2021.02.28 Spousal Privilege ends with Divorce
Wiretap might record what the killer told discussed with his wife about the killing. But s.189(6) of the Criminal Code and s.4(3) of the Canada Evidence Act prevent a court from admitting the recording. It's privileged. Indeed, the prosecution can't even compel the wife to testify about those conversations.
But if the killer and his wife divorce, spousal privilege ends. R. v. Al-Enzi, 2021 ONCA 81.
You don't need to read the whole decision to follow the reasonably clear explanation which starts at para 168.
2021.02.27 Paperwork that can Kill Your Career
In British Columbia, police officers who catch drunk drivers send reports to the Superintendent of Motor Vehicles, which generally results in significant penalties including driving prohibitions.
Those reports include a thing we lawyers call a "jurat". It says that you solemnly affirm, or declare or swear that the contents of the report are true.
Be careful of any document that contains one of those. You stake your credibility on it.
If you deliberately assert false information over a jurat, you are committing the crime of perjury. That will end your career quickly.
If you mistakenly assert false information, you could find yourself seriously embarrassed in a court room.
Q: Officer, today you say you saw my client was unsteady on his feet at the roadside?
Q: You didn't see that in the police station?
A: I don't remember.
Q: You completed a report to the Superintendent of Motor Vehicles about this?
Q: You were required to explain to the Superintendent why you thought he was too drunk to drive?
Q: You understand that the Superintendent uses these reports to determine whether a driver should be prohibited from driving?
Q: So you told the Superintendent all of your observations that day?
Q: In that report, you listed the odour of liquor and the slurred speech, but did not mention anything about unsteadiness on his feet?
A: What? Oh. Um. I must have forgotten to write that part in. I filled out that form in a hurry.
Q: Officer, before you submitted the report to the Superintendent, you solemnly declared that it was true?
A: I filled in the part at the bottom.
Q: The words say that you solemnly declared that it was true.
A: I guess so.
Q: And it wasn't complete.
A: Well I did see him unsteady on his feet.
Q: I suggest to you that the report was accurate, and you are lying today.
A: No, I did see him unsteady on his feet.
Q: You so solemnly affirm today?
Q: But you solemnly affirmed something different when you wrote the report! Were you perjuring yourself then or are you perjuring yourself now?
[If it truly was a mistake, then you did not commit the crime of perjury. Perjury requires intent to deceive. But lawyers who cross-examine like to ask dramatic questions like that one.]
When you "fill in paperwork", make sure the sworn documents are completely true. When you come to court to testify, review carefully any documents you swore to be true. You can bet defence counsel hopes you will say something different on the witness stand.
A couple of officers nearly avoided all of that trouble, by failing to get a Commissioner for the Taking of Oaths to witness their oaths. Kuzmanovic v. The Superintendent of Motor Vehicles, 2021 BCCA 83. Someone in the office of the Superintendent noticed, and got the officers to submit sworn documents. The manner in which they patched it up became an issue in the litigation.
The legislation requires the officer to submit sworn (or affirmed) information. The case discussed what makes a properly sworn document.
The basic idea is simple. Only the document that starts or ends with the officer's solemn oath or affirmation is a sworn document. If you file other documents with it, they are not evidence. But if the contents of the sworn document refers to other specific documents and adopts them, then those become part of the sworn document "by reference". Like this:
"This investigation is accurately described in my report dated 2021-02-27 which is attached."
Please make sure that your report is, indeed, accurate.
2021.02.15 Swearing Charges and Seeking Process - Should it Be
When a peace officer or public officer lays a charge, the justice of the peace follows the process set out in s.507 of the Criminal Code. That section does not require the justice of the peace to make a formal recording.
Lawyers for Mr Orr, 2021 BCCA 42 argued that it should. The trial judge rejected their application. The appeal court said they they followed the wrong procedure when making their complaint.
Mr Orr's lawyers weren't crazy. Swearing a charge is serious. Getting a warrant for someone's arrest is serious. They urged that every request for a warrant be recorded. If police get a warrant for someone's arrest without good reason, lawyers for the accused can do something about it.
At the trial, the officer who swore the charges against Mr Orr was made to testify. The officer had to explainwhat steps he took to assure himself that a warrant was needed in that case.
The poor officer could not remember the case. Like many court liaison officers, he swears many many charges in the course of his work.
But he could explain his usual procedure. That procedure ensured that whenever he asked for a warrant, he had good reasons.
And that was was why the judges approved of what he did.
If you swear a charge, read the file. Know why you think the accused is guilty.
If you ask for a warrant, read the file, and check background information. Know why you think it's in the public interest to arrest the accused rather than merely summon him/her to court. And tell the justice your reasons for wanting a warrant.
I add: if you think a summons is all you need for this file, check the background information. Every so often, our office handles a case where a victim needed protection from the accused, but the police sought only a summons.
Maybe one day, the process of laying charges will be recorded. Even if they aren't, you want to be able to answer questions like the ones Mr Orr's lawyers posed this officer. Follow a procedure that ensures that you know why you think the suspect is guilty and why a warrant should be issued.
2021.02.15 Videorecording Interviews Is a Good Idea
Mr Schneider, 2021 BCCA 41 put Natsumi Kogawa's naked body into a suitcase, and lugged it to a vacant lot. But did he kill her?
The pathologist who examined her decayed body could not clearly determine how she died. But suffocation was a live possiblity.
A police officer interviewed Mr Schneider. During the conversation, Mr Schneider explained that there was an angry argument. He briefly placed his hand over his nose and mouth, demonstrating what he did to her. He demonstrated this twice.
Naturally, that gesture took on great importance in the trial.
Too bad it wasn't video-recorded.
You don't want to be the officer who must explain why such an important interview was not video-recorded. You don't want to be the officer on the witness stand trying to explain what the gesture looked like.
Use the video-recording system for interviews. Not just for suspects, but also important witnesses, and children, and aged and vulnerable people. Check the system, to make sure it's working.
In the field, even your cell phone may record video.
2021.02.14 Translating Evidence
Mr Abdullahi, 2021 ONCA 82 spoke Somali. Toronto police intercepted his communications, and busted him for trafficking in firearms.
I infer that there were many interceptions that required translation.
At trial, defence challenged the translator, and cross-examined him for a long time. The trial judge accepted the translations. The jury convicted him. The appeal court agreed.
What did the Toronto Police Service do correctly?
First, they had a team of three Somali interpreters. Two did the initial translation. The third reviewed the recordings, and proof-read the transcripts. He kept the original translations, and made note of the changes he made to the efforts of the first two.
The prosecutors probably liked this: at trial, only one witness needed to testify about the translations - the third interpreter.
That interpreter would listen to the whole of the recording for himself. Then he would listen to it bit-by-bit, and confirm for himself that the translation was correct.
