2021.10.22 Self-defence - The Supreme Court examines the 2013
Before 2013, the Criminal Code contained definitions of self-defence which few judges could correctly explain to juries. Parliament replaced them. You can find the result of Parliament's work in s.34. It creates three key questions for assessing the claim "I was defendin' m'self". In 2021, the Supreme Court of Canada first fully considered Parliament's efforts after Mr Khill, 2021 SCC 37 killed a man who was stealing from his pickup truck.
Self-defence matters in homicide investigations. Self-defence matters when you handle difficult citizens. This section matters to you.
In the middle of the night, Mr Khill's girlfriend woke him. She heard noises. He looked out the window at his truck in the driveway. He could see the dashboard lights. He grabbed his shotgun and loaded it with two shells.
He sneaked through the dark, his gun at the ready, close to the truck. He found Mr Styres, leaning in through the passenger side. Mr Khill yelled:
"Hey, hands up!
As Mr Styres started to turn, Mr Khill fired.
He racked his gun and fired again.
As Mr Styres lay dying, Mr Khill searched him for a weapon. Nothing in his hands. Only a folded knife in a pocket.
At the murder trial, Mr Khill explained that in the darkness, he mistook Mr Styres' movements. He thought Mr Styres brandished a weapon.
The defence urged the jury to consider how dangerous that moment would have seemed when Mr Styres turned toward Mr Khill.
The Crown urged the jury to consider how Mr Khill made that moment dangerous by sneaking up too close, and creating a killl-or-be-killed confrontation.
The trial judge focussed on the moment. The Court of Appeal ordered and new trial, and the Supreme Court of Canada agreed. The jury ought to consider all of the circumstances, including the defendant's role in setting up the fatal confrontation. In so doing, they analyzed provision for the first time.
Most investigators simply need to know that you should investigate all of the circumstance around the use of force. Whether you investigate a low-level domestic assault or a high-end murder, s.34(2) identifies obvious avenues of interest relevant to almost every use of force:
- the nature of the force or threat;
- the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties to the incident;
- the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
- any history of interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s response to the use or threat of force; and
- whether the act committed was in response to a use or threat of force that the person knew was lawful.
Homicide investigators might find the nuances interesting.
The section defines three elements to self-defence:
- the catalyst - the force or threat that the defendant feared;
- the motive - whether the defendant used force to defend himself (or someone else), or for some other purpose; and
- the response - what force the defendant actually used.
Those boil down to three questions to ask the suspect:
- What did you think was going on? (Were the suspect's thoughts reasonable under the circumstances? If the suspect were sober at the time, would s/he have thought the same thing?)
- What were you trying to achieve with your response?
- Was that response a reasonable one?
Homicide investigators should read the decision. Regular investigators should at least read s.34.
And every officer who will use force in the execution of their duties should consider how this section would apply to you if you draw your weapon and kill someone. See whether it fits into the use of force models you learned in your training.
2021.10.22 Fixing a Broken Undertaking to Appear
Ever released someone to attend court on the wrong date? Common mistake. What are the consequences? How can you fix it?
Jimmie hit Sally.
Cst Rookie arrests Jimmie to prevent him from hitting her again. Cst Rookie figures that the usual no-go and no-contact provisions will protect her. Therefore, s.498 of the Criminal Code compels him to release Jimmie. Cst Rookie uses an undertaking, in order to impose those conditions on Jimmie.
Good work, Rookie.
Section 501 describes the obligatory and optional contents of an undertaking. It must state a specific date for Jimmie to attend court.
Because of Cst Rookie's name and role in this discussion, he get the date wrong.
When does the undertaking take effect? How long does it last? What can be done to fix the problem, so that Jimmie doesn't go back to Sally and hit her again?
A provincial court judge in Alberta answered the first two questions: R v Gladue, 2021 ABPC 50
The undertaking started when Cst Rookie released Jimmie.
It ends when:
- Someone changes it pursuant to s.502;
- At the time of the laying (or rejecting) of charges, the justice cancels it;
- The date for appearance at court arrives, but no charge has been laid.
- The court acquits or sentences the defendant.
The good judge did not answer the most important question: how do we fix Cst Rookie's mistake?
It depends on the mistake.
If Rookie left the court appearance date blank, then he did not issue an "undertaking" as that thing is defined in s.501(2). Fill in the date, and give the suspect the completed undertaking. If Jimmie hit Sally between the time of release and the time that Rookie fixes this mistake, the defence lawyer can reasonably that Jimmie was not yet bound by the conditions, and therefore he can not be convicted of breaching it.
If Rookie entered a date that came and went before any charges were laid, then the undertaking is dead. Lay charges pronto. Whoever swears the charges needs to explain to the justice why there are reasons to fear that Jimmy will hit Sally again, so that the justice will issue a warrant for Jimmie's arrest pursuant to s.512.
If Rookie told Jimmie to come to court on a provincial or Federal holiday (Remembrance Day is coming soon), then s.26 of the Interpretation Act allows that the appearance can be made on the next day. But it would be wiser to amend the undertaking.
If Rookie told Jimmie to come to court on the wrong day, Rookie might solve the problem by asking Jimmie to consent to amend the undertaking to attend on the right court date. See s.502(1). Don't forget to ask the prosecutor to consent as well.
If Jimmie doesn't want to cooperate, you can ask the prosecutor to apply to court to replace the undertaking. s.502(2). Get that done before the returnable date on the undertaking.
2021.10.03 Affiant Drafting - An Easy Mistake to Make and Strategies to Prevent It
Drafting an affidavit for wiretap or an ITO for a search warrant requires summarizing evidence accurately.
When the evidence compels strong conclusions, we naturally start thinking and talking about the conclusions instead of the evidence.
For example, an officer investigating a drug importation conspiracy received a security video from a witness who worked in a warehouse. The witness told the officer that Mr Duncan, 2021 ONCA 673 attempted to take possession of the shipping container that contained the drugs. The witness gave the officer a video-recording of the event.
In the affidavit, the officer wrote that he watched the video and "observed DUNCAN attempt to take possession of cargo container AKE 2219 TS, within approximately an hour of CBSA seizing and removing cargo container AKE 2290 TS from the Cargo Zone warehouse.”
The video did not show such detail. It showed one man walk up to another man, talk, and then leave. The video was grainy. Nobody could identify the parties just by watching the video. Nobody could hear the conversation by watching the video.
Instead of narrating what the video actually showed, the officer wrote what he believed it showed.
It sounds like a dumb mistake, but it's remarkably easy to make. The officer had good reason to believe that his narration was accurate: the warehouse worker told him what happened. The more firmly you believe your investigative theory, the easier it becomes to fall into this trap.
Fortunately, the officer fully and accurately described in the ITO what the warehouse worker said. Although defence counsel at trial complained loudly about the error, the error did not mislead the issuing judge, nor did the trial judge find the mistake important.
But beware. Many earnest investigators have fallen into this trap.
How do you avoid it? Here are some ideas:
- Make summarizing a separate task from inferring. Write the summary of the thing first. Then go back and identify what parts of it link to other parts.
- Distinguish explicitly between investigative theory and summary of the evidence. For example: "From video recording and what the warehouse worker told me about it, I believe that Mr Duncan attempted to take possession of the cargo container. From the time-stamp on the video, I believe he did this approximately an hour after CBSA seized and removed it from the warehouse." If you need to place your inferences in the text of the summary, place them in brackets [I believe this to be useful.]
2021.10.03 Search for Officer Safety - Understanding the Principles
This case isn't new. I stumbled on it this weekend. But it provided a clear example of a common problem. A police officer may reasonably want to search a person for officer safety before sufficient grounds develop to search lawfully. What should you do?
In deep Canadian winter, 100km out of town, a car crashed.
Two police officers attended. They found four cold people who needed help. Their car couldn't start. The officers found no evidence of any crime.
The officers recognized a couple of them - from past domestic violence calls. And they recognized Mr Williams, 2020 ONSC 4880, who police suspected, from past information, might be involved in the drug trade.
The officers offered to drive the four back to town. But the officers put a condition on this offer: they must submit to a pat-down search for officer safety. None of the four objected. (How could they? They were in real danger of freezing to death.) But none gave explicit consent.
When an officer checked Mr Wiliams' right side, Mr Williams took a pill bottle out of his left pocket. That seemed suspicious. The officer looked at the botte. It bore a tattered prescription in Mr Williams' name. And even more suspicious, the prescription date omitted the year of issue. An officer looked inside and found oxycodone. Figuring that the prescription was lapsed or fake, the officer arrested Mr Wiliams for possessing narcotics. That led to a search of his backpack, which revealed more drugs, cash and a debt list.
At his trial for drug charges, Mr Williams complained that the search violated his right under s.8 of the Charter to be free from unreasonable search and seizure.
The judge agreed that the officer lacked sufficient grounds to justify a safety search. Read paragraphs 33-42.
When explaining safety searches, I find that police officers often try to justify their actions by identifying what they don't know. For example, these officers didn't know whether these four cold people carried weapons.
That's good risk management. When you invite strangers into your space, you make yourself vulnerable to them. You should assume that they pose you a risk until you discover reasons to trust that they will not harm you.
But it's illegal. There's a gap between risk management and lawful authority to search. As the judge explained, at law, the four cold people had rights to privacy. You can infringe on their privacy only when you know there are reasonable grounds to fear. A lawful search for officer safety depends upon what do know, rather than what you don't know.
If you don't have any evidence or information to justify a safety search, then you need to protect yourself using other strategies. Any good armchair quarterback reading this case can identify alternate strategies these officers could have used. For example:
- They could have asked for consent to search. (Indeed, the officers tried that approach. But they didn't go all the way. See paras 43-47 for the requirements of an effective consent.)
- They could have placed any bags or bottles in the trunk of the police vehicle, without searching them.
In this case, the officer opened the pill bottle. If he searched for the purpose of protecting himself from harm, one may reasonably wonder what firearms or knives he expected to find inside the pill bottle. What really happened here was that the officer switched from officer safety to investigation of an offence.
Bad idea. Even if he had sufficient reasons to search for officer safety, or even if he had valid consent, it was only to search for weapons.
Judges who see police officers abusing the power to search for officer safety will respond by tightening up the law. The existing limits already pose risk management problems. You don't want stricter limits.
Therefore, I suggest reading this case to understand the principles, and then discussing lawful risk management strategies to use in situations like this one.
2021.09.18 "What were he thinking?" - Drawing Inferences from Behaviour Before and After the Crime
For all criminal offences, the law demands proof not only of what the defendant did, but also what he thought:
Some crimes require general proof of the defendant's thoughts. For example, when someone drives dangerously, it suffices to prove that the driver didn't think about the dangers he created when he ought to have done so.
Other crimes, such as murder, require proof that the defendant intended a specific thing, such as death.
One way for a defendant to beat the rap is to claim that his brain wasn't working well enough to appreciate the consequences of his acts. "I was intoxicated." "I suffered a brain injury" "I was suffering madness."
Mr Scott, 2019 BCSC 313 loved a woman. But she loved another man. Mr Scott shot that man dead. Four shotgun blasts to the head.
At his trial, he raised all these issues, but the trial judge convicted him anyway. The Court of Appeal found no fault with her logic (2021 BCCA 337).
What made the difference was the police investigation of Mr Scott's actions before and after the killing. If his brain was so addled before the killing, he would not have:
- Engaged in coherent social activities before the killing
- Maintained two concurrent text message conversations with the woman and the victim.
- Gathered his firearms, and tested the shotgun before using it.
- Deliberately blocked his victim's car from escaping
- Aimed the gun consistently at the victim's head
Likewise, in the hour after the killing, he would not have:
- Placed the gun carefully in the trunk of his car
- Driven away normally (there was an eyewitness to the killing)
- Taken an alternate route home to avoid detection by police
- Destroyed his cell phone to eliminate evidence
- Gathered his belongings and cash, and left the country
- Passed through the border inspection without alerting the guard that he was too drunk to drive
Investigation of the defendant's actions before and after the event can shed light whether he was thinking straight during the incident.
That requires investigation of more than just the defendant's actions at the time of the killing. The investigative team gathered evidence from many sources. The work paid off. The prosecution team presented evidence from many sources. The judge wrote over 500 paragraphs to analyze it all.
Homicide investigators may find it interesting to read the trial decision thinking "what were the investigative strategies of this team?" It's a long read, but it reveals impressive work.
General duty officers can also learn something from this case. In Mr Scott's case, the homicide investigators did not get an opportunity to interview Mr Scott shortly afterwards. Often, the homicide team arrives too late for that kind of involvement.
Usually, general duty officers encounter the suspect first. If you do arrest a suspect right after a crime, even what he says about innocuous things can help discover whether alcohol, drugs or mental disorder affects his brain.
As a professional responsibility, you should assess the health of the people you arrest in any case. After serious offences, take notes of everything the suspect says and does. Even casual conversation or minor mannerisms may matter.
2021.09.05 Risking Pinging - When Exigent Circumstances Justify Tracking without a Warrant
A daring officer tested the limits of "exigent circumstances". We can learn from his cliff-edge performance.
It all started when Mr Bakal, 2021 ONCA 584, a drug dealer, annoyed his girlfriend. At around 3:00am, she called Toronto police and claimed:
- He assaulted her repeatedly;
- He threatened to choke her to unconsciousness, and throw her off the balcony;
- He had a handgun, but he didn't threaten her with it this time;
- He always carried the gun with him.
- He left her residence, taking with him:
- her belongings, including her passport
- his gun
- several kilograms of cocaine
- He tucked the gun into the waistband of his pants before he went.
- His brother had been with him earlier.
- His brother might be travelling to Ottawa from Toronto.
Police believed her - he had a history of violence. She gave the police his phone number. The officers looked up the dealer's brother, and learned that he drove a Jeep Patriot.
