2020.01.19 s.25.1 Authorization - Getting it Right
In order to investigate a drug operation, police staked out a residence. They trespassed on a neighbor's property to do it.
From there, and from a ditch, police officers heard gunshots, and saw people carrying guns. They got a warrant and busted Mr Roy and Mr Biesinger, 2020 ONCA 18 for guns and drugs.
At trial, defence attacked the investigaton. The police gathered evidence by breaking the law. They trespassed on the neighbour's land! Defence asked the court to stay the charges.
The investigating officers considered this. A senior officer got some advice about s.25.1 of the Criminal Code. It turned out to be bad advice, though I'm still not clear from reading the trial and appeal decisions what they got wrong. (I'd be grateful if someone who knows could fill me in.)
In any case, the ITO failed to mention this reliance on s.25.1. It should have. For some reason, the officer in charge didn't explain it to the affiant.
The trial judge found that the police acted in good faith by getting legal advice, and that the omission wasn't a big deal. The court of appeal agreed. The defendants remained convicted.
Section 25.1 authorizes police to do things that would otherwise be offences. It's exceptional. Those of you who use it should follow its requirements carefully. It requires public accountability. Write out your authorization carefully. Follow it. Make reports afterwards. Don't cover it up. Tell the courts what you did.
2020.01.19 Affiants and Subaffiants - Preparing for
When drafting the warrant to search a place, the affiant in Roy and Mr Biesinger, 2020 ONCA 18 phoned officers who staked the place out, and saw interesting events.
An affiant wants to get the evidence right. Phone them at home if you have to.
The affiant wrote notes about what they told him.
An affiant can expect to be cross-examined on the details that s/he writes in the ITO.
The officer who received the phone call at home wrote no notes about the conversation.
At trial, that officer testified that he had no memory of even having the conversation. Indeed, by trial, he remembered the details a bit differently.
That made it look like one of them was a liar.
If you are an affiant, and you get information in conversations, you might want to emulate the smart affiant, and write some notes about that conversation.
If an affiant calls you and asks you questions about what you saw, you might want to write some notes about the conversation, in case you get cross-examined.
2020.01.18 Innovative Investigative Technique - Replacing the Murder Weapon
Someone bludgeoned Ms Gill in her own home, using a bar from a weight set. The attacker slashed her throat with a knife. After the killing, someone hid that bar in the basement, in Christmas present box.
When searching the home after the murder, police found and seized that hidden bar. But they suspected that the deceased's husband, Mr Gill might have killed her. So they put a matching bar in the Christmas present box. They got a warrant to watch the box, and installed a hidden camera.
That camera captured Mr Gill retrieving the box and hiding the replacement weight bar. Mr Gill's lover, Ms Ronald, 2019 ONCA 971, also hid evidence. Her DNA was on the knife, and the gloves that the killer used.
A jury found them both guilty of first degree murder: they planned it together, and she did the killing. On appeal, the court found that the trial judge made errors in the final instructions to the jury, and ordered a retrial.
I have no doubt that the next jury will see what the hidden camera recorded.
Drug investigators often replace intercepted drugs with innocuous substitute. I rarely see this technique used in other investigations. Tracking devices hidden cameras are cheaper and cheaper, but obtaining lawful authorization remains essential, and time-consuming. But this case illustrates that it can pay off.
I'll bet these investigators were glad that after looking inside the box, they did some outside-the-box thinking.
2020.01.18 Prompts and the Promptness of Statements
What access to independent material should you give witnesses before taking a statement from them? How much time should pass between a traumatic incident and the taking of a statement?
Not only do investigators think about this, but so too do the investigators who investigate investigators.
British Columbia's Independent Investigations Office investigates violent incidents involving police officers. Where the police did nothing wrong, it can exhonorate them. Where the evidence suggests that an officer committed a crime, it forwards a report to prosecutors.
After a Vancouver police officer shot a man dead, the IIO demanded that other officers involved in the case give statements. Before giving statements, the officers asked to review dispatch communications, radio broadcasts and videos that captured their words or actions.
The officers refused to comply. The IIO took them to court, asking for an order that requires police to cooperate with their investigations, in the manner that they decide. IIO of B.C. v. Vancouver P.D., 2020 BCCA 4
I suspect that the police officers worried about events like the death of Robert Dziekanski and the inquiry that followed. Police officers are human, and may make mistakes about what occurred. In that case, police officers killed a man when trying to subdue him. After the incident those officers provided similar descriptions of what occurred. Video evidence established that their versions were inaccurate. That gave the impression that they colluded to cover-up what happened. One officer was convicted of perjury, and another of obstruction of justice.
No officer wants to be charged with offences of dishonesty. Police officers who review the communications, radio calls and video are less likely to make errors that can be contradicted.
But IIO investigators want to use that independent evidence to assess the reliability of the statements that they gather.
I sympathize with both sides.
It looks bad when a police officer gets the facts wrong.
High-stress situations like police killings cause human beings to focus selectively, and remember inaccurately. Some research suggests that it takes two sleeps for a person who underwent a stressful event to consolidate their memories. Police officers justifiably fear that they will get details wrong if they lack time to process what happened.
Officers may fear that without external information to sort out what occurred, they may get facts wrong, and be suspected of dishonesty.
On the other hand, the IIO has justifiable fears. Police work creates close bonds of camaraderie. Although the vast majority of police officers respond honourably and honestly, IIO investigators must collect information quickly in order to avoid deliberate or unintentional collusion between witnesses. IIO investigators want collateral information in order to assess the accuracy of an officer's memories.
People will continue to debate the ideal way to investigate police. But this case raises some principles common to all investigators:
- When investigating violent or traumatic incidents, investigators should be aware that the witnesses may not give their best account immediately after the event. For completeness, a follow-up interview may obtain more information. Investigators and decision-makers should never expect a perfect recollection of a stressful event. Human memories don't work that way.