The judges seemed to like that procedure. The first step allowed him to grasp the meaning of the conversation for himself, without prejudicing himself by reading the work of the other interpreters. The second step permitted a careful proof-reading of others' work.
Defence complained that he lacked sufficient qualifications: he had no formal certification as an interpreter.
The judges dismissed this concern rapidly. The translator was born and raised in Somalia until he was 5. He used the Somali language for the rest of his life with his family, watching Somali TV, and engaging with the Somali community. He worked for several years doing translation work before he worked on this case.
Judges prefer experts to be independent of the parties. This translator was an employee of the police service. Considering the sensitivity of the investigation, I imagine that the investigators would not want to retain an outside expert on the Somali language. But that could throw some doubt on his objectivity.
This translator testified that he took care not to insert his opinions about what the speakers meant. The judges liked that.
Because the recordings and translations were disclosed well in advance of trial, the judges knew that the defendants could challenge any translations with which they disagreed.
- Organizing a team of translators the right way can make presenting their evidence go more smoothly in court.
- How the translators work may become the subject of intense cross-examination at trial. The team needs to work in a defensible way, and they must have adequate skills.
- Certificates aren't as important as real-life experience with the languages in question.
- Protect the independence of the translators from the investigative team. Try to exclude them them in strategic or investigative discussions. At the very least, focus the translator on the need for objectivity.
- Judges like full and timely disclosure. That applies to translations too.
2021.01.28 Mr Big and Mr Small
Security video recorded Mr Quinton, 2021 ONCA 44 as the last person to visit Mr Gilby, a drug dealer. The next person to enter that apartment found Mr Gilby dead in a pool of blood. Someone smashed his head in with a hammer. A set of his keys went missing.
Naturally, police suspected Mr Quinton.
Mr Quinton lived on disability benefits - which were slim. He abused drugs and alcohol so much that he arranged for his disability cheque to be managed by someone more trustworthy than him. Mr Quinton took medication for anxiety and depression.
When undercover police befriended Mr Quinton, they gave him work. They paid him small sums - by most people's standards. But for Mr Quinton, these sums dramatically increased his disposable cash.
The undercover officer often visited him carrying a 6-pack of beer, which they shared, while Mr Quinton smoked marijuana - which was illegal at the time.
Mr Quinton suffered a stroke. The undercover officers assisted him in his time of need, caring for him when nobody else would.
When they turned up the pressure, he confessed to the murder, and led them to the drain where the victim's keys had been hidden.
After his conviction, defence argued that the confession should be
excluded. The police had made Mr Quinton too dependent on the
Without deciding the question, the appeal court ordered a retrial. It bothered the judges that the officers prevented him from getting his medication before getting him to confess. They worried that admitting the confession might be an abuse of process, and suggested that the trial judge review the circumstances carefully at the new trial.
For officers conducting Mr Big operations, you'll want to review this one. Judges get skittish when Mr Big's kindness toward Mr Small creates a relationship of dependency. The operation should not take unfair advantage of the suspect's illnesses.
2021.01.17 Solicitor-Client Privilege - Careful What you Read
When police arrested Mr Borbely, 2021 ONCA 17 for murder, he had been driving his car. When the officers searched his car, they found a sealed envelope addressed to his lawyer.
The officers placed it - unopened - into another sealed envelope, awaiting the day that a judge could determine whether it was privileged.
That day came before the trial. The judge opened the envelopes and looked inside. He found a diary which described the events leading up to the disappearance of the deceased, and a letter to the lawyer.
Communications between lawyer and client are privileged: don't touch. The judge put the letter back into the envelope.
But the judge found that the diary did not record communications from the Mr Borbely to the lawyer. Therefore, it was evidence that the police and prosecutors could read and use.
The investigators behaved wisely. Judges and lawyers take privilege very seriously. If the officers had opened the envelope and read the privileged letter, a judge might well have stayed the entire prosecution.
If you encounter communications between suspect and lawyer, follow the lead of these officers: treat it like it's radioactive. Seal it up, and call in the lawyers.
(And don't secretly listen to your prisoners talking to their lawyers.)
2021.01.17 Reasonable Expectation of Privacy - Guest in a Bedroom
Does a guest enjoy a reasonable expectation of privacy?
The expectations of privacy in a bedroom differ according to the people making the claim of a violation of their privacy.
Mr Sangster, 2021 ONCA 21 stayed for 3 weeks at the apartment of a friend. Mr Sangster and his girlfriend slept in the friend's bedroom while the friend slept in the living room. But the owner's clothes and property were in the bedroom.
Someone got stabbed in the hallway. While police investigated this violent assault, social workers came to check up on the friend. They brought a police officer along for safety. The social worker asked the friend to let them into the bedroom. There, the social worker saw Mr Sangster holding a gun. She screamed and fled.
Police got a warrant and searched the place. They found the gun, and evidence linking Mr Sangster to the stabbing.
Mr Sangster complained that the police violated his reasonable expectation of privacy. The trial judge disagreed. So did the appeal court.
Does that mean guests have no expectation of privacy? No. It all depends upon the circumstances. In this case, the homeowner consented to the social worker's entry into the bedroom. Mr Sangster had minimal control over the bedroom. He made no contribution to he house. He shared the use of the room with everyone else in the apartment. Other guests may enjoy greater expectations of privacy.
2021.01.17 Warrant Drafting - Confidential Sources - "Step Six"
May drug dealers, and some other offenders, get busted because people in the criminal underworld tell police what they did.
When someone gives information on condition of anonymity, you owe him or her privacy. You must not reveal to the target - or anyone else - who informed on the target.
But the information serves no purpose if you can't use it.
When seeking a warrant to search or surveil the target, you can tell an issuing judge all about the confidential source and the information. Indeed, you need to explain why you can trust the source, as well as anything that suggests that should not trust the source. But if you do, you must seek a sealing order. Otherwise, the application for the warrant will be public, and the target will discover the identity of the source.
But a sealing order doesn't solve all of the problems. Confidential sources seem easy to deal with, but they get complicated fast.
If you bust the target, and he gets charged, he will demand a fair trial. Part of a fair trial involves reviewing the police work to see if it was done properly. That includes reviewing the application for the warrant.
And so we engage in the imprecise science of redacting. We give the defence a copy of the application, but we remove from the copy anything which might identify the source. The defence then tells the judge that the redacted application lacks sufficient detail to justify the warrant, hoping that the judge will agree.
That's what happened in the case of Mr Perkins, 2021 BCCA 9. And the trial judge agreed that the redacted application failed to support the warrants at issue.
Not all was lost.
The Crown asked the judge to take "step six of the procedure laid out in R. v. Garofoli, 1990 CanLII 52 (SCC)".
The prosecutor showed the judge some of the original application, and provided a summary to defence of what it contained. The judge agreed that the summary adequately informed defence of the contents of the hidden material that defence could check to see if police did their job properly.
