2020.07.05 Breach of Bail - Charge or Administrative Process?
At 10:30pm someone rang the doorbell at the residence where Mr Zora, 2020 SCC 14 lived. He didn't answer.
That turned into a plateload of trouble.
Mr Zora was on bail for drug trafficking. His bail required him to be home at that time of night, and to answer the door when police came to check if he was home. The person at his door was a police officer checking his compliance with bail.
At his trial for breach of bail, Mr Zora explained that he couldn't hear the doorbell from the bedroom where he slept. He didn't deliberately avoid answering the door. He just didn't know the police were there.
The prosecution argued that the bail terms placed a duty on Mr Zora to arrange his affairs so that when police rang the bell, he would respond. The defence argued that you can't call him a criminal if he didn't intend to break the bail condition.
The Supreme Court of Canada unanimously agreed with the defence. The crime of breaching bail requires proof of an evil or reckless intention. Mere carelessness isn't criminal. If Mr Zora was in bed asleep, he was merely careless about his bail, not deliberately avoiding its terms.
"Oops, I forgot" has become an easier defence for those folks who fail to attend their trial. "Aw darn, I didn't mean to miss curfew, I was with my friends and I just lost track of time," is a good defence to the criminal charge.
Ordinarily, an appeal court answers only the question raised by the appeal. The court answered the question about mens rea of breach of bail: the prosecution must prove that the defendant knew and understood his bail terms (or was reckless about them), and intended to (or was reckless about) breaching them.
But this time, the judges went far beyond the question raised by the appeal. They dwelt at length upon other topics:
- Bail terms must be the fewest and least restrictive necessary to achieve the goals of bail.
- Each restriction of liberty must relate to a real concern in the case (paras 83-84)
- Modifying bail terms or revoking bail should be the default approach to breaches of bail.
- Charging suspects with offences for breaching bail should be the last choice, not the first.
The judges made it clear that this advice applies to police officers as much as prosecutors and judges. (paras 100-106)
I expect defence counsel will quote this case for decades to come.
I observe that Mr Zora was charged with drug trafficking, not domestic violence. I was troubled that the court chose Mr Zora's case on which to sound off. After domestic violence arrests, there are often high risks of retaliation or re-offence against the victim. I have in mind a worst-case example from Victoria. After you read the court's exhortation to police, prosecutors and judges to impose minimal bail terms, take care not to throw the baby out with the bathwater.
What are the known risks with this offender? What bail terms will control those risks?
The court's enthusiasm for administrative processes may actually result in tighter bail terms on those defendants who need them.
Because the administrative procedures apply regardless of the defendant's intentions. At each criminal trial, the prosecutor must prove that the defendant intended to disobey his curfew. At a bail hearing or bail review, the mere fact that he repeatedly missed his curfew tells against him, regardless of the myriad excuses he offers.
But this works only if police and prosecutors organize themselves to collect all the information available about the defendant for those bail hearings and reviews.
The reason I included a link to a worst-case example is that it illustrates the kinds of questions that get asked when things go wrong.
At the inquiry, they ask:
1. Did the police officer, prosecutor or judge who released this offender make a good decision?
Good decisions require good information from which to work, and a deep understanding of how to assess it.
2. Did the decision-maker have all the relevant information that was available?
In the past, many judges in my jurisdiction took the view that past breaches of bail didn't matter much unless the defendant was convicted. I think Zora changes that. At bail hearings, I think judges are now obliged to consider breaches of bail (and probation) that did not result in prosecutions.
3. Who is to blame if the decision-maker lacked relevant information?
How good are your information systems at collecting information about a suspect's minor breaches of bail?
Do your information systems provide that information on time, and to the right people to prevent harm?
Can you provide sufficient detail that a judge will trust it at a bail hearing?
When preparing for difficult bail hearings and sentencings, I prepare 3-column chronologies:
It takes more time than it should, because my information comes from many sources. I draw from police reports (for events on the street), court records (for the defendant's appearances and absences in court, as well as sentences and releases on bail). I include summaries of reports from bail supervisors and probation officers, and sometimes I can get information from parole officers too.
When complete, such a table reveals much more about an individual than the facts of the latest breach of bail conviction.
"Jimmy was drinking in breach of bail" means little. But suppose you find "In the last three years, whenever Jimmy started drinking, he committed a new property or violence offence within 3 weeks."
When you discover that fact, you suddenly see that the third column matters. It identifies the key evidence for the decision-maker. Those incidents of drinking might not be charged as crimes, but we need to know about them in order to assess Jimmie's current risk to the community.
If Zora provides us with marching orders, then we need to gather relevant information on each case, in order to make responsible decisions about release.
On the street, the officer who catches a Mr Zora breaching bail terms needs to know that there's a choice: not every breach needs to be charged, and it's easier now for him to beat the charge. Breaches may also be dealt with administratively ... but every breach needs to be documented.
Deciding what to do with him requires good information about the risks your Mr Zora poses.
Managers: If your information systems don't deliver the necessary information efficiently, maybe you need to re-organize them.
2020.06.14 How drunk/high was he?
For "law and order" politicians, this is a big deal. For defending some cases, this is a big deal.
For many offences of violence, section 33.1 abolished a defence: "I was so drunk/high I didn't know what I was doing, and if I didn't know what I was doing, then I didn't intend to do it. And because I didn't intend to do it, you gotta acquit me."
Parliament enacted s.33.1 because it doesn't seem just that overindulgence in risky chemicals should form a complete excuse for the harm that ensues. "Too bad that girl got raped. But I was too drunk to be responsible, so I'm not going to jail for it."
For police officers, it raises an age old issue which you should always investigate: how intoxicated was the suspect at the time s/he committed the offence?
2020.06.07 Arresting the Usual Suspects - s.495, s.495.1 and "RICE"
As you know, when you catch someone committing a summary conviction or hybrid offence, s.495(2) of the Criminal Code prohibits you from arresting them unless you have concerns that they may Reoffend, you need to Identify them, you expect that they won't attend Court, or you need to arrest them to preserve Evidence ("RICE").
On December 18, 2019, Parliament changed the names of some of the release documents that police and courts use to compel suspects to attend court and to abide by conditions.
It also consolidated the power to arrest people that you find committing indictable (and hybrid) offences while bound by a summons, appearance notice, undertaking or release order into a new section s.495.1.
That section starts with some magic words "Despite any other provision in this Act... the peace officer may arrest without warrant for the purpose of taking them before a judge or justice to be dealt with under section 524."
Those magic words overrule s.495(2)
Basically, if buddy has received process on outstanding charges and commits an indictable (or hybrid) offence or breaches his bail terms, you need not concern yourselves with s.495(2) and "RICE". You can arrest, if you are arresting for the purpose of bringing the suspect to a judge or justice.
That makes things a little simpler. Be aware that s.9 of the Charter continues to apply. S.495.1 doesn't compel you to arrest. And after arrest, you must still release your target promptly if it is reasonable under the circumstances to do so.
2020.06.06 A cell phone is a cell phone
B.C. officers involved in traffic enforcement will find this one interesting.
Mr Tannhauser, 2020 BCCA 155 drove his vehicle with his cell phone in his hand. An officer caught him and gave him a ticket. At trial, he explained that his cell phone contained software that shut off its functions when it was in motion. Therefore, it didn't function as a cell phone as he drove, and wasn't therefore a cell phone for the purposes of the legislation that controls electronic devices in motor vehicles.
The Judicial Justice who heard his trial accepted this explanation, and acquitted him. The appeal judge agreed too.
But not the Court of Appeal.
A cell phone in the driver's hands is a cell phone: "a cellphone that is turned off can be turned on; a cellphone with a dead battery can be plugged in".
The trial judge shouldn't need evidence of its recent operation in order to convict. (But such evidence may help prove that it was in the driver's hands.)
2020.06.06 Upholding the Rule of Law - s.25.1 and its limitations
Investigators had information that Mr Baranec, 2020 BCCA 156 murdered a 15-year-old girl in Saskatchewan. They launched a Mr Big investigation against him in BC, where he lived.
Mr Baranec told them he did the murder. He agreed to go to Saskatchewan and re-enact the killing.
But Mr Baranec was serving a Conditional Sentence Order at the time. Those orders always come with a condition that the offender not leave the jurisdiction.
If the officers took him to Saskatchewan, they would assist him to defy a court order. If they asked him to apply to the court for an order permitting him to go to Saskatchewan, they would blow their cover, and perhaps never discover where the body of the missing girl lay.
The investigators sought legal advice from the Department of Justice. The legal advice suggested that it would be okay after all.
On the trip to Saskatchewan, they didn't find the girl's body. However, Mr Baranec told the officers that he committed another murder in BC. Further investigation proved it.
At the trial of the BC murder, defence asked the court to exclude the Saskatchewan confession to the BC murder, and all the evidence that flowed from it. Defence complained that the police broke the law, and encouraged the target to disobey a lawful order.
The (provincial) prosecutor agreed that the (federal) legal advice was wrong, and the police misconducted themselves. But the prosecutors pointed out to the judge that the police tried to avoiding breaking laws. They identified a problem, and sought legal advice. They tried to operate lawfully.
The judges agreed with the prosecution. The legal advice was wrong, but the cops did their best to operate lawfully. (The judges did not explain how the officers could have acted differently to investigate the Saskatchewan murder lawfully.)
Despite the unlawful conduct, the judges agreed that the evidence could be used at the trial. Mr Baranec was convicted, and lost his appeal.
For you cops doing routing policing, this reminds you that you are paid to uphold the law: you need to operate squeaky clean. (Can you really promise to take that addicted witness to her drug dealer after she testifies? When can you lawfully speed?)
For people higher up the chain, you might consider whether s.25.1 needs further amendment. For about 15 years, I've thought there should be provision for a judge to permit an officer, under controlled circumstances, to disobey s.10(a) of the Charter. This often arises in the context of identifying people who associate with a known criminal target. The Baranec case makes me think a judge should be able to give ex parte permission to police to permit a suspect to breach a court order, under controlled circumstances.
For those of you who do undercover work, it's another Mr Big success story, and well worth a read because of the unexpected twists and turns in the investigation.
2020.06.04 Memories and Inferences - Know your Weaknesses (again)
Back on 2020.04.13, under "Memories and Inferences" I wrote about a B.C. case. Today, I saw a matching Ontario case.
We all have a tendency to draw conclusions from observations, and report the conclusion rather than the observation. It's part of the human condition, and it's a trap.
In Phan, 2020 ONCA 298. this issue arose again. Again, the defence alleged that police officers lied. Again, the judges expressed some criticism of the officers, but some understanding, and the bad guy's conviction stuck.
There are times to express conclusions; but there are also times to recite observations with great care. Surveillance units carry the responsibility of providing the observations. People who apply for judicial authorizations need to recite those observations, so that they can justify their inferences. Nobody can do their job properly unless everyone knows and respects the difference.
2020.05.31 Entrapment and Reasonable Grounds to Suspect
This case matters to more than drug cops, because while discussing entrapment, it delves into "reasonable grounds to suspect". Reasonable suspicion turns up in other kinds of police work.
In two similar but separate operations, police busted Mr Williams and Mr Ahmad, 2020 SCC 11 for dial-a-dope operations. 5 judges of the Supreme Court of Canada found the police entrapped Williams. All 9 judges agreed that the police did not entrap Mr Ahmad.
Both investigations started with bare tip information that a phone number was a dial-a-dope line. Neither investigation collected any information to confirm the tip. In both investigations the officer called the number.
What made the difference?
Look at the conversations that occurred after the officer dialed the number:
Officer: Hey, It’s Mike, Matt said I can give you a call, this is Romeo?
Male: He did, did he?
Officer: Yeah, said you can help me out?
