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.
2020.12.29 Language Barriers during Arrest - Penile Swab
Mr Cortes Rivera, 2020 ABCA 76 spoke Spanish. He got drunk at a house party. So did a woman. In the morning, the woman complained that he raped her. Police arrested him at 1:30pm that afternoon. They arranged for a Spanish interpreter to explain his rights.
Police swabbed his penis and interviewed him. The swab revealed the complainant's DNA on his penis. The interview committed him to a story which contradicted the version he gave at trial. This led to his conviction at trial.
He appealed on may grounds. His complaints about police treatment are worth considering.
The interpreter gave him the impression that he was allowed only one call to get legal advice. When you work with an interpreter, you know what you tell the interpreter, but you don't know whether the interpretation will be accurate. Fortunately, in this case, the investigators offered him several calls at different points in the investigation. The judges gave no weight to this complaint.
Mr Cortes Rivera asked to call a friend. He did not tell police that he intended to ask the friend to help him find a lawyer. The section 10(b) right to retain and instruct counsel includes the right to ask a friend for help finding a lawyer. Because he did not explain his purpose at the time, the judges found no breach of his s.10(b) rights. But when your prisoner asks to call a non-lawyer, you would be wise to ask the prisoner why they want to make that call.
When swabbing his penis, the police failed to respect his privacy (they stripped him fully naked, and one more person than necessary watched the process), they failed to make a complete record (they should have audio-recorded the procedure), and they deprived him of Spanish interpretation (they excluded the interpreter because she was female).
There are practical solutions to these problems:
- Most, "strip searches" do not require that the prisoner be rendered completely naked. Try to leave parts of a person clothed while you examine other parts.
- When searching intimate parts of a person, minimize the number of observers.
- For privacy it was necessary to exclude the female interpreter from the room. But her interpretation could have been given from outside the door, or through a cell phone on hands-free mode. Or she could have been in the room, if a privacy screen blocked her view of the suspect.
- Recording devices are commonplace. You probably have "an app for that" on your phone. When handling difficult suspects, recording your interactions is easy. When performing a penile swab, making a complete record is necessary.
The judges agreed that the officers breached Mr Cortes-Rivera's rights. But they admitted the evidence, because the officers made some efforts to respect his privacy. Mr Cortes Rivera's appeal failed.
2020.12.19 Reasonable Grounds to Arrest or Detain - When a Suspect
If you find someone looking suspicious, and you ask them what they are doing, they have no obligation to explain. They don't have to tell you their name either. R. v. Guthrie, 1982 ABCA 201. And unless you detain them, they have no obligation to stick around and speak to you.
So if this suspicious person tries to walk away, you can't use that bare fact to justify attempting to arrest them.
But the way that they attempt to end the conversation may properly elevate your suspicion to a level that justifies an arrest or detention, depending on how they behave.
This difference in focus led to the conviction and sentencing of Mr Coutu, 2020 MBCA 106.
Someone robbed a convenience store. It wasn't Mr Coutu. But the robber wore clothing similar to Mr Coutu. A dog track led police to the area where police found Mr Coutu, but the dog lost the track. When police saw Mr Coutu, they took an interest. A police officer yelled to him "police, show me your hands". Mr Coutu walked backwards and started to remove his backpack. It looked like he was going to run away.
The officer arrested him for robbery. In the backpack, the officer found a loaded sawed-off shotgun, two throwing stars and an air pistol with a silencer. Bad stuff. It led to charges.
The trial judge found that the match between Mr Coutu's clothing and the broadcasted description of the robber was too generic. The trial judge concluded that the arrest was unlawful.
The Court of Appeal disagreed. Mr Coutu's response to police added to the officer's grounds, rendering them lawful.
Mr Coutu's reluctance to speak with police was not an additional reason to justify arrest. But his apparent preparation to run away after being detained was.
The excitement of the chase makes subsequent documentation harder to do. This officer must have done a pretty good job. After an exciting pursuit, write down the interesting details of what happened when you found the quarry.
That includes you dogmasters too!
2020.11.29 Disclosure - Even Unimportant Things can be Relevant
This isn't breaking news. I overlooked it when it first came out. I re-read it today, and thought that more people might find it interesting than just undercover officers.