Complicated? Yes. Successful? Yes. The trial judge found that the additional information justified the production order at issue. That led to Mr Perkins' conviction.
On the appeal, defence complained that the redactions left the application looking imprecise and vague. For example:
Source E “picked up cocaine [redacted] from the person he identified in the booking photo” as “[name]”
Suppose the redacted word was "scales" or "pipes" instead of "powder".
This argument could have succeeded. It didn't in this case.
Officers who draft applications for warrants, production orders, tracking devices and the like would be wise to draft in anticipation of the redacting, and judicial review.
In this case, the defence argument would have been avoided by writing:
Source E “picked up cocaine in the form of powder from the person he identified in the booking photo ...
A redacted version of this sentence would not reveal the form of the cocaine, but would clearly establish that Source E acquired cocaine.
You might ask why there is extra space after the word "powder". That's to make it more difficult for someone to figure out what the redacted words are. One can't type the possible words and see if they fit.
If you don't understand "step six", this decision explains it fairly well.
2020.12.29 Language Barriers during Arrest - Penile Swab
Mr Cortes Rivera, 2020 ABCA 76 spoke Spanish. He got drunk at a house party. So did a woman. In the morning, the woman complained that he raped her. Police arrested him at 1:30pm that afternoon. They arranged for a Spanish interpreter to explain his rights.
Police swabbed his penis and interviewed him. The swab revealed the complainant's DNA on his penis. The interview committed him to a story which contradicted the version he gave at trial. This led to his conviction at trial.
He appealed on may grounds. His complaints about police treatment are worth considering.
The interpreter gave him the impression that he was allowed only one call to get legal advice. When you work with an interpreter, you know what you tell the interpreter, but you don't know whether the interpretation will be accurate. Fortunately, in this case, the investigators offered him several calls at different points in the investigation. The judges gave no weight to this complaint.
Mr Cortes Rivera asked to call a friend. He did not tell police that he intended to ask the friend to help him find a lawyer. The section 10(b) right to retain and instruct counsel includes the right to ask a friend for help finding a lawyer. Because he did not explain his purpose at the time, the judges found no breach of his s.10(b) rights. But when your prisoner asks to call a non-lawyer, you would be wise to ask the prisoner why they want to make that call.
When swabbing his penis, the police failed to respect his privacy (they stripped him fully naked, and one more person than necessary watched the process), they failed to make a complete record (they should have audio-recorded the procedure), and they deprived him of Spanish interpretation (they excluded the interpreter because she was female).
There are practical solutions to these problems:
- Most, "strip searches" do not require that the prisoner be rendered completely naked. Try to leave parts of a person clothed while you examine other parts.
- When searching intimate parts of a person, minimize the number of observers.
- For privacy it was necessary to exclude the female interpreter from the room. But her interpretation could have been given from outside the door, or through a cell phone on hands-free mode. Or she could have been in the room, if a privacy screen blocked her view of the suspect.
- Recording devices are commonplace. You probably have "an app for that" on your phone. When handling difficult suspects, recording your interactions is easy. When performing a penile swab, making a complete record is necessary.
The judges agreed that the officers breached Mr Cortes-Rivera's rights. But they admitted the evidence, because the officers made some efforts to respect his privacy. Mr Cortes Rivera's appeal failed.
2020.12.19 Reasonable Grounds to Arrest or Detain - When a Suspect
If you find someone looking suspicious, and you ask them what they are doing, they have no obligation to explain. They don't have to tell you their name either. R. v. Guthrie, 1982 ABCA 201. And unless you detain them, they have no obligation to stick around and speak to you.
So if this suspicious person tries to walk away, you can't use that bare fact to justify attempting to arrest them.
But the way that they attempt to end the conversation may properly elevate your suspicion to a level that justifies an arrest or detention, depending on how they behave.
This difference in focus led to the conviction and sentencing of Mr Coutu, 2020 MBCA 106.
Someone robbed a convenience store. It wasn't Mr Coutu. But the robber wore clothing similar to Mr Coutu. A dog track led police to the area where police found Mr Coutu, but the dog lost the track. When police saw Mr Coutu, they took an interest. A police officer yelled to him "police, show me your hands". Mr Coutu walked backwards and started to remove his backpack. It looked like he was going to run away.
The officer arrested him for robbery. In the backpack, the officer found a loaded sawed-off shotgun, two throwing stars and an air pistol with a silencer. Bad stuff. It led to charges.
The trial judge found that the match between Mr Coutu's clothing and the broadcasted description of the robber was too generic. The trial judge concluded that the arrest was unlawful.
The Court of Appeal disagreed. Mr Coutu's response to police added to the officer's grounds, rendering them lawful.
Mr Coutu's reluctance to speak with police was not an additional reason to justify arrest. But his apparent preparation to run away after being detained was.
The excitement of the chase makes subsequent documentation harder to do. This officer must have done a pretty good job. After an exciting pursuit, write down the interesting details of what happened when you found the quarry.
That includes you dogmasters too!
2020.11.29 Disclosure - Even Unimportant Things can be Relevant
This isn't breaking news. I overlooked it when it first came out. I re-read it today, and thought that more people might find it interesting than just undercover officers.
An undercover officer befriended Mr Hersi, 2019 ONCA 94 because police had information that he took an interest in extremist causes. Mr Hersi told the officer that he was going to quit his job, fly to Egypt, and from there, go to Somalia and join a terrorist organization. Mr Hersi did quit his job; and he bought a plane ticket to Egypt. He urged the officer to join him.
Police busted him at the airport for attempting to contributed to a terrorist group.
The undercover officer deleted some of the text messages he received from Mr Hersi early in the operation. He did so because he saw nothing relevant or important in the messages, but lightweight chatter.
At trial, defence claimed that the messages were crucial. They claimed that the undercover officer encouraged Mr Hersi to join a terrorist organization, and the messages would have proven it.
Fortunately, the officer made verbatim notes of the messages.
The court found that destruction of the messages from the phone was a breach of the defendant's right to full disclosure; but it wasn't a terribly serious breach because the officer took steps to preserve the evidence.
It is human nature to rank the importance of the evidence you collect during an investigation. Evidence which proves the defendant's guilt feels like "the good stuff". But the defence will look at the evidence differently; they may value highly the evidence you overlook. Therefore, before you destroy evidence, second-guess yourself. "I might not think this is important, but is there some possibility that someone else will?"
2020.11.22 Bad Character - Good Clues can be Bad Testimony
A big investigation into organized crime caught lots of suspects. Among them, police busted Mr Cook, 2020 ONCA 731 for drugs and proceeds of crime.
Part of the investigation included surveillance. Officers saw Mr Cook hanging out with members of the Hells Angels. Part of the investigation included wiretap. Mr Cook spent time talking with a friend of his about how to beat drug possession charges. Part of the investigation involved a search of his house. Police found the kinds of Hells Angels paraphernalia which the Angels do not sell. You have to earn it from them.