Male: What do you need?
Officer: 2 soft
Man: Hold on, I’ll get back to you.
Officer: You around?
Male: Who is this?
Officer: It’s Vinny.
Male: Vinny who?
Officer: Vinny. Jesse from Queen and Jarvis gave me your name. . .your number. Said you could help me out. I need 80.
Male: Okay. You have to come to me.
What's the difference?
In the Williams investigation, the officer was the first person to suggest a drug transaction. In the Ahmad investigation, it was the person who answered the officer's call.
For those of you who investigate dial-a-dopers, this case seems to confirm that even if you lack reasonable suspicion, you dial the number. If, during your call, you develop reasonable suspicion you can offer to buy drugs, so long as you make your request to buy drugs after the the other person confirms your suspicions that s/he has drugs for sale.
Read paragraph 54. Five of nine judges view this as risky, but lawful. (The other four judges felt that the difference between these conversations was too subtle to justify treating them differently.)
At Canadian law, police "entrap" people by:
- offering someone an opportunity to commit a crime without any good reason to think that the person would commit a crime, or
- pushing a suspect into committing a crime, instead of merely offering them an opportunity.
The older cases said that police required a "good faith" for using #1. The 5 judges replaced "good faith" with "reasonable suspicion".
The difference is the quality of information in your possession that makes you think that the target might be committing crime. You may act in good faith if you respond to allegations. Reasonable suspicion requires evidence.
This case should interest all officers because it the judges discuss what it takes to form "reasonable suspicion". Compare the information available to the two investigators:
A police officer received information from a source that "Romeo" is selling drugs from a specific phone number. The handler passed only this information on to the investigator, but provided no information about the reliability of the source.
A police officer prepared an information package which asserted that Williams was going by the name "Jay", but didn't explain how the officer knew this.
A confidential source of unknown reliability asserted that Jay was a cocaine dealer working in a particular area. The package included a phone number which it alleged was the dial-a-dope number.
The investigator knew Mr Williams from a previous cocaine
bust, but did not know he used the name "Jay".
From this summary, it looks like the Williams investigation started with way more information than the Ahmad investigation.
The judges said they were equal: both investigations operated on the basis of uncorroborated tips of unknown reliability.
Because the information package in the Williams case did not explain how police knew that Mr Williams was using the name "Jay". For that reason, the investigators on the Williams case lacked evidence to link "Jay" to Williams and his past drug dealing. Therefore, all they had was a tip of unknown reliability ... just like the investigators in the Ahmad case.
I fear that this explanation might not be clear enough for some officers. Here are two information reports about the same suspicious character. The first gives you a "good faith" reason to investigate. The other gives you "reasonable suspicion".
On May 31, 2020, Cst Conclusions received a tip that "Legal Beagle" is operating a dial-a-dope line in Chilliwack on the number 604 313 1313 and selling cocaine.
It is believed that "Legal
Beagle" is Henry Waldock, the notorious Chilliwack cocaine
On May 31, 2020, Cst Evidence received a tip that "Legal Beagle" is operating a dial-a-dope line in Chilliwack on the number 604 313 1313.
The tipster has provided information about drugs in Chilliwack 5 times in the last 2 years. Investigations of 3 of those tips gathered evidence which tended to confirm the information provided. The other two tips were not investigated, and so it is unknown whether they were accurate or not.
Cst Evidence searched police computer information systems for references to "Legal Beagle", and found that in a 2018 Chilliwack murder investigation, several witnesses gave police statements in which they referred to a Chilliwack cocaine dealer by the name of "Legal Beagle". When asked who this person was, one called him "that nerdy guy with the stupid police website".
Cst Evidence knows of only one nerdy guy in Chilliwack who maintains a police website: Henry Waldock. Cst Evidence has met Waldock, and read his website. CPIC records that Waldock has convictions for possessing or trafficking cocaine in 2002, 2009 and 2012.
Whenever the courts demand "reasonable suspicion" or "reasonable belief" they want to hear about evidence, like the information on the right. The evidence package contains not only what we know, but how we know it.
I emphasized "it is believed" on the left side because I hate that phrase, and phrases like it.
It is a phrase for cowards: people too afraid to take responsibility for the allegations they make; people who conceal the reasons for their belief, possibly because their reasons are too flimsy to put in writing. I have seen prosecutions fail because of this kind of writing/thinking.
If you catch yourself using that phrase, delete it immediately, and write "I believe ________ because ________." Now fill in the blanks. After you fill in the second blank, you can delete "I believe", and substitute "It appears that", or some other less personal phrase.
The second blank is articulation. If you want to know how to articulate how evidence led you to a belief, read the next story.
2020.05.26 Applying for a Warrant - Linking what you Know to What
you Expect to Find
After explaining what your investigation discovered so far, an application for a search warrant ought to explain what you think you're going to find, why you think it's there, and why it would help your investigation.
That part trips up many police officers because it differs from simply explaining evidence. Beginners usually describe the investigation and declare what they want to search for, leaving the justice to draw the links. The case of P.W., 2020 ONCA 301 illustrates the problem.
A six-year-old girl complained that her father, Mr P.W., washed her bum with his bare hand and inserted his finger into her anus, which hurt.
The girl's mother split up with him several years earlier. The mother told police that he had an interest in child pornography. At the time of the break-up, a doctor also confirmed that he had this problem. For a while, he got supervised access only to his children. But he got treatment for this interest, and the supervision condition ended.
An investigator asked for and obtained a warrant to search the computer for child pornography. The computer contained child pornography, but no pornographic images of the girl.
At trial, defence complained that the application failed to justify the search. This was an investigation into sexual assault allegations. There was no evidence that Mr P.W. was still accessing or using child pornography.
During cross-examination of the affiant, the officer explained her reasoning. She did so somewhat awkwardly, but the following links came out:
- She knew that Mr P.W. took non-pornographic pictures of his daughter. She had seen them on Facebook.
- She understood that the sexual abuse occurred in a spartan room which contained Mr P.W.'s bed and three computers.
- She knew that the 6-year-old girl complained of sexual touching.
- She knew that Mr P.W. had a prior interest in child pornography.
- In her experience and training, when people who like child pornography also sexually abuse children, they often take pictures of it.
- Therefore, she believed that searching the computer would discover pornographic images of the girl, which would corroborate the girl's complaint.
- She also felt that finding pornographic images of other children would corroborate the girl's allegation that her father had a sexual interest in children.
The court agreed with defence that this reasoning should have been expressed in the application for the warrant. This application violated s.8 of the Charter. But because the officer's reasons made sense, the judges decided to admit the evidence anyway. Mr P.W. was convicted and lost his appeal.
How do you explain inferences in an Information to Obtain?
I suggest that you "blame the evidence" for your conclusions. Using the facts above, you could word it this way:
- I saw images of P.W.'s daughter on his Facebook page. The context of those images gave me the impression that he took them. This makes me believe that he liked photographing her.
- The girl described the sexual offending occurring close to Mr P.W.'s three computers. This causes me to believe that it was possible for him to use those computers to record the sexual activity.
- The mother described P.W.'s prior problem with child pornography. The girl's new complaint makes me think that P.W.'s sexual interest in children persisted or has returned. That makes me think that his interest in child pornography persists or has returned. That makes me think it is likely that his computers or some of them now contain child pornography. Therefore, I ask to search his computer for child pornography.
- My training and experience shows me that the people who like child pornography and sexually abuse children often take pictures or make videos of the abuse. Mr P.W. liked child pornography, and now his daughter complains that he sexually abuses her. From the Facebook images, I know he takes non-sexual pictures of her. These factors together make me think that Mr P.W. likely took pictures or made videos of his abuse of his daughter. If so, the logical place for him to store those pictures or videos would be in one or more of his computers.
- Pictures of the abuse would corroborate what the girl alleges. Therefore, I believe searching Mr P.W.'s computers will likely discover evidence of the sexual abuse of his daughter.
Notice that each of these paragraphs identifies a particular piece of information or evidence, and then explains what piece of information made me think. I call this "blaming the evidence" because it forces more rigorous analysis. Start from the assumption that the suspect is innocent, and the warrant won't find any evidence against him. Then, step by step, identify the evidence which forces you to reach the opposite conclusion.
I observe that this search is too narrow. It seeks only the most damning evidence. You should search for the smoking gun, but when investigating, less damning evidence can also help. Probably, non-sexual images of the complainant would confirm that he saw the girl, and the date stamps in meta-data would narrow down the exact dates when the suspect saw her. And that's useful evidence too. And if, when searching for images of the complainant, clothed, you discover images of naked children, well, you've found a smoking gun.
2020.05.10 Trouble with Interpreters and Swabbing Rapists' Penises
When you arrest someone who speaks English badly, take some extra time to explain rights and procedures. When you strip him to get evidence from his body, maximize the privacy and dignity of the process.
Mr Cortes Rivera, 2020 ABCA 76 spoke Spanish well, but English badly.
He went to a party. At that party, a woman drank too much. She alleged that while she was vomiting into the toilet, Mr Cortes Rivera raped her.
Police arrested Mr Cortes Rivera shortly afterwards. They found an interpreter to assist. They told him he could call a lawyer. Apparently, the interpreter told him he could make a single call to a lawyer.
The investigators decided to swab Mr Cortes Rivera's penis, in case it carried the victim's DNA.
It did. From his penis, the swab picked up 14x more of her DNA than his. An anal swab of her picked up only trace male DNA.
At trial, he complained that the officers failed to explain his right to counsel properly. He complained that the swabbing process did not sufficiently ensure his privacy: the officers stripped him naked, and there were too many people in the room when it occurred. Those complaints failed at trial and on appeal.
Fortunately, the officers offered Mr Cortes Rivera further access to lawyers after his first consultation. The extra offer resolved any questions about whether the initial explanation sufficed.
The trial judge agreed with Mr Cortes Rivera that there were three problems with the swabbing process:
- too many people in the room;
- stripping Mr Cortes Rivera completely naked wasn't necessary either;
- the police failed to make a complete record of the process followed.
Because the SCC clarified the rules after this investigation, the judges felt that the officers didn't do so badly that the evidence should be excluded.
2020.05.08 The Story of Easy Eddie - Moral Inducement
or Dirty Trick?
Somebody murdered Mr Parsons. Police suspected Mr Hayes, 2020 ONCA 284. When attempting to persuade Mr Hayes suspect to discuss the crime, an officer told him the story of "Easy Eddie" O'Hare, the lawyer for Al Capone who decided to turn in his client.
Defence complained that telling this story could undermine the suspect's confidence in the lawyer who advised him.
Yup. It sure could ... depending on how you tell the story.
This officer told the story in a way that emphasized Easy Eddie's desire to do the right thing, for the good of his children. This officer mentioned that Easy Eddie suffered for "the right thing" (the mob murdered him). The officer did not suggest that lawyers commonly inform on their clients.
Because of that, the court found that this was no a dirty trick, but a proper moral inducement to persuade the suspect to talk.
I note that he didn't confess. He denied killing the deceased. Other evidence proved him guilty anyway.
Giving Expert Evidence as a Police Officer
If you investigate criminal gangs for long enough, Crown may ask you to explain the culture to a judge or jury. You can expect the defence to object to your testimony. This case gives you some idea what to expect.
But if you don't investigate criminal gangs, this decision discusses how police officer experts should behave.
A stolen van drove to the centre of a gang's territory. Two men got out and started shooting. One man died. The shooters got back into the van which departed. A distance away, Mr Gager, 2020 ONCA 274 got out of it. Police arrested him while he was trying to dispose of a .45 handgun. In jail, he wrote and drew words and images consistent with gang membership. He used language consistent with gang involvement.
Did Mr Gager participate in the killing because of gang rivalries?
