked weed”; “a couple of beers, it’s Christmas". " I made a mistake. I was at a Christmas party. He shouldn’t have turned in front of me."

He also said: "Shoot me in the back of the head.” “Shoot George too. He ran into the bush.” “I should have never let him drive.” At trial, Mr Guenter testified that another guy named George drove the car.

His earlier comments proved he drove. Were they admissible?

His lawyer argued that legislation compelled him to tell the officer about the accident. Therefore, admitting these remarks would violate his right to silence. But the prosecution pointed out that the officer asked about his health, not about the accident. The judges agreed.

His lawyer argued that after the arrest, everything that Mr Guenter said before he got to talk to a lawyer should be excluded. The prosecution responded that after detention or arrest, police must hold off eliciting evidence from the suspect. That's what these officers did. They asked no questions. They weren't trying to get evidence out of him before he spoke with a lawyer. Mr Guenter volunteered these remarks of his own accord. The judges agreed.

Mr Guenter was convicted.

In B.C., the legislation no longer compels drivers to give explanations for accidents to the officers who attend. Before detaining a BC driver at an accident scene, you can ask questions, knowing that the answers won't be excluded from trial.

In other jurisdictions, officers need to gather information from other sources than the driver.

At trial, defence will challenge your version of how these conversations went.

When a detained suspect blurts out information of his or her own accord, the investigating officer rarely has a notebook open and a pen in hand. A subsequent decision dwelt upon the value of contemporaneous audio and/or video recording during these dynamic interactions. I agree, but with caution. Making lots of audio or video recordings means storing, disclosing and transcribing lots of recordings too. It's the way of the future, but I suspect it costs more than most proponents realize.

2016.09.09 Deals with Devils - Accomplices who Rat Each Other Out

Some drug dealers complained to police of a couple of home invasions committed by men with guns.

Whodunnit?

Police suspected two buddies Keenan and Kelman, both drug dealers and users. One day, when they were both in custody, police made them an offer: lead us to the gun used in the first robbery, and you'll get bail. They accepted the deal, produced a gun, and - with the consent of Crown - they got bail.

A little while later, police told Keenan that he would soon face charges over the first home invasion. Keenan gave a statement. He told police he was the getaway driver. He named Kelman and his friend, Mr McGown, 2016 ONCA 575 as the robbers who entered the house.

All three got charged. Keenan, the rat, pleaded guilty, and made arrangements be sentenced on the basis of his police statement. Kelman also pleaded guilty and got sentenced.  McGown wanted a trial.

At the preliminary inquiry, Keenan testified for the Crown. He gave a new version.  He wasn't the driver, his good buddy Kelman was.  He went into the house with McGown.

Keenan got sentenced as the driver. He even got a reduced sentence because he "cooperated" with the state.

At trial, Keenan testified for the Crown. He was the only witness who could establish that McGown participated. He gave much the same story as he told at the preliminary inquiry. Defence pointed out that his "cooperation" with the Crown involved admitting that he didn't take full responsibility at sentencing for what he did. He was a liar that manipulated the system. That undermined his credibility.

His good buddy Kelman testified for the defence. Kelman agreed that he, Kelman drove the car. Indeed, much of his story matched Keenan's version. But Kelman said that his good buddy McGown wasn't even there. Oh, no. Some other dude he didn't know participated in this crime. A stranger. Some friend of Keenan's.

The judges believed Keenan the rat, not Kelman. McGown went down. But only because other evidence confirmed that Keenan told some truth, and there was no evidence to suggest that Keenan was protecting some third party.

Beware of rats. Their statements sound great. Confirm everything that you can. When these folks reach the court room, their testimony often changes. Sometimes dramatically. Don't offer them special deals, immunity or reduced sentences without Crown's blessing ... and lots of documentation. Because at trial, you will look like a fool if it appears that the rat duped you.

2016.09.08 Limits of General Warrants - Complying with Legislation

Can a judge authorize a police officer to disobey legislation? In Whipple, 2016 ABCA 232, the Alberta Court of Appeal seemed to suggest that a judge may issue a General Warrant which authorizes a police officer to disobey s.10(a) of the Charter. I expressed some discomfort with that notion. Just a few days earlier, the Ontario Court of Appeal held that a General Warrant can not authorize a police officer to disobey s.503 of the Criminal Code. This decision makes more sense to me.

Even though the court held that the officers breached Mr Poirier's, 2016 ONCA 582 rights, you gotta give them some credit for trying to do this one correctly.

Reliable confidential sources told police that Mr Poirier sold drugs. Whenever he wasn't selling, he stored them in his rectum. The investigating officers obtained a general warrant which authorized the officers arrest Mr Poirier and to hold hold him for as long as it took him to defecate all the drugs out, and to watch him and control him so that he did not conceal or destroy the drugs during this vigil.

It took 43 hours.  In stages separated by many hours, Mr Poirier eliminated crystal methamphetamine, heroin, cocaine and Dilaudid.  Each time something came out, he told the officers that was everything. And then later, more came out.