Does that information make you think he was probably guilty?
So far, this article describes no evidence that tends to show that Mr Cook possessed the cocaine and anabolic steroids that police found, nor whether the money in his house came from the commission of crimes.
Perhaps you think he's a bad guy because of his choice of friends. Perhaps you think he would possess drugs and profit from them because he's a bad guy.
That's reasoning from bad character evidence. Defence lawyers hate it.
This kind of information often helps you find felons, but judges don't like to use it for proving guilt. Once we know that the defendant is a bad guy, it becomes easy to stop worrying about whether the evidence actually proves his guilt in this particular case.
The prosecutor presented lots of this bad character evidence. To a jury. The jury convicted. The Court of Appeal worried that the jury convicted because they hated Mr Cook, instead of relying on the evidence. Now Mr Cook will get a retrial. And with COVID running rampant, who knows whether that trial will ever run. Mr Cook may beat the charge. He may beat the charge because the prosecutor told the jury that he is a bad guy.
It was the prosecutor who screwed up this time. But police officers make this mistake all the time.
When testifying, don't mention the defendant's previous crimes unless specifically asked.
You can refer to bad character evidence in a search warrant application, but be skittish about mentioning it at trial. Especially when it's a trial by jury.
2020.11.14 The morning after the night before - Text Messages Before and After the Sex
Mr Langan, 2019 BCCA 467 separated from the mother of his child. After trying to reconcile, she decided that she wanted only to be friends. They lived in different parts of the province. Using text messaging, they planned a visit for one summer weekend. She told him "I’m not having sex with you if that’s what your trying to get at."
But sex happened anyway.
Afterwards, she complained about what he did to her, again by text message. His text responses agreed that she told him "no", but he had intercourse with her anyway.
She went to police. Charges were laid. She testified at trial, and the text messages made a big difference at trial.
The trial judge convicted. Two of the three Court of Appeal felt that the trial judge made errors admitting the text messages, and ordered a new trial. Most of the judges of the Supreme Court of Canada sided with the trial judge. Langan, 2020 SCC 33
This case is important for lawyers, because it clarifies rules of evidence relating to such text conversations, and also the rules for Crown tendering evidence of the complainant's prior sexual activity.
I think, for police officers, this case serves as a useful reminder of the importance of gathering text messages from witnesses who converse that way with the suspect. All too many victims block their assailants' accounts, and delete all messages. Capture that precious evidence before they do. In sexual assault trials, conversations between the only two witnesses who know what happened can have great probative value.
I observe that sometimes, officers even encourage the complainant to converse with the suspect, and record the conversation. Of course, such an investigative operation requires judicial pre-authorization.
2020.11.01 After Godoy - Powers of Arrest and Search after Emergency Entry of a Residence
The 911 caller said he saw a man beating a woman in a car. He described the man and the car, and said the licence plate was either either “BEWN 480” or “BEWN 483”.
Eight minutes later, officers found a matching car bearing licence plate “BEWN 840” outside a residence.
Can they enter the residence?
The senior officer at the scene called the 911 caller back to get more detail. That man said he saw the man in the car punching the woman in the head, she was "turtling" from the strikes and he put her in a headlock.
The officers knocked long and loudly at the door, announcing themselves.
They entered and repeatedly announced themselves, but there was nobody on the main floor.
From the top of the stairs to the basement, an officer saw a man who resembled the description given by the 911 caller. The officers called for all the people in the basement to come up.
Eventually, a woman came up the steps. She had fresh injuries on her face.
Okay. Now that she was safe, could the officers search the basement?
Two officers descended to the basement. One went left, in the direction they last saw the man. The other officer went right.
The one that followed the man found Mr Stairs, 2020 ONCA 678 and arrested him. The one that went right found his drugs in a Tupperware container. The officer opened the lid to look at the drugs. Lots of methamphetamine.
Did the officer who found the drugs search lawfully?
The judge at his drug trial said that the officers' actions were all lawful. The Court of Appeal found that the legal questions went from easy to hard.
1. Could they enter the residence?
The public pays police officers to preserve life above all. Other considerations, like property, detection of crime, or regulatory offences, are secondary. The 911 caller's information gave clear reasons to fear for the woman's safety. Where you have reason to suspect that life (not minor injury) is at risk, you can enter private places - even residences, without a warrant. But only for the purpose of protecting life.
2. Once they found the woman, could they arrest the man?
Defence argued that once the woman was safe, the officers no longer had any lawful authority to remain in the residence. They should have left the residence and got a Feeney warrant. All of the appeal court judges agreed that powers of warrantless search of residences are limited, but that the officers had reasonable grounds to believe that the man assaulted the woman, and therefore, having entered the residence lawfully, they could arrest the man.
Defence also argued that the police should have interviewed the woman before deciding whether to arrest the man. The judges rejected that idea too - in this case. Your mileage may differ if you have less-compelling evidence that an offence occurred.
3. Did the second officer search lawfully?
The second officer explained that he looked in the area that the suspect walked away from for the purpose of ensuring officer safety during the arrest. He was clearing the scene.
The trial judge and two judges of the Court of Appeal accepted this as a sufficient reason.
The third judge in the Court of Appeal wasn't convinced. He pointed out that the officer had no reason to think that anyone or any thing in basement that posed any danger to police.
4. Was opening the Tupperware container a problem?
Yes or no.
The judges characterized what happened with the container differently, and reached different conclusions.
The majority said that the officer saw the drugs in "plain view" and seized them, and opened the container after the seizure. I think that was a generous interpretation. You should not model your safety searches on this interpretation.
The dissenting judge characterized it as searching. The only lawful authority available for being in that part of the basement was to search it for people who posed a threat to the officers. Why was he opening a Tupperware container?
If your authority to search a house depends upon the danger that the people in it might pose to you, then look only in places where you might find people. Don't look in Tupperware containers.
On the other hand, if you find contraband in "plain view" while performing such a search, you can seize it. I suggest that you leave the seizing until after you have ensured that the residence is safe. I suggest that you don't open containers until you have taken them out of the residence.
Can you photograph the item before you lay hands on it? That depends. If you stop to photograph and seize the thing of interest before you finish clearing the scene, nobody will believe that you were concerned for your safety. If you photograph more than the object that you seize, there's a reasonable argument that you're converting a safety search into an evidentiary search.
Maybe you should drop an object - such as your business card - in the location where the thing lay. Take the contraband away. Get your search warrant, and come back and photograph the hell out of the place. Don't forget to mention in your ITO that you dropped your business card in the place where you found the object, and you want to photograph that location.
2020.10.10 Common Investigative Mistakes - a Collection
Probably, Mr Adler, 2020 ONCA 246 possessed and made child pornography. Probably, he raped an unconscious woman. But he beat the charges because the investigators made some common mistakes. It is better to learn from their mistakes than to repeat them.