An officer who investigated gangs in the area knew of Mr Gager, because his name arose in the course of the officer's work. That officer did not participate in the murder investigation.
Defence objected to the officer's testimony, saying:
- The expert's testimony was unreliable because the expert relied on hearsay and confidential tips from sources who could not be trusted.
- The expert was biased by reason of being a police officer, and his prior investigation of the Mr Gager's involvement in crime.
- The expert's testimony was too prejudicial, because effectively, the expert would point his finger at Mr Gager and say "he's a gangster". This would so prejudice the jury against Mr Gager that they might convict him of murder even if the evidence wasn't strong enough.
All of the judges agreed that these can be real problems, but they could be controlled in this case by limiting what the expert could say, and warning the jury to be cautious of expert testimony.
If you know gangs, then read this case for what to expect when Crown asks you for expertise.
If you testify as an expert on other matters, pay attention to the section on "Impartiality" for ideas about how to preserve your credibility and impartiality.
2020.04.25 Mr Big avoids Applying Undue Pressure
In 2006, Mr Moir, 2020 BCCA 116 met Mr Big. The meeting went well. Mr Moir told Mr Big about how he helped his dad murder a 14-year-old girl.
Mr Big persuades suspects to confess. He has done so many times, and will doubtless do so again. If you, as a police officer haven't encountered Mr Big before, maybe you should read this decision. It's important to get to know him.
But some of you work with Mr Big. Some of you are Mr Big. For you, this decision may serve as a helpful reminder about how Mr Big and his associates should behave.
The officers who investigated the murder scene found 4 distinctive things about the killing. They kept that information under wraps.
Mr Moir told Mr Big all four distinctive things.
Such secret knowledge tends to incriminate. But only if the investigators can keep the secret.
People inexperienced in criminal justice like to be "in the know" about the juicy details of big and interesting cases. Not smart. It's hard to keep a secret when everyone knows. If you're involved in an investigation as a minor investigator, and someone says "holdback", walk away quick, unless you truly need to know. And if you do not, sprinkle your notes with the word: "holdback".
Keep the secret until it's truly time to tell.
Nice Mr Big
Back in 2014, the Supreme Court of Canada changed some rules about Mr Big's evidence. Hart 2014 SCC 52 If Mr Big applies too much pressure on the target to confess to the crime, then trial judges will exclude the confession.
In the Hart case, the suspect was particularly vulnerable and needy. Mr Big's organization became his whole life - his friends, his family, his employment. The undercover officers intimated that violence would befall people who crossed the group. When Mr Big asked him about the crime, Mr Hart gave an innocent explanation. Mr Big rejected this explanation and asked for "the truth". Mr Hart then said he did the crime. The court didn't like it. The judges felt that the police put too much pressure on Mr Hart. His willingness to participate in a (fake) criminal gang would make him look evil in the eyes of the jury. The court decided that trial judges should not accept such evidence unless the prosecution proves that the confession is reliable -- so reliable that all the ugly evidence of the defendant's willingness to join a criminal gang and commit (fake) crime will not persuade the jury to convict him only because they dislike him.
The officers who investigated Mr Moir did it right. They emphasized truthfulness over violence. They didn't take over Mr Moir's life. Mr Big didn't force him to say things that weren't true. And they did all this before the Supreme Court of Canada gave its decision in Hart.
For lawyers, this decision resolves a technical side-issue: the Bradshaw rules for admission of hearsay do not apply to the Hart rules for admission of Mr Big confessions.
For undercover officers, this decision provides a useful current explanation of how to structure a Mr Big operation, and how to react to your suspect's personal peculiarities.
For regular investigators, it demonstrates the great power of holdback. Holdback made a huge difference in making Mr Moir's confession admissible. His conviction depended on it.
Please forgive my enthusiasm, but a friend of mine prosecuted the trial. Appeal dismissed. Well done, cops and Crown!
Requiescat in pace, Chelsey Acorn.
2020.04.25 Detention - The Trigger - The Responsibility for its Consequences
Shortly after midnight, Mr Thompson, 2020 ONCA 264 sat in a parked car behind a shopping plaza with drugs ready for sale.
After receiving a rather vague tip that someone dealt drugs from a car at that plaza, two junior police officers drove there in two separate marked police cars. They found Mr Thompson's vehicle. They boxed it in and approached on foot.
One officer went to the driver's side, and the other to the passenger's side. They knocked on the windows, and spoke with Mr Thompson and his passenger.
Both officers smelled marijuana. One saw a roach. It was still a prohibited drug at the time, so the officers arrested the occupants of the vehicle for possession of marijuana, searched them, and put them in the back of the police car. They searched Mr Thompson's car and found lots more drugs.
21 minutes after arresting them, the officers explained the right to counsel.
At trial, Mr Thompson's lawyer complained that the officers:
- arbitrarily detained Mr Thompson when they boxed his car in;
- unlawfully searched his vehicle;
- failed to advise Mr Thompson of his rights when they first spoke to him;
- failed to advise Mr Thompson of his rights without delay after arrest.
The trial judge disagreed with 1 & 2, but agreed with 4. The trial judge didn't see the violation as serious enough to exclude evidence. The judge convicted Mr Thompson for possessing drugs for the purposes of trafficking. The appeal judges agreed with 1, 3 & 4. They found the breaches serious. They excluded the evidence and acquitted him.
"Detention" - s.9 and s.10 of the Charter
The appeal court judges found that the officers "detained" Mr Thompson even before he knew they were there. Boxing in his car and approaching him on foot triggered the detention, because any reasonable black person in those circumstances in that neighbourhood would believe he would not be free to leave.
Curiously, nobody argued that the tip and the unusual behaviour created reasonable suspicion to believe that Mr Thompson was selling drugs. (I can't tell from the decision whether this was arguable.)
Because the police action was a "detention" for the purposes of s.9 and s.10 of the Charter, and because tip wasn't strong enough to justify a reasonable suspicion that Mr Thompson was committing a crime, therefore this detention was unlawful.
This case isn't just about cars. It's about the impression you make when you're "checking things out". Do you give the impression that the person is no longer free to go, and he'll be in police custody for a while?
Whether you're in a police car or walking the streets, this case should affect how you approach the people who inhabit your beat. For your own safety, be tactical. For compliance with s.9 of the Charter, if you take control of people, you need reasons.
"Immediate" right to counsel - s.10(b) of the Charter
Detaining someone triggers the obligation to tell them why, and that they can get legal advice.
The officers didn't tell Mr Thompson when they first approached that he could call a lawyer. That's not surprising. I doubt the officers knew that a judge would find what they did was a detention.
But the officers didn't tell him about his right to counsel for 21 minutes after arresting him.
According to the judges, police in that area have tended for years to wait way too long to explain legal rights. The judges' patience wore thin. The court emphasized that s.10(b) requires you to tell a detainee "immediately" of the right to counsel.
In most situations, 21 minutes is way too long to explain why you arrested or detained someone (s.10(a)), and that they can get legal advice (s.10(b)).
There are special circumstances in which as much as 21 minutes might be okay. In Suberu, 2009 SCC 33 at para 42 the Supreme Court of Canada identified when:
"Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention."
If you arrest someone who possesses a gun or a knife, you can relieve him of the weapon before opening your notebook and reading him his rights. If you've just stopped a knife fight, arrested the guy who was still standing and put him into your police car, you can attend to the injuries of the guy on the ground before talking about lawyers.
Canadian law recognizes a specific exception for brief traffic stops and sobriety screening demands. No need to talk about lawyers while that kind of stop remains brief.
But if those exceptions don't apply, and the scene is under control, it's time to talk about lawyers.
2020.04.20 General Warrant - Covert Search - Notice
Investigators had good reasons to believe that Mr Pipping, 2020 BCCA 104 and his associate used a unit in a large apartment building for their drug business. But which unit?
They asked the manager, but the manager told them to get a production order.
Instead, the officers obtained a general warrant which permitted them to enter the hallways and common areas of the building and watch the targets. The warrant contained an assistance order which directed the manager to give them a key and permit the officers access to the building.
The officers saw Mr Pipping go into unit 407. The officers then asked a judge for authority to search that unit. They searched it, and found drugs. They busted Mr Pipping.
Section 487.01, which authorizes general warrants, contains a notice provision:
Notice after covert entry
(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.
The general warrant lacked any direction by the judge to give notice to Mr Pipping that police officers watched him inside the building.
"Aha!" cried defence counsel: "The warrant is invalid."
The court agreed.
"If the warrant's invalid, then the evidence must be excluded," defence counsel argued.
Because the officers arrested Mr Pipping, and he soon received full disclosure, he got the notice that s.487.01 wanted him to receive. No harm done. This time.
If you used a general warrant to do something covertly, remember to add in a condition that requires you to tell the people whose privacy you violated what you did.
Expectation of Privacy in Common Areas of Buildings
I found this decision interesting because the court wrestled with several questions that arise for police:
- Did the officers need the general warrant? Is there a reasonable expectation of privacy in the common areas of a large apartment building? Answer: it depends. Read paragraphs 20-33 to find out what it depends on. The court concluded that in this case, Mr Pipping enjoyed a (low) expectation of privacy.
- Was watching Mr Pipping inside the building a "covert" entry and search? In this case, yes, because police did not reveal what they were doing when they did it. See paragraphs 34-56.
Difference between Authorization and Assistance Order
Finally, the court commented on a philosophical flaw in the drafting of this warrant.
This warrant did not contain a specific authorization to enter the hallways and watch Mr Pipping. It merely ordered the building manager to allow police to do that.
Here's how to think about it:
- an order tells someone else what to do.
- a warrant authorizes you to do something.
If you want to watch Mr Pippin covertly in the hallways and common areas of the building where he has some expectation of privacy, then the warrant that the judge issues must explicitly say: "I, Judge Jones authorize Cst Diligent and peace officers working with her to watch Mr Pippin covertly in the hallways and common areas of the building".
Technically, if the judge orders the managers to let you do that watching, but the judge fails to authorize you to do it, then you still lack the authority to violate your target's expectation of privacy.
Defence counsel complained about this gap. The court felt some sympathy with the officers: they made a good effort to comply with the law and obtain judicial authorization. The warrant as drafted made it reasonably clear what the judge wanted to permit the officers to do. The court found that the evidence should not be excluded. Mr Pipping lost his appeal.
2020.04.18 Managing Protesters
Mr Stewart, 2020 ONCA 255 went to the Toronto G20 summit in 2010. Not as a politician, but a protester.
Toronto police prepared for that event because previous G20 summits experienced worldwide political attention. Some of the more enthusiastic protesters caused riots. In the days leading up to the event, they encountered an activist publication containing an article “Advanced Street Fighting”, which included information on “Breaking Police Lines”, “Security Fencing”, and “Throwing Projectiles”.
They had reason to fear that things might not go so well.
They decided to search the backpacks of people heading into the area for weapons and gear that could be used to defeat police crowd control methods.
Mr Stewart objected, and a camera recorded the interaction. He later sued.
What was the police authority to search people who headed into the park that day?
Police relied upon a letter from the City which delegated to police the power to enforce the Ontario Trespass Act in relation to city property (including the park). The Toronto Police claimed that the City had given them the power to set rules for who entered the parks.
The court disagreed: the City did have the power to make rules about who could enter the park. They could have made rules requiring everyone who entered that park that day to submit to a weapons search. They didn't. The letter only gave the police the authority to enforce the existing rules, not make up new ones.
Mr Stewart won, but not as much as he asked for. He started out by asking for $100,000 for the interference with his Constitutional right to freedom of expression and to be free from arbitrary detention and search.
The court granted him $500.