Defence complained that this was not a search, but a detention. Section 487.01 - the General Warrant section - empowers a judge to authorize police to "...use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property".  The court disagreed: it's a search that takes time because of the passive nature of the searching: the police just watch till nature takes its course.

After an arrest, s.503 requires you to bring your prisoner before a justice "without unreasonable delay" and within 24 hours (unless no justice is available).

Defence complained that s.487.01 does not empower a judge to authorize police to disobey the Criminal Code. The court agreed. Reasonably promptly after the arrest (not at the 24-hour mark), the officers should have brought the prisoner to a justice of the peace, and asked the justice to order that Mr Poirier be detained in their custody to complete their execution of the General Warrant.

But the officers made some other mistakes, which resulted in Mr Poirier's acquittal.  See below...

2016.09.08 Reasonable Search of a Prisoner - Privacy, Comfort and Health

As described above, a judge authorized police to perform a "bedpan vigil" on Mr Poirier, 2016 ONCA 582. Mr Poirier excreted lots of drugs. But there were some problems.

The officers in this case used the General Warrant legislation in a creative way. The court approved. But the officers got distracted by the complications of executing it. Perhaps Mr Poirier was not a congenial guest. It looks like the officers lost track of some basic principles of handling prisoners. We can learn much from this investigation.

2016.09.03 Knocking on the door of the Suspect - the "Implied Invitation"

Will Duval wrote me: "Here's a good suggestion for your website..."

He's right, damn him. I spent many hours thinking about what to write about this difficult case.

In their homes, people enjoy a right of privacy from the government. As a police officer, you can't enter or search people's houses except with lawful authority, such as a warrant, exigent circumstances, or permission from a person who lives there.

But can you knock on the front door?

Long ago, some officers received a tip that Mr Evans, [1996] 1 SCR 8 grew marijuana in his home. Because other investigative approaches failed, they knocked on his door and explained that they were there to investigate a grow at the residence. Oddly enough, when Mr Evans opened the door, they smelled green marijuana, so they arrested him, and took down his grow-op.

All the Supreme Court judges agreed that in the absence of contrary indications, an officer may assume that every resident of a home offers an invitation to people to come and knock on the front door (or ring the doorbell) to communicate with the residents.  But four of the seven judges added a limitation: this "implied invitation" invites only communication, not searches for evidence against the residents. Although these officers wanted to talk to the occupants, they also wanted to sniff the air when the residents opened the door. That intention turned the door-knock into an unconstitutional search.

So, if you suspect someone committed a criminal offence, and you approach his home with the intention of gathering evidence of the criminal offence from a resident there, then you breach his s.8 rights when you knock on the door (and may breach his rights even when you set foot on his front walk).  But you may lawfully knock on the door if all you intend to do is communicate with the resident. You can knock and talk even if you suspect that the resident committed the offence you're there to investigate. You can even talk about the offence.  And if you discover evidence during this conversation, it's all good.  But only if your initial intention was just to talk.

Mr Rogers 2016 SKCA 105 backed his car into another vehicle, causing negligible damage. A witness thought he was drunk, and called the licence plate in to police. An officer went to Mr Rogers' apartment to investigate. When the officer knocked on the door, Mr Rogers opened it.  He looked, sounded and smelled intoxicated. The officer arrested him, and demanded breath samples. Mr Rogers blew 270mg%.

Depending how you look at it, the legal trouble began when the officer knocked on Mr Rogers' door, or it began in court, when the officer answered questions about what he intended to do when the door opened:

Q
So your purpose in attending at Mr. Rogers’ home was to determine whether he had been the person driving, correct?
A
Yes.
Q
And more importantly, whether his ability to operate a motor vehicle was impaired.
A
Yes.
Q
And you would agree that the observation made of a suspected impaired driver’s appearance, demeanour, speech, and actions are critical pieces of investigation in an impaired driving investigation?
A
Yes. They are what form my grounds.
...
Q
But going back to my question, you knew that the minute you opened the door you would be able to gather evidence regarding Mr. Rogers.
A
Not necessarily. The minute he opened the door is when I would start observing to determine whether or not I had ... any grounds.

If the officer's only purpose in knocking had been to speak with the occupant to find out who drove the car, then the knock wasn't a search.  But the Court of Appeal judges agreed that this officer's knock was a search because he intended to secure evidence. And because no judge granted a warrant to the officer permitting him to do that, this was an unlawful search. Evidence excluded. Drunk driver acquitted. The judges explained that they simply followed the law set out by the Supreme Court of Canada in Evans.

If you think the legal trouble started with the officer's admission that he was looking for evidence, then your solution to this conundrum would be to lie in court when answering questions about your motives when you knocked on the door. I disapprove. Not only would this be perjury, but any good cross-examiner will reveal it to be perjury. Goodbye career.

I think the legal trouble started at the door, not in the court room.

The court itself noted that in similar circumstances, courts reached the opposite conclusion, for example: Petri, 2003 MBCA 1; Grotheim, 2001 SKCA 116.

After reviewing many similar cases, they commented:

"There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive..."

Where's the line? Talking with the residents is okay -- even about the offence.  Knocking on the door in the hope of seeing evidence like symptoms of impairment isn't.