An undercover officer befriended Mr Hersi, 2019 ONCA 94 because police had information that he took an interest in extremist causes. Mr Hersi told the officer that he was going to quit his job, fly to Egypt, and from there, go to Somalia and join a terrorist organization. Mr Hersi did quit his job; and he bought a plane ticket to Egypt. He urged the officer to join him.
Police busted him at the airport for attempting to contributed to a terrorist group.
The undercover officer deleted some of the text messages he received from Mr Hersi early in the operation. He did so because he saw nothing relevant or important in the messages, but lightweight chatter.
At trial, defence claimed that the messages were crucial. They claimed that the undercover officer encouraged Mr Hersi to join a terrorist organization, and the messages would have proven it.
Fortunately, the officer made verbatim notes of the messages.
The court found that destruction of the messages from the phone was a breach of the defendant's right to full disclosure; but it wasn't a terribly serious breach because the officer took steps to preserve the evidence.
It is human nature to rank the importance of the evidence you collect during an investigation. Evidence which proves the defendant's guilt feels like "the good stuff". But the defence will look at the evidence differently; they may value highly the evidence you overlook. Therefore, before you destroy evidence, second-guess yourself. "I might not think this is important, but is there some possibility that someone else will?"
2020.11.22 Bad Character - Good Clues can be Bad Testimony
A big investigation into organized crime caught lots of suspects. Among them, police busted Mr Cook, 2020 ONCA 731 for drugs and proceeds of crime.
Part of the investigation included surveillance. Officers saw Mr Cook hanging out with members of the Hells Angels. Part of the investigation included wiretap. Mr Cook spent time talking with a friend of his about how to beat drug possession charges. Part of the investigation involved a search of his house. Police found the kinds of Hells Angels paraphernalia which the Angels do not sell. You have to earn it from them.
Does that information make you think he was probably guilty?
So far, this article describes no evidence that tends to show that Mr Cook possessed the cocaine and anabolic steroids that police found, nor whether the money in his house came from the commission of crimes.
Perhaps you think he's a bad guy because of his choice of friends. Perhaps you think he would possess drugs and profit from them because he's a bad guy.
That's reasoning from bad character evidence. Defence lawyers hate it.
This kind of information often helps you find felons, but judges don't like to use it for proving guilt. Once we know that the defendant is a bad guy, it becomes easy to stop worrying about whether the evidence actually proves his guilt in this particular case.
The prosecutor presented lots of this bad character evidence. To a jury. The jury convicted. The Court of Appeal worried that the jury convicted because they hated Mr Cook, instead of relying on the evidence. Now Mr Cook will get a retrial. And with COVID running rampant, who knows whether that trial will ever run. Mr Cook may beat the charge. He may beat the charge because the prosecutor told the jury that he is a bad guy.
It was the prosecutor who screwed up this time. But police officers make this mistake all the time.
When testifying, don't mention the defendant's previous crimes unless specifically asked.
You can refer to bad character evidence in a search warrant application, but be skittish about mentioning it at trial. Especially when it's a trial by jury.
2020.11.14 The morning after the night before - Text Messages Before and After the Sex
Mr Langan, 2019 BCCA 467 separated from the mother of his child. After trying to reconcile, she decided that she wanted only to be friends. They lived in different parts of the province. Using text messaging, they planned a visit for one summer weekend. She told him "I’m not having sex with you if that’s what your trying to get at."
But sex happened anyway.
Afterwards, she complained about what he did to her, again by text message. His text responses agreed that she told him "no", but he had intercourse with her anyway.
She went to police. Charges were laid. She testified at trial, and the text messages made a big difference at trial.
The trial judge convicted. Two of the three Court of Appeal felt that the trial judge made errors admitting the text messages, and ordered a new trial. Most of the judges of the Supreme Court of Canada sided with the trial judge. Langan, 2020 SCC 33
This case is important for lawyers, because it clarifies rules of evidence relating to such text conversations, and also the rules for Crown tendering evidence of the complainant's prior sexual activity.
I think, for police officers, this case serves as a useful reminder of the importance of gathering text messages from witnesses who converse that way with the suspect. All too many victims block their assailants' accounts, and delete all messages. Capture that precious evidence before they do. In sexual assault trials, conversations between the only two witnesses who know what happened can have great probative value.