The judges found that the officers were wrong in law, but they were doing the best they could under the circumstances. They maintained complete professionalism when dealing with Mr Stewart, who wasn't quite as professional.
For Ontario officers, this decision helps you understand how the Trespass Act works. For that reason those officers should take a look at it.
For the rest of you, many must deal with rude and unruly people. The rewards for staying professional when dealing them rarely come immediately. In this case, it took 10 years. But after watching the video, the Ontario Court of Appeal obviously sympathized with the officers.
So long as you are not endangered, politeness and patience will pay off in the long run.
Take care of yourselves out there!
2020.04.13 Reasonable Grounds to Suspect - the Imperfect Match
After stopping a suspect for a crime, can you still investigate them if you discover a flaw in your original grounds?
On whether you still have reasonable grounds to suspect them of the crime.
A security guard at the University of Toronto called just before midnight. Someone reported to him that a man carrying a gun was on campus. A black guy. Early 20's. Medium build 5'6", dark ball cap, black hoodie, black jacket, grey pants. The guard reported seeing the gunman get into an orange and green "Beck" taxi van. The guard watched that cab using the university security cameras until the vehicle left the view of the last camera going west on Steeles Avenue.
In less than 2 minutes, police officers found an orange and blue "Beck" taxi van heading West on Steeles Avenue, just past the university.
They stopped the van.
The only passenger was Mr Bejarano-Flores, 2020 ONCA 200.
He looked Hispanic, not black. Different from the dispatch information.
His clothing, though similar, did not exactly match the caller's description either.
The officers required him to get out. They patted him down. No gun.
An officer saw a knapsack on the seat where he had been sitting. They searched that too.
No gun, but lots of drugs.
At trial, defence complained that the officer lacked reasonable grounds to detain Mr Bejarano-Flores: wrong colour of skin meant wrong guy, and that meant that the officers lacked grounds to stop him.
The officer who stopped Mr Bejarano-Flores explained why he believed he had the right guy. He found:
- the right brand and style of taxi
- going the right direction
- very shortly after the call
- no other cabs like it in the area
- single passenger, about 5'6" medium build, in his 20's, just like the call
The officer explained that the minor differences in clothing did not raise concerns. In his 18 years of experience, he found that stressed people often do make some mistakes in their descriptions of strangers. In his experience, fleeing felons often change their clothing when they see police. Therefore, the skin colour and clothing mismatches did not dissuade him. He told the trial judge he was certain he found the right cab.
At law, he didn't need absolute certainty. He needed to believe that this could be the right guy. And he needed to have received credible evidence or information that made that belief reasonable.
The trial judge concluded that the detention was lawful at the beginning, but no longer lawful at the time the officers checked backpack. The Court of Appeal agreed that the officer lawfully stopped the cab, but held that the detention remained lawful even after the officer saw the different race and minor clothing differences. He had reasonable suspicion, and therefore the search was lawful.
Suppose police found two cabs containing single male passengers that equally matched the complaint. One passenger is Asian and the other is Hispanic. Could you detain both while you work out which one is of interest?
Reasonable grounds to detain is a lower standard than balance of probabilities.
On the other hand, if you encounter evidence which makes it plain you've got the wrong person, back off. You no longer have the power to detain. If the cab had contained two Caucasian girls in white dresses, the attending officers would have needed some compelling new information before searching their purses.
2020.04.13 Memories and Inferences - Know your Weaknesses
When describing things we know about, our brains trick us. Our brains merge patterns into scripts. We automatically draw inferences, and remember differently from what we experienced.
For example, officers suspected that Lucas Theissen, 2020 BCCA 85 dealt drugs. A surveillance officer saw Mr Theissen approach a particular door with a key in hand. A moment later, the door opened, and Mr Theissen entered.
When applying for a warrant another officer wrote that Mr Theissen unlocked a door with a key.
This mattered. Mr Theissen's possession of a key that opened the door tended to establish that a search of the place would find drugs.
But the surveillance officer admitted in testimony that he didn't see Mr Theissen unlock the door with the key. A video-recording of the event suggested that the officer's view of the door was blocked.
The officer saw Mr Theissen approach a door with a key in hand, and the door opened as if Mr Theissen used the key to unlock it.
Defence called the officers liars for over-stating the evidence.
The judges found this attack unimpressive.
They agreed that the ITO overstated the evidence. When describing the evidence, the application should have stated specifically what the officer actually saw.
But the judges understood that the officers drew a reasonable inference: Because Mr Theissen approached the door with a key in hand before going in, one may reasonably infer that Mr Theissen unlocked the door with a key. The judges would have been quite content if the officer accurately described the observation and followed it with "I infer from this that Mr Theissen used the key to unlock the door."
At another point in the ITO, the officer almost did this.
The surveillance officer saw Mr Theissen emerge from the residence walking stiffly, and leaning as if he carried something heavy. But that officer could not see what Mr Theissen carried. The officer who applied for the warrant wrote:
THIESSEN was observed carrying something as he left [Sappers Way] and returned to his garage at 5428 Peach Road. I was advised by [surveillance officer] that THIESSEN appeared to be carrying something heavy as he departed from 21‑5805 Sappers Way, Chilliwack.
The first sentence is false. The second one is true.
Why did the ITO claim something false? Because one of the officers formed a coherent theory about THIESSEN's activities and described conclusions instead of observations. One of them dropped some conclusions into the places where he meant to describe observations.
If the ITO had started with the observation, and then explicitly drawn the inference, nobody would have complained:
[Surveillance officer] told me that THIESSEN appeared to be carrying something heavy as he departed from 21‑5805 Sappers Way. From that observation, I believe that THIESSEN carried something heavy from that address.
Either the surveillance officer or the officer drafting the ITO drew conclusions from observations and described the conclusions. This officer's problems occurred he's human. We all do what he did. But it can get us into trouble when defence challenge your accuracy.
How can we avoid this problem?
- Whether your are on surveillance, drafting ITOs or speaking with drunk drivers, try to distinguish between observation and inference.
- Whether you write for, or as, an affiant, double-check your descriptions of the evidence to ensure that you accurately stated the evidence.
- If you obtain evidence from other humans, you might ask a couple of questions to ensure that you got what they observed rather than what they concluded.
- I find writing in the active voice helps me because it focuses my attention on choosing the correct verb. The sentences punch harder. When they punch too hard, I notice the error.
2020.04.01 April Fool's Boilerplate - Who's the Fool?
In Wood-Tod v The Superintendent of Motor Vehicles, 2020 BCSC 155, the judge condemned boilerplate affidavits prepared by a certain law firm. See paragraphs 91-99, and look at the appendix.
Why do you care? Police officers rarely swear affidavits.
Because an Information To Obtain a warrant or production order is really just an affidavit.
We call it an "Information To Obtain" because the Criminal Code uses that language in Form 1 of the Criminal Code. But in structure and content, it's an affidavit.
Look how quickly boilerplate can get you into trouble.
The Criminal Code requires you to use Form 1 for most applications for judicial pre-authorizations.
Form 1 identifies the officer who applies for a warrant as the "informant". Parliament chose that word poorly. Police officers often refer a confidential source, as an "informant". But the boilerplate at the beginning of Form 1 reads:
"This is the information of A.B., of blank line in the said (territorial division), (occupation), hereinafter called the informant, taken before me." (my emphasis)
According to that first line in the document, any time you use the phrase "the informant" in an ITO, you are referring to yourself. Therefore, if you write an ITO which describes information taken from a single confidential source, and you say in the document "the informant said...", the language at the top of the document tells the reader that "the informant" is you.
To avoid this confusion, many police officers prefer to call themselves as the "affiant". I agree with them. But I wish Parliament would discard the phrase "Information to Obtain" and "informant", and call these things what they are: "affidavits" and "affiants".
I do not expect Parliament will listen to this wild-haired lawyer standing on his soap-box shouting at the world. Perhaps I am the April Fool.
I do hope to guide you away from looking like a fool.
If you apply for warrants, you probably use "precedents". Prefab ITOs containing lots of language to cover the boring stuff.
Beware. That's the stuff that judges hate. Like the judge in this case. That's the stuff that makes you look foolish.
Like the law firm in this case.
When you finish drafting your ITO from the prefab ITO, you can't see the flaws. The process of writing renders the writer blind to the errors in the document. But you can ask the person who reviews your ITO to check the boilerplate for errors or unnecessary information.
This concept applies more widely than warrants. The officer in this case solemnly affirmed the truth of his report about the impaired driver. Some officers who deal routinely with impaired drivers draft their reports by copying and pasting from prior reports, and modifying the language to match the event. I'm not sayin' you must not do that. But know the dangers of this practice. Judges notice. Doubtless, the lawyers in this law firm will notice. Lawyers may use this decision against you.
2020.03.31 What's Dangerous Driving?
When investigators attend the scene of a terrible crash, the destruction and injury naturally draws attention. Broken cars. Broken people.
If there was a crime, it happened before the crash.
An investigator needs to investigate what happened before the crash.
It's usually easiest to figure out what happened in the seconds before the crash. Skid marks on the road. Eyewitnesses at the scene.
All too often, the only evidence that reaches the court room describes what occurred in those few seconds.
Unsurprisingly, Canadian law developed a defence to dangerous driving based upon the idea that a "momentary lapse in attention" should not be criminal.
Admit it: All drivers take their attention from the road for short periods. To change the music. To locate that snack. To type a licence plate into a mobile terminal. Either all drivers are criminals, or the standard for criminal driving requires something more than briefly taking your eyes off the road.
The Canadian answer is that driving isn't criminal unless the driver does something that's objectively dangerous, and the driving was a "marked departure from the standard of care of a reasonably prudent driver".
At trial, Mr Chung, 2020 SCC 8 convinced the trial judge to acquit him based upon this idea: a brief period of bad driving isn't criminal.
The Supreme Court of Canada disagreed. A momentary lapse in attention is one thing, but a brief period of intentionally awful driving is quite different. Over a period of about 4-5 seconds Mr Chung accelerated his vehicle to 140km/h in a 50km/h zone. There were vehicles ahead of him, in a busy intersection. He dodged one, but hit another. The dash-cam of another vehicle recorded much of the incident.
That's not inattention but intentional risk-taking.
What does this case mean for investigators?
Specifically, if the evidence shows that the driver deliberately undertook serious risk, then a short period of driving may be criminal.
But generally, the state of the law requires you to look at more than the crash scene.
You should, of course investigate the crash. But if you suspect that a driver committed a crime, you need to back up, and investigate the driving before the crash.
- What would the driver have seen before the crash? Back up and take photographs or video of the view that the driver would have seen on the route to the crash.
- What was the driver doing before the crash? What do the contents of the vehicle tell you? Can you discover where the driver came from and when?
It's relatively easy to investigate the crash scene. You can see it.
It's harder to investigate the crime scene. In dangerous driving cases, it may stretch over many kilometers. The eyewitnesses are often driving, and leave the scene long before you get there. Tougher to investigate, but necessary for finding the evidence of the crime.
2020.03.21 Disclosing Investigative Information
A woman went on a first date with Mr Razavi Zadeh, 2020 BCCA 93. They planned to go out, but he asked her to stop in at his place while he changed his clothes. They didn't leave. He gave her drinks. She drank willingly, including shots of Tequila. She became groggy. He wants sex. She didn't. She passed out. When she woke up he was getting what he wanted, and she was too weak to do anything about it.
Afterwards, she told police that she thought that she had been drugged. At court she said she thought it was GHB (which she had used before). At court, she said she thought she drank some of the Tequila from a bottle in the fridge.
After she complained, police searched his residence. They found a Tequila bottle in the fridge. Toxicologists found it contained GHB.
Her testimony appeared to be confirmed.
Before court, a police officer told her mother that the bottle contained GHB. Mom told the complainant.