You have a general duty to investigate, but the courts chastise the officer who does try to gather evidence at the door. How do you avoid this problem?

By respecting the privacy of the home. If all you're allowed to do is talk, then you might deliberately limit your ability to see evidence in the residence and smell the breath coming from the suspect.  You might knock, and then move as far back as possible while still being able to talk.  Fully explain why you came, and invite the suspect outside, or ask for permission to enter.

This approach raises two problems:

  1. Tactical disadvantage: an officer who blinds himself to dangers in the residence will one day be blind-sided.
  2. The suspect has control: a cagey drunk will slam the door in your face. Unless you have other leads or lawful authority, your investigation may stop there.

I don't think the law requires police to render themselves vulnerable to attack. At the door of the suspect's residence, keep watching for dangers, and routinely position yourself for safety.

I do think that the law limits your investigation. In some cases, exigent circumstances may justify entering the residence to preserve evidence.

But not in this case. No doubt, with every minute, Mr Rogers' liver was busy removing alcohol from his bloodstream. Definitely, evidence was disappearing. But you can't rely on "exigent circumstances" to enter unless you know that an offence probably occurred. This officer had only reasonable suspicion.

In s.487.11, the Criminal Code permits you, in exigent circumstances, to search for whatever a search warrant will let you find, "if the conditions for obtaining a warrant exist". Search warrants require probable grounds. You can't use this power if you have only a reasonable suspicion. And besides, a search warrant won't authorize you to sniff a suspect's breath nor watch his "appearance, demeanour, speech, and actions".

I do not expect the Supreme Court to clear this up any time soon. In Evans, the court divided 4:3. In the similar case of Feeney, [1997] 2 SCR 13, they divided 5:4. In MacDonald, [2014] 1 SCR 37, 2014 SCC 3, they divided 4:3. In each of these cases, the court considered how a police officer should behave at a suspect's door. In each case, their conclusion conflicted with previous case law.

Thank you, Will Duval, for pointing this case out.

2016.09.03 Evidence offered by Hysterical Witnesses

What evidence could have helped determine whether Mr M.T.L. 2016 YKCA 11 raped his friend's fiancee?

The complainant spent an evening drinking with her friend, Mr M.T.L.. Through the evening, she sent text messages to her fiancee to join them. At the end of the evening she slept at Mr M.T.L.'s place. That's where the sex happened. But did she consent? Afterwards, she sent a text message to her fiancee about the encounter. She went to a hospital, where a doctor found redness and soreness in her genitals. She declined a formal sexual assault exam. After she complained to the police, Mr M.T.L. allegedly sent her a message threatening to commit suicide unless she told everyone that she lied.

The investigating officer never examined her cell phone. According to her, she offered her cell phone, but the police weren't interested. According to the officer, the complainant told him that she was using a "loaner" cell phone which was now wiped and returned to the phone company. No messages remained.

The trial judge convicted Mr M.T.L..  The appeal court ordered a new trial, worrying that perhaps the complainant wasn't reliable.

Cell phones pack a great deal of information these days. In a case such as this, the content of the text messages before and after the incident could probe the complainant's feelings toward her fiancee: if they showed that she loved him that night and wanted him to join them, then she wouldn't likely cheat on him. The timestamps could help determine when the important events occurred.

I can't say from reading the decision what really happened with the cell phone. If the complainant was right, then the cop missed some important evidence. If the cop was right, then the complainant destroyed important evidence.

Lots of complainants have told me over the years that they offered additional evidence to the investigating officer, but the officer wasn't interested. When I asked officers to follow up, I receive mixed results. Sometimes the cop missed key evidence. Sometimes, it's useless information.

It's easy to understand why an officer might discount their ideas. Distressed people often don't think straight, and often express themselves badly. Some are crazy, and some just sound crazy. It takes time and patience to distinguish between the two.

In this case, the completeness of the investigation mattered to the appeal judges. You may be called upon to explain why you didn't follow a specific investigative lead. This case illustrates how important that explanation may become to the final result.

I think of it this way:

  1. Your investigation isn't complete until you have canvassed every reasonably available source of information.
  2. Your report isn't complete until you have documented the whole of the investigation (including the dead ends).

If you ignore a potential source of evidence, someone may ask you why.

2016.08.22 Detention, Arrest, and Inventory Search of a Vehicle

When can you search the contents of a vehicle?

Ontario's courts developed rules around inventory searches, based upon their legislation. The rules in other provinces differs, according to the applicable legislation available to them.

In two decisions, the Ontario Court of Appeal recently reviewed this area of the law.

Late at night, police officers driving an unmarked car watched Mr Dunkley, 2016 ONCA 597 visit a couple of gas stations. He went into the kiosk several times, he bought nothing, he came out. He drove away fast, through a MacDonald's parking lot, as if to shake someone following him. He drove to another gas station, and went into the kiosk. The officers told him to stop and tried to talk to him, but he fled, discarding his keys. He left the car unlocked. (He explained that he thought these plainclothes officers intended him harm; he did not know they were police.) An officer searched it for identification. When he found a firearm, he applied for a search warrant before searching further. The trial judge found that the search for identification was lawful, and even if it wasn't, the officers had authority to do an inventory search when they impounded this abandoned car; they would have found the gun anyway.