The daring officer asked his staff to ask the cell phone company to "ping" the phone, to find out where Mr Bakal was. A senior civilian supervisor at the Toronto Police Service refused to do this without a warrant. The supervisor figured that because police were with Mr Bakal's girlfriend, she was safe.
The officer bypassed the supervisor. The officer called the phone company himself, and persuaded them to send him the locations of the cell towers with which the cell phone communicated from time to time.
That information suggested that Mr Bakal was headed east, to Ottawa.
Highway patrol officers stopped a Jeep Patriot on the highway to Ottawa. In the car, they found the two Bakal brothers, two loaded handguns and two kilos of cocaine.
At trial, the Bakal brothers complained to judge that the police violated their privacy rights by tracking them without a warrant. They explained that in exigent circumstances, police can do some things that would otherwise require a warrant. But not tracking people:
- Section 492.1(1) empowers a justice to issue a warrant authorizing police to track things.
- Section 492.1(2) empowers a justice to issue a warrant authorizing police to track people by the things that they carry.
- Section 487.11 permits police in exigent circumstances to do what s.492(1) describes. It doesn't mention s.492(2).
- Therefore, the Criminal Code does not permit police to track people in exigent circumstances, except if they get a warrant.
- All they needed to do was phone up a justice and ask for one, and in 15 minutes they would get a tracking warrant.
All of the judges rejected this argument. First, the telewarrant idea is wrong. Nothing in the Criminal Code applies the telewarrant section (s.487.1) to tracking warrants. Applying for warrants takes time. The judges figured it would take three hours at the fastest. Those of you who are competent at warrant drafting will know that it takes many hours to draft it correctly. Three hours was too long to wait to get started looking for Mr Bakal.
The judges all agreed that even though the Criminal Code does not provide for tracking people in exigent circumstances, exigent circumstances such as these justify tracking someone by these means, as a matter of common law.
The Bakal brothers argued that there was no urgency to finding Mr Bakal. The girlfriend was with police. She was safe. No risk, no exigent circumstances.
The judges disagreed.
An angry drug dealer with a history of violence may do harm to others. Carrying kilos of cocaine is a great way to find trouble. Packing a handgun gave him the means to do great harm.
The judges found that the police had reasonable grounds to fear for people other than the girlfriend, and that these grounds for fear justified tracking Mr Bakal.
Does this mean cops can do GPS tracking in exigent circumstances? Not necessarily. This case involved only cell tower locations - which provide only the general area, within a few kilometres, of the phone. But this case involved possible harms. If your case involves a high danger of specific and likely harms, this case suggests you might be able to use more precise tracking.
Does this case mean cops should ignore their stuffy policy-bound supervisors? I didn't say that. It may be that the daring officer had a deep understanding of the principles of privacy and exigent circumstances. Deeper than the supervisor. Or maybe he was a loose cannon who lucked out.
The lessons to draw include:
- In exigent circumstances, you can do things that the Criminal Code doesn't provide for.
- Judges don't like guns in the hands of angry dangerous people, and will likely find that you should do something to stop such people.
But wait. There's more in this case...
2021.09.05 Detaining Someone on Imprecise Information - Black can be
A highway patrol officer in Kingston, Ontario received information that Mr Bakal, 2021 ONCA 584 assaulted his girlfriend, and was now heading east on the highway from Toronto to Ottawa, possibly with his brother in a black Jeep Patriot, possibly in possession of cocaine and a handgun.
He didn't find a black Jeep Patriot on that highway, but he did find a white one, bearing a licence plate registered to a person in Ottawa. Another officer radioed that he had pulled over a black Jeep Patriot. This officer did nothing about the white one. Then, the other officer confirmed that the black Jeep did not contain Mr Bakal. This officer found the white Jeep.
There appeared to be two or more people in the Jeep. The highway wasn't busy.
With backup, the officer pulled it over, and did a high-risk take-down, guns drawn.
He found the Bakal brothers in it. He arrested the one that the girlfriend complained about. He searched the car incidental to arrest.
As described above, it contained guns, cocaine, and Bakal's girlfriend's possessions.
At trial, the Bakal brothers complained to the trial judge that the police officer lacked grounds to stop the car: The officers only had reason to stop a black Jeep Patriot, but not a white one.
The trial judge disagreed:
- It was reasonable to infer from the cell phone pings that Bakal was heading east on the road to Ottawa.
- His brother's destination (Ottawa) matched the address of the owner of the licence plate of the white Jeep.
- The brothers did things together. There were two people in the Jeep.
- Traffic was light - there wouldn't be a lot of Jeep Patriots on the road, and the other officer eliminated one.
It was reasonable for the officer to suspect that this Jeep carried the Bakal brothers, even though the colour did not match.
I observe that the officer received imprecise information - that the vehicle was possibly a black Jeep Patriot. Had the officer received clear-cut information that the vehicle was definitely a black Jeep Patriot, the judge might not have been so generous.
The appeal court judges did not rule on this issue.
A lesson to draw from this part of the case is:
- When stopping a car or a suspect after a crime, you only need reasonable grounds to suspect that this car or person was involved. If you receive imprecise information, you may apply some common sense when deciding whether to stop cars or people that come near to matching the information you received.
But wait. There's more in this case...
2021.09.05 Search Incidental To Arrest - Searching for Supporting Evidence
Relying on information he received from a Toronto police officer, a highway patrol officer in Kingston stopped the car which contained Mr Bakal, 2021 ONCA 584, and arrested him for assault. As described above, the Toronto police officer told him that the complainant reported that Mr Bakal had a handgun with him when he assaulted her, but he did not use it to intimidate her on this occasion.
Could the Kingston officer search the car for the gun?
Most of the judges agreed that he could.
One judge disagreed.
You can only search "incidental to arrest" if you search for evidence of the offence for which you arrested.
This officer did not arrest Mr Bakal for gun or drug offences. Just the assault.
Although Mr Bakal didn't use the gun when assaulting his girlfriend, the gun played a significant part in her story. Finding the gun would tend to confirm her story. Three judges found that the officer could search for it "incidental to arrest". One judge, a renowned legal scholar, thought otherwise.
Several lessons appear from this part of the case:
- If the officer had arrested Mr Bakal for a firearms offence as well as assault, then searching for the gun would not raise concerns. Before you search incidental to arrest, think what offence(s) you arrested the suspect for. Those determine what kind of evidence you can search for.
- When searching for evidence of an offence, you can search for evidence of other offences if that evidence is connected to the offence for which you arrested. See also R. v. Chubak, 2009 ABCA 8.
I'd like to say that's the end of it, but there was still more...
2021.09.05 Dumb Mistakes are Easy to Make
Acting on information from a Toronto police officer, a highway patrol officer in Kingston stopped the car which contained Mr Bakal, 2021 ONCA 584, and his brother. The officer had grounds to arrest Mr Bakal, but not the brother. The officer had grounds to suspect that they possessed cocaine.
Nobody told the brother about his rights. Nobody let him call a lawyer.
The Toronto officer who briefed the Kingston officer told him about cocaine. The Toronto officer made no notes about how he knew about the cocaine. The Toronto officer told the prosecutor that before he made the call to Kingston, he had no knowledge about cocaine. I don't know how what really happened, but the trial judge didn't like it, and didn't trust the officer's evidence.
Fortunately, everything that was important to the case was documented in other places, such as radio calls, other officers' notes. The judge relied on other evidence, and convicted the defendants.
- Hey traffic cops! When you stop a car at roadside, you should tell the person why. If all you're gonna do is issue a ticket, you don't need to give rights to counsel, but if your stop grows more complex, it's time to give access to legal advice.
- Notebooks can answer the question "what did you know, and when did you know it?" I suspect that the contradictory communication to Crown occurred because the Toronto officer failed to record what he knew when he knew it. Particularly because he went over the head of a supervisor, he ought to have kept good notes.
2021.08.29 Ghosts, Hindsight and Keeping Records for Posterity
On April 22, 1983, someone raped and murdered, 22-month-old Delavina Lynn Mack. That year, at his trial for that offence, Phillip Tallio, 2021 BCCA 314 pleaded guilty to second-degree murder. He protested ever since that he didn't do it. He said he got railroaded into admitting guilt.
In 2009, the UBC Innocence Project at the Allard School of Law took on Mr. Tallio’s case. They asked for re-examination of bodily samples to see whether DNA analysis would identify the real killer.
His team hoped that DNA analysis might clear him. On that hope, they launched an appeal of his conviction, 34 years after the guilty plea.
Using advanced techniques experts managed to extract DNA from some samples taken during the autopsy. It neither exhonorated or identified Mr Tallio as the killer.
Tallio's lawyers attacked the adequacy of the original police investigation. They produced affidavits from residents of the community which asserted that the officers failed to interview the people that they should have interviewed.
To answer the appeal, police, defence counsel and prosecutors wanted records of what happened decades earlier. Most of the files were destroyed pursuant to records retention policies. That meant that they had to find as many original investigators prosecutors, defence counsel and witnesses as they could who were still alive, and ask them what happened all those years ago.
Ultimately, the court rejected Mr Tallio's appeal. The DNA did not exhonerate him. He could not produce evidence that showed that either the investigation or the trial was unfair. And there was some pretty strong evidence that incriminated him.
Mr Tallio went back to jail.
This review of an old conviction cost lots of money. What can we learn from it?
My secret source told me that this case turned on evidence, not law. Good evidence answers questions.
Complete your investigation - the more serious the case, the more important it becomes to investigate all leads.
A code of silence makes this difficult. This murder occurred in the reserve at Bella Coola. At that time, residents there did not generally cooperate with police. Citizens have that right. You can't force them to talk (and it's dangerous if you do). But you gotta try to get them to open up, with all of the best social skills you can muster.
Getting good evidence solves even the seemingly little cases. The complainant in a domestic disturbance may tell you that her partner hit her.
- You look for injuries and find none. Bruises often don't develop until the next day. Consider coming back.
- The neighbours don't always come forward to tell what they heard unless you ask. Try knocking on doors.
- Memories fade, but photographs don't.
Is it worth the extra effort? Yes. A "he-says she-says" case won't go far in court. But corroboration changes the equation.
Is it worth it? If he hit her this time, I wonder what he will do to her next time.
Documentation matters - Even if your investigation is complete, your report is incomplete until you document all that you did - including the dead ends you reached. If someone declined to give you a statement, you record that fact.
As Mr Tallio's case illustrates, record destruction can cause headaches years later. [So did exhibit preservation.] We can't keep everything; but we need to make wise choices about what to destroy and when. If you make such decisions, you need to take cases like Mr Tallio's into account when determining what risks are acceptable.
It Never Ends - Even if an investigation is complete, it is never "over". Mr Tallio's litigation lay dormant for 34 years, and now, 38 years later, it may even carry on to the Supreme Court of Canada.
Plea bargaining comes with risks - Why did Mr Tallio plead guilty if he was so innocent? He blamed his lawyer. The judges found that the evidence did not support his complaints.
But there was another dynamic. He was 17. The Crown charged him (quite properly) with first-degree murder. He faced life imprisonment, with no eligibility for parole for 25 years. When the Crown's case looked strong, pleading guilty to second-degree murder - with eligibility for parole at 10 years - must have looked like the best option.
If you were innocent, but you faced such bleak prospects, what would you do?
Although plea bargains clear a great many trials out of the courts, we must take some care not to make the offers too sweet. We should never get into the business of racking up convictions for their own sake.
2021.08.17 Right to Counsel on Arrest or Detention - Cell Phone call at the Scene
Many of you learned from your training to give your prisoners access to counsel at the police station.
But s.10(b) of the Charter gives your prisoner the right to retain and instruct counsel "without delay".
Most adults in Canada now pack cell phones, so that they can communicate with who they want, when they want. Arrests make many adults want to talk to a lawyer.
Why can't they use their cell phone?
Ms Tremblay, 2021 QCCA 24 swerved all over the road. A police officer stopped her. She confessed to texting while driving, but her red eyes and the odour of liquor on her breath gave her away. The officer demanded that she blow into a screening device.
It said she had too much booze in her.
At 11:40pm, the officer arrested her for impaired driving, and offered her access to counsel. She wanted a lawyer. At trial, she claimed that she wanted to call immediately, but the officers would not let her use her cell phone to make that call.The investigating officer said she wasn't in such a hurry. The judge believed her.
The officers waited for a tow truck, then took the Ms Tremblay to the
police station. She reached her lawyer at 12:28am.
The officers explained to the judge several reasons why they did not give her immediate access to counsel at roadside:
- The usual policy was to give access at the police station.
- The officers couldn't monitor how she used her cell phone - she might call someone else.
- The location - at the side of the road - exposed the officers to some (slight) danger from other vehicles passing by.
- The officers couldn't monitor her for regurgitating or consuming something that might affect the reliability of the test.
The trial judge and two levels of appeal judge rejected these explanations. Ms Tremblay beat the charge
They held that you don't always have to give your prisoner access to counsel by cell phone at the place of arrest. But if you don't, you must have good reasons.
What are good reasons for preventing your prisoner from using a cell phone immediately at the scene of detention or arrest?
- Safety first - you need to get control of the scene. Strachan,  2 S.C.R. 980
- Fear, based on evidence, that the suspect will summon others who will compromise your safety. Montgomery, 2009 BCCA 41; Patrick, 2017 BCCA 57
- Concern, based on evidence, that the suspect will cause someone to destroy evidence. Learning, 2010 ONSC 3816
I've heard stories about people who call their friends, who then make false 911 calls in the hope that the officer who caught a drunk driver will rush away to deal with a gun complaint. Such stories don't suffice to delay access to counsel. You need reasons which arise from the circumstances of the specific arrest or detention.
Prisoners and detainees frequently need access to counsel at the scene of arrest or detention. How do you control such abuse of cell phone access to cousel? Here are some suggestions. I'd be interested in your ideas.
- Get management to install cell phones in your cars that you can control.