- When investigating incidents which involve groups, investigators should try to get the witnesses' individual accounts before they discuss the events among themselves. Indeed, investigators should urge witnesses not to compare accounts until all legal proceedings complete. Never take joint statements.
- Investigators should always seek independent evidence that confirms or rebuts what the witnesses say in their statements.
- If a witness reviews that independent evidence before giving a statement, it may prompt more detail and greater accuracy, but the prompt is no longer independent. It no longer assists a decision-maker in corroborating the account. Therefore, you may want to obtain a "pure version" before prompting the witness with the independent information.
These principles apply to all investigations, whether your target is a graffiti artist, a violent spouse, a police officer or a mass-murder.
2020.01.12 Detention - "Non-Custodial Interview" During Execution of a Search Warrant
You know - or at least you ought to know - that a search warrant does not empower you to arrest anyone. When you enter to search, you need separate authority to arrest the people you find there.
However, you can control their movements to the extent necessary to secure the residence and perform the search.
Does that control trigger a "detention" for the purposes of s.10 of the Charter?
When police searched the residence of Mr McSweeney, 2020 ONCA 2, his wife and children were home. The warrant authorized the officers to search for child pornography. The officers sequestered the family in the living room and prevented them from using electronic devices. It was only 6:00am. A school day for the kids, but a bit early. The officers told the family that they were free to go if they wanted. They stayed.
An investigator invited the wife to step outside for an audio statement. She agreed, and answered questions. She asked for permission to get the kids ready for school.
The investigator invited the defendant outside for a recorded statement too. The officer gave no formal cautions or warnings, but did tell the Mr McSweeney that he suspected him of responsibility for child pornography in the residence. The officer told Mr McSweeney that he didn't want to interview the kids, and asked if it was his. Mr McSweeney admitted it. Later, after talking to a lawyer, he gave another inculpatory statement.
The trial judge found that the officers did not detain Mr McSweeney, and they did not trigger the obligation to offer him access to counsel as required by s.10(b) of the Charter. The trial judge admitted.
The appeal court disagreed. They found that the context qualified as a psychological detention. The failure to offer Mr McSweeney counsel violated his rights, and both statements should have been excluded from evidence.
The "non-custodial" interview does not trigger s.10. But merely telling a subject that he's free to leave does not necessarily stop the trigger. These officers made rules for the residents to follow in their own house. The officer who questioned McSweeney asked questions focussed on child pornography. The appeal court found the situation sufficed to cause a reasonable person to feel that he is detained.
I noticed that the investigator never gave Mr McSweeney clear advice that he did not have to answer the officer's questions. Although that failure really addressed the voluntariness of Mr McSweeney's answers, I think the judges disliked the whole set-up.
You might be able to avoid triggering s.10 of the Charter when executing a search warrant; but when you invade a man's home, and instruct him what he can and cannot do, that trigger will likely fire. To release him from that deemed detention, you probably need to do more than merely say "you're free to go if you want".
2019.12.18 Good Bye "Promise to Appear" - The New Release Forms
Today, the Criminal Code changed again, this time affecting the documents you use to compel people to attend court.
You should have received new forms to use. You should have received some training. I hope that all of you did.
I heard a prosecutor today say that police should throw away the old "Appearance Notice", "Promise to Appear" and "Undertaking" forms in your possession. Those documents are repealed. Start using the new ones.
But if an officer screws up and uses the old forms, not all is lost. If a justice of the peace or a prosecutor complains, ask them to review s.849 of the Criminal Code and s.32 of the Interpretation Act.
Backstop - Forms for the Forgotten Line Officers
But just in case your police force didn't deliver the new ones in time, here's something to keep you going until the standard forms and training arrive.
I copied the new forms right out of "Bill C-75", and turned them into word processor documents. I didn't make them pretty, but they do follow what the legislation requires. You can download them and print them. You might want to improve my formatting before you do.
If you serve one of these on the defendant, give the defendant a copy and keep the original for the court.
The new Appearance Notice you should use like the old appearance notice. But there's a new feature. When someone commits a victimless breach of bail, you now have the option of referring the defendant to a "judicial referral hearing" instead of laying a new charge. In my opinion, you should use this option for only the most minor of breaches until you and your prosecutors get used to this new process.
The new Undertaking combines the functions of the old PTA + Undertaking or Recognizance. One document, not two. The conditions and circumstances under which you use it are mostly the same as before.
New Principles, Just Like the Old Principles
The amendments introduced some new sections that tell you to maximize the liberty of defendants. They appear in the Part of the Criminal Code that governs arrest and release of suspects.
493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) ....
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and495.1 Despite any other provision in this Act, if a peace officer has reasonable grounds to believe that an accused has contravened or is about to contravene a summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused, or has committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order, the peace officer may arrest the accused without a warrant for the purpose of taking them before a judge or justice to be dealt with under section 524.
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
When you reviewed the new s.493.1, I hope you asked yourself "what does s.498(1.1) say?" If you didn't, then I suggest that you go back and read s.493.1 again.
Here's what s.498(1.1) says:
(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to(i) establish the identity of the person,(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
I hope you're already doing these things anyway!
2019.12.16 Tunnel Vision - Hearing What you Want to Hear
Robbers shot an owner of a beauty salon injuring him. In-store security video recorded the events, but could not identify the robbers. They wore masks. Among other things, they stole watches.
A standard "Who-Dunnit?"
Investigators developed a theory and obtained search warrants. At trial, defence counsel complained that the warrants should never have been granted. The Court of Appeal agreed, and threw out the case.
