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.