Some general duty officers patrolled the Canadian National Exhibition in Toronto. A place where anything can - and did - happen. A woman told them that she saw Mr Adler used a concealed camera to video-record up the skirt of a young woman. The camera was concealed in a stuffed owl's head.
As the officers moved in, they saw him fumble with the owl's head, and then put something in his mouth. They figured it was the memory card.
The arrested him, and seized a video camera, an iPod Touch and a laptop.
Here's a table of things that went wrong.
|Right under the Charter||Breach|
|10(b) Right to be informed of the right to counsel "without delay".||For 10 minutes, they didn't tell him he could get legal advice.|
|10(b) Right to retain and instruct counsel||Instead of making reasonable efforts to find a phone number for that lawyer, the officer told him he could speak to duty counsel.|
|Instead of letting him get advice, the officers suspended his access to counsel until they searched his residence for more evidence. They feared - with little foundation - that someone would destroy evidence.|
|8 Freedom from unreasonable search - warrantless entry to freeze the scene.||Before obtaining a warrant, officers entered his apartment and saw several electronic devices of interest. When applying for a warrant to search the place, they did not mention this warrantless entry. Freezing the scene requires reasonable grounds to fear that evidence is in peril. No peril here. The police had the suspect in custody.|
|9 Arbitrary detention & 8 search and seizure - delaying a bail hearing without saying why.||The police asked the prosecutor to delay the bail hearing for 3 days. They did not tell the prosecutor that the purpose of this was to perform a bed-pan vigil, to get the memory card that they believed Mr Adler swallowed. Therefore, the prosecutor did not tell the judge what the real purpose of the adjournment was: it involved a search.|
|8 Freedom from unreasonable search - telewarrant and night search||The police sought and obtained a telewarrant which permitted them to search Mr Adler's residence by night. But they provided no explanation in the ITO why they could not get a warrant by applying in person (s.487.1(4)(a)), and no explanation why a night search was required (s.488).|
|8 Freedom from unreasonable search - grounds inadequate for the breadth of search||The police sought a warrant to search all of Mr Adler's electronic devices, but the ITO explained only why they could expect to find evidence inside stuffed animal cameras.|
I commend this case to you as a cautionary tale, so that you do not make the same mistakes.
2020.10.10 What to do when the Justice Denies You Your Warrant
"The denial of a search warrant does not act as a legal declaration that the police are prohibited from using the grounds contained within the Information to Obtain the warrant to furnish grounds for other purposes."
I've been meaning to mention this case for a while.
Police officers applied for a warrant to search a for heroin and fentanyl.
They did so because a tipster told them someone was selling those drugs from that place. When they watched the place, they saw lots of visitors attend briefly and leave. Some of the visitors had small objects in their hands.
But the justice rejected the application, explaining "Grounds as presented and when considered in totality, falls short of rpg to believe that items to be searched for will be at the location. No evidence to show that heroin and fentanyl would be in residence."
Considering the tipster's information, the officers might have been surprised by this.
They pressed on. They figured that the justice wanted stronger evidence of the types of drugs being sold.
They watched the residence some more, and when they believed that another visitor purchased drugs, they arrested the visitor. His name was Mr Buchanan, 2020 ONCA 245
The justice was right. Mr Buchanan possessed heroin and cocaine. Not heroin and fentanyl. He also had a loaded firearm and some cash in his car.
Mr Buchanan complained that his arrest was unlawful. Because the justice turned down the application for the warrant, therefore, the officers knew that they lacked reasonable and probable grounds to arrest him.
The trial judge agreed that the officers lacked grounds to arrest, but they certainly had reason to detain him. Because the officers were just short of R&P grounds, it would be okay to admit the evidence.
The Court of Appeal felt that the officers likely had sufficient grounds to arrest. The judges saw nothing improper with police investigating to fill the remaining gap in the evidence necessary to obtain the warrant to search the house.
This case illustrates that even between judges, there is room for debate whether a certain set of facts qualifies as reasonable and probable grounds.
If a justice turns down your warrant application, gather some more evidence, and try again.
How much evidence is enough for R&P grounds? When you're close to the line, in my experience, most experienced police officers assess the evidence more confidently than judges. But I have also encountered a few officers who are excessively cautious. Where are you on this spectrum? You'll only find out by reading what the judges say. And that's an imprecise study, because on the edge cases, even the judges disagree. This is one case that helps you find where the edge is.
2020.10.01 An Act of Kindness or A Breach of Rights? Search and Seizure Incidental To Arrest
When you arrest someone from a car, is fetching their effects from the car:
- an unlawful search,
- an act of kindness, or
As a result of a major drug investigation which included surveillance, police knew:
- Mr Santana, 2020 ONCA 365 was on bail
- One of his bail conditions required him to remain a certain area.
- He was travelling in a specific motor vehicle outside that area.
- A judge issued a warrant for his arrest for driving while under suspension.
- As he travelled, the vehicle stopped, and he participated in brief meetings consistent with drug transactions;
- The vehicle's tail lights did not work;
The investigators asked local police to stop the car.
Those officers confirmed the existence of warrants for Mr Santana's arrest. They say the vehicle travelling at night without proper tail lights.
They stopped the car. A woman was driving. Mr Santana gave a false name. The occupants told the officers that they came to the town to "see the sights". The officers didn't believe them. They arrested Mr Santana - the passenger - on the outstanding warrants.
The woman argued with an officer, but they were going to let her go, and she would be able to drive the car away.
It was a cold night. Mr Santana wasn't wearing a coat.
The officers handcuffed him and placed him in the back of a police car.
Before letting the woman drive away, an officer went into the vehicle and got Mr Santana's coat. Before putting the coat into the police car, the officer searched it for officer safety, and found drugs.
That search started a cascade of searches which concluded with the seizure of 4500 pills of fentanyl from Mr Santana's hotel room.
But was fetching the jacket from the car lawful?
The defence successfully established that Mr Santana had an expectation of privacy in the car. The officer had no lawful authority to search it:
- This wasn't an inventory search. You can only do that on an impoundment.
- The search was not properly incidental to arrest because such a search must be aimed at finding evidence of the offence for which the arrest is made. This arrest was for the outstanding warrant relating to driving while suspended, and for breaching bail. No search of the car would discover evidence of those offences.
Going into the car without lawful authority violated Mr Santana's rights.
Mr Santana got a new trial, at which the prosecution will start from a position of disadvantage.
What can we learn from this?
Really, this arrest was for drug trafficking. Breaching bail wasn't the main issue. Nor was the outstanding warrant. By arresting for those matters alone, the local officers narrowed their powers of search. If you have grounds to arrest on the main issue, then you will have powers to search for evidence of the main offence. If you pick a side-issue, then your powers of search incidental to arrest are limited to the side-issue.
It may be that the local officer earnestly didn't want to search the car.