The court of appeal disagreed. The officers reasonably suspected that Mr Dunkley was up to no good, but did not have sufficient grounds to arrest him. Reasonable suspicion authorizes you to stop someone, and search for officer safety. But this empty car posed no risk to them. Reasonable belief - that the suspect probably committed crime - permits you to search the suspect and his vicinity for evidence. The court found that the officers' observations did not meet this higher standard.

Finally, the court considered whether the officers could do an inventory search. Section 221 of Ontario's Highway Traffic Act permits officers to impound "abandoned" vehicles. But the court observed that nothing about the way this guy parked his car indicated an intention to abandon it. The officers made him run away. This was not an "abandoned" car. Lacking any justification for the search, the court excluded the evidence.

A police officer saw two cars racing. He pursued one of them - an Acura - into a dead-end street. He found it parked in a driveway at a different address than the registered owner. A guy in an oversize white shirt walked away from the vehicle. Another officer found Mr Ellis, 2016 ONCA 598 nearby, wearing an oversize white shirt. Mr Ellis lived at the same address as the registered owner of the vehicle.

Because the computer system flagged Ellis as a gang member, an officer patted him down for weapons. Something in his pocket felt hard. The officer asked him to empty his pockets. Ellis had a cell phone and keys for an Acura. The officer returned them. After discussing these details with the first officer, the second officer arrested Ellis.

Police then searched the car for identification of the driver, and found a handgun.

The court approved of the pat-down search of Mr Ellis. There were grounds to detain, and reason to fear that he might harm a police officer.

The court held that the police lacked authority to search his car as part of the arrest. Although the officers had reasonable grounds to arrest him for "careless driving", the other preconditions for search incidental to arrest did not apply. Mr Ellis had put 50m between himself and the car - it wasn't close enough to be in his vicinity at the moment they arrested him. And there was no reason to believe that searching the car would discover evidence of careless driving.

On the other hand, the court found that this car was "abandoned", because Mr Ellis parked it in a stranger's driveway, in a position likely to block access to vehicles. An inventory search was inevitable, and the police would have found the gun. The court upheld Mr Ellis's conviction.

For Ontario officers who discover a recently-driven vehicle, this pair of decisions sheds a little light on whether it is "abandoned": if the car will be a nuisance to other drivers, then it may be abandoned. If it's parked normally, it may not. But other factors may lead judges to other conclusions.

For all officers, these decisions illustrate the limitations of search incidental to detention and search incidental to arrest. But I would add some cautions. The Ellis case does not establish a 50m limit for the "vicinity" of the arrest. Time also matters. Suppose you pull over a vehicle for an offence, and the suspect flees. If you chase him and catch him 100m from the car and arrest him, I think you can search his car incidental to arrest. But if you find him 30 minutes later, only 25m from the car, you can not.

Both cases emphasized the narrow scope of a search for officer safety. In the Ellis case, the suspect's gang associations justified police fears. The judges liked knowing that the officer who searched for officer safety returned the items immediately. This proved that the officer was not snooping for evidence. In the Dunkley case, they rejected the idea that the officer searched the empty car for officer safety: it posed the police no danger.

2016.08.09 Evading s.10(a) - Lying about why you stopped a target

Even though s.8 of the Charter guarantees everyone's privacy, judges can authorize you to intrude into the privacy of the targets of your criminal investigations.

But can you stop someone without telling them the truth about why? Section 10(a) of the Charter requires you to tell people why you detained or arrested them. But sometimes, you need to withhold the truth. Is there a provision of the Criminal Code which permits this?

Albertan police were investigating Mr Whipple, 2016 ABCA 232 and others for drug transactions. They didn't want their targets to know that a judge granted a wiretap authorization in respect of their communications. From intercepted communications, the officers knew that Mr Whipple would transport methamphetamine. They obtained a General Warrant under s.487.01 to search Mr Whipple's car. That order authorized the police to mislead Mr Whipple - if necessary - as to the reason for stopping him.

The officers actually found Mr Whipple committing a traffic infraction. They didn't need to mislead him about the reason for the traffic stop.  And they did, quite quickly, inform Mr Whipple of the drug search too.

Defence complained anyway.  They pointed out that s.487.01 creates exceptions to s.8 of the Charter, but not to s.10(a). The trial judge agreed, and ruled that the general warrant was invalid.

The Court of Appeal disagreed.

They observed that the general warrant authorized police to search Mr Whipple's car, which is a matter under s.8 of the Charter.  The fact that it authorized police do the search in an unusual way did not invalidate the general warrant.

The way they saw it, the interference with Mr Whipple's s.10(a) rights was necessary to the execution of a justified general warrant.

I dunno.  My gut urges caution. Because s.487.01 only permits police to do what would otherwise be an "unreasonable search or seizure in respect of a person or a person’s property", I still don't think that s.487.01 can be used - by itself - to authorize police to lie to detainees about why they were stopped.