I observe that sometimes, officers even encourage the complainant to converse with the suspect, and record the conversation. Of course, such an investigative operation requires judicial pre-authorization.
2020.11.01 After Godoy - Powers of Arrest and Search after Emergency Entry of a Residence
The 911 caller said he saw a man beating a woman in a car. He described the man and the car, and said the licence plate was either either “BEWN 480” or “BEWN 483”.
Eight minutes later, officers found a matching car bearing licence plate “BEWN 840” outside a residence.
Can they enter the residence?
The senior officer at the scene called the 911 caller back to get more detail. That man said he saw the man in the car punching the woman in the head, she was "turtling" from the strikes and he put her in a headlock.
The officers knocked long and loudly at the door, announcing themselves.
They entered and repeatedly announced themselves, but there was nobody on the main floor.
From the top of the stairs to the basement, an officer saw a man who resembled the description given by the 911 caller. The officers called for all the people in the basement to come up.
Eventually, a woman came up the steps. She had fresh injuries on her face.
Okay. Now that she was safe, could the officers search the basement?
Two officers descended to the basement. One went left, in the direction they last saw the man. The other officer went right.
The one that followed the man found Mr Stairs, 2020 ONCA 678 and arrested him. The one that went right found his drugs in a Tupperware container. The officer opened the lid to look at the drugs. Lots of methamphetamine.
Did the officer who found the drugs search lawfully?
The judge at his drug trial said that the officers' actions were all lawful. The Court of Appeal found that the legal questions went from easy to hard.
1. Could they enter the residence?
The public pays police officers to preserve life above all. Other considerations, like property, detection of crime, or regulatory offences, are secondary. The 911 caller's information gave clear reasons to fear for the woman's safety. Where you have reason to suspect that life (not minor injury) is at risk, you can enter private places - even residences, without a warrant. But only for the purpose of protecting life.
2. Once they found the woman, could they arrest the man?
Defence argued that once the woman was safe, the officers no longer had any lawful authority to remain in the residence. They should have left the residence and got a Feeney warrant. All of the appeal court judges agreed that powers of warrantless search of residences are limited, but that the officers had reasonable grounds to believe that the man assaulted the woman, and therefore, having entered the residence lawfully, they could arrest the man.
Defence also argued that the police should have interviewed the woman before deciding whether to arrest the man. The judges rejected that idea too - in this case. Your mileage may differ if you have less-compelling evidence that an offence occurred.
3. Did the second officer search lawfully?
The second officer explained that he looked in the area that the suspect walked away from for the purpose of ensuring officer safety during the arrest. He was clearing the scene.
The trial judge and two judges of the Court of Appeal accepted this as a sufficient reason.
The third judge in the Court of Appeal wasn't convinced. He pointed out that the officer had no reason to think that anyone or any thing in basement that posed any danger to police.
4. Was opening the Tupperware container a problem?
Yes or no.
The judges characterized what happened with the container differently, and reached different conclusions.
The majority said that the officer saw the drugs in "plain view" and seized them, and opened the container after the seizure. I think that was a generous interpretation. You should not model your safety searches on this interpretation.
The dissenting judge characterized it as searching. The only lawful authority available for being in that part of the basement was to search it for people who posed a threat to the officers. Why was he opening a Tupperware container?
If your authority to search a house depends upon the danger that the people in it might pose to you, then look only in places where you might find people. Don't look in Tupperware containers.
On the other hand, if you find contraband in "plain view" while performing such a search, you can seize it. I suggest that you leave the seizing until after you have ensured that the residence is safe. I suggest that you don't open containers until you have taken them out of the residence.
Can you photograph the item before you lay hands on it? That depends. If you stop to photograph and seize the thing of interest before you finish clearing the scene, nobody will believe that you were concerned for your safety. If you photograph more than the object that you seize, there's a reasonable argument that you're converting a safety search into an evidentiary search.
Maybe you should drop an object - such as your business card - in the location where the thing lay. Take the contraband away. Get your search warrant, and come back and photograph the hell out of the place. Don't forget to mention in your ITO that you dropped your business card in the place where you found the object, and you want to photograph that location.