An eyewitness saw the robbers leave the store. She told the 911 operator they got into a “silver or light blue car”. She said “I think the plate was B-M-P-2”, “B-M-P-T-0-2 something like that … I didn’t get a clear look”. In a police statement, she described the vehicle as “light blue or silver colour. It was clean, newer.” She then recited the licence plate as "BNPT02".
A man across the street saw two or three men in a “shiny silver/grey Dodge, maybe a Charger 4-door” parked in the parking lot across from the Pura Vida Salon. One of the men appeared to be wearing a red shirt. He said he “saw the same car later at the business”.
That night, police searched only the licence plates BMPT020 to BMPT029. 9 cars. They did not research any licence plates using the BNPT series.
They found that plate BMPT 020 was registered to a charcoal grey rental vehicle rented to the father of a known criminal, Mr Booth, 2019 ONCA 970. The rental agreement described the vehicle as "black".
They stopped looking for suspect vehicles, and focussed on Mr Booth. When watching him, they saw him associate with a guy named Rouleau.
The robbers stole two high-end watches. Security video from a taxi captured Mr Rouleau discussing his watch with an associate shortly after the robbery - something you would expect a proud new owner to do. Other security video showed the watch he was wearing. Police showed that video to the owner from whom it was stolen. They asked if he recognized it. He said "No, not this one."
Language Betrays Beliefs
Did the investigators suffer tunnel vision? What the officer wrote in the ITO suggests it. The investigative theory was that the "light blue or silver" car was actually the "charcoal grey or black" car rented to Mr Booth's father, and the watch which the owner didn't recognize actually belonged to him.
The application for a search warrant to search Mr Booth's house recited the information described above this way:
- "the eyewitness provided the partial licence number BMPT02 to Hamilton Police dispatch". It didn't mention that she also gave a licence plate BMPT2, and later BNPT02.
- "“the Hamilton police service began running variations of the licence plate”. It didn't mention that they ran only 9.
- the owner of the stolen watch "could not identify the watch as his.” It did mention his actual words four pages later in the ITO, but buried in a paragraph which discussed his description of the robber.
There are two possible explanations for these problems: police deliberately mis-stated the evidence because they believed that Booth and Rouleau were the felons; or haste and the excitement of the investigation made them sloppy.
Defence accused police of bad faith. (Did defence believe what they wanted to believe?)
But it's important to consider the alternative: the officer jumped too quickly on one suspect, without considering other possibilities. Would a search of other licence plates have led to other suspects?
The search of the residence turned up no evidence related to the robbery. But police did find a video security system, which they seized, in the expectation that it would reveal what Mr Booth wore at the time of the robbery.
It sure did.
It showed Mr Booth wearing clothes similar to one of the robbers.
But the second ITO was worse than the first one. This described only the evidence which supported the investigative theory, and omitted all inconvenient weaknesses. It failed to mention that a search of the residence found nothing related to the robbery.
The trial judge found that the police acted in good faith, but made mistakes. The appeal court held that those mistakes, once corrected, required exclusion of the security video. Without that evidence, the prosecution's case was too thin to support a conviction. Mr Booth beat the charges.
For officers who draft ITOs, the lessons are simple: check your facts. Quote the important stuff so that the justice knows what information you actually have. Tell the justice the bad news about your investigation.
For all investigators, the lessons are also simple:
An investigation is complete when you canvass all reasonably available sources of information.
For an investigator, confidence is a trap. Believing you know the answer is no substitute for complete investigation. The Booth investigation and prosecution would have been much stronger if the licence plate search established that no other similar licence plate was attached to a similar vehicle. If other similar vehicles bore similar licence plates, then someone needed to establish alibis for their owners.
This principle applies in small investigations too. When a witness tells you that they were assaulted, you should not stop investigating just because you believe them. You look for injuries on the witness and the assailant. Photograph the scene. Search out independent witnesses. Ask the alleged assailant what he or she says happened.
Tunnel vision is real. Humans suffer "confirmation bias" - the tendency to accept information which conforms to their beliefs, and to ignore contradictory information. (This tendency partly explains the current polarization of American politics.) For you to defeat it, you must accept that you are vulnerable to it.
2019.11.15 Small Fish, Big Fish, and Netting them Together
When you investigate the big fish, you often gather information about the crimes committed by the minnows around him. If you bust the minnows, the big fish will hide. Therefore, it makes sense to bust them all together.
Police investigated a weapons dealer, Mr M.D., using undercover officers, wiretap, and a crook acting under their direction. From the agent, they learned that Mr James, 2019 ONCA 288 supplied M.D. with cocaine, and spoke of a meeting in which a kilo would be bought.
23 days later, relying on information from the crook, the officers obtained a warrant to search Mr James' house and car for “Cocaine; Packaging Materials; Cellular phone(s) associated to [a specified number]; Debt List(s) (Handwritten and or Electronic).”
The police busted him, and found drugs and firearms.
The trial judge threw out the evidence for various reasons:
- stale information - the ITO failed to explain why Mr James still possessed cocaine from 23 days earlier.
- missing information - the ITO mentioned a previous arrest in which Mr James possessed drugs, but failed to mention that the charges were stayed.
- racist information - the ITO quoted offensive communications recorded under the authorization to intercept suspects' phones, instead of summarizing it
The trial judge didn't like the idea that the police waited 23 days to execute their warrant. If they wanted to bust Mr James, they should have acted immediately when they had grounds. If they considered him small fry, they they should have ignored him and pursued Mr M.D. instead.
The Crown appealed. Two of three judges in the Ontario Court of Appeal agreed with the trial judge. But not Justice Nordheimer.
The Crown appealed again. James, 2019 SCC 52 Five of nine judges in the Supreme Court of Canada agreed with the Crown. Overall, more judges agreed with the defence than the prosecution, but the prosecution won where it mattered.