Did the complainant say she drank from the Tequila bottle in the fridge because she remembered it, or because her mom told her that bottle contained GHB?
The judge wasn't sure. He was not prepared to find, based on her word, that she did indeed drink the Tequila that came from that particular bottle.
Sometimes, for the health of the victim or to further your investigation, you need to reveal information you discover in your investigation. It does not appear that revealing this information to the mother was necessary.
At first, it feels fun to know the whole story. But with knowledge comes responsibility. Sharing what you know with one witnesses can undermine the credibility of another.
That's one way publication of an ITO can undermine a prosecution.
Careful who you tell what you know.
As a footnote, the trial judge accepted other aspects of the complainant's testimony, and convicted the defendant. The appeal court upheld the conviction. For lawyers, it's an interesting case on how drunk is too drunk to consent.
2020.03.03 Relying on Warrantless Searches by Civilians
Several readers sent me decisions in which civilians violated the suspect's rights of privacy, and thereby obtained key evidence. The civilian told police, and police acted. The emai I received today puts them together nicely.
A mom left her 4-year-old daughter for a short time in the care of Mr Molyneaux, 2020 PECA 2. She didn't know Mr Molyneaux well, and after contemplating what he told her about himself, she decided to peruse his phone to see how much of it was true.
She found photos of her daughter's genitals and buttocks in his phone. She deleted the photos, and later, confronted him. He explained that the phone must have fallen out of his pocket and accidentally taken the pictures.
A few weeks later, she mentioned her discovery to a social worker, who told police. The police interviewed the mom, learned about the pictures, and invited Mr Molyneaux in for an interview.
They told him what they knew and offered him a choice: sign a consent to search, or police would get a warrant. He signed the consent, and police found 18 pornographic photographs of the child.
At trial Crown didn't even try to tender the photographs. Good choice. The "consent" was not voluntary; therefore it did not give police lawful authority to search the phone. If the Crown had sought to tender the photographs, the court would have excluded them.
But was the mom's testimony admissible? She violated Mr Molyneaux's privacy when she searched the phone. By interviewing her, police obtained private information which they could not have obtained themselves without a warrant. Therefore, defence argued, her testimony violated Mr Molyneaux' right under s.8 to be free from unlawful search.
The Charter protects Mr Molyneaux from unreasonable intrusions on his privacy by the state. The interview stage did not involve searching the phone. The mom did the intruding. All police did was interview her.
No breach in an intervew.
In contrast, consider Mr Vey, 2019 SKQB 135. His wife suspect he was cheating on her. She set up an iPod to record conversations in their residence while she was out. It recorded her husband talking with his lover. But worse, in the key recording, Mr Vey seemed to talk with his lover about their plans to kill their respective spouses.
This alarmed Mrs Vey. She played the recordings to family members, and then brought them to police. After debating whether or not to get a warrant, police listened to the recordings without a warrant.
Let's be clear here. Mrs Vey committed a crime. Covertly recording a conversation between two (or more) people without their knowledge offends s.184 of the Criminal Code. That crime may have saved her life. But the recording violated the part of the Code which protects privacy.
The court concluded that the recording remained private to Mr Vey and his lover, even after Mrs Vey recorded them and listened to it.
The police could interview Mrs Vey without a warrant. They could ask her what she heard on the recording. But they needed judicial pre-authorization to listen to the recording itself.
The trial judge conceded that in exigent circumstances, police could have listened to the recordings if they needed to protect life or preserve evidence. But in this case, the police did not otherwise act as if life or evidence were in peril. Exigent circumstances were not at play in this case.
The trial judge found that the police violated the expectations of privacy of Mr Vey and his lover. The judge excluded the evidence of the recordings from the trial.
These two cases suggest that if a witness tells you that she intruded on a suspect's privacy, you can interview the witness, but you need a warrant to get the fruits of the witness's search. Even if she hands the digital device to you.
This leaves me wondering what you should do with physical evidence. Suppose a vigilante breaks into the residence of a murderer, and recovers the bloody knife used to kill the victim. The vigilante delivers the knife to your desk, and explains how he got it. Naturally, you should seize the knife pursuant to s.489(2) of the Criminal Code. But do you need judicial authority to analyze the blood or fingerprints on it? A prudent officer might now ask a justice.
I thank both of the kind readers who alerted me to those two interesting decisions.
2020.02.28 Cop Exhonorated
Way back in 2017, I wrote about Mr Dunstan, 2017 ONCA 432. He was a drug dealer under active investigation by a team which included S.Sgt. Gillis. The investigation made no headway until police received an anonymous tip that somebody was breaking into Mr Dunstan's residence.
Police officers attended to investigate the B&E. Somebody had kicked in the door, but left the drugs and cash in the house. Pretty weird.
Defence alleged that S. Sgt Gillis staged a break-in and made the call, so as to give the police an excuse to enter the place without a warrant. If defence were correct, then the entry would have been made in bad faith, and unlawfully.
In 2017, the Court of Appeal ruled that if the defence could show reasons to suspect that S.Sgt Gillis made the call, then the Crown had to prove that S.Sgt. Gillis didn't make the call.
Proving that something didn't happen is usually much harder than proving that something did happen. This was a challenge for the prosecution.
I learned today that at the retrial of Mr Dunstan, 2020 ONCA 145, the prosecution met that challenge: the evidence proved that S.Sgt. Gillis didn't cheat.
As I explained in 2017, courts are very sensitive to
unlawful police activity, and will permit defence to explore it.
When you exercise police powers, you are accountable. You are paid
to uphold the law. Therefore you, more than anyone else, must obey
the law. To prove your lawful conduct, it helps to keep good
2020.02.25 Possession - Who knew?
When you find contraband, you automatically infer that the person or people near it possess it. But to convict a person of possessing contraband, a judge will require proof that the person knew what it was.
A day after he returned from a trip to the Dominican Republic, Mr Lights, 2020 ONCA 128 had some friends over. Police raided his place. When the officers entered, he tucked a silver handgun under his legs. It was loaded.
He was charged with possessing a loaded handgun under s.95(1) of the Criminal Code. He beat the charge.
Although the evidence proved that the possessed the handgun, nothing established that he knew it contained ammunition at the time he tried to hide it.
Sure, the apartment contained three boxes of ammunition for it. Sure, the act of hiding the gun made it clear that he knew he shouldn't possess the gun. But there were other people in the apartment, and he shared the place with his girlfriend. Somebody else could have loaded it, and he might not know.
Proof of the offence of possessing a loaded firearm requires proof that the person who possessed the firearm knew it contained ammo.
But wait. There's more.
A bag containing marijuana and cocaine sat in the front hallway.
Mr Light's apartment contained clues that he dealt in drugs: A vacuum sealer. A money counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and two cellphones.
The trial judge inferred that Mr Lights knew what the bag contained because drugs were necessary for his drug business. The appeal court rejected this inference. Mr Lights beat that charge too.
Who would a drug dealer associate with? Maybe other drug dealers. Maybe one of his friends brought some drugs over. Maybe one of his friends had not yet told Mr Lights about the drugs in the bag.
At law, "possession" = control + knowledge.
Could these officers or the prosecutor have done more to prove Mr Lights' guilt? I don't know enough about that case to criticize them. It may be they did all that could be done.
When you investigate contraband - be it drugs, child pornography or weapons - it's great to seize the stuff, but even better to discover who knew about it and how much they knew.
2020.02.17 Searching a Person for Weapons - What to Ask
When you detain a suspect - if you have reason to fear that the suspect might hurt you - you can search the suspect for weapons or other objects that the suspect could use against you. R. v. Mann, 2004 SCC 52.
One way you can do that is by asking the suspect if they have weapons or objects that could hurt you. R. v. Patrick, 2017 BCCA 57.
Usually, when you search a detained subject, you search before giving access to legal advice. At that early stage, you must hold off eliciting evidence about any criminal offence. You must focus your questions specifically on the safety issue: objects that could hurt you (or other officers).
An officer detained Ms Fead, 2018 CarswellAlta 3243 (Alta Q.B.) on a traffic matter, and because it appeared that there were warrants for her arrest.
The officer asked her a question during the initial safety search, to which she responded that she had cocaine and syringes in her shoe.
At her trial for possessing those drugs, her lawyer complained that the question violated her rights.
The summary conviction appeal court agreed.
The officer couldn't remember what question he asked. It could have been any one of the following:
- "Do you have anything that would hurt me, poke me, stab me?"
- "Do you have anything on you?"
- "Do you have anything that I need to be aware of?"
- "Do you have anything on you that you should be concerned about?"
Number 1 is fine. The others are a problem. Even if the officer thought he was asking about his safety, the detainee could reasonably believe that the officer asked about evidence.
If the officer had made complete notes, he might have been able to say what question he asked. He didn't.
Many of you ask this sort of question every day. I suggest that you draft a lawful question, and then always use the same wording in every safety search.
Unfortunately, I did not find this decision on CanLII. If you require a copy, email me.
2020.02.16 Prompt Disclosure
Late disclosure can blow up a trial. New disclosure can also blow up a trial, but nobody will blame you.
From time to time, inexperienced officers show up on the day of trial with some new information. Some new pictures. A document. A statement from a witness that was not previously disclosed.
Sometimes the new material actually matters. During the murder trial of Mr Jiang, 2018 ONCA 1081, the prosecution obtained some documents relating to the health of the defendant's mother. This mattered. His mother had the opportunity to commit the crime. But did she have the strength? The records touched on the answer. But Crown did not disclose them until after the defendant started testifying.
After the jury convicted him, he got a new trial. The appeal court judges agreed that the defence team might well have presented their case differently if they had known what those records contained. The fact that the prosecution team held the information back for several days annoyed the judges.
Don't emulate those prosecutors.
You and the prosecutor have duties to disclose all evidence promptly.
If your file contains relevant information, and you first disclose it to your prosecutor for the first time on the morning of trial, expect trouble. Judges hate late disclosure of information, and will heap scorn upon you.
But sometimes, you can't help it. Sometimes, you discover new evidence at the beginning, or even at the end of trial. Trial publicity sometimes stirs reluctant witnesses into action ... other evidence becomes available.
Nobody will blame your for disclosing new evidence when it arrives, as long as you disclose promptly. New evidence can also disrupt trials, but judges are more forgiving if they know you did your job.
So what's relevant?
Inexperienced officers think "relevant" evidence is the stuff that will help convict the defendant.
If it would help the defendant beat the charge, it's also relevant.
2020.02.15 Reviewing the Evidence
I don't know why Mr Al-Enzi, 2020 ONCA 117 first went to jail. While he was there, he assaulted a guy. Two other inmates, Mr Ali and Mr Elenezi also assaulted the victim. The victim suffered slashes to the face. Security video recorded much of the event. As usual for prison inmates, the victim claimed to have little memory of what happened to him.
Who slashed him?
The security video showed pretty clearly that Mr Al-Enzi carried something in his hand when he approached the victim. The video showed motions like slashing.
At the trial, the other two guys testified. They claimed that they wielded weapons which must have cut the victim.
Beware of such fellows, especially the ones serving life sentences. They aren't afraid of being charged with perjury because the only penalty is jail. And they are already in jail, serving life sentences.
The trial judge looked very closely at the security video. He watched the hands of the other two inmates, and could see that they didn't carry any objects before the fight, and they didn't dispose of any objects after the fight.
Neither the defence lawyer nor the prosecutor examined the video with the same care.
The judge's careful examination of the video led him to reject the evidence of Ali and Elenezi, and convict Mr Al-Enzi.
The lesson for for all of us is simple: after you collect evidence,
spend some time considering it. You'd be amazed what you will learn if
you read the victim's statement carefully, or watch the video
I've watched a fair bit of security video recently.