- Supervise the suspect when s/he dials the numbers.
- Listen to all calls except the call to counsel.
2021.08.15 Document The Obvious
Police arrested Mr Choudhury, 2021 ONCA 560 for drug trafficking. They got a warrant to search the place where they bought drugs from him. Inside, they found one bedroom contained women's clothing, and a locked bedroom contained man's possessions. The woman's room contained no drugs (but it did contain needles). The man's room contained an open safe, and drugs.
Oh, yeah. And Mr Choudhury's OHIP (health insurance) card. The officer who found the card planned to return it to Mr Choudhury. And so the officer didn't record it in the list of exhibits seized in the bedroom. Nor did he list it in his notes.
The trial judge was so unimpressed by this lack of documentation of a key exhibit that she ignored the officer's evidence about the OHIP card. That made proving that he possessed the drugs in the safe a bunch harder.
What should you do if you seize something because it has evidentiary value, but you want to return it right away?
If we ignore the irrelevant bits, s. 489.1(1) tells you quite clearly:
where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
(a) where the peace officer is satisfied,
(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,
return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so...
So the general rule is: Seize it. Document it. Get a receipt from the suspect when you give it back. Report it to a justice.
2021.08.05 Statements of Victims of Property Crimes
Good paperwork busts bad guys.
I missed this decision last year when it came out. It remains just as relevant today as when I first encountered this issue ... 30 years ago: you should take proper statements from victims of property crime.
"Someone" stole a truck from a residence in Stettler, Alberta. "Someone" stole stole a bunch of firearms from a residence in Big Valley, Alberta.
Mr Shaw, 2020 ABCA 86 crashed the truck near Red Deer. It contained the stolen firearms.
Did Mr Shaw know the truck was stolen? Did he know it contained stolen firearms?
Inference of Recent Possession
Considering the distances involved, you would want to know how much time elapsed between the thefts and the crash. If they occurred within hours of each other, you would figure he stole them. But if months elapsed, then you can imagine scenarios in which Mr Shaw might innocently possess these things. The judges call this the inference of "recent possession". If the theft occurred really recently, then the person holding the goods must know about it.
Inadequate Formal Statements
The prosecutor filed statutory declarations from both victims. Attached to those statutory declarations were statements from both victims. Unfortunately, neither the declarations nor the statements stated clearly when the crimes occurred, nor where the property was when it was stolen.
I infer from the way the wording in the declarations that the thefts likely occurred within hours of the crash. But the documents did not clearly say so.
In my experience, this usually occurs because at the time of investigation, everyone involved knows exactly when the thefts occurred, and so nobody bothered to document it formally. The victim knew. The 911 dispatcher knew. The investigating officer received a dispatch which spelled out when the victim complained. The officer probably interviewed the victims on the day after the theft. The date of the theft seemed too obvious to mention in the formal statement. The location of the property when stolen was just as obvious, and so nobody talked about it.
The poor trial prosecutor, a year later, had no admissible evidence to offer the trial judge about these key (but obvious) points:
- Because the statutory declaration was admissible, nobody subpoenaed the victims.
- Neither the witness statements nor the statutory declarations supplied the necessary information.
- Although the investigator knew the answers, the investigator could not properly testify about those answers. Coming from him or her, it was hearsay.
So when you catch someone possessing stolen property, what evidence will the prosecutor need at trial?
- To prove that the property was stolen, we need an owner's evidence that the culprit had no right to possess it. Where there are multiple owners, this can get tricky: can we establish that no other owner lent the thing to the suspect? Sometimes you need statements from multiple owners.
- To prove when the the property was stolen, we need a witness to say when they discovered that the thing was missing and a witness to say when and where it was last seen. These may be different people than the owner.
- To prove that the thing you found belonged to the owner, we need the owner to recognize it or to recite its serial number and/or licence plate.
Inexperienced investigators often assume that because they know the answers to these questions, the prosecutor will be able to prove those facts.
Your computer system may tell you the Vehicle Identification Number of the victim's vehicle. That's hearsay. It isn't evidence that the trial judge will accept as proof that you found the victim's car. If you rely on a serial number, get the victim to give you that serial number in a formal statement, or obtain formal certification of ownership.
Your dispatcher may tell you what time the felon took the car. That's hearsay. The judge needs to hear from the person who saw it taken. Get a formal statement about what the witness saw.
Often, this key evidence can be established by way of a statutory declaration pursuant to s.657.1 of the Criminal Code. But that declaration must include all the key facts - especially the obvious ones. Don't assume that the standard form property owner's affidavit that your office uses will suffice.
Triggering the inference of Recent Possession
Notice item #2 in the list above. Many investigators overlook an obvious fact: the discovery of the theft usually occurs after the theft. The inference of recent possession only works if the theft occurred recently. We need to know who last saw the thing in its proper place. For the purposes of "recency", the clock starts ticking when that person turns their attention away from the thing.
Mr Shaw beat the charges relating to the stolen truck and guns. From the way the report reads, I'm pretty sure he committed them.
What went wrong in that case is nothing new. Investigators (and some prosecutors) have been making those same mistakes for decades. On the day of the arrest, when cops catch the felon red-handed, documentation seems unnecessary. A year later, the absence of formal documentation causes the case to collapse.
Good paperwork busts bad guys.
2021.07.30 Independence of Crown
Back in May, I wrote about Ontario (Attorney General) v. Clark, 2021 SCC 18. In that case the Supreme Court of Canada held that prosecutors have no obligation to protect the interests of police officers when prosecuting criminal cases.
Some folks in law enforcement found that decision disappointing.
This week, police may find some comfort in that decision.
A police officer responding to a 911 call arrested Mr Klassen, 2021 BCCA 294 for assaulting his wife. Mr Klassen and his wife responded forcefully. The Crown prosecuted the Klassens for assaulting the officer. In criminal court, the judge acquitted the Klassens. The judge found that "probably", Mr Klassen did not assault his wife, and therefore, the officer did not act lawfully.
The Klassens sued the officer for arresting them without lawful authority.
In the civil court, the officer's defence team argued that the officer acted lawfully because Mr Klassen actually did assault Mrs Klassen.
The Klassen's lawyer objected: "A judge already decided that question. We don't need to litigate it again!"
The judges disagreed.
Because the prosecutor is independent of the police, and because the prosecutor had no obligation to defend the interests of the police, it would be unfair to the police officer to rely on the criminal decision. If the police officer controlled the criminal trial, maybe the police officer's version of events would have come out differently.
2021.07.27 "Look, Ma, No Hands" - Distracted Driving in BC
Mr Rajani, 2021 BCCA 292 drove a car. According to him, he wedged the cell phone between his right thigh and the seat of the car, in a manner that allowed him to see the screen. (The officer said it was on his lap.) It was plugged-in and charging. The screen was black.
Was he "using" an electronic device while driving?
Mr Rajani argued that "holding" requires the use of hands. Because he did not use his hands to secure the phone where he could see it, he was not "holding" the phone, and could not be convicted of distracted driving.
The judges disagreed. Within the meaning of the Act, one can "hold" a phone with a chin, or an arm, or a knee.
According to ICBC, distracted driving causes lots of car crashes. Warnings and tickets may save some lives.
2021.07.27 Breadth of Search & Breadth of Disclosure
I encountered a case which caused me to consider the limits of some basic principles.
- An investigation is complete when you have canvassed all reasonably available sources of information.
- A report about the investigation is complete if it provides all of the evidence that you gathered.
- When charged with an offence, the defence is entitled to disclosure of the fruits of the investigation.
Women complained that Mr Dadmand, 2021 BCCA 250 sexually assaulted them. He pretended to operate a modelling agency, and by this pretence, met women that he photographed and video-recorded, even while he engaged in sexual acts with them.
Investigators prepared an Information to Obtain a search warrant, based on information received from six women. They searched his electronic devices, and discovered evidence of more offences against other women. The officers discovered lots of sexual material, some of which involved women they could not identify. The Crown pursued charges relating to offences against only two of the first six women, and four of the newly discovered victims.
Limits of Disclosure - Relevance
Crown disclosed to defence all of the material relevant to the charges laid, but withheld data that related to the women who complained, but were not the subject of charges.
Defence complained that the police officers scrutinized too much data from his devices: overbreadth of search.
Defence demanded disclosure of the withheld material so that he could prove that the police searched his devices too broadly.
The Crown observed that some material had no relevance to the prosecution, nor to the defence of the case. Sure. But defence claimed that they needed it in order to prove a breach of a Charter right. Yes, the judges held, the defence is entitled to disclosure of evidence tending to establish that police violated his rights.
But what good was this material even to prove a breach of Charter rights? For example, there was a video of Mr Dadmand having sex with a woman who had nothing to do with the charges laid. The prosecution wouldn't use that video to prove the case. The defence would not use that video to show that Mr Dadmand had a defence. The judge would not find that video useful in determining whether the police searched too much.
The court agreed with the Crown. In a challenge to the breadth of a search, the court examines how widely the police searched, not the data that they took away. In this case, the notes and evidence of the people who searched the devices explained what data they examined, and what they ignored. Neither the defence lawyer nor the judge needed copies of the data that police saved from Mr Dadmand's devices in order to determine whether the police limited their searching to the kinds of data authorized by the search warrant.
What the judge and defence needed was a full accounting of what the searchers did to look for data responsive to the warrant, to determine whether they looked further than they should have. Police were able to supply a list of all the keyword searches done on the devices.
Some obvious lessons emerge from this:
- Before you search, read the warrant. Figure out how deeply you can search, and search no further.
- Searchers should keep detailed notes of how widely they search, particularly when searching electronic devices.
Breadth of Search of an Electronic Device
As part of their complaint about the breadth of the search of Mr Dadmand's devices, defence complained that the police did not restrict their data searches by date.
Defence counsel urged have judges to require police to specify in advance precisely which search terms and techniques they should use when searching the target device. So far, judges refused. They appreciated that when the technician starts finding relevant data, the technician may think of new search terms or techniques.
Following that line of thinking, the judges disagreed with defence. Limiting your searches by date may be a good way to keep the search focussed on the searching that warrant authorizes, but it's not the only way.
2021.06.16 "Trust me, I'm a Pro" - When to Express Opinions about the Defendant's Guilt
Mr Daou, 2021 ONCA 380 confessed to murdering Jennifer Stewart. At the time he made this confession, he suffered from a mental disorder; but many of his claims matched hold-back information about the killing.
During the trial, the prosecutor asked the investigator to describe his impressive career in criminal investigation. Then, the prosecutor asked the investigator to identify what parts of the confession convinced him that Mr Daou's confession was true. The investigator reviewed the holdback and compared it to descriptions that Mr Daou gave. The officer explained to the jury that at first he was skeptical, but was eventually convinced by the details that Mr Daou gave that he was telling the truth.
The jury convicted Mr Daou.
Mr Daou appealed to the Court of Appeal: The prosecutor should not have asked the investigator to explain his belief in truthfulness of the confession.
The judges agreed. The officer should not have testified about his opinion on the guilt of the accused.
Police officers often testify about why they stopped or arrested someone, or demanded breath samples. What's wrong with telling the court why you think that the defendant is guilty?
It depends on the issue. When the judge needs to determine whether you acted lawfully, your beliefs about the guilt of the accused justify your actions. The judge needs to hear evidence about what you thought.
When the judge needs to determine whether the defendant acted lawfully, then your beliefs are worse than irrelevant. Your opinions about the guilt of the defendant undermine the justice system.
If the judge permits you to tell the him or her what conclusion to reach in the trial, then an independent observer gets the impression that the cop, not the judge, decides the case. All the money we spent on hiring an independent decision-maker is wasted.
Same problem with a jury.
We go to significant efforts to select jurors who are independent of the investigation. When deciding the case, those jurors had the duty of reviewing the defendant's statement, and comparing it to the hold-back to determine if the defendant was telling the truth. As you well know, sifting through evidence is hard work. The prosecutor tendered impressive evidence of the officer's career, and then the officer said, effectively: "Trust, I'm a pro. The defendant is guilty." It's very tempting for a bus-driver, a cashier or short-order cook to say in the jury room "I don't know much about criminal investigation. That cop has more experience than me in comparing statements to hold-back evidence. I trust his opinion". A juror who reasons this way fails to do the task of deciding the case by analyzing the evidence. Stakeholders like the defendant and his family lose faith in the fairness of a trial in which the jury does what the police officer tells them to do.
Of course, there are exceptions. For example, people qualified as experts can offer opinion evidence within the area of their expertise.
"Okay Waldock," you ask. "You're saying sometimes I must tell the judge my opinions, and other times, I must not. When I'm testifying, how can I tell whether I should or shouldn't?"
- Listen to the question. If the question doesn't ask you to explain your thoughts about the guilt of the accused, then don't. Questions that start with "Why did you...?" or "What opinion did you form...?" generally requires explanations about your thoughts.
- Ask. "Do you want me to explain what I thought at the time about whether Mr Defendant had done something wrong?"
- Communicate with the prosecutor beforehand.
The way this decision reads, the prosecutor bears the responsibility for the legal error. It looks like the investigator followed all three steps.
2021.06.15 "Home Free" - Preventing Random Traffic Stops
Six years ago, I wrote that in Ontario, an officer who sees a vehicle driving on a driveway may stop the driver for a random safety check even if the driver first pulls into a private driveway. But the officer must make the decision to stop the car before it leaves the highway. I relied on R. v. Heer, 2013 CarswellOnt 18962, 2013 ONSC 7257,  O.J. No. 6432, which is still, unfortunately, not available on CanLII.
The Ontario Court of Appeal now disagrees. The omission of Heer from the databases matters less now.
Mr McColman, 2021 ONCA 382 stopped at a gas station. Police officers noticed his vehicle, and followed it for 200m, intent on stopping it for a sobriety check, pursuant to s.48 of the Highways Traffic Act. Before they turned on any lights or sirens, Mr McColman turned into his private driveway. The officers pulled in behind him.They approached him, and noticed a remarkable absence of sobriety. Although he drove just fine, Mr McColman had trouble walking. He stunk of booze.