What does that teach you?
The appeal judges all agreed that the trial judge was wrong about the racist quotes. Summarize minor details, but quote key information, no matter how rudely it might be expressed.
The appeal judges all agreed that the trial judge was right about the missing information. Officers who prepare warrant applications routinely rely on police databases. Those record arrests, and sometimes charges. But what happened after the arrest? Judges work hard on trials. You offend them if you treat their work as irrelevant. If your ITO mentions an arrest, look up what happened to the charges after the arrest, and report that.
Was the ITO stale? The judges disagreed. But Justice Nordheimer pointed out that "stale" depends upon what the officers were searching for.
If the officers just wanted the cocaine, then maybe it was stale. Evidently, reasonable minds may differ. But these officers were investigating M.D.. If they found evidence that showed that Mr James did possess cocaine 23 days earlier, that would support the credibility of their shady agent. The officers didn't just want the cocaine. They wanted cell phones, packaging materials and debt lists. If they could corroborate their shady agent, then they would have a stronger case against the gun dealer. The cell phones were really important evidence because they would contain communications between M.D. and James.
A simple ITO will ask for authority to search for contraband ("cocaine") or the thing used in an offence ("the bloody knife"). A sophisticated ITO explains the need to search for evidence of the offence ("packaging materials", or "blood, or traces of human bodily substances"). If you keep the difference in mind, you can identify probative things that will likely still be in the place long after the cocaine or the bloody knife have disappeared.
Must the fisher always let the little ones go?
Justice Nordheimer also rejected the idea that you must always pick one target and abandon the others. So long as you have grounds to justify the searches at the time you do them, you have no obligation to reveal your investigation at the first opportunity. Depending on your evidence, the wisest course of action is often to net them all together.
Of course, other times you need to abandon the investigation of some in order to catch others. Good luck making those judgment calls!!
2019.11.13 Equipment Check
Have you checked the functioning of the devices you rely on?
When Ms Domanska, 2019 ONCA 893 crashed her car, she hurt others, and she hurt herself. She smelled of liquor. She admitted drinking ... but only two glasses of wine.
The hospital tested her blood. I'm pretty sure the result of that test showed she drank a lot more than two glasses of wine. But there the judge found a gap in the evidence which linked the sample which the hospital staff took from Ms Domanska to the piece of paper that reported how much alcohol the lab found in it.
Proving continuity involves more than writing down which police officer seized an important exhibit. Who handled it before police seized it?
But there was another problem. An officer brought a breath-testing instrument to the hospital. It malfunctioned. No breath test evidence either.
Ms Domanska beat the charge because the equipment broke.
Is your equipment all in working order? In a recent case of mine, an officer recorded a crucial witness at a hospital ... until the batteries ran dry. (Most cell phones can act as back-up recording devices ... if you figure learn how to use them that way.) Is your camera set to the right date and time? (Remember, we just changed the clocks.) Do your defensive weapons work?
Be safe out there.
2019.11.12 Charter Breaches - Get out of Jail Early Card
Upholding the law by investigating offences does not give you the right to break the law by violating lawfully-protected privacy.
A man went shopping for a house. A real estate agent took him through an interesting place in the small town of Zealand, N.B.. On the deck and inside, he saw tools clearly marked "Charmac Construction". This man knew that Charmac Construction recently suffered a substantial burglary. The man went to local police, and told them what he saw.
The police didn't have time or staff to get a warrant that night. They decided to post a single officer outside the house to guard it pending the granting of a search warrant. So they went to the house, and arrested Mr Kennett, 2019 NBCA 52 and another man, whom they found at the place. The officers cleared the residence. And through the outside windows, they took some photographs of the tools inside. One officer seized a cell phone from Mr Kennett. That officer perused the cell phone's contents, looking for evidence. Without a warrant.
They came back later, and seized the stolen property ... and some drugs.
The trial judge didn't like the warrantless search of the house (neither clearing it, nor the photography). The trial judge didn't like the warrantless search of the phone. But the trial judge agreed that the search warrant was properly issued, and convicted Mr Kennett of possessing stolen property and drugs.
The Court of Appeal reduced Mr Kennett's sentence by 6 months by reason of the Charter breaches.
This case doesn't discuss the lawfulness of clearing a residence pending the execution of a search warrant. You don't have an automatic right to walk through the place. If you have reason to fear for the safety of officers holding the scene, or reason to fear that evidence will be lost, then doing so doesn't violate s.8 of the Charter.
But the other breaches were clearly a problem.
Officers should take photographs when looking for evidence. But when you're clearing a residence in order to hold the place pending the granting of a warrant, you have no right to search for evidence. Officers should search cell phones of culprits. But you need compelling reasons to do so as an incident to arrest.
Mr Kennett got a significant discount on his sentence as a result of these breaches.
2019.11.12 Diligence Confirming a Source
Back when marijuana was still prohibited, a tipster of unknown reliability told police that “Rob” was growing marijuana and possessed firearms and other weapons at an apartment. Police applied for, and obtained, a warrant to search the apartment. They found Mr Labelle, 2019 ONCA 557, wearing only a towel (he had just showered). And they found guns.
At trial, defence attacked the warrant application. To protect the informant's identity, police redacted much of the Information To Obtain before disclosing it to the defence lawyer and the trial judge. What remained did not clearly show why it was reasonable to believe the tipster.
At the trial, defence counsel asked the officer who applied for the warrant whether he checked apartment address on the firarms registry, to see if anyone who lived there could lawfully possess firearms. The officer admitted he didn't.
Then Mr Labelle's girlfriend testified that she possessed such licences at the time, and that it was her apartment.
Oops. Maybe the officer should have checked that registry.
