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.
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.
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?
The Criminal Code does not define a knife to be a "weapon". It says:
"weapon" means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;
If you find me holding the knife to carve my pork chop, you can't arrest me. If I stand up from my dinner, point the knife at you, and tell you that I will drive it deep into your chest, then not only can you arrest me for threatening you, but you can also arrest me for breaching the judge's condition.
These two examples - eating dinner and threatening people - lie at opposite ends of a spectrum. Where is the line in the middle which separates the "weapon" from the "non-weapon"?
Mr Vader, 2018 ABQB 1 generously gave us an example. An officer found him "in the driver’s seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically." The handle of an old machete stuck out from the under the driver’s side floor mat of the vehicle and a fishing knife, in a leather scabbard, lay in an open area at the bottom of the driver’s side door.
He wasn't fishing or hunting. He wasn't somewhere that a machete could be useful. Only because the trial judge eliminated all innocent possibilities, could the judge conclude that the knives were there for use against other people. The trial judge convicted him. He appealed, and lost.
But it wasn't a frivolous appeal. It highlights an important principle. A knife isn't a "weapon" unless you find circumstances that fit it within the definition.
When you find a guy on a "no weapons" condition, you can't arrest him just because he has a knife. Take a look at the circumstances. You may reasonably infer that most folks who carry machetes in the middle of a city intend to possess them as "weapons". But discovering someone in possession of a folded Swiss Army knife isn't so clear-cut.
2018.01.01 Search & Seizure - Warrantless Search - Third Party Consent
When two people share a place, can police searching one person's possessions on the basis of the other's consent?
It depends upon the expectations of privacy as between them.
Cst Clarke, 2017 BCCA 453 seized things like guns, drugs, booze in the course of his employment. He stored some of these exhibits in quite the wrong places. That got him into trouble.
He and his mother owned a house in Chilliwack. Because he lived in Surrey, he rented the Chilliwack house to Ms Ferrer. But he stowed some of his seized property in the garage. Ms Ferrer permitted other officers to search the house. They found the missing exhibits. Hence, the trouble.
At trial, he complained that she could not waive away his right to privacy. He said that the police needed a warrant. To determine whether he was right, the judges considered what privacy Cst Clarke reasonably expected from Ms Ferrer.
That was complicated.
Who "owned" the place? In 2008, Cst Clarke and Ms Ferrer signed a formal rental agreement, giving her the entire residence. She thought she was buying the place from him.
In 2007, he signed an agreement which required him to give Ms Ferrer 48 hours notice if he wanted to enter the residence. But their relationship became intimate. Although he still lived in Surrey, he came and went from Ms Ferrer's place as he pleased, without giving any notice at all. He "sort-of" lived with her "part time". He kept some personal effects in the house, and he stored a pile of "stuff" in a corner of the garage. He threw a tarp over some of it.
Ms Ferrer and her children had access to the garage. She parked her van in there, but they left his stuff alone. Sometimes, when he left something in the house, she would add it to the pile in the garage. She didn't really like him keeping ammunition there, because she had children.
But she didn't go through his stuff in the garage.
Ms Ferrer's relationship with Cst Clarke broke down. He told her she might have an STD - which alarmed her. When she learned he was seeing someone else, she became concerned that he would infect the next woman too. She called upon his supervisors - who took great interest in the items Cst Clarke stored in her garage.
Could Ms Ferrer's consent authorize police to search her residence? Yes.
Could her consent authorize police to search her garage? Yes.
Could her consent authorize police to look under the tarp? No.
The court found that Cst Clarke had a reasonable expectation that she wouldn't look under that tarp at his stuff. And if that was his expectation of privacy from Ms Ferrer, then he enjoyed a reasonable expectation that police would not use her consent as an excuse to lift the tarp and look underneath.
When asking Ms Ferrer for her consent, the officers got her to sign a consent form. Good idea. That showed good faith, and created a permanent record of her consent.
Nobody asked whether there were any parts of the house that Ms Ferrer usually left as Cst Clarke's private areas. It's a subtle point, but I expect it to grow in importance, particularly in light of Marakah (see 2017.12.09).
This case suggests that when you ask a non-suspect for consent to search a place for evidence against a third party, you should ask: "Are there any parts of your home/computer/phone/building/property that you leave as <suspect>'s private space?" If the consenter says "yes", you'll need a warrant to search those places.
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:
- the offence happened (or is happening, or is going to happen),
- information about that offence will be found in the place, and
- 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
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,  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.
- If you need to issue process, such as a traffic ticket or an appearance notice, then they must identify themselves. Moore v. The Queen,  1 SCR 195
- Some legislation requires people to identify themselves. If you stop the suspect for the purposes of highway traffic enforcement, the motor vehicle legislation of each province and territory requires the driver to identify himself or herself (but not necessarily the passengers).
- If you arrest a person for an offence, sections 496-503 of the Criminal Code urge you to release the person - but only if you know who they are. If they give you a false name at that point, they are obstructing you.
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.
- Security video can prove a great deal. Collect it.
- 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.
- 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.
- Where you have many videos, preparing a composite video can make understanding them much easier.
- Infra-red cameras distort colour. If you get unexpected colours, consult an expert.
- 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.
- 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:
- 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.)
- 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.
- 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.
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?
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
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:
- If you are drafting a warrant for production of information from a news outlet, you have new rules to follow. Read the legislation.
- 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.
- 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.
- 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.
- 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:
- Just because you want to look inside an electronic device doesn't mean you can. Electronic devices tend to be private.
- To get into the box (or camera or cell phone) investigate outside the box. Interview people. Look for alternate sources of evidence.
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.
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?
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:
|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".
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?
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.
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,  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,  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:
- You have a right to a reasonable opportunity to get legal advice.
- I have to hold off eliciting evidence from you until you get that opportunity.
- Waiting until tomorrow isn't reasonable because .... I'm not going to wait until tomorrow to interview you.
- We've done the following things to contact the lawyer you named: ...
- Is there anything you can think of that would put you in touch with your lawyer tonight?
- No? That leaves you with three choices:
- Choose a different lawyer to talk to tonight.
- Call Legal Aid - they're available 24 hour a day.
- Proceed without getting any legal advice.
- 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?
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