At his trial for drunk driving, he complained that the police had no authority to stop him. The Ontario Highway Traffic Act authorizes police to stop drivers who are driving on a "highway" for random sobriety checks. These officers could have stopped him when he was driving on the road, but they didn't. At the time they stopped him he was no longer driving on a highway, but on a private driveway.
The Crown reminded the court that in R. v. Lotozky 2006 CanLII 21041 (ON CA), they decided officers in similar circumstances could walk up the driveway and stop the driver. Surely, Mr McColman's situation was the same.
No, said the court.
In Lotozky, the officers responded to a 911 call. The complaint was of an intoxicated driver. They saw the car in question drive into a driveway. They already had grounds to suspect an offence. In those circumstances, those officers could stop the driver even on his own driveway.
The officers who dealt with Mr McColman had no reason to think that Mr McColman had committed a driving offence. In those circumstances, the court found that the officers could not exercise the random stop power granted by s.48 of the Highway Traffic Act if the driver was no longer driving on a highway. By reaching home before the officers turned on their lights, Mr McColman was "safe". Olly, Olly, oxen free
Did they need to stop him?
Perhaps you're wondering what all the fuss is about. Mr McColman had stopped his car all by himself. If he wasn't driving any more, then the officers didn't "stop" him. They didn't need to exercise the power granted by s.48 of the Highway Traffic Act to stop him. Maybe. But I can see why - in this case - the prosecutor didn't want to make that argument. If the officers weren't relying on their power under that section, then what authorized them to enter private property?
What if the driver parks in a driveway that is not private property, like the parking lot of a bank or a liquor store? You may not have authority under s.48 of the Highway Traffic Act but if the driver stops himself and gets out, then you don't need it. You can watch the driver get out. You can talk to him or her if you want.
What are your powers?
Did you notice that I pasted the link to s.48 of the Highway Traffic Act into this comment six times so far? Why did I do that? Surely, once was enough.
Nope. It's a hint that I want you to read s.48 of the Highway Traffic Act (Oops. I did it again.) Even if you don't work in Ontario. Why?
Because you need to know your powers.
If you work in Ontario, and you're going to use this section, then read it again while thinking of this case. If you don't work in Ontario, read this section, and then compare it to the legislation you use in your province.
What's a "highway"?
When you review your legislation, you'll probably see the word "highway". What is a highway? Your mileage may differ. Different provinces define "highway" differently. For example, in Saskatchewan and Ontario, a business parking lot is not a "highway". Lux, 2012 SKCA 129; Tresham, 1998 CanLII 14756. In BC, it is. Cyr v. Koster, 2001 BCSC 1459.
2021.06.12 "Recent Possession" - A Soft Concept
You can infer a person's involvement in a theft if the person possesses property from the theft shortly afterwards.
For example, if you catch Jimmy driving a stolen car 2 minutes after someone stole it, you may confidently infer that Jimmy stole it.
If you catch Jimmy driving that same car 4 hours after someone stole it, the inferences vary more. If you find him 4 hours' drive from the place where the thief took it, you may still confidently believe that Jimmy stole it. But if you find him driving it closer to home, you may reasonably suspect that Jimmy stole it. But he may have received the car from the thief. If he received it from the thief, you can still be fairly sure that because so little time passed, that Jimmy knows it was stolen, either because he stole it, or because he dealt with the thief so shortly after the theft, that he must have known what was going on.
Of course, the strength of the inference declines with the passage of time and the type of property.
When you apply for a warrant, this inference works in reverse. You can infer that after a short time after a theft, the felon will still possess the loot.
How long can one expect a thief to hang on to stolen property?
It depends again on the type of property, and whether there are
special circumstances. You can expect a thief who steals cash to
dispose of it sooner than a thief who steals a unique artwork. A
junkie will likely consume quickly the drugs taken in a drug-ripoff. A
stalker will likely keep the undergarments he took from his victim's
Two months after a home-invasion robbery, police located the stolen van which the robbers used to commit the crime. First they found it parked outside one residence, but it moved to a spot outside the residence of Mr Fuller, 2021 ONCA 411. The investigators obtained a warrant to search that residence for property stolen during the robbery.
Defence argued that after two months, there was no reason to believe that any property taken in the robbery would remain in the residence. The warrant should never have issued.
The judges disagreed. They held that although reasonable minds might differ about whether the search would recover stolen property, this warrant was properly issued.
Your mileage may vary. This decision does not establish that 2 months after every theft, you can get a warrant to search the residence of a suspect.
Why did the judges think 2 months wasn't too long? This robbery involved a jewellery box containing earrings and other items. If you sought to profit from such booty, how would you do it without drawing attention to yourself? An obvious strategy would include finding different buyers, and moving slowly.
If time passed between the crime and your discovery of a likely felon, consider your suspect's motives and likely courses of action. In your ITO, a careful articulation of the difficulties involved in disposing of the stolen items may cause the issuing judge or justice to see why you think that the property is still there.
2021.06.03 Search and Seizure - Documenting the Search
How methodically do you search? How do you document it?
Mr Wragg, 2021 BCCA 214 got into a car accident and left the scene. He came back after a while, and grabbed some things from the car and put them in a bag. Two police officers arrived while he was still in the area. One of them arrested him for failing to remain.
At trial neither could recall who did the arresting.
One officer searched the bag, and found 24 packages of drugs. That officer couldn't clearly recall where he did that search. The other officer remembered that he emptied the bag onto the hood of the police car.
At trial, Mr Wragg explained that he didn't know about the packages of drugs. They must have been in his girlfriend's purse, which was one of the things that he grabbed from the car.
The big question at trial became whether the packages of drugs were in the purse or not.
The officer who found the drugs couldn't remember all of the details of the search clearly. He did make some notes of the search. Some of those notes differed from his testimony at trial. He remembered things a bit differently. The defence lawyer highlighted this variation in memory during cross-examination.
Don't laugh at the police officer. This could happen to you. If you do lots of searches, then years later, they will blend together, and you may find yourself struggling on the witness stand to remember find details about the case.
How do you avoid this?
The notes that the officers did make helped greatly. The trial judge didn't laugh at the officer. The trial judge believed him. The appeal court found that the conviction was reasonable, and upheld it.With the benefit of hindsight, you can learn much from this case.
For example, why couldn't the officers remember which one of them arrested Mr Wragg?
I'll bet they wrote their reports in the passive voice: "Mr Wragg was arrested." Do you think there would have been any confusion if they wrote their reports in the active voice? "Cst X arrested Mr Wragg."
I hate the passive voice. I use it, but sparingly. When I read the
passive voice in police reports, it irritates me. The passive voice
conceals the responsible person. "The bag was searched" - who did the
searching? "20 small bags of meth were found." - Who found them? Which
thing contained them? The active voice answers those question. "Cst
Jones searched the bag. He found that it contained 20 small bags of
What can you do to avoid the problems that these officers
encountered? I'll bet some photographs would have helped jog memories.
If you're searching a collection of interesting things, you might want
to document clearly which container(s) held the objects of interest.
If you apply hindsight to this case, you may discover other investigative angles you might have considered. When I read the decision, I thought about handwriting comparison. You might think of other things you could do next time you encounter a similar situation. That's one of the values of reading case law.
2021.05.23 Delaying Access to Counsel
A couple of weeks ago, I wrote about giving the defendant access to counsel at the scene. No delay!
But you can delay, where you have reasons specific to the case.
Police watched Mr Griffith, 2021 ONCA 302 because a tipster told them he sold drugs. What they saw caused them to believe the tip.
When they arrested him, he tried to flee. He carried lots of cocaine, and a loaded handgun.
The officers told him promptly about his right to counsel - they even video-recorded it. He wanted a lawyer. But the officers were getting search warrants for his house and storage locker. They worried that he might abuse the phone call. They didn't know who occupied his apartment, but they did know that Mr Griffith carried a loaded gun, and they had reason to suspect that he sold drugs from there. This sufficed to stall his access to counsel until the officers went in.
It didn't justify delaying his access to counsel for an hour and twenty more minutes. That was a problem which arises all too often.
When you get a warrant, you should always brief your team. Perhaps that briefing should always address how access to counsel will be granted once officers enter the location.
2021.05.23 Explaining the Right to Counsel & Documenting what you Did
Police officers often arrest suspects and explain the right to counsel. One can easily forget routine events.
Most suspects get arrested rather less often. For them, the experience stands out as memorable.
Therefore, when the defendant claims that you failed to explain the right to counsel properly, the defendant has an advantage over you. The defendant's lawyer can often get you to agree that you have no specific memory of what you "usually do". Then the defendant's lawyer will point out to the judge that the defendant has a specific memory of you doing things wrong, and all you can say is what you usually do.
But Cst. Price of the OPP told the court of very specific memories of arresting Mr Luu, 2021 ONCA 311. It was raining heavily when Cst Price arrested him. Cst Price read from card. He noticed that Mr Luu spoke with an accent. He backed up and explained the rights again in everyday language, to make sure that Mr Luu understood. Mr Luu indicated that he understood, but didn't know whether he wanted a lawyer.
How did Cst Price remember those specific details?
I don't know. The decision doesn't say.
- Perhaps the moisture from the rain blurred the ink on the pages of his notebook, and that reminded Cst Price of the weather.
- Perhaps he made notes about Mr Luu's accent.
- Perhaps he made notes about explaining the right to counsel twice.
- Perhaps he turned on an audio-recorder.
I do know that Mr Luu didn't dare contradict him about what happened at the roadside.
Instead, at court, Mr Luu complained that he didn't understand what Cst Price was saying. He complained that Cst Price failed to figure out this comprehension gap.
Mr Luu's complaints didn't impress the judges. Cst Price went further than reading the card. He listened to the answers he got. What he heard made him take another step. Everyone knows that the best communicators are the ones who listen. Because Cst Price took that second step, the judges could be confident that Cst Price wasn't just going through the motions, but he was actually communicating.
How could Cst Price remember all this detail? My guess is that he wrote it down. Maybe in a wet notebook. Or maybe he recorded the interaction.
Investigators should document the interesting stuff that they find. Smart cops document the routine stuff too.
Cst Price busted Mr Luu for conspiracy to traffick drugs. Mr Luu had half a kilo of meth on him when arrested. The conviction and sentence survived appeal. Whatever Cst Price did to record his interaction with Mr Luu, I bet he'll do it again next time, and maybe even better.
2021.05.23 Impaired Driving - Another Document to Give the Driver
In routine impaired driving cases, before you release a drunk driver, you usually give him or her a handful of documents, including:
- Appearance notice or Undertaking - "Come to court"
- Administrative Driving prohibition - "Don't drive"
- Certificate of Qualified Technician - "This is how much booze your blood contained"
But there's one more document that you need give the driver.
- Certificate of Analyst - "The instrument used a good alcohol standard."
"We never used to give the driver a copy of that certificate. Why now?"
Because the drunk driving legislation changed in 2018.
"That's a couple of years ago now. Why did Waldock wait so long to tell us?"
Because the answer wasn't clear. Lawyers disagreed about what those changes meant. Judges disagreed too. When judges disagree, lawyers appeal. It takes a while for those appeals to work their way through the system. This week, the first provincial Court of Appeal delivered its opinion on this issue. R v Goldson, 2021 ABCA 193. That provides some clarity.
Judges in your province may disagree. The Supreme Court of Canada may disagree.
If they disagree, then this is a make-work project. Nothing will happen if you fail to serve the extra document. But if they agree, then some prosecutions will fail if you don't do the extra work.
I think the Supreme Court of Canada will agree with the Alberta Court of Appeal. Until the judges give a final answer, I think you're better safe than sorry. The safe route is to serve too many documents rather than too few. For that reason I think you should give the driver a copy of the analyst's certificate, along with notice.
"Notice"? What's that?
There is actually one more document on that list of documents that you usually give the driver.
- Notice of Intention to Produce Certificate - "The prosecutor is gonna use this document at court."
In my jurisdiction, the "Notice of Intention to Produce" is printed on the same page as the Certificate of Qualified Technician. Some people think it's one document, but the page actually contains two different documents, signed by different people, and saying different things.
Because of the Goldson decision, I think that you now need to give notice that the prosecutor will use two certificates at court.
Therefore, the complete list of documents for service looks like this:
- Appearance notice or Undertaking - "Come to court"
- Administrative Driving prohibition - "Don't drive"
- Certificate of Qualified Technician - "This is how much booze your blood contained"
- Notice of Intention to Produce Certificate #1 - "The prosecutor is gonna use the breath tech's certificate at court."
- Certificate of Analyst - "The alcohol standard that the qualified technician used was good."
- Notice of Intention to Produce Certificate #2 - "The prosecutor is gonna use the analyst's certificate at court."
"Bloody heck, Waldock! That's an awfully long list of documents!"
I agree. But we can reduce it by one.
In my view, there is nothing wrong - and much right - about combining the two notices into one document that says "The prosecutor is gonna use the breath tech's certificate and the analyst's certificate in court." Some people may resist that suggestion because it's a bother to re-program the breath testing instrument to print a notice that mentions both certificates.
Yup. It's a bother.
The process of investigating and prosecuting drunk drivers is already
pretty complicated. Complications in investigations tend to lead to
complications in prosecutions. And from there, it's a short walk to
If I managed the alcohol testing programme, I would ask the manufacturers to program the instruments with the following features:
- every time a technician changes the alcohol standard, they can upload a scan of the certificate that says that the alcohol standard is good.
- every time that the analyst finishes testing a subject's breath, the instrument prints copies of the technician's certificate and the analyst's certificate, along with a single notice that declares that the prosecutor will use both certificates at court.
Um, what's this "alcohol standard" you keep talking about?