Anyway, the case grew complicated. Crown cross-examined the girlfriend about who lived there. She testified that Mr Labelle never lived there, and visited only occasionally. Crown switched gears. Crown argued: if he was just a visitor who didn't live there, then he had no expectation of privacy in the apartment. If he had no expectation of privacy, then he had no standing to attack the search warrant.
That worked at trial. The judge dismissed the defence attack on the warrant.
The rest of the case proved that the girlfriend lied about his occupancy of the apartment. The trial judge convicted him.
Then R. v. Jones, 2017 SCC 60 happened. The Supreme Court of Canada held it was unfair for the Crown to take conflicting positions at trial. The Crown can't argue both that the defendant lived there and that the defendant didn't live there.
Because of the change in the law, Mr Jones gets a new trial. He gets to attack the warrant again. Who knows what his lying girlfriend will say this time.
Before you apply for a warrant based on a confidential source, try diligently to gather information from independent sources that confirms or rebuts what the source told you.
2019.11.09 Proving Good Conduct can Help Prove Bad Conduct
Not long ago, a case came across my desk of breach involving the breach of an abstention condition. An analysis of the suspect's urine revealed that it contained the metabolite of an illegal drug. But some metabolites can linger in the body long after the drug is gone.
Did the suspect use the drug before or after the abstention condition took effect?
I asked the investigator to dig up more evidence. Fortunately, the suspect had provided an earlier urine sample. Analysis of that sample did not detect the metabolite. That 'clean' sample occurred after the abstention condition came into effect.
In order to prove the crime, not only did I need the evidence of bad conduct, but I also needed evidence of prior good conduct.
The same sort of issue arose in Zeitoune, 2018 ONSC 2846. Ms Zeitoune had a job processing passport applications. She approved 24 applications that turned out to be fraudulent. She didn't do the background checks that she was supposed to do.
Investigators had reason to suspect that she received money to issue fake passports.
The prosecution asked the trial judge to convict her of breach of trust, fraud and forgery. To succeed, the evidence had to prove that she knew that these applications were fraudulent when she approved them for passports.
The prosecutor pointed to the evidence that she failed to do the background checks that policy required her to do. The judge commented that this didn't prove knowledge. Maybe she was just bad at her job.
The evidence would have been more compelling if the prosecution showed that she did the background checks properly on other passport applications, but not these ones.
As it turned out, there was lots of other evidence, and the judge convicted her.
My point is that investigating an aberration from a routine may require some evidence of the routine.
In this case, her supervisor testified about what Ms Zeitoune should have done. What the prosecution didn't present was evidence that Ms Zeitoune actually followed the protocol on other occasions.
2019.11.02 Right to Counsel - Promptly Explained and Promptly Given
Section 10(b) of the Charter gives detained person the right to "retain and instruct counsel without delay", and the right to be told "promptly" about that right.
Police officers busted Mr Noel, 2019 ONCA 860 with a bunch of cocaine and money in his bedroom. When they executed a search warrant, they found him there. It seems that they had good reason to use a "dynamic entry" - that is, they went in hard and fast.
After handcuffing him, the arresting officers didn't immediately explain his rights to him. Instead, according to a pre-arranged plan, they brought him to a central place where another officer got it done within 5 minutes of the initial entry.
Mr Noel said he wanted to talk to a lawyer. Instead of arranging it there and then, the officers took him back to the police station. On the way, Mr Noel told the officer that the drugs were his, and not his brother's. When they arrived at the police station, the officers did nothing about giving him access to counsel for three hours. I gather that nobody could actually say whether he ever got the access to which he was entitled.
The Court of Appeal threw out the evidence of the drugs and money. Mr Noel beat the charges.The judges made it clear that they wanted police officers to learn from this case.
What can we learn?
- When you arrest or detain someone, inform them of their right to counsel "promptly", and if they want a lawyer, give them access without delay.
- If you give the prisoner to another officer before performing either part of that duty, then tell the next officer that what needs to be done, so they can get it done promptly.
- The prisoner is like an exhibit - every officer who receives the prisoner needs to document how they did with him/her.
- If you plan to arrest or search, then you can plan what to do with the prisoners you may take in the process. That plan should include access to counsel.
2019.11.02 Chaos and Fundamentals - Keeping your Head when People Around you Lose Theirs
Shortly before Remembrance Day, the BC Supreme Court convicted the man who murdered Cst John Davidson, an officer who was executing his duty.
Before discussing the lessons one may draw from the trial, one can remember the officer, the man, and the respect he earned at such a price. I thank all officers who keep the peace in Canada, knowing the dangers.
A man went to a car dealership and test-drove a black Ford Mustang. He didn't return it. The action began in a mall parking lot where salesmen from the dealership found the vehicle parked in a stall. A salesman blocked it with a pickup truck. When a man turned up wanting to drive the Mustang, a salesman told him that police were coming. The man produced a rifle, and shot the pickup truck. He got in the Mustang, and tried to ram his way out. The Mustang then drove onto a sidewalk, and drove away.
Cst Davidson drove to the mall. He arrived at another part of the mall, in the parking lot. There, eyewitnesses heard shots fired. One of them saw an officer on the ground, and a man shoot him in the back. That man got into a black Mustang and drove away. It ended a short distance away where police arrested Mr Arfmann, 2019 BCSC 1618 after forcing his car off the road.
Police officers poured in to help.
According to some, the result was "chaos" at the scene of the arrest.
Six officers remembered the positioning of the rifle in Mr Arfmann's vehicle differently. About 7 different officers possessed it before it reached exhibits. This gave defence an opportunity to attack continuity. Was the gun in court the same gun as the one taken from Mr Arfmann?