Some might say that he should have let Mr Santana freeze. I wouldn't. Acts of kindness and consideration uphold the dignity and reputation of police. It's the professional thing to do. Some of our southern neighbours are demanding that governments defund the police. They complain that police treat suspects without kindness. We don't want that kind of trouble here.
Perhaps this officer should have asked Mr Santana first - "would you like me to get your jacket?"
If Mr Santana had said "yes", this would have been a different case. If he said "no", the drug investigators would have lost an opportunity.
2020.09.19 Searching for and into Cellphones
Back in 2013, the Supreme Court made it clear that a warrant that authorized peace officer to search a place for a cell phone did not, by itself, authorize them to go into the cell phone (or other personal electronic device) to search the data. The court said "If they wish to search the data, however, they must obtain a separate warrant." R. v. Vu, 2013 SCC 60 at para 49.
Most peace officers don't like drafting separate applications. Most peace officers now ask in one application for authority to search the place for electronic devices, and for authority to search the contents of the electronic devices that they find.
Ms McNeill, 2020 ONCA 313 was visiting her drug-dealing partner when police raided the place. The officers had a warrant that authorized them to seize cell phones. The officers didn't know anything about Ms McNeill when they got their warrant, but they took her cell phone too.
And they searched it.
Just like their 2-in-1 warrant authorized.
The messages in her phone were damning. She got charged for trafficking.
At her trafficking trial, she complained that the police failed to follow the two-step procedure required by the Supreme Court of Canada. She complained that the police knew nothing about her when they got their warrant; and therefore the officers needed separate a authorization to investigate her and look into her cell phone.
The trial judge and the appeal judges rejected her complaints.
If you can adequately explain why in your application, you can get lawful authority in one application to do both things: search for the object, and search into the objects that you find.
An application for a warrant to search generally needs to explain reasonable grounds to believe:
- There's a crime
- There's evidence/information
- About that crime
- In a place (or in a device)
For most warrants and production orders (except wire), you don't need to show to the judge or justice who you are investigating - though it often helps.
This application spelled out why there would be cell phones in the place, and why the cell phones would contain evidence of trafficking. Therefore, this one-step application for a warrant was lawful.
Your mileage may vary.
In other investigations, you may need to dance the two-step. It all depends upon how much you know when you apply for your warrant.
2020.09.17 Freezing the Scene - Clearing a Residence to Preserve Evidence
What information or evidence justifies entering a residence without a warrant, and clearing all the people out?
Just before 10:00pm, police arrested Mr Pawar, 2020 BCCA 251 for dealing drugs. The officers had reasonable grounds for the arrest.
The officers wanted to search Mr Pawar's home, because they believed, on reasonable grounds, that he possessed more drugs there, but they didn't yet have a warrant.
Mr Pawar lived several kilometres away from the place where the officers arrested him.
The officers knew that Mr Pawar lived with his mother and brother. Might those people discover that Mr Pawar was arrested, and destroy the evidence?
Several officers gathered outside the residence. The lights were out. Nobody was moving.
At 10:42pm, - three quarters of an hour after the arrest - they knocked on the door. The lights came on. The officers cleared the mother and brother out of the residence.
Eventually, they got a warrant. At 3:43am, they entered and searched. They found damning evidence.
Naturally, at trial, Mr Pawar's lawyer asked the judge to exclude the evidence. Why? Because the officers lacked sufficient grounds to justify a warrantless entry into Mr Pawar's home.
The trial judge agreed there was a breach of Mr Pawar's rights, but admitted the evidence because he thought the officers acted in good faith. The appeal court excluded the evidence, saying that the officers should have known better.
"Clearing the residence" is, at law, a warrantless entry and search. If you do it for the purposes of preserving evidence, you must have reasonable grounds to believe that evidence is in peril. You don't need proof. Just a reasonable fear.
It isn't enough to say "I've had cases where the evidence was destroyed before I got to execute the warrant, therefore I cleared the residence." You need reasons specific to the case.
And that was the problem. The officers had no specific reason they could identify which reasonably caused them to believe that in this case the evidence would be destroyed.
- Although Mr Pawar asked to speak with his mother to get the name of a lawyer, the officers did not allow him to make that call - for fear that she would destroy the evidence.
- The officers had no reason to believe that Pawar's mother or brother participated in his drug dealing.
- The lights were off. Nobody was moving around.
- The arrest occurred far away from the residence.
You require justification to evict an innocent woman from her house and bed, in the dead of night.
What suffices to justify a reasonable fear that evidence will be destroyed? The court listed several cases in which the courts found that the circumstances justified a warrantless entry. (See paras 69-71). You don't need proof, but you do need concerns specific to the case.
If you lack such grounds, then in cases like this one, you may be able to draft most of your ITO before you go out to arrest your target. That should reduce the time between arrest and search.
2020.09.13 Consent Conversations - Voluntariness of Witness
Somebody shot Mr Tessier's friend in the head.
An officer phoned Mr Tessier, 2020 ABCA 289 and asked him to attend the police station for questioning. The officer wanted to learn about the victim, and had no reason to suspect Mr Tessier of the killing. The officer therefore did not tell Mr Tessier of his right to silence.
The officer asked some questions which tested Mr Tessier's virtue: would his DNA be at the scene? what should happen to the killer? would Mr Tessier provide a sample of his DNA?
But other evidence inculpated Mr Tessier. The statement he gave to the officer became much more important.
At Mr Tessier's trial, over 10 years later, the judges scrutinized the officer's behaviour with Mr Tessier. Did Mr Tessier make the choice to speak with the officer, or did the officer compel him to talk?
They ordered a new trial.
Several lessons arise from this:
- Police officer sometimes ask whether it's obstruction if a witness refuses to give a statement to an investigator. The answer is no. With some special exceptions, everyone in Canada has the right to remain silent when the government comes asking about information. That includes witnesses to offences.
- If there's a risk that the witness you invite to the police station might be the culprit, then it might pay off if you tell the witness that s/he has a choice to decline.
- You never know how much later you might get questioned about the parts of the interaction that take place off the record. Make notes of these conversations.
2020.09.12 Consent Searches - Telling the subject that they can say "no"
Apparently, some social scientists researched how willingly people give up their private information when people in authority ask.
In their (somewhat artificial) experiment, they found that telling the target that they have the right to decline made very little difference to the number of people who permitted the researchers to search their cell phones.
I suspect that many of you already know this.
The authors of the report plainly don't like requests for consent searches, and want to put a stop to them.
For your purposes, this study is interesting because it should reduce your fear of explaining the consensual nature of consent searches.
2020.09.12 Searching a person, for officer safety - Searching private places
Some searches aren't consensual.
After watching what they believed was a drug transaction, police officers arrested Mr Byfield, 2020 ONCA 515. During a pat-down, a police officer noticed something large and hard in Mr Byfield's groin area.