When security video records multiple views of multiple subjects of interest, I ask police to separate clips which track each subject from all the various views and put them into separate compilations. If I want to know what subject 1 did, I watch the compilation of clips that depict that guy. If I want to know what subject 2 did, I watch that compilation. This saves time: I don't need to watch the blank bits. Judges like compilations too. Court time is precious. Judges don't like watching long blank sections of video to see what happens next.
Whenever you collect security video, always:
- Get the name of the person who downloaded the recordings from the system. This witness is necessary for authenticating the video. (Best of all, download it yourself.)
- Check the accuracy of the system against a reliable timepiece such as your cell phone. The clocks in these things always vary. Getting the time right really matters.
2020.02.07 Interviewing Suspicious Witnesses - Kids under 18
Somebody stabbed Michael Cocomello-Mandino to death. Shortly before the stabbing, his phone exchanged 29 text messages, and connected 4 times for telephone conversations with a phone that Mr Joseph, 2020 ONCA 73 carried.
Mr Joseph was 17.
If you were investigating this killing, would you want to talk to Mr Joseph?
The investigating officers did not know what the messages said, but they knew they wanted to talk to Mr Joseph. They invited him to come to the police station. He came. With his mom.
The officers told him he did not have to give a statement. They told him that he could call a lawyer if he wanted.
Mr Joseph said things that that were provably untrue.
At trial, the prosecution used his statement to show how much he lied to the investigators at the beginning of the investigation.
After a jury convicted him, Mr Joseph complained that the trial judge should have excluded the statement. He said that the officers should have given him the waiver which section 146 of the Youth Criminal Justice Act requires officers to give when officers:
- detain a youth,
- arrest a youth, or
- have sufficient grounds to arrest a youth.
The court rejected the complaint. The police didn't detain or arrest Mr Joseph, nor did they have sufficient grounds to arrest him.
That last point is the tricky one.
A "person of interest" can rapidly morph into a suspect. When a young person of interest says enough to give you grounds to arrest, you must break your interview and deal with the young person the rights required by that section.
I noticed that the appeal court judges specifically commented on the fact that the police told the youth that he didn't have to give a statement, and that he could talk to a lawyer if he wanted. They liked that.
2020.02.02 Impaired Drivers - Right to Counsel - How Many Calls?
At 10:30pm, Mr Tahmasebi, 2020 ONCA 47 parked his car in a stranger's driveway and took a nap. Perhaps it was the painkillers he was taking. The stranger called the police. A police officer woke him and talked to him. He appeared confused. When the officer returned to his police car to turn on the dash-cam recording system, Mr Tahmasebi released the brake, which allowed the car to roll back into the officer, pinning him against his cruiser and injuring him.
An officer arrested him for dangerous driving. At the police station, he told another officer he was using an opioid analgesic. That officer re-arrested him for impaired driving and dangerous driving, and offered him an opportunity to get legal advice.
He took it.
Later, an officer demanded that he provide urine for analysis, pursuant to the demand sections of the Criminal Code.
He refused to pee.
At trial, he said that after such a demand, he ought to have been given further access to legal advice.
The judges all said "no".
Once you have told a driver that he's under investigation for driving / operation while impaired by drugs, he knows enough to get legal advice. If he does get legal advice, the lawyer should advise him what to do if officers make the routine demands for bodily samples for the purposes of investigating that offence. Therefore, you should not need to stop your investigation each time you make an additional demand.
This is the second appellate court to reach this conclusion. See also R. v. Fogarty, 2015 NSCA 6.
What does it matter? What harm could there be in offering the subject further access to counsel after every demand?
All of the screening, analysis and evaluation demands in sections 320.28 require prompt action. "Immediately" or "as soon as practicable". No delay. No dilly-dallying.
Offering the subject unnecessary legal advice delays the gathering of evidence, and could result in exclusion of the results.
Particularly when investigating drugged driving offences, you want to get your bodily samples done before 2 hours expire, because that is the way that the offence is defined.
But if subject fails or refuses to comply with an analysis or evaluation demand, then offering them more legal advice may be appropriate:
- By failing or refusing, the subject causes delay. If you think that giving the subject more legal advice will get results faster than cajoling him, then pick up the phone and call the lawyer.
- When your suspect fails or refuses to provide you the sample(s) you lawfully demanded, he commits a new offence. Hey! You are in the business of preventing people from committing offences. If you think that giving the subject more legal advice will dissuade him from committing a new offence, then pick up the phone.
If your difficult subject does get further legal advice, make sure you give the subject another chance to comply.
2020.02.02 Exclusive Opportunity - Forensic Photography
Two men went into a room. One came out. The other died of a stab wound. What killed him?
Mr Camille, 2020 BCCA 32 shared a room with Mr Adolph. Security cameras in the building showed both went into the room. Only Mr Adolph emerged.
Did he kill Mr Adolph?
Mr Camille reported to the building manager that Mr Adolph died. Police attended, and found a stab wound in Mr Adolph's side.
Maybe he killed himself by accident?
Police found a knife of about the right size in a dresser, under some clothes. It had Mr Adolph's blood on it, as well as some of Mr Camille's DNA.
Mr Adolph's blood contained 400mg%. Really drunk. Really clumsy. A pathologist said Mr Adolf would have died in minutes.
There were no blood stains on the floor between the dresser and where the body lay. It wasn't likely that he put the knife in the dresser himself. Somebody else did that.
If Mr Camille removed the knife from Mr Adolph's side, why did he hide it other than to cover up his own misconduct?
The trial judge convicted Mr Camille, and the Court of Appeal upheld it.
I found the facts of this case interesting from an investigative standpoint. Getting the details right made this case stand. It's a short decision. You might find it interesting too.
"Exclusive opportunity" - we use this phrase when the evidence shows that nobody but the suspect could have been present when the crime occurred. When investigating whodunnit, it helps if you can account for every person. Video cameras sometimes provide this evidence. Other times, neighbours can give this evidence.
But exclusive opportunity didn't tell the whole story. In this case, subtle pieces of evidence made a huge difference:
- The absence of bloodstains on the floor tended to show that the deceased did not walk around after the stabbing. How do you investigate something that isn't there?
- the presence of clothing on top of the knife in the dresser tended to show that the killer hid the knife. The clothing was important. How do you know when innocent things matter?
If taken properly, they preserve the scene so that after you figure out what's important, you can go back to them and look.
But they help only if you photograph the whole scene. With experience, officers tend to focus their cameras on more than the interesting thing. They photograph the area around it.
|Inexperienced officer||Experienced officer||Forensic photographer|
|The dead body||The dead body and the bed where it was found||The bedroom, the floor, the bed and the body|
|The knife||The knife in the drawer||The clothing in the drawer on top of the knife|
|The wound||The wound and some of the body for context||The whole body - injured and uninjured parts|
I don't suggest that first responders should spend hours photographing the whole residence where a domestic assault occurred. But a couple of shots of the crime scene will make it easier for the victim in court to describe the place where the assault occurred. I don't ask first responders to strip a battered wife naked and photograph every inch of her skin, like an autopsy. But you might photograph the absence of injuries on the suspect. Or if you're interested in a bruised left cheek, you might take another photograph comparing right and left cheeks.
2020.01.19 Cell Tower Dumps - Minimizing the Private Information - Who Correlates the Data?
A gang robbed commercial truck drivers. The investigators figured that the gangsters needed to follow their targets in several vehicles, and to communicate using cell phones.
Therefore, police sought cell tower dumps for all cell phones in the vicinities where the robbers went to track the their victims.
Once police got the data, they combed through it to find which cell phone numbers showed up in the dumps of each tower.
That led the investigators to Mr Baskaran, 2020 ONCA 25 and his buddies.
Once busted, they complained that the police obtained too much private information. Police didn't need to know the identities of all the people in the areas of those cell towers - that could amount to thousands of people. Police only needed to know the identities of the people whose cell phones connected all of the towers. That would be just a few.
The judges agreed that cell tower dumps do deliver large quantities of personal information. Production orders should minimize intrusions of privacy as much as possible, while still permitting police to pursue proper investigations.
The judges liked the fact that the police sought data relating to narrow windows of time: 40 minutes of data from one tower, 10 minutes of data from another, 15 and 20 minutes from the other two. The judges agreed that in future, police who seek tower dumps should try to narrow the data even more.
If the cell phone companies are willing to do a little bit of data sorting, there is a way.
If you think your felon used a cell phone in the vicinity of four different cell towers, your production order might ask for tower dump information and subscriber information for only those cell phones that two or more cell towers logged. That could dramatically reduce the amount of personal information you receive and sort through, without losing leads.
As a computer guy, I know of easy ways to do this kind of sifting. The telephone companies likely employ people who have greater proficiency in this than me.
2020.01.19 s.25.1 Authorization - Getting it Right
In order to investigate a drug operation, police staked out a residence. They trespassed on a neighbor's property to do it.
From there, and from a ditch, police officers heard gunshots, and saw people carrying guns. They got a warrant and busted Mr Roy and Mr Biesinger, 2020 ONCA 18 for guns and drugs.
At trial, defence attacked the investigaton. The police gathered evidence by breaking the law. They trespassed on the neighbour's land! Defence asked the court to stay the charges.
The investigating officers considered this. A senior officer got some advice about s.25.1 of the Criminal Code. It turned out to be bad advice, though I'm still not clear from reading the trial and appeal decisions what they got wrong. (I'd be grateful if someone who knows could fill me in.)
In any case, the ITO failed to mention this reliance on s.25.1. It should have. For some reason, the officer in charge didn't explain it to the affiant.
The trial judge found that the police acted in good faith by getting legal advice, and that the omission wasn't a big deal. The court of appeal agreed. The defendants remained convicted.
Section 25.1 authorizes police to do things that would otherwise be offences. It's exceptional. Those of you who use it should follow its requirements carefully. It requires public accountability. Write out your authorization carefully. Follow it. Make reports afterwards. Don't cover it up. Tell the courts what you did.
2020.01.19 Affiants and Subaffiants - Preparing for
When drafting the warrant to search a place, the affiant in R. v. Roy, 2020 ONCA 18 phoned officers who staked the place out, and saw interesting events.
An affiant wants to get the evidence right. Phone them at home if you have to.
The affiant wrote notes about what they told him.
An affiant can expect to be cross-examined on the details that s/he writes in the ITO.
The officer who received the phone call at home wrote no notes about the conversation.
At trial, that officer testified that he had no memory of even having the conversation. Indeed, by trial, he remembered the details a bit differently.
That made it look like one of them was a liar.
If you are an affiant, and you get information in conversations, you might want to emulate the smart affiant, and write some notes about that conversation.
If an affiant calls you and asks you questions about what you saw, you might want to write some notes about the conversation, in case you get cross-examined.
2020.01.18 Innovative Investigative Technique - Replacing the Murder Weapon
Someone bludgeoned Ms Gill in her own home, using a bar from a weight set. The attacker slashed her throat with a knife. After the killing, someone hid that bar in the basement, in Christmas present box.
When searching the home after the murder, police found and seized that hidden bar. But they suspected that the deceased's husband, Mr Gill might have killed her. So they put a matching bar in the Christmas present box. They got a warrant to watch the box, and installed a hidden camera.
That camera captured Mr Gill retrieving the box and hiding the replacement weight bar. Mr Gill's lover, Ms Ronald, 2019 ONCA 971, also hid evidence. Her DNA was on the knife, and the gloves that the killer used.
A jury found them both guilty of first degree murder: they planned it together, and she did the killing. On appeal, the court found that the trial judge made errors in the final instructions to the jury, and ordered a retrial.
I have no doubt that the next jury will see what the hidden camera recorded.