Someone wisely gathered all the eyewitnesses at the mall. Unfortunately, gathered together and waiting, they started to talk among themselves about what they saw. One of them had taken a picture of the man who argued with the salesmen. Eyewitnesses who saw the shooting saw the photo. It got into social media.
You can do a lot of damage to an identity case by showing an eyewitness a single photo and asking "Was that the felon?" Later, in court, does the eyewitness now recognize the defendant as the shooter from seeing the shooting, or from seeing the photo?
As a result of this concern, the judge discounted much of the identification evidence of the eyewitnesses.
Nobody showed those eyewitnesses photo lineups. The first time that they formally identified the defendant was in the court room. Defence successfully persuaded the judge that this kind of identification is worthless.
Defence criticisms of the investigation did Mr Arfman no good. Forensic evidence and security video proved that Mr Arfman was the man, and that the rifle in his possession fired the bullets.
But we can learn from this investigation, regardless whether you investigate big cases or a little ones. The fundamentals at issue remain the same:
- Try to prevent witnesses from comparing their memories and discussing the details of the offence.
- If the eyewitnesses do not know the felon, assume that identification will be tested at trial.
- Avoid showing single photographs of the suspect to the witnesses. Run photo lineups instead.
- Minimize the number of people who handle exhibits. DNA makes great evidence, but it's very sensitive. Wear fresh gloves. Change gloves often.
- Anyone who handles an exhibit must make notes about what they did.
- Photograph early, photograph often.
2019.10.26 Reasonable Grounds - How Sure do you Need to Be?
Police officers watched Mr Glendinning, 2019 BCCA 365 stop his truck for brief interactions with two pedestrians. The officers knew that the first of the pedestrians used drugs, and was hanging around an area known for drug use. After the second interaction, the officers arrested Mr Glendinning. When they searched him they found drugs packaged for sale.
Mr Glendinning complained that the officers breached his rights. He said they acted without sufficient evidence to justify the arrest.
About a decade ago, the Criminal Code permitted officers to make breath demands when they had "reasonable and probable" grounds to believe they were too drunk to drive, but it authorized officers to arrest suspects when the officers had "reasonable grounds" to believe that the suspect committed a crime like drunk driving.
It looked silly. What was the difference between "reasonable grounds" and "reasonable and probable grounds"? Nobody knew.
Parliament fixed the problem by removing the words "and probable" from all the places where the legislation empowered officers to act on "reasonable grounds".
To arrest someone, you need "reasonable grounds".
The lawyer acting for Mr Glendinning asked the court to put those words back into the Criminal Code, and not just in the drunk driving sections, but everywhere. The judges refused.
But the idea raises a perennial question: "How sure does a police have to be before the officer can make an arrest?"
The court said at para 3:
In my opinion it is also well-established that “reasonable grounds” imports a test or standard that is lower than the standard of civil proof, or proof “on the balance of probabilities.”
That doesn't make any sense! How can officer to claim s/he "believes" in the guilt of the accused if the officer is only 40% sure? The standard of belief for a police officer must be more than 50%!
Actually, it does make sense. But only if I tell you the secret: There are two different decision-makers: judges and cops. For each there is a different standard. The court wrote the Glendinning decision for judges. The court did not answer the question "how sure must a police officer be?"
At the time that the cop exercises one of these powers, the officer must "believe" that the suspect is guilty. After the fact, the judge must determine whether it was reasonable for the officer to hold that belief.
In other words, the judge doesn't have to believe that the suspect is guilty even on a balance of probabilities. The judge needs to know you weren't just guessing, or relying on hunches, but acting reasonably at the time.
The astute officer will now realize that I have not answered the question "How sure do you have to be?" That astute officer is now saying "C'mon Henry, is it 50%, 75%, 99% or 100% sure?"
It depends. (Click for an explanation of "it depends".)
Okay. For those of you who clicked the button, here's what it depends on:
Specifically, your ability to articulate.
If acted on a hunch, then it doesn't matter how sure you are. Even 100% sure isn't good enough. The judge won't find your action reasonable.
If you can explain how your observations and experiences linked together so that the judge sees why it was logical for you to believe that the suspect was guilty, then "51% sure" is good enough.
Read the decision to see how these police officers satisfied the
court that they had "reasonable grounds".
2019.10.19 Search Warrants - Execution - Freezing the Scene
To freeze a scene pending the granting of a search warrant, you need reasons.
Using the name "Wayne Douglas", a man in his 60's used Facebook Messenger to communicate with poor children in the Philippines. He persuaded them to perform sexual acts for him on video, for money. He sometimes paid their mothers to participate. He often visited the Philippines, and promised to visit them, and have sex with them for money, if they retained their virginity for him.
Police suspected Wayne Douglas Brown, 2019 BCCA 346. They went to his place, and asked about him. A woman who lived there told police he was out at the A&W. The officers went there and arrested him. Then they returned and froze the residence until a search warrant could be obtained. Checking for people, they looked into his room and saw his laptop and an iPad.
They got a warrant, searched his place, and found lots of evidence that linked Mr Brown to the international luring.
Mr Brown complained that freezing the residence was a warrantless search, and that the officers lacked grounds in his case to do that. The trial judge agreed.
Usually, there are two justifications for clearing a residence of people before obtaining a warrant: safety of people or preservation of evidence.
At trial, an officer explained that both applied: He didn't want anyone to destroy the evidence on Mr Brown's electronic devices, and if they posted officers at the house, those officers might be endangered if there were unknown people in the residence.
The trial judge found those explanations too thin to justify this power of freezing the scene. There was little evidence from which to infer that someone would destroy evidence, and the only information known to police was that the woman was alone at the house.
The judges agreed that the police breached Mr Brown's rights of privacy by entering his house and his bedroom. In this case, however, they also agreed that the breach was pretty minor, and they allowed the evidence in. They had grounds to believe the place contained evidence; they got a warrant and executed it, searching the same places; and when applying for the warrant, they asked the justice of the peace not to rely on the information they obtained in the first search.