The officer asked him what it was. He claimed it was:
Between the police cruiser and a snowbank, two male officers investigated. One rearranged Mr Byfield's clothing, looked at his underwear, and reached in and removed a package.
The package contained more than the average man's endowment: 184 grams of cocaine.
At trial, defence complained that this constituted a "strip search", and should have been conducted at the police station, in private.
The trial judge rejected the idea that this qualified as a "strip search" because no clothing was removed.
The appeal court agreed with defence that it was a "strip search". But they disagreed that this required the officers to follow the strict protocol for strip-searching a person for evidence. They observed that the officer searched for officer safety. A sensible police officer should not want to risk leaving a firearm in a prisoner's crotch during even a short drive to the police station.
Several factors satisfied the appeal court judges that this search was okay:
- Although the officers searched the defendant in a public place, they placed him where nobody would see him.
- Although the officer looked at Mr Byfield's underwear, the officer never exposed his privates.
- Only males officers searched Mr Byfield.
- The search was brief, and focussed on officer safety.
- Despite Mr Byfield's sexual remark, the officers said and did nothing to render the process humiliating.
The simple lesson from this case is: even if your prisoner behaves
like a dick or makes gratuitous sexual claims, you should search him
(or her) respectfully.
2020.09.07 Possession of Stolen Property - Can you arrest the Passenger?
The crime of possessing contraband involves:
- knowing it's contraband; and
- a measure of control over it.
Even a bad driver has some measure of control over the vehicle. If someone recently stole it, you may reasonably infer that the driver got control over the vehicle in shady circumstances - either by stealing it, or by receiving it from the thief. From that inference, you may often infer that the driver knows that the car was stolen.
But what about the passenger(s)?
At 7:25am, someone stole a car in Surrey, BC. At 10:50am, officers found it parked on a street. They watched it for a bit. At 11:13am, Mr Harms, 2020 BCCA 242 and a known car thief named Maloy got in. Maloy drove for about half an hour. He parked in an alley. The two men left the car, and split up. A few minutes later, they met at a nearby intersection.
Police officers arrested them both for possessing stolen property. Mr Harms' backpack contained a sawed-off shotgun and some live rounds, for which he faced charges.
Mr Harms challenged the arrest. At trial, he said the officers shouldn't have arrested him. Although the arresting officers might have had reason to believe that the driver had knowledge and control over the car, they lacked sufficient information to believe on probable grounds that the passenger had any knowledge of the theft, nor any control over the car.
It was a good argument, but it failed.
The recency of the theft gave the officers reason to believe that the driver knew it was stolen. The conduct of the passenger - in participating in what appeared to be a heat check - tended to suggest that he knew too. And the passenger got the benefit of a ride with the driver, tending to suggest that he was jointly enjoying the benefits of the stolen car.
A passenger may also be a party to the possession of stolen property by encouraging the driver to continue to control the car ("Drive faster Johnny!") or jumping into a recently stolen car for the purpose of going for a joyride.
More typically, you discover a car is stolen, and you pull it over. It contains driver and passengers.
Whether you can arrest the passenger(s) depends upon what makes you think that the passengers knew about the theft, and whether they exercised some control over the car, or at least encouraged the driver in the crime.
Of course, to make things more complicated, some passengers will lie through their teeth after you stop the car. Sorting fact from fiction requires some careful consideration of the information available to you. In court, you may be asked to explain why you thought that the passengers participated in or knew about the theft. To arrest, you don't need proof. As the court said, you need a "practical, non-technical and common sense probability” that the passengers know that the car is stolen, and are benefitting from the ride, or encouraging the driver in some way to continue to possess the car.
Please note that what suffices for arrest rarely suffices for proof beyond a reasonable doubt. Proving the guilt of the passenger beyond a reasonable doubt is often quite difficult.
2020.09.04 Swabbing the Door Handle of a Car in a Public Place
Police officers reasonably suspected that Mr Wawrykiewycz, 2020 ONCA 269 dealt drugs.
In the course of investigating him, they swabbed the door handle to his car at a time that he left his car in a public place. Police then used an ion scanner to detect drug residue in the swab. They did not seek prior judicial approval. It found cocaine. Police got a warrant and busted him.
The trial judge felt that the police could use this investigative technique without a warrant, so long as they had reasonable suspicion.
The Court of Appeal disagreed: "I would hold that taking samples of residue left by a suspect’s hands on the handles of a vehicle, and subjecting those samples to chemical analysis, is an intrusion for which a warrant should be required."
So there you have it: Even if the car is in a public lot, no swabbing and ion scanning without a warrant.
But how the court reached that simple conclusion raises a practical question: Can you swab the doorhandle first, and later get a warrant for the ion scan?
The judges felt that the swabbing did little to violate territorial privacy. Anyone might feel the hood of a car, or brush by the door handle.
But the ion scanning invaded too much informational privacy. It revealed "“intimate details of the lifestyle and personal choices of the individual".
If the significant infringement of privacy is the ion scan, then perhaps only that part needs the judicial pre-authorization.
But which warrant would be appropriate?
Supreme court decisions about the deployment of drug dogs suggest that the appropriate legal standard to justify applying an ion scan would be "reasonable suspicion" rather than "reasonable belief".
Neither the Criminal Code nor the CDSO provide a warrant which operates at that standard to authorize an ion scan.
There is, of course, the general warrant, provided by s.487.01. But to get one of those, you need reasonable grounds to believe that the crime occurred. In most cases, if you have such grounds already, then you don't need the ion scan.
You need a warrant, but the legislation for the appropriate warrant doesn't exist.
The courts say that expectations of privacy lie on a spectrum. Some are slight, and some are great. Where privacy expectations are slight, police may sometimes intrude on the basis of reasonable suspicion. Where privacy expectations are great, police must have reasonable beliefs regarding the need.
But the Criminal Code provides only a few specific judicial pre-authorizations on the reasonable suspicion standard. It provides a bunch judicial pre-authorizations on the reasonable belief standard.
Because of this decision, and others like it (eg Spencer, 2014 SCC 43), I think Parliament needs to craft a general warrant for minor intrusions into privacy which operates at the "reasonable suspicion" level.
By the way, the trial judge convicted Mr Wawrykiewycz, and the Ontario Court of Appeal upheld the conviction, finding that the police had sufficient grounds for their search warrant in that case, even without the ion scan information.
2020.08.16 "Suspect" or "Believe"
In Canadian Criminal law, there's a difference between "suspecting" something, and "believing" it.
For most production orders, you apply under s. 487.014 of the Criminal Code. It specifically requires that the applicant demonstrate "reasonable belief".
Mr West, 2020 ONCA 473, who distributed child pornography, beat the charge because the investigator missed this simple point.
In an application for a production order, the officer asserted that there were reasonable grounds to "suspect" that someone committed child pornography offences, and production of data would afford evidence of this misconduct. The officer used that verb 4 times, but never once asserted that he "believed" it.