In case you were afraid to ask, I thought I might explain.
The instruments measure the amount of alcohol in the air that the driver blows into the instrument. In order to show that the instrument's results are trustworthy, the manufacturers design them with a quality assurance cycle. In addition to measuring the driver's breath, the instrument measures air laced with a known quantity of alcohol. Scientists refer to this as a "control" sample. If the instrument finds the right amount of alcohol in the control sample, then it must be working properly. That control sample is the "alcohol standard". (It actually does other things to make sure that it's working properly. Let's not get into that right now.)
The new legislation (s.320.31(1)) says the judge must accept the instrument's measurement of alcohol in the driver's breath if the prosecution proves that the instrument used a good alcohol standard. That's new. In the past, judges accepted the breath tech's word or certificate that the alcohol standard was good. Many lawyers and judges figured that was still okay under the new legislation. The court disagreed. Read the decision to understand why.
2021.05.17 Authenticating Electronic Data - A Story of Scorn
"There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is." Nordheimer J.A. at para 30.
Mr Aslami, 2021 ONCA 249 had a wife. When their relationship ended, she was angry. Very angry. In order to hurt him, she arranged to have sex with a man he hated. She sent him pictures of herself in bed with his nemesis to make sure that Mr Aslami felt some pain.
Shortly afterwards, someone firebombed that man's house.
Who threw the bomb?
The ex-wife testified that she recognized Mr Aslami in a brief and blurry security video of the firebomber.
Before and after the firebombing, the ex-wife and the guy Mr Aslami hated both received several messages, both by text and on social media platforms. Some of those messages suggested that the sender was involved in the firebombing.
Police got those messages only from the phones of the ex-wife and the new guy. They did not recover Mr Aslami's phone.
The ex-wife testified that the phone number and social media account belonged to Mr Aslami.
Did Mr Aslami send the the messages, or was he framed?
In her phone, the ex-wife attached Mr Aslami's name and photograph to several phone numbers, including the one that sent these text messages. But police found no evidence of a phone that Mr Aslami used at the time with that number.
The social media accounts were in pseudonyms which the ex-wife said were Mr Aslami. But the police gathered no communications which clearly identified the sender as Mr Aslami.
Electronic messages on a cell phone can be deceiving. Many systems display a photograph of the sender beside the text. But who associated the photograph to the phone number? Can you attach the wrong photo to a phone number in your phone? Can you set up a fake social media account? Would this woman do such a thing to punish Ms Aslami some more?
Oh yeah. There's one more thing. Before the fire-bombing, the new guy split up with his partner, and moved out of the house. The fire-bombing didn't hurt him.
Was he complicit in framing Mr Aslami?
The trial judge convicted Mr Aslami. The Court of Appeal ordered a new trial. The judges worried that the trial judge had not considered the scorned woman theory sufficiently.
What does this mean for your investigations? When you review electronic messages that prove a case, you want to authenticate them. That means finding evidence that proves who typed them.
If you can seize and search the target's cell phone, that will solve the authentication problem.
Another way is to examine the content. Yesterday, I reviewed the statement an officer took from a woman complaining of harrassing messages from her ex-boyfriend. I was pleased to see that he took the time to ask her "but how do we know these messages came from him?" She identified topics in the messages that were important to the ex-boyfriend, topics that they had discussed over the course of their relationship.
Notice that this may require extra seizure. You want more than the harassing messages, but also the ones that tend to identify the person who sent them.
Sometimes that will suffice. Sometimes you need more. What if the woman in my case were framing him, as was proposed in Aslami's case? In the messages I looked at, the sender described something he was about to do. I have independent evidence that the defendant did exactly that.
2021.05.12 Arrest Procedures that Protect You
Some police officers had reasonable grounds to believe that Mr Scala, 2021 ONCA 297 committed criminal harassment, and so they arrested him.
He resisted arrest. The police officers took him to the ground.
Afterwards, he sued the police. A decade after the arrest, he testified in court that the officers beat him up. So did a buddy of his, who said he saw the brutal attack and tried to stop the officers.
Naturally, the officers denied inflicting any violence.
Lots of evidence rebutted Mr Scala's version: cell block video and photographs; Mr Scala's medical records; audio recordings of what Mr Scala said shortly after the arrest.
The trial judge rejected the claim. So did the Court of Appeal. If you read the decision, it all seems so simple.
But the decision refers to lots of evidence. That evidence made all the difference. Where did the evidence come from?
Much of it came from following good booking procedures. Cell-block video recording system. Photographs. Audio-recording the defendant as he goes through the booking process.
There are people who will make false allegations about police officers for their own gain. The cumbersome processes of documenting the prisoners in your custody can protect you against false claims. Even a decade later.
2021.05.12 Independence of Crown - Ontario
(Attorney General) v. Clark, 2021 SCC 18
In 2009, some officers arrested Mr Maharaj and Mr Singh for armed robbery. At their trials, each alleged that the police beat them up during the arrest. The Crown dropped the case against Mr Maharaj, but pressed on with the case against Mr Singh. During that trial, Mr Singh asked the judge to stay the charges because of the police brutality. Both Singh and Maharaj testified that the police beat them up.
The Crown did not ask the police officers to explain their side of the story at the trial.
The trial judge convicted Mr Singh. The Court of Appeal found that that the police brutality should have resulted in a stay of proceedings. The judges condemned the officers' brutality, naming them in their decisions.
But Ontario's Special Investigations Unit, and Toronto's Police Service Professional Standards Unit investigated the police misconduct. Mr Maharaj didn't cooperate. Those agencies concluded that likely, the officers did not assault the two robbers. Maybe the prosecutor should have told the judges of the Court of Appeal.
The police officers sued the prosecutors for failing to contest the robbers' claims properly.
The Supreme Court of Canada rejected the officers' claims. The judges found that the prosecutors did not owe any duty to the police officers to protect them from false Charter claims in a criminal trial.
Because Crown Counsel aren't your lawyers.
To ensure the independence of the prosecutor, the prosecutor must not bear any duty to protect police officers' interests.
Does that mean that the results in this case were just? I don't think so. Two robbers beat serious charges by making false allegations against police officers. The Crown didn't fight those false allegations hard enough. The false allegations hurt the careers of some police officers. I don't know exactly why things went wrong. I suspect that there were trust or communication problems between the officers and the prosecutors, either personally, or institutionally.
There are two ways to apply this decision to every-day police work. You can view it as proof that prosecutors are aloof, and not to be trusted. If the relationship between police and prosecutors in your area is bad, then I think this approach will exacerbate the problem.
Or you can recognize and affirm the independence of Crown, but work with them to improve communications, so that they don't lose cases like this one on false allegations.
On of the main reasons I write this website is to promote a good working relationship between police and prosecutors. There are deep reasons why prosecutors and police must remain separate agencies; but there are equally deep reasons why police and prosecutors need to be able to work side by side, with good cooperation and communication. Knowing each others' roles helps us understand what we can and can't do for each other.
2021.05.08 Right to Counsel - Cell Phones at the Scene
"[T]he case law could not be clearer on the issue of when an accused is entitled to avail himself or herself of his or her right to counsel. The right applies immediately following arrest and reading of constitutional rights, insofar as the circumstances of the case allow." LeBlond J.A. in R. v. Landry, 2020 NBCA 72 at para 3 (The report is in French first, then English.)
A police officer stopped Mr Landry just before 3:00am, and investigated him for impaired driving. When Mr Landry (eventually) blew a "fail" on a screening device, the officer arrested him, and took him to the police station for a breath analysis.
When should Mr Landry get to speak to a lawyer? He asked to use his cell phone at roadside. The officer made him wait until they got to the police station. That took 30 minutes.
Unsurprisingly, most lawyers didn't answer their phones in the dead of night. The officer spent almost an hour trying to contact lawyers for Mr Landry. Eventually, the officer called Legal Aid. Mr Landry refused to speak to the Legal Aid lawyer that was available. Shortly after that, the officer gave up and made Mr Landry provide his breath samples.
Why not give Mr Landry his cell phone at the roadside, and let him call his lawyer right away?
The officer had no explanation.
The judges didn't like that.
This officer also read the "Supplementary" (aka "Prosper") warning to Mr Landry. This was a mistake. One reads that warning when your prisoner starts to waffle after first saying he wants a lawyer. But Mr Landry never changed his mind. Nothing triggered a need to tell him that he was entitled to a reasonable opportunity to get legal advice.
It wasn't a bad mistake - it merely re-affirmed that Mr Landry was entitled to a reasonable opportunity to get legal advice.
Very shortly after telling Mr Landry that he was entitled to a reasonable opportunity to get legal advice, the officer told him he had to stop calling lawyers, because it was time to provide breath samples.
The judges didn't like that either. They excluded the breath test results, and Mr Landry beat the charges.
Why do you take prisoners to the police station before letting them call for legal advice? I know of several explanations:
- That's the way we used to do it, before cell phones became common.
- Some suspects have arranged for friends to make false 911 calls, in the hope of distracting the police officer from the investigation.
- Sometimes officers have reasons to fear that the suspect will summon violent people to spring him free from the officer.
- Some prisoners are too violent. You can't let them use a cell phone, they'll smash it.
- Sometimes, the only phone available belongs to the officer, who doesn't want to catch diseases from the prisoner.
Times have changed. Cell phones are everywhere.
Most of these concerns can be addressed.
- Don't want the guy calling his friends? Then make the call yourself.
- Don't want the guy handling his phone? Don't want him breathing on your cell phone? Put it on handsfree, in a part of the the police car where he can talk, but he can't touch his cell phone.
If the sound quality in the police car is poor, then ask the lawyer to be available when you get your suspect to quieter place - such as a police station.
After you make a breath demand, you need to test the subject's breath "as soon as practicable". If the subject wants legal advice, one of the necessary steps is contacting the subject's lawyer. Calling right away may reduce delay at the police station.
Even if you didn't read a breath demand, s.10(b) of the Charter guarantees the prisoner legal advice "without delay".
Decisions like this one suggest that if you can provide the suspect with access to counsel at roadside, then you must. If you can't, then you need to be ready to explain the reason(s) that prevented it.
Police cars weren't designed for providing access to counsel. Maybe
they should be.
2021.05.05 Confidential Informants - It Seems Easy until Later
Two years of service teaches a police officer only the rudiments of the job.
With two years of experience under his belt, an officer received a confidential tip about Mr Dawkins, 2021 ONCA 235 packing something illegal.
The officer had never handled a confidential source before, but he knew that he had an obligation to protect the source from being identified. (Good. He got one fundamental correct.)
Police information suggested that Mr Dawkins as a dangerous guy. He had a history of firearms offences, and he was prohibited both from possessing firearms and - as it turns out - driving cars.
One night, the officer saw Mr Dawkins get into a car, so he pulled it over.
The officer first violated s.10(a) of the Charter: he lied about the reason for pulling over the vehicle.
He did so for officer safety. He was working alone. He didn't want to arrest Mr Dawkins for driving while prohibited until backup arrived. So he told Mr Dawkins that he saw the vehicle swerving. That didn't turn into a problem in the case; but don't make a habit of lying about the reason for detaining someone.
When backup arrived, the officer arrested Mr Dawkins for driving while prohibited. A search of the vehicle discovered a loaded handgun under the driver's seat.
What should the officer do about the confidential source information? Even though the source information formed part of his reason for pulling the vehicle over, he said nothing about it at the scene, and wrote nothing about it in his notes and report. He figured he could sort it out with the Crown if there was a trial.
Defence launched a Charter application. The main point was that the officer lacked grounds to stop Mr Dawkins' car - a breach of s.9. I don't know from the reasons of the Court of Appeal why defence thought this argument would work, but it may have had some substance.
Two weeks before trial, the officer met with the prosecutor, and explained how the source information formed part of his justification for stopping Mr Dawkins. The prosecutor immediately disclosed to defence the fact that the officer acted, in part, on source information.
Things could have gone wrong:
- Late disclosure can trigger adjournments. When the prosecution produces new evidence close to trial, defence often complain that they need to change their strategy. They ask for an adjournment, but because of the late disclosure, the prosecution takes the blame for the delay. If the case delays long enough the court will stay the charge. Lesson: don't delay disclosure to the prosecution. If delay is necessary to protect a source, get the prosecutor involved early. Don't wait until trial.
- Late disclosure can undermine credibility. Recall that the defence lawyer asserted that the officer lacked sufficient reasons to suspect Mr Dawkins' vehicle. After defence complained, the officer explained "actually, I had confidential source information, but I didn't write anything about it down in my notes or report." If you do this, defence counsel will suspect that you concocted this explanation in order to answer the complaint. The lawyer will reason this way: "The officer lied to Mr Dawkins when he first pulled Mr Dawkins over. Maybe the officer is lying again."
Handling confidential sources gets tricky fast. As you can see from this case, failing to write anything down can backfire. But writing things down in the wrong places (like disclosure to defence) or failing to redact it can also backfire. Beware of shortcuts. Read a manual. Take a course. Learn the procedures that your police force follows.
In this case, the judge found that the officer's inexperience explained why he acted as he did. The judge believed the officer and convicted Mr Dawkins. If it works, that excuse of inexperience works only once. If you don't know how to handle a source, then get some formal training.
2021.05.02 "Why would she lie about this?" - Interviewing Danger Zone
Mr Bernier, 2021 ABCA 27 had with a young woman at a house party. She said so. And when an officer interviewed him, he agreed. But they disagreed about whether she consented. She said that his sexual acts woke her up. He said she was awake from the beginning and she enthusiastically participated.
During the interview, the police officer repeatedly asked Mr Bernier to explain why she would lie about what happened.
Although you can ask this question in your interview, don't make it the central theme of your interview.
At a trial, the question is improper. At law, the prosecutor can't ask the defendant to explain why another witness might lie, and if the judge relies on the defendant's inability to give a satisfactory answer to the question, then the Court of Appeal will order a new trial. And that's just what the court did in this case.