In this case, if there was any authority to permit police to lie about the reason for a detention, I think it came from s.186 - the wiretap provision. If the wiretap operation required ongoing secrecy to achieve its purpose, then a judge exercising the wiretap powers could make a specific order pursuant to s.186(4)(d) ("... such terms and conditions as the judge considers advisable in the public interest") which would protect the secrecy of the authorization.

But I can think of situations in which no existing legislation could help.  Suppose a confidential source tells you that right now, a terrorist is driving to a daycare to blow up children. The source begs you to lie to the suspect about your reason for stopping him. She tells you that his colleagues know what he's going to do today, but only she knew which daycare he decided to hit. You find the suspect's vehicle on the road one block away from the daycare. It commits no traffic violations. Of course you stop the van. What do you tell the driver?

I think you should lie. The suspect has a right, protected by s.10(a) of the Charter, to know why you stopped him. You would violated that right. But the source has a right, protected by s.7 of the Charter, to life.

I think that Parliament should pass legislation by which a judge may authorize a police officer to lie about the reason for a detention. This case illustrates why such legislation makes sense. I also think that there should be an exigent circumstances exception.

I thank Cst. S.D. Smith for bringing this decision to my attention.

2016.08.05 Possession of Data in a Computer - Breadth of Search

Last year, I wrote about this case.  Last week, the Supreme Court of Canada weighed in. Although the court overturned the Alberta Court of Appeal's rulings, my suggestions for police remain the same. I repeat them here, so that you can see why.

Mr Villaroman 2016 SCC 33 brought a Macintosh computer to a computer store for repairs.  Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net.  Links in the file system suggested that someone viewed the files too.  The two people who lived with Mr Villaroman did not put the files there.  But was it Mr Villaroman?  The trial judge thought so, and convicted him.  The appeal judges weren't so sure.  The one account had no password. They said.

"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."

The Supreme Court of Canada found that the Court of Appeal erred in their re-assessment of the case by speculating about innocent explanations for the evidence in the computer. But the court also commented that a different trial judge could have acquitted Mr Villaroman based on the same evidence.

Even after reading the trial decisions (2012 ABQB 630, 2013 ABQB 279), I can't be sure I know just how much evidence the investigators actually discovered which linked the accused to the pornography.

It's clear that they sought judicial authority to search the computer for child pornography.

With the benefit of hindsight, I see that searching for probative non-criminal data might have helped.  For example, I don't think they looked for emails with similar date stamps as the pornography.  If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.

Can you snoop through the emails?  Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search.  Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant.  And the warrant should explicitly grant you that authority.

Playing armchair quarterback, I suggest that the investigator in this case could have sought authority "to search emails, stored communications and documents in the computer bearing date stamps close in time to the date stamps associated to the child pornography for evidence of who operated the computer at the times when the child pornography was downloaded, viewed or accessed."

2016.07.19 Search & Seizure - Reasonable Expectation of Privacy - Text messages in Other People's Phones

Mr Winchester bought guns. Legally. 45 guns over 6 months. Police received information that he sold them on the black market, and got search warrants for several places, and got Mr Winchester's cell phone. In it, they found text messages that proved Mr Marakah, 2016 ONCA 542 committed firearms offences. The trial court found that the police violated Mr Winchester's s.8 Charter rights during their search. Mr Marakah asked the trial judge to exclude the text messages from his trial because he still enjoyed an expectation of privacy over them. Even though the police found them in someone else's phone.

The trial judge found that Mr Marakah had no expectation of privacy in the text messages in Mr Winchester's phone. Even though police searched Winchester's phone unlawfully, the court admitted the text messages from the phone into Mr Marakah's trial.

Two out of three appeal court judges agreed with the trial judge. They rejected the reasoning of the BC Court of Appeal in Pelucco, 2015 BCCA 370, which reached the opposite conclusion in a similar situation.

But those Ontario judges didn't say what you wanted them to say: "A person who sends text messages to another person always loses any expectation of privacy in those messages." See para 78. An explicit arrangement or guarantee of confidentiality between sender and recipient may create an enforceable expectation of privacy. But that's the exception in most cases, not the norm.

Therefore, in Ontario, most of the time, the sender of text messages doesn't enjoy an expectation of privacy in them after they arrive in the recipient's phone.

When courts of appeal disagree with each other, the law becomes confused.

Because people use text messaging so much, on phones and other communication technologies, you want clarity.

Because one Ontario judge disagreed, Mr Marakah can, if he wants, require the Supreme Court of Canada to hear his appeal.

2016.07.16 Executing DNA warrants

Take a picture

Why would an officer take DNA samples from a suspect? The answer is easy: to identify the suspect. I suggest that if you do not know the suspect very well, you will want to take a photo of the suspect's face at the same time as you take the samples, so that you can remember whose DNA you got.

In a recent case of mine, a police officer in one city assisted another officer in another city by executing a DNA warrant on the prime suspect. The officer who executed the DNA warrant had no other involvement in the case, and met the suspect for only a few minutes.