The production order issued. The officers got their data, and the data led to proof of the guilt of the defendant. But in litigation, it all fell apart.
In giving its decision, the court observed two flaws:
- the information on which the officer relied to justify the production order merely raised suspicions, but did not give good reason to believe that the order would produce incriminating data.
- in the formal documentation, the officer failed to say that he believed that the offence occurred and that the order would produce evidence of the crime.
Nightmares like this one led many officers to use boilerplate which makes sure that Information to Obtain states the required belief.
Some police officers write language like this: "I believe that there are reasonable and probable grounds to believe that ...."
I find this phrasing cumbersome because it does not reflect the legal division of responsibility.
- Does the officer believe that an offence occurred, and that evidence will be obtained by the proposed search or production order?
- What evidence or information makes the officer believe these things?
- After considering this evidence or information, does the justice or judge find these beliefs reasonable?
Really, only the judge or justice makes a legal finding that the beliefs are reasonable. Therefore, it bothers me that officers swear to the "reasonableness" of their beliefs.
It be simpler for the officer to swear:
"I believe that somebody committed <offence> and that evidence <specifically ....> respecting that offence will be will be obtained by <searching/producing...>.
The information and evidence which leads me to those beliefs is: ....".
Where necessary, you can also explain your inferences: "<list items of evidence> caused me to believe / infer <inference>".
Then in the warrant or production order, the judge or justice declares that having read this sworn document, the judge or justice finds there are "reasonable grounds" to believe that the offence occurred, the evidence exists, and the evidence should be procured.
The boilerplate language works, but it's confusing. I prefer to write simply ... when I can.
2020.08.14 Identification by Watching Video
When the witnesses don't know the felon personally, you need identification evidence.
Sometimes, identity seems terribly obvious. You, the investigator, watch a security video, and think "of course, that's Johnny Rotten!"
So you go and arrest Johnny Rotten, and charges get laid.
At trial, defence will challenge your evidence as tainted by confirmation bias:
- You know Johnny Rotten to be a person who commits crime in your neighbourhood.
- Johnny Rotten tends to commit this kind of crime.
- Because the person in this video looks like Johnny Rotten, you conclude that it is Johnny Rotten.
Defence will argue that you are prejudiced against Johnny Rotten, and therefore, your recognition of him in the video should not prove identification beyond a reasonable doubt.
Defence will give the judge this week's decision of R. v. Hudson, 2020 ONCA 507.
It identifies the key questions.
- How well do you know Johnny Rotten? Is he someone you see often or have spent lengthy periods of time with? How often? How long?
- What does the video (or security photograph) show that uniquely identifies the person in it as Johnny Rotten? What is it that you see?
- Are you saying you recognize Johnny Rotten in the video because of what you see, or because of other information you know about him or the case?
I have a trial coming up at the end of the month where I will tender this kind of evidence. You can bet I'll be asking my witnesses those questions.
If you are the recognition witness, take some time to record your answers.
If you seek recognition witnesses, it would be wise to document how you communicate with them, so that you can show that you did not suggest any names to them when you asked whether they recognize anyone in the video or image.
2020.08.08 Exposing Grungy Witnesses
Mr Pascal, 2020 ONCA 287 had a history of offending, including two sexual assaults. A young woman accused him of sexually assaulting her at a dock near a motel. A worker at the motel told a police officer that she heard a man and a woman at that dock, looked out, and saw a man. Just before trial, she gave a second statement which changed her version of events significantly. Now, she said that the woman's voice was distressed. She saw the man's arms move as if he was pulling up his pants. This evidence signficantly supported the victim's version of events.
What the police did not disclose to the prosecutor (nor to the defence) was the woman's criminal situation.
At the time she testified, she had a record of drug convictions, and she faced drug charges. Her boyfriend was a busy drug dealer in the town, and her name surfaced in several investigations. Some of the officers involved in the sexual assault investigation knew about her criminal history.
After the trial judge convicted Mr Pascal for the sexual assault, defence learned about her legal predicament, and appealed.
The timing of the change of her story might be explained by a desire to get more lenient treatment for her own charges if she supported the sexual assault prosecution. If the defence had known, then they could have cross-examined on this. The trial judge might not have trusted her, and the defendant might not have been convicted.
The trial court agreed that there should be a new trial. The officers should have disclosed the ugly past and current circumstances of this witness to the prosecutor and to defence.
The judges did not say you must disclose the criminal record and outstanding charges of every civilian witness. Only the crucial, central ones, whose credibility is key.
2020.07.24 Timestamps in Digital Records
Police found child pornography on a computer belonging to Mr Butler-Antoine, 2020 ONCA 354. At his trial, his mother testified that she let lots of visitors use his computer during the day when he wasn't using it. That could raise a doubt that perhaps someone else put the child pornography there.
But the forensic analysis did not just look for child pornography, but also the "meta-data" associated to it. In this case, the browser history showed that the computer visited webpages that specialized in sexualized images. The computer did this continuously, late into the night.
When the visitors weren't around.
The trial judge convicted him and his appeal failed.
If you search for images, you'll get images. If you search for images, and metadata relating to those images, you'll get more.
2020.07.23 Springing an Imprisoned Suspect for Interview
It has been a long investigation into a serious charge. You have grounds to charge your suspect. You want a skilled interviewer to ask the suspect about the offence. But the suspect is already in a jail somewhere, by reason of other charges. Can you bring the suspect to your office?
S.527 of the Criminal Code will allow it. But only if your suspect consents.
You doubt that your suspect will consent.
An Alberta judge found that you can get a warrant to bring your target to your office for a full interview if you:
- swear the charge,
- apply for an arrest warrant, and
- apply for an assistance order.
R. v. TS, 2019 ABQB 161
Other judges may disagree.
Because of the way that this was litigated, no defence counsel argued against the order. As a result, it may be that the judge did not consider the opposing views. By the time your suspect reaches trial, another judge may determine that this kind of order was unlawful.
If you try this, don't hang your entire investigation on that interview with the suspect. But if you do try this, it may elicit valuable evidence from the suspect.
This decision is over a year old. I looked to see if other judges have disagreed. I found no other cases in which this decision was considered. It's an interesting solution to a long-lasting problem. Time will tell whether higher courts will approve.
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. If I didn't know what I was doing, then obviously, I didn't intend to do it. And because I didn't intend to hurt anyone, 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."
But one of the fundamental principles of justice is that people
should only be convicted of crimes for which they were responsible.
Holding a person responsible for a crime requires proving that they
chose to do something blameworthy. The court suggested that Parliament
should make a crime of committing a prohibited act while intoxicated,
so that the choice to be punished is the defendent's decision to get
Whlie the lawmakers squabble, police officers must still investigate. This case emphasizes that you should always investigate how intoxicated the suspect was 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 Mr Hayes 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.