Lessons to draw from this case:
- Even if you have reasonable grounds to believe that a private place contains evidence, you do not have an automatic power to freeze the scene pending the granting of a warrant.
- You need reasons based on the evidence and information gathered during the investigation to believe that people or evidence are endangered.
- What you observe when freezing a scene, you need to disclose in your application for a warrant. But if your grounds for freezing the scene are thin, ask the justice not to rely on those observations in support of your application.
2019.10.10 Firearms - Tricky Definitions
The Criminal Code defines things in unintuitive ways. Even when you're pretty sure what it says, read the legislation again. For example, what is and isn't a "firearm" depends upon what the thing does, and which charge the defendant faces. eyre
Consider Mr Eyre, 2019 BCCA 333. When a judge sentenced him for robbery, the judge prohibited him from possessing both "firearms" and "prohibited devices".
After he got out of jail, Mr Eyre acquired a pellet gun which closely resembled a Beretta semi-automatic pistol. Police caught him with it.
Section 84(1) of the Criminal Code defines "prohibited devices" to include "replica firearms".
Because this pellet gun looked so much like a real firearm, the Crown prosecuted him for possessing a "replica firearm".
You might think that a pellet gun isn't a "firearm", because there's no "fire". But s.2 defines "firearm" to include barrelled weapons which discharge projectiles that are "capable of causing serious bodily injury or death". Therefore, a pellet gun can be a firearm if it discharges pellets with sufficient force to injure or kill people. Experts say that happens when the pellet gun can shoot projectiles at 65-75 m/s.
There's a catch.
For the purposes of many common gun charges, including s.91 (possession of a firearm without licence or authorization) or s.95 (possession of a loaded prohibited/restricted firearm), s.84(3) says a "firearm" isn't a "firearm" unless it shoots projectiles at 154.2 m/s.
A police expert examined Mr Eyre's pellet gun. He didn't measure the actual speed of the pellets it fired. He did research it, and concluded that it wasn't a "firearm" because it couldn't shoot pellets as fast as 154.2 m/s.
If Mr Eyre had been charged with one of the offences listed in s.84(3), the officer would have been correct. But the offence of possessing a prohibited device when prohibited (s.117.01) doesn't appear in that list.
Therefore, the judge really needed to know whether this thing could cause serious injury or death. Was the muzzle velocity above or below 65-75 m/s? The police expert report didn't say.
Because of that, Mr Eyre beat the charge of possessing a replica firearm. The judges saw that on the evidence before the court, it could have been a real firearm.
The court noticed that this result is absurd, because Mr Eyre was also prohibited from possessing real firearms. But he was charged specifically with possessing a replica firearm. The evidence failed to prove that specific offence.
This case offers lessons to lots of people.
Prosecutors faced with a similar situation should draft the charge to include both kinds of things: that Mr Eyre possessed a "firearm or a replica firearm" contrary to a prohibition made under the Criminal Code.
Gun experts who assess gun-like objects should give opinions which cover the field:
- It isn't a "firearm" because it can't cause injury or death (or because its muzzle velocity falls below 65-75 m/s).
- It is a "firearm" for the purposes of some Criminal Code offences because it can cause injury or death (or because it fires projectiles at or above 65-75 m/s)
- It is a "firearm" for all the Criminal Code offences because it fires projectiles at 154.2 m/s or faster.
Regular police officers who find people that possess gun-like objects should seek help in determining which charges apply.
Obviously, if Mr Eyre possessed the pellet gun, he was guilty. But he beat the charge. Who would I blame? The prosecutor? The expert?
I blame Parliament. I think that the weapons and firearms definitions in the Criminal Code need rewriting.
2019.10.10 Telewarrant - What to say if the Justice of the Peace calls
Discussing the contents of the ITO with the issuing judge or justice is a minefield. When it happens, take notes.
An officer applied by telewarrant to search the property of Mr DiBenedetto, 2019 ONCA 496 for a meth lab.
The first justice granted the application - but the officer couldn't execute it within the time it permitted.
The officer applied again, but the second justice denied the application - not enough evidence.
The officer corrected the ITO, added some information, and applied a third time. The third justice called the officer back asking which paragraphs in the ITO were new or different. Over the phone, the officer identified the differences. The third justice granted the application, and the officer took down the meth lab and busted Mr DiBenedetto.
At trial, defence attacked the telewarrant process. A justice must issue the warrant on the basis of sworn and recorded evidence. (Recording can be done on paper or by audio.) Although the ITO was properly documented and sworn, the phone call was neither on oath, nor recorded.
Fortunately, the ITO contained language which identified which parts of it were new or changed. The phone conversation was completely redundant, because what the officer told the justice over the phone was already stated in writing in the ITO. The warrant stood, the judge convicted Mr DiBenedetto, and he lost his appeal.
If you apply for a judicial authorization, and the judge or justice calls you to discuss your application, then:
- All additional evidence supporting (or undermining) the granting of the warrant must be on oath. If you discuss evidence that isn't in the ITO, then tell the judge or justice that you want to give this information on oath, on record.
- Administrative matters, such as what FAX number the judge should use to deliver the completed warrant/authorization don't need to be recorded or given on oath.
- Defence will assume that you discussed evidence with the judge or justice unless you can prove otherwise. Therefore, take lots of notes about the conversation - even if the conversation seems trivial.
And one more thing: the rule about oath and record applies to applications in person as well as telewarrants.
If you make multiple applications for a warrant, you might save yourself some grief by identifying in the later applications how they differ from the earlier ones.