Two years later, at trial, the officer couldn't remember the face of the defendant. Considering the purpose of DNA comparison, this tended to defeat the work he did taking the sample. Fortunately, he did take care record information from suspect's driver's licence, and compare the photo on it with the face of the suspect.

Can you take a picture of the person from whom you take the bodily samples? Defence counsel might argue that doing so violates s.8 of the Charter. "If it ain't in the warrant, you can't do it." I observe that the Criminal Code makes no provision for photographing he suspect at the time you take bodily samples. Instead, s.487.07(3) requires you to ensure that the suspect's "privacy is respected in a manner that is reasonable in the circumstances".

I think you can. In B.C., the case of Multani, 2002 BCSC 68, the court approved of officers taking photos of drivers they detain for traffic offences, for the purposes of identifying the driver afterwards. I think the same logic applies to the execution of a DNA warrant.

Indeed, I would go further, and suggest that you can video-record the execution of a DNA warrant for the purpose of proving compliance with the terms and conditions of the warrant. Police did this in an old case Kanuma, 2002 BCSC 355

Read the warrant

I learned recently that RCMP recruits learn at Depot how to take bodily samples for DNA analysis. The RCMP here in BC use a kit, which contains a checklist to follow. I suspect that someone trains them to follow the checklist.

Danger!

Checklists can make junior officers complacent.

When you execute a DNA warrant, your authority comes from the warrant, not the checklist. Read the warrant. If the warrant tells you to something different from the checklist, then obey the warrant.

2016.07.16 "'Ello, 'ello, 'ello. What's all this then?" - Detention at the earliest stage of the investigation

Angel Daley, 2016 ONCA 564 tried to pawn jewellery at Money Mart. Her friend Sharon Stockton, waited outside in Angel's car. The clerk the store noticed that Angel's jewellery resembled stolen jewellery depicted in a recent police flyer, so she called police.

The police who attended tried to figure out whether Angel's jewellery was the stolen jewellery depicted in the flyer. Meanwhile, they wouldn't let her go. Therefore, they "detained" her. For approximately 40 minutes.  Without telling her of her right to counsel.

From her, they learned about her car, waiting outside. An officer spoke with the friend, and saw more jewellery in Ms Stockton's possession that looked like stolen jewellery. He arrested her, searched the car, and found Angel's fentanyl, and a rather nasty knife.

At trial, Ms Daley's lawyer asked the judge to throw out the evidence: 40 minutes of waiting demands an explanation; and detentions trigger rights to counsel. They complained as well of an unlawful search.

The trial judge admitted the evidence, but the appeal court threw it out. Nobody explained why looking at some jewellery took 40 minutes. In the absence of an explanation, the detention was arbitrary. The officer should have given Ms Daley her right to counsel. (The judges agreed that the search was lawful.)

 We all know that you can overlook important evidence when you move too fast. This case suggests that you can also cause trouble by going too slowly while a detained suspect waits. I suspect that the officer stopped Ms Daley from leaving the store, and then slowly and methodically figured out what the problem was. If it looks like a detention will take a significant time, then you should talk to the suspect about lawyers. If it does take a long time, you may need to explain why.

2016.07.13 Production Orders for Stored Text Messages

Over the last several years, judges reached different conclusions on whether you need a production order or wiretap to compel a telephone company to disclose text messages stored in their servers. Last week, the Ontario Court of Appeal weighed in. Here's the current list, by province:

I think this issue is now pretty much decided: production order, not wiretap.

Similarly, a search warrant is an appropriate tool to search cell phones for text messages. Desjardins, 2014 QCCS 6790

2016.07.05 Agents - Lawful Justification - Role of Police

Last week, the British Columbia Court of Appeal published a decision it made 6 years ago. R. v. Lising, 2010 BCCA 390. I don't know why it took so long. It remains interesting reading for officers who deal with confidential sources and agents.

For 10 years, Michael Plante collected debts for the Hells Angels. In 2003, after an arrest for extortion, Plante decided to work for the RCMP by infiltrating the Hells Angels. The RCMP paid him handsomely: over $1M over several years. All he had to do was help the police bust the gangsters ... while committing enough crime that the gangsters would continue to trust him.

A cop named Bob Paulson oversaw the project. He saw a problem. The public pays police to prevent crime, but this project involved paying a guy to commit crime. That participation would make the police parties to Plante's crimes. Canadian law requires police to obey the law, not break it. Police officers don't get a mulligan just because they're trying to catch bad guys.

Fortunately, a couple of years earlier, Parliament passed legislation enabling specially-designated officers to authorize a person to do things that would otherwise be crimes. s.25.1.

If you use the legislation, then these acts aren't crimes, so I'll refer to them as "acts".

How does that work?

Investigative plans take time to develop. While working with police, Mr Plante intimidated witnesses, ripped grows, and trafficked in large quantities of drugs and firearms. It took many months for police to prepare a Letter Of Agreement (LOA) which set the ground rules for Mr Plante's immunity from criminal prosecution. (There were several LOAs after that.)

Although s.25.1 and similar provisions in the CDSA justified some of Mr Plante's "acts", others were crimes.

The investigating police were parties to the crimes. Defence applied for a stay of proceedings.