The court said that the prosecutor ought to have edited those questions and answers out of the interview before tendering it in the trial.
If your interview is going well, perhaps you should simply avoid that topic altogether.
2021.04.27 Victimizing Cops - Investigating Your Own
A drunk assaulted a cop in downtown Vancouver. His name was Eddison, 2021 BCCA 168.
It went badly. The officer took Mr Eddison down, but he fought and struggled.
When the officer's partner stepped in, something broke her leg. Either the drunk fell on her the wrong way, or he kicked her during the struggle.
Once the officers got the drunk under control, other officers canvassed the area for security video and witnesses. They found witnesses, but did not secure any useful video.
Everybody who saw the incident described it differently. Even the two officers gave different accounts. Video would have helped.
But one witness gave a different account. He claimed that he saw the event, and the video security system at the place where he worked recorded the whole thing. He said that two officers came and looked at it, but did not request a copy. A different officer testified that she actually did look at that recording, but found no useful evidence.
At trial Mr Eddison's counsel used that as an opportunity to attack the cops: The witness proved that the one video was probative. Three cops looked at it, but they didn't want anyone to see what it contained. "Negligent investigation!" By failing to secure the video, those three cops were covering up the truth.
It's a common tactic to accuse police officers of inadequate investigation or cover-up, and it sometimes works. Here's why: when police fight with civilians, all the investigators look biased.
Remember when Iran shot down a commercial airplane. When Iran released its official investigative report, critics found the investigation inadequate. The lack of independence of the investigators from the investigated undermined the credibility of the report.
When you investigate the circumstances of an assault of a police officer, or any other victimization of your brothers and sisters in blue, your critics may suspect you of bias, or even cover-up.
The judge in this case rejected the notion that there was a police conspiracy to frame Mr Eddison. He had good reason. The two main police witnesses had quite obviously not colluded. They provided different accounts of what happened. But the independent witnesses generally agreed that Mr Eddison was the aggressor, and the police reacted appropriately.
The judges concluded that Mr Eddison was guilty.
Think how much harder the case would have been without independent witnesses.
The trouble is, when someone hurts you or your colleague, there are no independent investigators you can call on to perform a credible investigation. The only resources available are the people you work with.
What do you do?
Don't make the victim, or the an officer who witnessed the crime take the role of investigator. That aggravates the problem of apparent bias.
Get other officers to investigate the crime ... and document the investigation.
What do I mean "document the investigation"?
A good example can be drawn from the Eddison case. Remember the one officer who looked at the security video, and concluded that it was not relevant? She behaved like it was a routine investigation. Suppose, at that moment, she thought to herself "I am a cop investigating an assault on a cop. Someone will claim I am part of a conspiracy." What would she do to show she was not? Perhaps she might take a copy of the useless video. Or photograph the screen of the video system to show that it recorded the wrong area.
In these situations, if you can't bring in an independent investigator, then investigate transparently.
On the witness stand, you might get asked "why did you do something different than a routine investigation?" You can answer, "it wasn't an routine investigation. I knew the victim. I knew someone might suspect me of slanting the evidence. So I took extra steps to show that I didn't."
2021.04.19 Innocent Possession - "I'm just holdin' it for a friend"
Mr Faudar, 2021 ONCA 226 found a handgun and ammunition in his makeshift music studio. That wasn't cool, in part because a judge had prohibited Mr Faudar from possessing firearm. So he moved it to his bedroom. A friend texted him, asking him to hang onto the gun until the friend got back into town.
About a week later, before the friend returned, police raided Mr Faudar's place, and seized the gun.
At trial, Mr Faudar said he was innocent. He was just hanging onto the gun until the friend took it back.
There is such a thing as innocent possession. If a citizen finds a kilo of cocaine in the playground, the citizen can grab it, take it home, and call police for assistance.
But it ain't so innocent, if the citizen holds it for the drug dealer.
Same thing for Mr Faudar. He didn't try to turn it in. He was going to put it back into the hands of the guy he got it from. His "defence" was not a defence, but evidence of guilt.
For lawyers, the case got somewhat more interesting.
Why did the police raid Mr Faudar's place? They had a confidential informant.
Who did Mr Faudar suspect? His friend.
Mr Faudar retained a lawyer to help him. Who did he retain? His friend's former lawyer.
Was the lawyer acting in conflict of interest? For lawyers, there's some interesting discussion about conflict of interest. In this case, the answer was "nope, not a conflict".
Mr Faudar's conviction stuck.
2021.04.16 Entrapment by a "Cutie"?
Police logging onto a chat site as jail bait is not entrapment.
In November 2012, a police officer logged onto a chat site using username "mia_aqt98". This suggested that "she" was 14, and a “cutie”. Mr Ghotra believed "her". Mr Ghotra, 2020 ONCA 373 chatted with "her", and "she" confirmed that "she" was a 14-year-old girl. He turned the conversation rapidly towards sex. Within a few days, he proposed that she meet him. Police arrested him at the meeting place.
He called this entrapment. Most of the Court of Appeal disagreed with him. So did all of the judges of the Supreme Court of Canada. R. v. Ghotra, 2021 SCC 12
Because the officer merely provided the opportunity for Mr Ghotra to lure a 14-year-old girl. Mr Ghotra is the one who took the initiative.
2021.04.11 Digital Forensic Experts Don't Know Everything
Let's talk about a narrow technical point and a broad philosophical idea.
Narrowly, when a computer forensic expert examines a computer or phone, don't assume that they have all of the expertise necessary to interpret the data. The field of computer science now has many areas of specialty.
But broadly, when you investigate a crime, should you investigate innocent explanations for the evidence you have found?
When a forensic expert examined a cell phone and computer seized from Mr Gauthier, 2021 ONCA 216 she found evidence of child pornography, including Skype chats containing child pornography.
A fair bit of evidence linked Mr Gauthier to the chats. Heck, the user name of the Skype account used his mother's maiden name.
Defence asked some difficult questions about Skype:
- Skype accounts are designed to synchronize across devices?
- That means your cell phone Skype and your computer Skype will show the same chat history?
- Even only one of those two devices was used to engage in a pornographic conversation, if the user logs onto the other device, Skype will synchronize the history so that the chat will show up there.
- How do we know that these devices are the only two that signed onto this Skype account?
- If Mr Gauthier shared his username and password with a another person, couldn't that person engage in pornographic chat from anywhere in the world?
- Whenever Mr Gauthier logs onto Skype with his phone or his computer, won't his account synchronize, and his devices will then contain the same chat history, including the other person's pornographic chat?
The expert didn't know enough about Skype, how it worked, and what data to look for in the logs to say whether this theory was right or wrong.
Fingerprints don't stick to digital information.
When investigating digital information in a computer or cell phone, it isn't enough to find the data of interest in a computer or cell phone. You want to know how it got there. And you may need to consider all alternative means for it to get there, like this defence lawyer did.
The best investigation of a digital crime involves investigating inside the box and outside the box. What does the computer or the cell phone hold? What human evidence outside that box can you gather to eliminate (or establish) innocent explanations?
I'm not dissing these investigators. It's clear from the report that they investigated outside the box. But they didn't know what their expert didn't know.
But perhaps the investigators would have found out more if they pressed their expert with the question: are there any other ways for this data to get onto these devices than Mr Gauthier putting it there?
They'll get a second kick at the cat. The Court of Appeal ordered a new trial. The prosecution may need the help of a Skype specialist. I hope they don't ask me. Although I have a B.Sc. in computer science, I lack the knowledge to be of any assistance.
2021.04.11 Section 10(a) - Keeping the Investigation Alive by Stopping a Suspect on a Ruse
Hells Angels are known for making their money by breaking laws. You make your money by upholding laws. The Charter says that when you stop someone or arrest them, you must tell them why. That law applies to you even when you are arresting someone who breaks laws.
Mr Bielli, 2021 ONCA 222 belonged to the Hells Angels. Police had good reason to believe that he and his gang made money from illegal online gambling. The investigators learned of a day when he would deliver a quantity of cash. They wanted to relieve him of the ill-gotten gains without alerting the gang that the police were on to them.
The lead investigator wanted to stop Mr Bielli on some pretext, and then "discover" the cash as if by accident. But he realized that the plan required police officers to lie to Mr Bielli about the reason for the stop. He asked a lawyer, Andrew Sabadini, whether he could get a General Warrant which would authorize him to stop Mr Bielli on a ruse. Mr Sabadini told him:
Nope. General warrants authorize searches. Lying to someone isn't a search.
Mr Sabadini gave good legal advice. He answered the question in 2011. The Ontario Court of Appeal delivered a decision 5 years later that showed that the lawyer was right. (Poirier, 2016 ONCA 582)
The officer decided to proceed with the plan, without a warrant.
He instructed two officers to detain Mr Bielli for a traffic matter, give him access to counsel, search his car, and scoop the cash. And then give him access to counsel all over again. He instructed them not to mention in their notebooks what they knew about the big project he had running against Mr Bielli and his friends.
They stopped Bielli but they didn't tell him all about why. They scooped $75,000 cash and a laptop. A subsequent audit suggested that the gambling operation grossed $100M over 5 years.
The trial judge found that the officers breached s10(a), but admitted the evidence.
The Court of Appeal noted that the officers deliberately breached s.10(a), and even made misleading notes and reports. That wilful disobedience of the law led them to exclude the evidence from the trial.
I've long felt that there needs to be a judicially-granted authorization like a general warrant by which police may arrest or detain a suspect on a ruse. But it still doesn't exist.
In the mean time, don't give false reasons for stopping or arresting someone.
2021.04.09 Measuring the Prospects of a Search Warrant - "Might" differs from "Will"
The bearded prospector heads out into the wilderness filled with hope. He leads his donkey, packed with tools for mining gold.
Hope is no substitute for knowledge. Unless he knows what he is doing, his wanderings in the wilderness will not enrich him.
He must dig in places where gold will likely be found.
The same principle applies to police officers who apply for judicial authority to violate privacy.
In R. v. Muddei, 2021 ONCA 200, the cold squad had a problem investigating a bar-room murder. When it happened, lots of people were present. Nobody wanted to talk to police. Well, almost nobody. A couple of witnesses who weren't present told police what they heard from people who were present. The stories didn't exactly line up. Tipsters told police a few more details. 7½ years passed, without substantial breaks in the case.
The investigators decided to try wiretap. "Let's tell all the suspects and likely witnesses that we've reopened this case. Put out press releases asking for witnesses. And then let's listen to what they say to each other." A common stimulation technique.
They put together an affidavit explaining this plan, and a judge granted them authority to listen to private communications between the main players.
The interceptions didn't dig up the gold they were looking for. No evidence about the murder. But they did find gather some precious stones: the intercepted communications included key evidence which proved two different offences. Two guys trafficked drugs. Two other guys did a home invasion.
At the two trials of each of those cases, the defendants complained that the authorization should never have been granted. The affidavit explained only a hope that listening to these conversations would reveal new information about the murder, but not reasons why it was likely.
- When the murder happened, nobody at the bar talked. Why would they talk now?
- When the murder happened, there was evidence suggesting that the suspects associated with each other. But there was no evidence that they continued to associate 7½ years later.
The two trial judges disagreed whether the authorization was properly granted. The traffickers were convicted. The home invaders beat the rap because the trial judge threw out the wiretap evidence. The two trial judges can't both be right. Both cases went to the Court of Appeal, and were heard together. The Court of Appeal agreed with defence. Everybody walked free.
For affiants, the learning point is a simple one. Most of the interesting warrants and authorizations require that you show reasonable grounds to believe that evidence or information will be obtained by the intrusion into privacy that you propose. You don't need to be certain, but you must show that you will likely strike gold.
For managers, the learning point is also simple.
Every prospector needs hope of success to motivate them. Prospecting involves hard work.
Likewise, in tough cases, you need keen investigators. They also need hope of success to motivate them.
But hope is also a problem. An ignorant prospector will toil in places where he has no chance of finding gold. Hope will keep him working until his food runs out.
Hope is a problem in investigations too. Hope of success sometimes causes keen investigators to believe that a search will bear fruit even when, objectively, it's a shot in the dark.
That's why, in your group of keen investigators, you may need a contrarian, a devil's advocate, whose job it is to distinguish hope from reasonable belief.
2021.04.03 Interviewing Witnesses doesn't Breach s.8 of the Charter
I first saw this case over a year ago. When I revisited it this morning, I thought it worthy of mention.
A mom left her 4-year-old daughter with Mr Molyneaux, 2020 PECA 2 for a short time. Afterwards, while he slept, she snooped through his cell phone because she doubted what he said about his past relationships. To her surprise, she found pornographic photographs of her daughter, evidently taken that evening.
She told a social worker, who told police, who invited her to give a statement. And she did.
Mr Molyneaux complained to the judges that the mom violated his reasonable expectations of privacy by snooping through his phone. (She sure did.)
And the police knew about this violation from what the social worker told them. (Yup.)
Therefore, asking her to recount what she saw violated his right under s.8 of the Charter to be free from unreasonable search.
The Charter restrains government action. If a police officer searched Mr Molyneaux's phone, without a warrant, while he slept, the police officer would violate his right to privacy. (R. v. Fearon, 2014 SCC 77)
But the officer didn't search his phone. The officer merely probed her memory. And that didn't violate his rights.
So if a citizen violates the Charter rights of a suspect, you are free to ask the citizen about it.
But this does not create a warrantless back door into the private lives of your suspects.
If you ask a witness what they saw, you're generally safe. But if you ask a witness to snoop on your behalf - whether into a phone or onto property - then you turn the witness into your agent. If the witness does what you ask, then the Charter applies.
(I note that you can't ask a nurse or a doctor or a psychologist to reveal what they know from their treatment of a patient. Doing so violates s.8 because you cause the professional to violate a professional obligation of confidentiality. R. v. Dyment,  2 SCR 417)
There's another lesson to draw from this case: To obtain a consent search, you must give the suspect a real choice to permit or deny the search.