Drug investigators often replace intercepted drugs with innocuous substitute. I rarely see this technique used in other investigations. Tracking devices hidden cameras are cheaper and cheaper, but obtaining lawful authorization remains essential, and time-consuming. But this case illustrates that it can pay off.
I'll bet these investigators were glad that after looking inside the box, they did some outside-the-box thinking.
2020.01.18 Prompts and the Promptness of Statements
What access to independent material should you give witnesses before taking a statement from them? How much time should pass between a traumatic incident and the taking of a statement?
Not only do investigators think about this, but so too do the investigators who investigate investigators.
British Columbia's Independent Investigations Office investigates violent incidents involving police officers. Where the police did nothing wrong, it can exhonorate them. Where the evidence suggests that an officer committed a crime, it forwards a report to prosecutors.
After a Vancouver police officer shot a man dead, the IIO demanded that other officers involved in the case give statements. Before giving statements, the officers asked to review dispatch communications, radio broadcasts and videos that captured their words or actions.
The officers refused to comply. The IIO took them to court, asking for an order that requires police to cooperate with their investigations, in the manner that they decide. IIO of B.C. v. Vancouver P.D., 2020 BCCA 4
I suspect that the police officers worried about events like the death of Robert Dziekanski and the inquiry that followed. Police officers are human, and may make mistakes about what occurred. In that case, police officers killed a man when trying to subdue him. After the incident those officers provided similar descriptions of what occurred. Video evidence established that their versions were inaccurate. That gave the impression that they colluded to cover-up what happened. One officer was convicted of perjury, and another of obstruction of justice.
No officer wants to be charged with offences of dishonesty. Police officers who review the communications, radio calls and video are less likely to make errors that can be contradicted.
But IIO investigators want to use that independent evidence to assess the reliability of the statements that they gather.
I sympathize with both sides.
It looks bad when a police officer gets the facts wrong.
High-stress situations like police killings cause human beings to focus selectively, and remember inaccurately. Some research suggests that it takes two sleeps for a person who underwent a stressful event to consolidate their memories. Police officers justifiably fear that they will get details wrong if they lack time to process what happened.
Officers may fear that without external information to sort out what occurred, they may get facts wrong, and be suspected of dishonesty.
On the other hand, the IIO has justifiable fears. Police work creates close bonds of camaraderie. Although the vast majority of police officers respond honourably and honestly, IIO investigators must collect information quickly in order to avoid deliberate or unintentional collusion between witnesses. IIO investigators want collateral information in order to assess the accuracy of an officer's memories.
People will continue to debate the ideal way to investigate police. But this case raises some principles common to all investigators:
- When investigating violent or traumatic incidents, investigators should be aware that the witnesses may not give their best account immediately after the event. For completeness, a follow-up interview may obtain more information. Investigators and decision-makers should never expect a perfect recollection of a stressful event. Human memories don't work that way.
- When investigating incidents which involve groups, investigators should try to get the witnesses' individual accounts before they discuss the events among themselves. Indeed, investigators should urge witnesses not to compare accounts until all legal proceedings complete. Never take joint statements.
- Investigators should always seek independent evidence that confirms or rebuts what the witnesses say in their statements.
- If a witness reviews that independent evidence before giving a statement, it may prompt more detail and greater accuracy, but the prompt is no longer independent. It no longer assists a decision-maker in corroborating the account. Therefore, you may want to obtain a "pure version" before prompting the witness with the independent information.
These principles apply to all investigations, whether your target is a graffiti artist, a violent spouse, a police officer or a mass-murder.
2020.01.12 Detention - "Non-Custodial Interview" During Execution of a Search Warrant
You know - or at least you ought to know - that a search warrant does not empower you to arrest anyone. When you enter to search, you need separate authority to arrest the people you find there.
However, you can control their movements to the extent necessary to secure the residence and perform the search.
Does that control trigger a "detention" for the purposes of s.10 of the Charter?
When police searched the residence of Mr McSweeney, 2020 ONCA 2, his wife and children were home. The warrant authorized the officers to search for child pornography. The officers sequestered the family in the living room and prevented them from using electronic devices. It was only 6:00am. A school day for the kids, but a bit early. The officers told the family that they were free to go if they wanted. They stayed.
An investigator invited the wife to step outside for an audio statement. She agreed, and answered questions. She asked for permission to get the kids ready for school.
The investigator invited the defendant outside for a recorded statement too. The officer gave no formal cautions or warnings, but did tell the Mr McSweeney that he suspected him of responsibility for child pornography in the residence. The officer told Mr McSweeney that he didn't want to interview the kids, and asked if it was his. Mr McSweeney admitted it. Later, after talking to a lawyer, he gave another inculpatory statement.
The trial judge found that the officers did not detain Mr McSweeney, and they did not trigger the obligation to offer him access to counsel as required by s.10(b) of the Charter. The trial judge admitted.
The appeal court disagreed. They found that the context qualified as a psychological detention. The failure to offer Mr McSweeney counsel violated his rights, and both statements should have been excluded from evidence.
The "non-custodial" interview does not trigger s.10. But merely telling a subject that he's free to leave does not necessarily stop the trigger. These officers made rules for the residents to follow in their own house. The officer who questioned McSweeney asked questions focussed on child pornography. The appeal court found the situation sufficed to cause a reasonable person to feel that he is detained.
I noticed that the investigator never gave Mr McSweeney clear advice that he did not have to answer the officer's questions. Although that failure really addressed the voluntariness of Mr McSweeney's answers, I think the judges disliked the whole set-up.
You might be able to avoid triggering s.10 of the Charter when executing a search warrant; but when you invade a man's home, and instruct him what he can and cannot do, that trigger will likely fire. To release him from that deemed detention, you probably need to do more than merely say "you're free to go if you want".
2019.12.18 Good Bye "Promise to Appear" - The New Release Forms
Today, the Criminal Code changed again, this time affecting the documents you use to compel people to attend court.
You should have received new forms to use. You should have received some training. I hope that all of you did.
I heard a prosecutor today say that police should throw away the old "Appearance Notice", "Promise to Appear" and "Undertaking" forms in your possession. Those documents are repealed. Start using the new ones.
But if an officer screws up and uses the old forms, not all is lost. If a justice of the peace or a prosecutor complains, ask them to review s.849 of the Criminal Code and s.32 of the Interpretation Act.
Backstop - Forms for the Forgotten Line Officers
But just in case your police force didn't deliver the new ones in time, here's something to keep you going until the standard forms and training arrive.
I copied the new forms right out of "Bill C-75", and turned them into word processor documents. I didn't make them pretty, but they do follow what the legislation requires. You can download them and print them. You might want to improve my formatting before you do.
If you serve one of these on the defendant, give the defendant a copy and keep the original for the court.
The new Appearance Notice you should use like the old appearance notice. But there's a new feature. When someone commits a victimless breach of bail, you now have the option of referring the defendant to a "judicial referral hearing" instead of laying a new charge. In my opinion, you should use this option for only the most minor of breaches until you and your prosecutors get used to this new process.
The new Undertaking combines the functions of the old PTA + Undertaking or Recognizance. One document, not two. The conditions and circumstances under which you use it are mostly the same as before.
New Principles, Just Like the Old Principles
The amendments introduced some new sections that tell you to maximize the liberty of defendants. They appear in the Part of the Criminal Code that governs arrest and release of suspects.
493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) ....
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and495.1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524.
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
When you reviewed the new s.493.1, I hope you asked yourself "what does s.498(1.1) say?" If you didn't, then I suggest that you go back and read s.493.1 again.
Here's what s.498(1.1) says:
(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to(i) establish the identity of the person,(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
I hope you're already doing these things anyway!
2019.12.16 Tunnel Vision - Hearing What you Want to Hear
Robbers shot an owner of a beauty salon injuring him. In-store security video recorded the events, but could not identify the robbers. They wore masks. Among other things, they stole watches.
A standard "Who-Dunnit?"
Investigators developed a theory and obtained search warrants. At trial, defence counsel complained that the warrants should never have been granted. The Court of Appeal agreed, and threw out the case.
An eyewitness saw the robbers leave the store. She told the 911 operator they got into a “silver or light blue car”. She said “I think the plate was B-M-P-2”, “B-M-P-T-0-2 something like that … I didn’t get a clear look”. In a police statement, she described the vehicle as “light blue or silver colour. It was clean, newer.” She then recited the licence plate as "BNPT02".
A man across the street saw two or three men in a “shiny silver/grey Dodge, maybe a Charger 4-door” parked in the parking lot across from the Pura Vida Salon. One of the men appeared to be wearing a red shirt. He said he “saw the same car later at the business”.
That night, police searched only the licence plates BMPT020 to BMPT029. 9 cars. They did not research any licence plates using the BNPT series.
They found that plate BMPT 020 was registered to a charcoal grey rental vehicle rented to the father of a known criminal, Mr Booth, 2019 ONCA 970. The rental agreement described the vehicle as "black".
They stopped looking for suspect vehicles, and focussed on Mr Booth. When watching him, they saw him associate with a guy named Rouleau.
The robbers stole two high-end watches. Security video from a taxi captured Mr Rouleau discussing his watch with an associate shortly after the robbery - something you would expect a proud new owner to do. Other security video showed the watch he was wearing. Police showed that video to the owner from whom it was stolen. They asked if he recognized it. He said "No, not this one."
Language Betrays Beliefs
Did the investigators suffer tunnel vision? What the officer wrote in the ITO suggests it. The investigative theory was that the "light blue or silver" car was actually the "charcoal grey or black" car rented to Mr Booth's father, and the watch which the owner didn't recognize actually belonged to him.
The application for a search warrant to search Mr Booth's house recited the information described above this way:
- "the eyewitness provided the partial licence number BMPT02 to Hamilton Police dispatch". It didn't mention that she also gave a licence plate BMPT2, and later BNPT02.
- "“the Hamilton police service began running variations of the licence plate”. It didn't mention that they ran only 9.
- the owner of the stolen watch "could not identify the watch as his.” It did mention his actual words four pages later in the ITO, but buried in a paragraph which discussed his description of the robber.
There are two possible explanations for these problems: police deliberately mis-stated the evidence because they believed that Booth and Rouleau were the felons; or haste and the excitement of the investigation made them sloppy.
Defence accused police of bad faith. (Did defence believe what they wanted to believe?)
But it's important to consider the alternative: the officer jumped too quickly on one suspect, without considering other possibilities. Would a search of other licence plates have led to other suspects?
The search of the residence turned up no evidence related to the robbery. But police did find a video security system, which they seized, in the expectation that it would reveal what Mr Booth wore at the time of the robbery.
It sure did.
It showed Mr Booth wearing clothes similar to one of the robbers.
But the second ITO was worse than the first one. This described only the evidence which supported the investigative theory, and omitted all inconvenient weaknesses. It failed to mention that a search of the residence found nothing related to the robbery.
The trial judge found that the police acted in good faith, but made mistakes. The appeal court held that those mistakes, once corrected, required exclusion of the security video. Without that evidence, the prosecution's case was too thin to support a conviction. Mr Booth beat the charges.
For officers who draft ITOs, the lessons are simple: check your facts. Quote the important stuff so that the justice knows what information you actually have. Tell the justice the bad news about your investigation.
For all investigators, the lessons are also simple:
An investigation is complete when you canvass all reasonably available sources of information.
For an investigator, confidence is a trap. Believing you know the answer is no substitute for complete investigation. The Booth investigation and prosecution would have been much stronger if the licence plate search established that no other similar licence plate was attached to a similar vehicle. If other similar vehicles bore similar licence plates, then someone needed to establish alibis for their owners.
This principle applies in small investigations too. When a witness tells you that they were assaulted, you should not stop investigating just because you believe them. You look for injuries on the witness and the assailant. Photograph the scene. Search out independent witnesses. Ask the alleged assailant what he or she says happened.