But Bob Paulson did some things the court liked.

The handlers did some things the court liked.

Mr Plante did some things the court liked.

These things resulted in:

Even though the police and Mr Plante did not comply immediately nor completely with s.25.1, the court denied the defence application, and the Hells Angels who were convicted at trial lost their appeal.

And Bob Paulson got a promotion.

Despite its age, I think this decision remains worthwhile reading for police officers. It reminds officers of highest principles: police enforce the law, but are not above the law. This applies as much to traffic cops as organized crime investigators. And it demonstrates practical steps you can take when working with nasty people.

2016.07.04 Search and Seizure - Warrant drafting - Avoiding "Step 6"

A confidential source told police that Mr Reid, 2016 ONCA 524 kept firearms in a specific storage locker. Relying almost entirely on what the source said, police applied for, and obtained, a warrant to search that locker. They found guns. Lots of them. Stolen only a few days earlier.

What the police found suggests that this source enjoyed a position very close to the criminals. Obviously, this source would not want to be identified.

At trial, defence applied to quash the warrant.

As required by the case of R. v. Garofoli, [1990] 2 SCR 1421, the prosecution had to disclose a copy of the original application. Before doing that, the prosecution redacted (deleted) from the application everything that tended to identify the source.

This source was too good - almost everything s/he told the police tended to identify him/her. After redaction, what remained could not justify the issuance of the warrant. Mr Reid would win the application, and beat the charges.

The prosecution moved to Garofoli's "Step 6": the prosecution prepared a summary of the confidential source's information. The summary contained too little detail to identify the source, but just enough to explain why a warrant could issue. The prosecution gave that summary and the original unredacted application to the trial judge, and asked the judge to determine whether the summary fairly explained what the confidential source told police. The judge compared them, and found the summary accurate. The prosecution gave the summary to defence.

Working from the summary, defence complained that the original application failed to spell out what criminal record the source had, whether the source faced outstanding charges, and whether the source had previously given information to a police force. Defence complained this was essential information which the first justice needed in order to decide whether to trust the source and issue the warrant.

These are fair complaints, but they didn't succeed because of the very detailed information this source gave. In other cases these issues may make or break the case. When relying on confidential informants, search for this information, and include it as an appendix. Here's what you can write to achieve this:

I searched for source A's criminal convictions in CPIC [and any other database available to you], and I attach as Appendix A1 the complete list of what I found.

I searched for source A's outstanding charges in [whatever database is available to you], and I attach as Appendix A2 the complete list of what I found.

I investigated source A's past performance in giving information to police. I understand that 7 times in the past 5 years, source A gave police information about criminal activity. Further investigation confirmed the source's information 3 times. The other times, the source's information could neither be confirmed nor contradicted. I attach as Appendix A3 more detailed explanations of the information this source provided, and how further investigation confirmed it.

Naturally, the prosecution will redact the appendices. A1 and A2 tend to identify the source. But what remains in your application shows the trial judge that you disclosed the information which the first judge needed to assess the credibility of your source.

Similarly, you can summarize the source's information in your application, and include the details for the prosecution to redact. Suppose your source says "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns." That information identifies your source. You may summarize it, and include the detail for redaction:

Source A reported that Mr Reid possessed firearms in locker 13 at the premises of Vigilant Custodian Storage within the last 14 days. Source A claimed s/he obtained this information not by gossip, but from her/her own observation or by hearing or overhearing the words of a person who claimed direct knowledge. Specifically, Source A said: "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns."

Plainly, the emphasized portion must be redacted. What remains is true, but does not point so directly to the identity of the source. It leaves open the possibility that the staff at Vigilant Custodian Storage saw the guns, or that they or someone else overheard Mr Reid and the source talking. And the remaining information explains why a warrant should issue to search the locker.

Why should you bother preparing the "step 6" summary when applying for a warrant? After all, the prosecution can do it at trial.

Step 6 is controversial. In Mr Reid's appeal, he tried to argue that it's unconstitutional. Step 6 is tricky to do. If you lay the groundwork when you apply for the warrant, then the prosecution stands a better chance of success at trial.

2016.07.02 Exigent Circumstances Search

A woman called 911. She said she heard her neighbours arguing.  The male threatened to kill the female. The female cried and pleaded, “please don’t kill me.” She heard loud banging and crashing coming from their apartment.

Officers attended, and knocked at the door. No answer. After they knocked more, a woman answered. She refused to open the door. She spoke to someone behind the door, but she told police she was alone.

What would you do?

These officers feared that a man posed the woman serious risk of harm which they felt obliged to prevent.  They sought permission from superiors to break in. Before that occurred, the woman stepped out of the apartment, unharmed. Without her permission, the officers entered and searched. They found Mr Lowes, 2016 ONCA 519 hiding under a bed. They found drugs.

The trial judge excluded all the evidence. He reasoned that the officers could have assured themselves of the woman's safety by questioning her, by questioning the neighbor who made the 911 call or by getting a warrant.

The appeal court ordered a new trial.

The neighbor's information gave reason to fear for the woman's safety.  The woman's apparent lies at the door about who was home gave the officers reason to fear that the man was controlling and directing her.