When the police got a statement from the mom, they contacted Mr Molyneaux, and asked for his consent to search his phone. He agreed. The officers searched, and found the pictures.
I gather that the officers did not obtain consent in a way that left Mr Molyneaux any meaningful choice. Probably, they said "We can do this the easy way or the hard way. You can consent, or we can get a warrant. Do you consent?"
At trial, Mr Molyneaux's lawyers sought exclusion of the pictures on the basis that the consent wasn't truly voluntary. The Crown agreed. Pictures excluded.
So be careful about how you ask for consent to search.
That error was not fatal on this occasion. The prosecutor relied only on the testimony of the mom. The trial judge convicted Mr Molyneaux, and he lost his appeal.
2021.03.28 Accounting for What You Seize - Preserving Evidence
Mr Hillier, 2021 ONCA 180 ran when he saw police officers.
There were warrants for his arrest. And besides, he had some drugs on his person.
But was he also carrying a ball of heroin-fentanyl-meth mixture for the purposes of sale?
A police officer tackled him, and they fell into a puddle. Officers searched him for safety, during which Mr Hillier volunteered that he had drugs in his sock. He did. 5.53 grams of fentanyl mixed with other drugs. In a pill bottle.
They searched his shoulder-bag. They didn't find more drugs.
Then, they put him into a police car.
When the police car arrived at the police station, there were dime bags scattered in the footwell, and meth on the back seat. The officers found a wet pouch on the floor of the cruiser, containing various drugs. And in Mr Hillier's mouth was a 28 gram ball of heroin-fentanyl-meth mixture.
Simple, right? Just prove that the officers searched the car before putting him into it, and it was clean, and then show what it contained after they took him out.
Not so simple.
The two officers who searched the car at the beginning of their shift gave differing testimony about whether they searched it. And they didn't have notes about this mundane task.
But worse, the exhibit officer discarded half of the things that officers seized in this investigation. Without taking any pictures.
At court, Mr Hillier complained: "There's no way I could have possessed the pouch. Police searched me on arrest, and didn't find it. They took my bag away. My clothing was too tight to conceal it. That pouch must have been in the car before I was placed in it. But by destroying so much of the evidence, I can't show how big that pouch was, so as to prove I wasn't carrying it."
He claimed that the 28 gram ball was lying in the cruiser when the officers put him into the car. For fear of being accused of putting it there, he popped it in his mouth. He claimed he did not know what it was.
The judges did not like the destruction of evidence. They found that any evidence obtained from after placing Mr Hillier into the vehicle had to be excluded. Including the big ball of drugs.
Though he's probably guilty, Mr Hillier beat the PPT charge because the exhibit officer failed to document what was seized.
What does this mean for investigators?
- Those routine things you always do at the beginning of the shift matter. Do them, and make a note. In 99 shifts, it means nothing. In the 100th shift, it will be essential.
- The exhibits you seize are not only for proving guilt but also for establishing innocence. Even if the thing doesn't inculpate the suspect, it might be relevant in exculpating him. Document what you seize. Destroy with care.
2021.03.28 Following the Money - Private Parts of the Trail
An old man fell for a classic fraud. He received a letter informing that he won a big lottery prize. He followed the instructions. He paid fees for delivery of his big prize. And more fees. And more. The fees exceeded $150,000. The big prize never came.
It took four years to bust the fraudster, Freddy Mawick, 2021 ONCA 177. It took a couple of years to convict him. Naturally, he asked the court of appeal to overturn his conviction.
That big prize never came either.
The investigators followed the money. The victim sent certified cheques by UPS. The fraudster instructed him to keep the tracking numbers. The victim followed that instruction too.
The police used those tracking numbers. Even without a warrant or production order, UPS told them where the packages went and who signed for them.
Mr Mawick complained that he enjoyed an expectation of privacy over that information. The court said he didn't.
That makes sense to me. The victim paid for the UPS service. The victim received the tracking number for the purpose of tracking the package. The fraudster could only expect that the victim would eventually use that tracking information to determine where his money went. No expectation of privacy.
As the investigator closed in on the prey, things got trickier. Some financial agencies revealed information about the the accounts through which the cheques were negotiated. Without a warrant or production order.
That could have derailed the case. People generally enjoy pretty high expectations of privacy in their financial records.
Lucky for the investigator, Mr Mawick cashed some cheques through an account that belonged to someone else. Mr Mawick did not enjoy an expectation of privacy in someone else's account.
I think the investigation reveals the value of the old adage "follow the money". But be careful when you follow the trail into the banking system.
Those of you who do follow the money should beware of expectations of privacy. Your investigation may require stepwise production orders before it reaches the prize.
I've never been a big fan of criminals who prey on vulnerable elderly people. I think the investigators deserve kudos for sticking with it over the years.
They pursued the prize of busting Mr Mawick by following the money.
Their big prize did come.
2021.03.20 No-knock Entry - Search and Seizure
The Supreme Court of Canada set the rules for no-knock entries into residences:
When executing a search warrant, always knock before you enter (and wait for someone to answer).
If knocking would endanger you or result in the loss of evidence, you can enter without knocking.
R. v. Cornell, 2010 SCC 31
Normally, we call it "home invasion" when armed people burst uninvited into a residence to imprison the occupants and take their property. The usual sentence for this crime is a federal sentence.
Even if you had a warrant authorizing you to enter and search a house, a judge will review carefully whether you executed the warrant reasonably. If you entered without knocking, the judge will want to know why.
At 1:43pm, police raided Mr Pileggi's 2021 ONCA 4 house. They had a warrant, and good reasons to think he trafficked oxycodone. During the raid they found oxycodone, and cocaine.
But they didn't knock first.
At trial, defence cross-examined the officers, trying to get them to agree that they had a policy of always doing hard entries without knocking.
All the officers denied it, but the defence came pretty close. When explaining why in 90% of the drug warrants his team executed, they did not knock on the door, one officer said:
"If we were knocking on drug trafficking doors, I’m going to suggest that we would never seize cocaine."
If defence established that the police had a standing policy of hard entries when searching for hard drugs, the judge would have excluded the evidence.
Junior officers may not appreciate the legal obligation to knock. Unless someone educates them, they may agree with suggestions that police never knock when searching for hard drugs.
Whoever makes the decision to enter without knocking needs full information about the investigation, and what risks may lie on the other side of the door.
If you're thinking that you might need to enter without knocking:
- Investigate whether it's necessary.
- If at all possible, document why you think its necessary before going in.
- Brief the team.
- Remind the inexperienced officers of the policy to knock before entering.
- At the briefing, explain the dangers which require you, in this case, to enter without knocking.
- Write those reasons down.
At the scene, keep investigating whether you need to enter without knocking. Change the plan in response to what you discover.
You don't need judicial pre-authorization for a no-knock entry. (Al-Amiri, 2015 NLCA 37) If you don't discover the reasons for the no-knock entry until you arrive on scene, you can still execute the warrant. But once you have the scene under control, document why you didn't knock.
This Pileggi doesn't change the law. But it explains existing law quite well. It illustrates some common problems that arise during searches. I recommend it as worthy of discussion at police training sessions.
2021.03.20 After Arrest, Offer Access to Counsel Promptly
Prisoners are like exhibits. At trial, you must account for what you did with them. (And to keep them in your custody, you must promptly ask a justice.)
Police raided Mr Pileggi's 2021 ONCA 4 house. They had a warrant, and good reasons to think he trafficked oxycodone. During the raid they found oxycodone, and cocaine. I don't know how carefully they handled the exhibits, but they did not handle the suspect with care.
The first officer found him in a bedroom with his wife. That officer arrested him for PPT. The officer handcuffed him and made him kneel on the floor.
The second officer stayed with him while other officers cleared the house.
Seven minutes later, a third officer told him that he could get legal advice.
At trial, Mr Pileggi complained that police did not explain him his rights sufficiently promptly. The officers explained to the judge that they were busy getting the scene under control: once the officers knew they were safe, they explained to their prisoner his right to legal advice.
The trial judge and the appeal judges agreed with the officers on this point.
When Mr Pileggi learned he could get legal advice, he told the third officer that he wanted to call his father, and ask him to arrange a lawyer. The third officer promised to call the father on Mr Pileggi's behalf.
When the third officer started taking Mr Pileggi out the door, a fourth officer intercepted them. The fourth officer read the search warrant to Mr Pileggi. Mr Pileggi responded "my wife has nothing to do with it". The fourth officer then asked Mr Pileggi if he would like to tell police where "anything" was. Mr Pileggi said "no".
At trial, Mr Pileggi complained that the fourth officer tried to get him to incriminate himself before Mr Pileggi got the legal advice he wanted.
The appeal court judges agreed with Mr Pileggi. After an arrest, you have a duty to "hold off" eliciting evidence until the person has exercised or declined to exercise the right to legal advice. When cross-examining the fourth officer, defence counsel noted that there was no law requiring the officer to read the search warrant to Mr Pileggi. The lawyer accused the officer of reading the search warrant for the purpose of eliciting a response. The officer disagreed. The judges leaned toward the defence view. They said reading the warrant to the suspect was risky. It did look like an effort to get Mr Pileggi to talk about the drugs before he got access to counsel.
A fifth officer drove Mr Pileggi to the police station.
A sixth officer received him, and arranged for him to speak with duty counsel. That officer didn't know about the promise to call Mr Pileggi's father.
Transferring a suspect from one officer to the next renders it unlikely that the last officer will know what conversations the earlier officers had with the suspect. This causes two problems:
- What access to counsel did Mr Pileggi ask for? The last officer won't know. What promises did earlier officers make about arranging it? The last officer won't know.
- If Mr Pileggi makes incriminating remarks about the crime to the last officer, the prosecution will want to prove that those remarks were voluntary. Ordinarily, that requires producing every officer in the chain, and asking them to recount what conversation they had with Mr Pileggi. The weakest links in the chain are the officers who did the least. They tend to make no notes. Those officers have a hard time a year or two later explaining what they did with the prisoner.
When processing exhibits, you would try to avoid passing them through the hands of six different officers. That's because accounting for what happened to the exhibits afterwards would require all six to testify about what they did with the exhibit.
With humans, you must answer questions about conversation and physical treatment. What discussions about right to counsel did you have? Did you tell the next officer? Did you discuss the offences at issue? Did you raise the prisoner's hopes of liberty or softer sentence by hinting that he should talk about the offence. Did you feed the prisoner? Tend to his wounds?
Accounting after the fact is easier if you reduce the number of officers involved in the chain.
Respecting the prisoner's requests for counsel is easier if each officer informs the next what legal advice the prisoner requested.
If some officer gives you a prisoner to transport, ask the officer (and the prisoner) what access to counsel the prisoner wants. And make some notes.
2021.03.14 After Arrest, Explain the Right to Counsel Promptly
Mr Mann, 2021 ONCA 103 called 911 saying "I'd like to report a murder". He explained he choked and beat his girlfriend to death with his hands. The dispatcher heard a loud banging, consistent with someone's head being banged against a wall. The dispatcher asked him if he was sure that the victim was dead. He replied "Uh pretty sure, she’s going to be [unintelligible] anyway."
She didn't die, but she suffered brain damage.
When police attended and arrested him, he started talking about how he was considering killing himself, and then he "lost it on her".
It took the officers 5-10 minutes to get around to telling him about his right to counsel and his right to silence. All the while, Mr Mann kept talking.
The trial judge thought it might be okay to admit this "spontaneous" evidence. The appeal court didn't:
"It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached."
The judges did not mind that the officer, on seeing blood on Mr Mann,
first asked if he was hurt. He was not. But the judges did mind that
the officers delayed in explaining his rights.
2021.03.14 Don't Talk to Jurors During Trial
A juror asked an innocent question of someone wearing a uniform. The juror had trouble understanding a statement of admissions. The juror wanted to know more about it, and whether a witness would come to court and explain it.
The juror asked a deputy sheriff.
Instead of telling the juror to ask the judge, the sheriff asked the prosecutor about the exhibit.
The prosecutor explained the exhibit. Before the sheriff could explain the exhibit to the witness, defence counsel asked for a mistrial.
The judge turned down the application, but removed the sheriff from the case. R. v. Athwal, 2021 BCCA 84
Nobody should ever explain anything about the case to a juror, except in open court. The sheriff should not have attempted to get answers about the case for the juror.
Things might have gone differently if the sheriff had returned to the jury and explained the exhibit. The entire murder trial would have gone off the rails.
In other cases, police officers who were involved with or connected to the investigation thought it wouldn't be a problem to have dinner or drink a beer with a juror. They were wrong. The trials had to be done again.
After a trial, you can discuss the evidence with jurors, but you tread dangerous ground. A juror who discusses the jury's deliberations commits an offence under s.649 of the Criminal Code. A police officer who engages in such a conversation will usually be in contempt of court.
But during a trial, any conversation about the case could cause a mistrial. Even the possibility that you discussed evidence will cause the judge to worry. If defence learns that you, a witness, talked with a juror, during the trial, they will assume that you discussed the evidence until satisfied that you didn't. If a juror asks you to directions to the washroom, you can answer, but a wise officer will report that conversation to counsel.
2021.02.28 Spousal Privilege ends with Divorce
Wiretap might record what the killer told discussed with his wife about the killing. But s.189(6) of the Criminal Code and s.4(3) of the Canada Evidence Act prevent a court from admitting the recording. It's privileged. Indeed, the prosecution can't even compel the wife to testify about those conversations.
But if the killer and his wife divorce, spousal privilege ends. R. v. Al-Enzi, 2021 ONCA 81.
You don't need to read the whole decision to follow the reasonably clear explanation which starts at para 168.