Tunnel vision is real. Humans suffer "confirmation bias" - the tendency to accept information which conforms to their beliefs, and to ignore contradictory information. (This tendency partly explains the current polarization of American politics.) For you to defeat it, you must accept that you are vulnerable to it.
2019.11.15 Small Fish, Big Fish, and Netting them Together
When you investigate the big fish, you often gather information about the crimes committed by the minnows around him. If you bust the minnows, the big fish will hide. Therefore, it makes sense to bust them all together.
Police investigated a weapons dealer, Mr M.D., using undercover officers, wiretap, and a crook acting under their direction. From the agent, they learned that Mr James, 2019 ONCA 288 supplied M.D. with cocaine, and spoke of a meeting in which a kilo would be bought.
23 days later, relying on information from the crook, the officers obtained a warrant to search Mr James' house and car for “Cocaine; Packaging Materials; Cellular phone(s) associated to [a specified number]; Debt List(s) (Handwritten and or Electronic).”
The police busted him, and found drugs and firearms.
The trial judge threw out the evidence for various reasons:
- stale information - the ITO failed to explain why Mr James still possessed cocaine from 23 days earlier.
- missing information - the ITO mentioned a previous arrest in which Mr James possessed drugs, but failed to mention that the charges were stayed.
- racist information - the ITO quoted offensive communications recorded under the authorization to intercept suspects' phones, instead of summarizing it
The trial judge didn't like the idea that the police waited 23 days to execute their warrant. If they wanted to bust Mr James, they should have acted immediately when they had grounds. If they considered him small fry, they they should have ignored him and pursued Mr M.D. instead.
The Crown appealed. Two of three judges in the Ontario Court of Appeal agreed with the trial judge. But not Justice Nordheimer.
The Crown appealed again. James, 2019 SCC 52 Five of nine judges in the Supreme Court of Canada agreed with the Crown. Overall, more judges agreed with the defence than the prosecution, but the prosecution won where it mattered.
What does that teach you?
The appeal judges all agreed that the trial judge was wrong about the racist quotes. Summarize minor details, but quote key information, no matter how rudely it might be expressed.
The appeal judges all agreed that the trial judge was right about the missing information. Officers who prepare warrant applications routinely rely on police databases. Those record arrests, and sometimes charges. But what happened after the arrest? Judges work hard on trials. You offend them if you treat their work as irrelevant. If your ITO mentions an arrest, look up what happened to the charges after the arrest, and report that.
Was the ITO stale? The judges disagreed. But Justice Nordheimer pointed out that "stale" depends upon what the officers were searching for.
If the officers just wanted the cocaine, then maybe it was stale. Evidently, reasonable minds may differ. But these officers were investigating M.D.. If they found evidence that showed that Mr James did possess cocaine 23 days earlier, that would support the credibility of their shady agent. The officers didn't just want the cocaine. They wanted cell phones, packaging materials and debt lists. If they could corroborate their shady agent, then they would have a stronger case against the gun dealer. The cell phones were really important evidence because they would contain communications between M.D. and James.
A simple ITO will ask for authority to search for contraband ("cocaine") or the thing used in an offence ("the bloody knife"). A sophisticated ITO explains the need to search for evidence of the offence ("packaging materials", or "blood, or traces of human bodily substances"). If you keep the difference in mind, you can identify probative things that will likely still be in the place long after the cocaine or the bloody knife have disappeared.
Must the fisher always let the little ones go?
Justice Nordheimer also rejected the idea that you must always pick one target and abandon the others. So long as you have grounds to justify the searches at the time you do them, you have no obligation to reveal your investigation at the first opportunity. Depending on your evidence, the wisest course of action is often to net them all together.
Of course, other times you need to abandon the investigation of some in order to catch others. Good luck making those judgment calls!!
2019.11.13 Equipment Check
Have you checked the functioning of the devices you rely on?
When Ms Domanska, 2019 ONCA 893 crashed her car, she hurt others, and she hurt herself. She smelled of liquor. She admitted drinking ... but only two glasses of wine.
The hospital tested her blood. I'm pretty sure the result of that test showed she drank a lot more than two glasses of wine. But there the judge found a gap in the evidence which linked the sample which the hospital staff took from Ms Domanska to the piece of paper that reported how much alcohol the lab found in it.
Proving continuity involves more than writing down which police officer seized an important exhibit. Who handled it before police seized it?
But there was another problem. An officer brought a breath-testing instrument to the hospital. It malfunctioned. No breath test evidence either.
Ms Domanska beat the charge because the equipment broke.
Is your equipment all in working order? In a recent case of mine, an officer recorded a crucial witness at a hospital ... until the batteries ran dry. (Most cell phones can act as back-up recording devices ... if you figure learn how to use them that way.) Is your camera set to the right date and time? (Remember, we just changed the clocks.) Do your defensive weapons work?
Be safe out there.
2019.11.12 Charter Breaches - Get out of Jail Early Card
Upholding the law by investigating offences does not give you the right to break the law by violating lawfully-protected privacy.
A man went shopping for a house. A real estate agent took him through an interesting place in the small town of Zealand, N.B.. On the deck and inside, he saw tools clearly marked "Charmac Construction". This man knew that Charmac Construction recently suffered a substantial burglary. The man went to local police, and told them what he saw.
The police didn't have time or staff to get a warrant that night. They decided to post a single officer outside the house to guard it pending the granting of a search warrant. So they went to the house, and arrested Mr Kennett, 2019 NBCA 52 and another man, whom they found at the place. The officers cleared the residence. And through the outside windows, they took some photographs of the tools inside. One officer seized a cell phone from Mr Kennett. That officer perused the cell phone's contents, looking for evidence. Without a warrant.
They came back later, and seized the stolen property ... and some drugs.
The trial judge didn't like the warrantless search of the house (neither clearing it, nor the photography). The trial judge didn't like the warrantless search of the phone. But the trial judge agreed that the search warrant was properly issued, and convicted Mr Kennett of possessing stolen property and drugs.
The Court of Appeal reduced Mr Kennett's sentence by 6 months by reason of the Charter breaches.
This case doesn't discuss the lawfulness of clearing a residence pending the execution of a search warrant. You don't have an automatic right to walk through the place. If you have reason to fear for the safety of officers holding the scene, or reason to fear that evidence will be lost, then doing so doesn't violate s.8 of the Charter.
But the other breaches were clearly a problem.
Officers should take photographs when looking for evidence. But when you're clearing a residence in order to hold the place pending the granting of a warrant, you have no right to search for evidence. Officers should search cell phones of culprits. But you need compelling reasons to do so as an incident to arrest.
Mr Kennett got a significant discount on his sentence as a result of these breaches.
2019.11.12 Diligence Confirming a Source
Back when marijuana was still prohibited, a tipster of unknown reliability told police that “Rob” was growing marijuana and possessed firearms and other weapons at an apartment. Police applied for, and obtained, a warrant to search the apartment. They found Mr Labelle, 2019 ONCA 557, wearing only a towel (he had just showered). And they found guns.
At trial, defence attacked the warrant application. To protect the informant's identity, police redacted much of the Information To Obtain before disclosing it to the defence lawyer and the trial judge. What remained did not clearly show why it was reasonable to believe the tipster.
At the trial, defence counsel asked the officer who applied for the warrant whether he checked apartment address on the firarms registry, to see if anyone who lived there could lawfully possess firearms. The officer admitted he didn't.
Then Mr Labelle's girlfriend testified that she possessed such licences at the time, and that it was her apartment.
Oops. Maybe the officer should have checked that registry.
Anyway, the case grew complicated. Crown cross-examined the girlfriend about who lived there. She testified that Mr Labelle never lived there, and visited only occasionally. Crown switched gears. Crown argued: if he was just a visitor who didn't live there, then he had no expectation of privacy in the apartment. If he had no expectation of privacy, then he had no standing to attack the search warrant.
That worked at trial. The judge dismissed the defence attack on the warrant.
The rest of the case proved that the girlfriend lied about his occupancy of the apartment. The trial judge convicted him.
Then R. v. Jones, 2017 SCC 60 happened. The Supreme Court of Canada held it was unfair for the Crown to take conflicting positions at trial. The Crown can't argue both that the defendant lived there and that the defendant didn't live there.
Because of the change in the law, Mr Jones gets a new trial. He gets to attack the warrant again. Who knows what his lying girlfriend will say this time.
Before you apply for a warrant based on a confidential source, try diligently to gather information from independent sources that confirms or rebuts what the source told you.
2019.11.09 Proving Good Conduct can Help Prove Bad Conduct
Not long ago, a case came across my desk of breach involving the breach of an abstention condition. An analysis of the suspect's urine revealed that it contained the metabolite of an illegal drug. But some metabolites can linger in the body long after the drug is gone.
Did the suspect use the drug before or after the abstention condition took effect?
I asked the investigator to dig up more evidence. Fortunately, the suspect had provided an earlier urine sample. Analysis of that sample did not detect the metabolite. That 'clean' sample occurred after the abstention condition came into effect.
In order to prove the crime, not only did I need the evidence of bad conduct, but I also needed evidence of prior good conduct.
The same sort of issue arose in Zeitoune, 2018 ONSC 2846. Ms Zeitoune had a job processing passport applications. She approved 24 applications that turned out to be fraudulent. She didn't do the background checks that she was supposed to do.
Investigators had reason to suspect that she received money to issue fake passports.
The prosecution asked the trial judge to convict her of breach of trust, fraud and forgery. To succeed, the evidence had to prove that she knew that these applications were fraudulent when she approved them for passports.
The prosecutor pointed to the evidence that she failed to do the background checks that policy required her to do. The judge commented that this didn't prove knowledge. Maybe she was just bad at her job.
The evidence would have been more compelling if the prosecution showed that she did the background checks properly on other passport applications, but not these ones.
As it turned out, there was lots of other evidence, and the judge convicted her.
My point is that investigating an aberration from a routine may require some evidence of the routine.
In this case, her supervisor testified about what Ms Zeitoune should have done. What the prosecution didn't present was evidence that Ms Zeitoune actually followed the protocol on other occasions.
2019.11.02 Right to Counsel - Promptly Explained and Promptly Given
Section 10(b) of the Charter gives detained person the right to "retain and instruct counsel without delay", and the right to be told "promptly" about that right.
Police officers busted Mr Noel, 2019 ONCA 860 with a bunch of cocaine and money in his bedroom. When they executed a search warrant, they found him there. It seems that they had good reason to use a "dynamic entry" - that is, they went in hard and fast.
After handcuffing him, the arresting officers didn't immediately explain his rights to him. Instead, according to a pre-arranged plan, they brought him to a central place where another officer got it done within 5 minutes of the initial entry.
Mr Noel said he wanted to talk to a lawyer. Instead of arranging it there and then, the officers took him back to the police station. On the way, Mr Noel told the officer that the drugs were his, and not his brother's. When they arrived at the police station, the officers did nothing about giving him access to counsel for three hours. I gather that nobody could actually say whether he ever got the access to which he was entitled.
The Court of Appeal threw out the evidence of the drugs and money. Mr Noel beat the charges.The judges made it clear that they wanted police officers to learn from this case.
What can we learn?
- When you arrest or detain someone, inform them of their right to counsel "promptly", and if they want a lawyer, give them access without delay.
- If you give the prisoner to another officer before performing either part of that duty, then tell the next officer that what needs to be done, so they can get it done promptly.
- The prisoner is like an exhibit - every officer who receives the prisoner needs to document how they did with him/her.
- If you plan to arrest or search, then you can plan what to do with the prisoners you may take in the process. That plan should include access to counsel.