In my opinion, the trial judge correctly identified an important principle: even in exigent circumstances, where life and limb are at risk, you should not search private places if there are reasonable alternatives by which you can ensure people are safe. But the trial judge's proposed alternatives in this case weren't reasonable. The woman already told lies; questioning her wasn't a good way to ensure her safety. The neighbor was in a poor position to assess the woman's safety. And the officers lacked sufficient grounds to justify any warrant. The appeal court found that entry and search was the reasonable response to the situation.

Therefore, this case provides some guidance for first responders who encounter similar situations all too often.

I particularly liked how these officers sought a second opinion from a senior officer before entering. In the excitement of the first response, it's easy to act without second thoughts.

2016.06.23 Search and Seizure Incidental to Arrest - Genital Swabs & Fingernail Clippings

Courts across Canada disagreed whether police could swab the penis of a man arrested for a recent rape.  This morning, the Supreme Court of Canada swept away the confusion. R. v. Saeed, 2016 SCC 24.

Yes. You can. If:

BUT, the court set guidelines:

  1. Do it at the police station if at all possible;
  2. Protect the health and safety of all involved - gloves and sterile equipment;
  3. Don't act alone - ask a superior officer for authorization;
  4. Tell the suspect what you are going to do, why, and what your authority is;
  5. Let the suspect remove his own clothing and swab his penis himself; or, "if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary";
  6. Officers of the same gender as the suspect do the swab "unless the circumstances compel otherwise";
  7. Minimize the number of officers involved;
  8. Do it in a private place where others can't watch;
  9. Don't strip the guy completely naked; expose only what you need to get the job done, and minimize the time during which he is exposed;
  10. Keep a complete record of what you did and why.

These are not rules. I suspect that number 5 may cause difficulty with some suspects. If your suspect won't strip or swab his penis properly, you can help him.

Mistakes other officers have made in other cases include:

Feel squeamish? From my experience prosecuting cases like this, I can see reasons to train officers to do this kind of forensic work:

2016.06.17 Arrest and Detention - Explaining Why - s.10(a)

Dennis Guthrie, 2016 ONCA 466 assaulted someone at the Shepherds of Good Hope shelter in Toronto. He hurt the guy badly. Police arrested him that night for "assault causing bodily harm". He didn't seem drunk or high. Police let him speak with a lawyer. Next morning, 11 hours later, an officer interviewed him.  He told the officer that he had no memory of the events of the night before.

At that point the officer said some important things:

This decision is very short and to the point.  An easy read.

Lessons to draw from it:

2016.06.11 Disclosure - Liability

"Those who cannot remember the past are condemned to repeat it." George Santayana 1906.

Ivan Henry 2016 BCSC 1038 recently received an award of $8M. He spent 27 years in jail for rapes he probably didn't commit. This decision explores what went wrong.

In 1980-1982, police investigated around 20 similar sexual assaults. Mr Henry's ex-wife told police that she suspected Mr Henry. Police assembled a live line-up to which a group of complainants attended.  One of them gave a qualified identification of Mr Henry.

Mr Henry, who suffered mental disorder, fired the lawyers he retained. He represented himself - poorly - at trial, and the jury convicted him.

Years later, prosecutors noticed a striking similarity between his charges and and other offences committed around the same time by a guy named McRae. A review led to the conclusion that the evidence suggested Mr Henry didn't commit the crimes for which he was convicted.

Although there were problems with the police investigations too, the bulk of the blame for this wrongful conviction fell on the prosecutor, who failed to disclose investigative materials to defence.

What relevance do prosecutorial mistakes made 35 years ago have to current police practice?  More than you might first expect.

Cross-referencing similar files might have discovered Mr McRae earlier, and taken suspicion away from Mr Henry. Collecting, organizing and assessing relevant information was a problem then. It's still a problem today.

The methods of conducting lineups described in the decision may seem antique to you, but complacency about our methods today will lead you astray. Even today, some officers still tell eyewitnesses after the photo-lineup whether they got the identification "right".  Even today, we see photopacks containing images of the suspect which differ markedly from the other faces.

2016.06.01 Warrants - Night Search - Arresting the Occupants

A junior officer made a common mistake. A senior officer's experience saved the day. Understanding the principles involved could help your next case.

A storage locker facility renovated, and discovered that one of their lockers contained a bunch of firearms. So they called police. Police got a search warrant and found 4,000 rounds of ammunition and 1.5 kg of ecstasy in the locker along with a machine gun, an assault rifle, and sawed-off shotgun and 7 other pieces.

The junior officer drafted an application to search the residence of the person who rented the locker. He didn't think he had grounds to believe that the residence contained firearms, so the warrant asked only for authority to search for keys and documents of ownership. He got started in the morning, but didn't finish until shortly before 9:00pm.

He forgot to ask the justice for permission to search the residence "at night".

The justice signed the warrant at 9:02pm, but it did not specifically permit police to search by night.

The junior officer radioed the rest of the team, which was watching the residence.  The senior officer watched the woman who rented the storage locker leave her apartment with a man. The officer knew