2021.02.27 Paperwork that can Kill Your Career
In British Columbia, police officers who catch drunk drivers send reports to the Superintendent of Motor Vehicles, which generally results in significant penalties including driving prohibitions.
Those reports include a thing we lawyers call a "jurat". It says that you solemnly affirm, or declare or swear that the contents of the report are true.
Be careful of any document that contains one of those. You stake your credibility on it.
If you deliberately assert false information over a jurat, you are committing the crime of perjury. That will end your career quickly.
If you mistakenly assert false information, you could find yourself seriously embarrassed in a court room.
Q: Officer, today you say you saw my client was unsteady on his feet at the roadside?
Q: You didn't see that in the police station?
A: I don't remember.
Q: You completed a report to the Superintendent of Motor Vehicles about this?
Q: You were required to explain to the Superintendent why you thought he was too drunk to drive?
Q: You understand that the Superintendent uses these reports to determine whether a driver should be prohibited from driving?
Q: So you told the Superintendent all of your observations that day?
Q: In that report, you listed the odour of liquor and the slurred speech, but did not mention anything about unsteadiness on his feet?
A: What? Oh. Um. I must have forgotten to write that part in. I filled out that form in a hurry.
Q: Officer, before you submitted the report to the Superintendent, you solemnly declared that it was true?
A: I filled in the part at the bottom.
Q: The words say that you solemnly declared that it was true.
A: I guess so.
Q: And it wasn't complete.
A: Well I did see him unsteady on his feet.
Q: I suggest to you that the report was accurate, and you are lying today.
A: No, I did see him unsteady on his feet.
Q: You so solemnly affirm today?
Q: But you solemnly affirmed something different when you wrote the report! Were you perjuring yourself then or are you perjuring yourself now?
[If it truly was a mistake, then you did not commit the crime of perjury. Perjury requires intent to deceive. But lawyers who cross-examine like to ask dramatic questions like that one.]
When you "fill in paperwork", make sure the sworn documents are completely true. When you come to court to testify, review carefully any documents you swore to be true. You can bet defence counsel hopes you will say something different on the witness stand.
A couple of officers nearly avoided all of that trouble, by failing to get a Commissioner for the Taking of Oaths to witness their oaths. Kuzmanovic v. The Superintendent of Motor Vehicles, 2021 BCCA 83. Someone in the office of the Superintendent noticed, and got the officers to submit sworn documents. The manner in which they patched it up became an issue in the litigation.
The legislation requires the officer to submit sworn (or affirmed) information. The case discussed what makes a properly sworn document.
The basic idea is simple. Only the document that starts or ends with the officer's solemn oath or affirmation is a sworn document. If you file other documents with it, they are not evidence. But if the contents of the sworn document refers to other specific documents and adopts them, then those become part of the sworn document "by reference". Like this:
"This investigation is accurately described in my report dated 2021-02-27 which is attached."
Please make sure that your report is, indeed, accurate.
2021.02.15 Swearing Charges and Seeking Process - Should it Be
When a peace officer or public officer lays a charge, the justice of the peace follows the process set out in s.507 of the Criminal Code. That section does not require the justice of the peace to make a formal recording.
Lawyers for Mr Orr, 2021 BCCA 42 argued that it should. The trial judge rejected their application. The appeal court said they they followed the wrong procedure when making their complaint.
Mr Orr's lawyers weren't crazy. Swearing a charge is serious. Getting a warrant for someone's arrest is serious. They urged that every request for a warrant be recorded. If police get a warrant for someone's arrest without good reason, lawyers for the accused can do something about it.
At the trial, the officer who swore the charges against Mr Orr was made to testify. The officer had to explainwhat steps he took to assure himself that a warrant was needed in that case.
The poor officer could not remember the case. Like many court liaison officers, he swears many many charges in the course of his work.
But he could explain his usual procedure. That procedure ensured that whenever he asked for a warrant, he had good reasons.
And that was was why the judges approved of what he did.
If you swear a charge, read the file. Know why you think the accused is guilty.
If you ask for a warrant, read the file, and check background information. Know why you think it's in the public interest to arrest the accused rather than merely summon him/her to court. And tell the justice your reasons for wanting a warrant.
I add: if you think a summons is all you need for this file, check the background information. Every so often, our office handles a case where a victim needed protection from the accused, but the police sought only a summons.
Maybe one day, the process of laying charges will be recorded. Even if they aren't, you want to be able to answer questions like the ones Mr Orr's lawyers posed this officer. Follow a procedure that ensures that you know why you think the suspect is guilty and why a warrant should be issued.
2021.02.15 Videorecording Interviews Is a Good Idea
Mr Schneider, 2021 BCCA 41 put Natsumi Kogawa's naked body into a suitcase, and lugged it to a vacant lot. But did he kill her?
The pathologist who examined her decayed body could not clearly determine how she died. But suffocation was a live possiblity.
A police officer interviewed Mr Schneider. During the conversation, Mr Schneider explained that there was an angry argument. He briefly placed his hand over his nose and mouth, demonstrating what he did to her. He demonstrated this twice.
Naturally, that gesture took on great importance in the trial.
Too bad it wasn't video-recorded.
You don't want to be the officer who must explain why such an important interview was not video-recorded. You don't want to be the officer on the witness stand trying to explain what the gesture looked like.
Use the video-recording system for interviews. Not just for suspects, but also important witnesses, and children, and aged and vulnerable people. Check the system, to make sure it's working.
In the field, even your cell phone may record video.
2021.02.14 Translating Evidence
Mr Abdullahi, 2021 ONCA 82 spoke Somali. Toronto police intercepted his communications, and busted him for trafficking in firearms.
I infer that there were many interceptions that required translation.
At trial, defence challenged the translator, and cross-examined him for a long time. The trial judge accepted the translations. The jury convicted him. The appeal court agreed.
What did the Toronto Police Service do correctly?
First, they had a team of three Somali interpreters. Two did the initial translation. The third reviewed the recordings, and proof-read the transcripts. He kept the original translations, and made note of the changes he made to the efforts of the first two.
The prosecutors probably liked this: at trial, only one witness needed to testify about the translations - the third interpreter.
That interpreter would listen to the whole of the recording for himself. Then he would listen to it bit-by-bit, and confirm for himself that the translation was correct.
The judges seemed to like that procedure. The first step allowed him to grasp the meaning of the conversation for himself, without prejudicing himself by reading the work of the other interpreters. The second step permitted a careful proof-reading of others' work.
Defence complained that he lacked sufficient qualifications: he had no formal certification as an interpreter.
The judges dismissed this concern rapidly. The translator was born and raised in Somalia until he was 5. He used the Somali language for the rest of his life with his family, watching Somali TV, and engaging with the Somali community. He worked for several years doing translation work before he worked on this case.
Judges prefer experts to be independent of the parties. This translator was an employee of the police service. Considering the sensitivity of the investigation, I imagine that the investigators would not want to retain an outside expert on the Somali language. But that could throw some doubt on his objectivity.
This translator testified that he took care not to insert his opinions about what the speakers meant. The judges liked that.
Because the recordings and translations were disclosed well in advance of trial, the judges knew that the defendants could challenge any translations with which they disagreed.
- Organizing a team of translators the right way can make presenting their evidence go more smoothly in court.
- How the translators work may become the subject of intense cross-examination at trial. The team needs to work in a defensible way, and they must have adequate skills.
- Certificates aren't as important as real-life experience with the languages in question.
- Protect the independence of the translators from the investigative team. Try to exclude them them in strategic or investigative discussions. At the very least, focus the translator on the need for objectivity.
- Judges like full and timely disclosure. That applies to translations too.
2021.01.28 Mr Big and Mr Small
Security video recorded Mr Quinton, 2021 ONCA 44 as the last person to visit Mr Gilby, a drug dealer. The next person to enter that apartment found Mr Gilby dead in a pool of blood. Someone smashed his head in with a hammer. A set of his keys went missing.
Naturally, police suspected Mr Quinton.
Mr Quinton lived on disability benefits - which were slim. He abused drugs and alcohol so much that he arranged for his disability cheque to be managed by someone more trustworthy than him. Mr Quinton took medication for anxiety and depression.
When undercover police befriended Mr Quinton, they gave him work. They paid him small sums - by most people's standards. But for Mr Quinton, these sums dramatically increased his disposable cash.
The undercover officer often visited him carrying a 6-pack of beer, which they shared, while Mr Quinton smoked marijuana - which was illegal at the time.
Mr Quinton suffered a stroke. The undercover officers assisted him in his time of need, caring for him when nobody else would.
When they turned up the pressure, he confessed to the murder, and led them to the drain where the victim's keys had been hidden.
After his conviction, defence argued that the confession should be
excluded. The police had made Mr Quinton too dependent on the
Without deciding the question, the appeal court ordered a retrial. It bothered the judges that the officers prevented him from getting his medication before getting him to confess. They worried that admitting the confession might be an abuse of process, and suggested that the trial judge review the circumstances carefully at the new trial.
For officers conducting Mr Big operations, you'll want to review this one. Judges get skittish when Mr Big's kindness toward Mr Small creates a relationship of dependency. The operation should not take unfair advantage of the suspect's illnesses.
2021.01.17 Solicitor-Client Privilege - Careful What you Read
When police arrested Mr Borbely, 2021 ONCA 17 for murder, he had been driving his car. When the officers searched his car, they found a sealed envelope addressed to his lawyer.
The officers placed it - unopened - into another sealed envelope, awaiting the day that a judge could determine whether it was privileged.
That day came before the trial. The judge opened the envelopes and looked inside. He found a diary which described the events leading up to the disappearance of the deceased, and a letter to the lawyer.
Communications between lawyer and client are privileged: don't touch. The judge put the letter back into the envelope.
But the judge found that the diary did not record communications from the Mr Borbely to the lawyer. Therefore, it was evidence that the police and prosecutors could read and use.
The investigators behaved wisely. Judges and lawyers take privilege very seriously. If the officers had opened the envelope and read the privileged letter, a judge might well have stayed the entire prosecution.
If you encounter communications between suspect and lawyer, follow the lead of these officers: treat it like it's radioactive. Seal it up, and call in the lawyers.
(And don't secretly listen to your prisoners talking to their lawyers.)
2021.01.17 Reasonable Expectation of Privacy - Guest in a Bedroom
Does a guest enjoy a reasonable expectation of privacy?
The expectations of privacy in a bedroom differ according to the people making the claim of a violation of their privacy.
Mr Sangster, 2021 ONCA 21 stayed for 3 weeks at the apartment of a friend. Mr Sangster and his girlfriend slept in the friend's bedroom while the friend slept in the living room. But the owner's clothes and property were in the bedroom.
Someone got stabbed in the hallway. While police investigated this violent assault, social workers came to check up on the friend. They brought a police officer along for safety. The social worker asked the friend to let them into the bedroom. There, the social worker saw Mr Sangster holding a gun. She screamed and fled.
Police got a warrant and searched the place. They found the gun, and evidence linking Mr Sangster to the stabbing.
Mr Sangster complained that the police violated his reasonable expectation of privacy. The trial judge disagreed. So did the appeal court.
Does that mean guests have no expectation of privacy? No. It all depends upon the circumstances. In this case, the homeowner consented to the social worker's entry into the bedroom. Mr Sangster had minimal control over the bedroom. He made no contribution to he house. He shared the use of the room with everyone else in the apartment. Other guests may enjoy greater expectations of privacy.
2021.01.17 Warrant Drafting - Confidential Sources - "Step Six"
May drug dealers, and some other offenders, get busted because people in the criminal underworld tell police what they did.
When someone gives information on condition of anonymity, you owe him or her privacy. You must not reveal to the target - or anyone else - who informed on the target.
But the information serves no purpose if you can't use it.
When seeking a warrant to search or surveil the target, you can tell an issuing judge all about the confidential source and the information. Indeed, you need to explain why you can trust the source, as well as anything that suggests that should not trust the source. But if you do, you must seek a sealing order. Otherwise, the application for the warrant will be public, and the target will discover the identity of the source.
But a sealing order doesn't solve all of the problems. Confidential sources seem easy to deal with, but they get complicated fast.
If you bust the target, and he gets charged, he will demand a fair trial. Part of a fair trial involves reviewing the police work to see if it was done properly. That includes reviewing the application for the warrant.
And so we engage in the imprecise science of redacting. We give the defence a copy of the application, but we remove from the copy anything which might identify the source. The defence then tells the judge that the redacted application lacks sufficient detail to justify the warrant, hoping that the judge will agree.
That's what happened in the case of Mr Perkins, 2021 BCCA 9. And the trial judge agreed that the redacted application failed to support the warrants at issue.
Not all was lost.
The Crown asked the judge to take "step six of the procedure laid out in R. v. Garofoli, 1990 CanLII 52 (SCC)".
The prosecutor showed the judge some of the original application, and provided a summary to defence of what it contained. The judge agreed that the summary adequately informed defence of the contents of the hidden material that defence could check to see if police did their job properly.
Complicated? Yes. Successful? Yes. The trial judge found that the additional information justified the production order at issue. That led to Mr Perkins' conviction.
On the appeal, defence complained that the redactions left the application looking imprecise and vague. For example:
Source E “picked up cocaine [redacted] from the person he identified in the booking photo” as “[name]”
Suppose the redacted word was "scales" or "pipes" instead of "powder".
This argument could have succeeded. It didn't in this case.
Officers who draft applications for warrants, production orders, tracking devices and the like would be wise to draft in anticipation of the redacting, and judicial review.
In this case, the defence argument would have been avoided by writing:
Source E “picked up cocaine in the form of powder from the person he identified in the booking photo ...
A redacted version of this sentence would not reveal the form of the cocaine, but would clearly establish that Source E acquired cocaine.
You might ask why there is extra space after the word "powder". That's to make it more difficult for someone to figure out what the redacted words are. One can't type the possible words and see if they fit.
If you don't understand "step six", this decision explains it fairly well.