2019.10.09 Keeping the Peace between Rival Protesters - Breach of
What tactical steps are appropriate when you police rival groups who want to protest in each others' faces? How much force should you use when stopping someone before violence erupts?
Mr Fleming, 2019 SCC 45 wanted to join a group of protestors. His path took him close to an opposing group. All alone, he carried a Canadian flag. He knew the flag would annoy the other group. So did the police watching the two groups.
Some of the opposing group started jogging toward Mr Fleming. Police figured that trouble was coming fast. Police officers got close to Mr Fleming and told him to back off. He kept going. An officer officer pulled him back over a fence and decided to arrest him to prevent a breach of the peace. Mr Fleming resisted and got hurt. He sued police for false arrest and interference with his Charter rights.
He won at trial. The Ontario Court of Appeal (Fleming) disagreed that the police did anything wrong. The Supreme Court of Canada unanimously restored the trial judge's verdict.
The majority of the Ontario Court of Appeal focused on the police duty to keep the peace, and concluded that the right to lawful protest ends at the point when it will cause violence or property damage to erupt.
The Supreme Court of Canada held that police "do not have the power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace".
Civil libertarians will relish the simplicity of this conclusion, because it limits police powers. Police officers who read the facts carefully will observe a fine line between civil liability for taking action, and civil liability for inaction. The members of the opposing group were 12-20 feet away when the officers first laid hands on Mr Fleming.
The Court of Appeal emphasized the history of violence between the two groups. The Supreme Court of Canada emphasized the lack of weapons in the hands of the approaching protestors, and the lack of verbal threats. They also pointed out that the police arrested Mr Fleming in order to prevent the other protestors from breaching the peace. There was no evidence that Mr Fleming intended to hurt anyone.
For the Supreme Court, the real problem was the arrest. At paragraph 19, they said:
"Where there are less invasive [ie restrictive of liberty] measures that would be effective in preventing the breach [ie violence from erupting], they must be taken instead." (my comments in square brackets)
What could the police have done to prevent violence without arresting Mr Fleming?
The judges did not say. Perhaps they would have been content if the officers had manhandled Mr Fleming away from the approaching danger, and then released him.
The ruling from the Supreme Court is pretty clear: don't arrest a protestor for breach of the peace if the protestor is neither acting unlawfully, nor about to commit a crime.
But they did observe (at paragraphs 93 & 94) that you can arrest people for obstructing peace officers in the execution of duty. If you take reasonable steps to prevent an impending breach of the peace, and a protestor resists you, then you may arrest the protestor for obstruction of a peace officer.
Because these situations often involve the right of freedom of expression, you should be trying to avoid arresting protestors except where the situation leaves you no reasonable alternatives. The steps you take to prevent violence from erupting must be "reasonable". The greater your proposed interference with freedom of movement or expression, the more compelling the evidence must be that you expect violence or property damage.
Mr Fleming's injuries arose from what appears to be manhandling during his arrest.
I feel silly saying the obvious: "when arresting and restraining difficult people, use tactics which allow you to do so safely without hurting them more than necessary in the circumstances." You were trained long ago. You know much more about these skills than me. But reading a case like this reminds one how fundamental those skills are. If your tactical skills have grown rusty, it would seem sensible to go for a refresher course.
2019-10-05 Tainting Witnesses - Telling One What Another Said
James Erickson answered a knock at his door. When he opened it, someone fired a shotgun at his chest, killing him.
After Mr Gallant's 2019 BCCA 193 girlfriend broke up with him, she told police that she knocked on the door, but Mr Gallant pulled the trigger. Afterwards, she and Mr Gallant visited Mr L.C. and told him what happened.
Like many of the civilian witnesses in the case, Mr Gallant's girlfriend used drugs. She sold them too. Her criminal lifestyle earned her a lengthy criminal record. To get her to agree to testify, the prosecution negotiated an immunity agreement for all past unprosecuted offences.
But that rendered her evidence less credible. Defence counsel argued to the jury: Of course she points the finger at Mr Gallant! For the sake of that immunity agreement, she'll say whatever the prosecution wants her to say!
Investigators spoke to Mr L.C., another drug dealer. To nobody's surprise, he didn't want to talk to police about it. The investigators played hardball. They told him he would be charged. They told him the girlfriend had told all, and even played a portion of her video-recorded statement. Mr T.T. cracked, and told police that Mr Gallant confessed to the shooting.
At trial, defence complained: Of course Mr L.C.'s version of events matched what the girlfriend said! Police told him and showed him what to say!
These are good arguments. If a witness or police officer tells the story to another witness, then the match between accounts appears to arise because of the conversations rather than their observations.
People close to a sensational crime often want to know more. Many experienced criminals gather information, because knowledge is power. When two scurrilous people tell the same story, it's hard to prove that they are describing their own experiences rather than reciting information that they learned from others.
Even if the crime is ordinary, take care to obtain independent accounts. Separate witnesses, and interview them alone. Don't let one listen to another. Don't play one witness's statement to another. Caution witnesses not to discuss the events with each other.
In this case, the jury convicted Mr Gallant, and the Court of Appeal upheld the conviction. What did these investigators do right?
The officer that interviewed Mr TT played only a short fragment of LC's statement. That fragment did not include important details of the offence. Even still, TT told the officers lots of details that matched LC's version.
Because the two stories matched so well, and because the prosecutor could show that the important parts of the stories were independent, the jury could rely on the testimony of these two scurrilous people.
2019-10-05 Drive-by Identification - Do you Recognize the Driver?
- Knowing versus Proving
Sometimes an eyewitness gets a fleeting glimpse of a felon. Sometimes that eyewitness is a police officer. Even then, fleeting glimpses don't make great evidence.
An officer used his car to block an accident scene. As the officer spoke to a tow-truck driver, a guy in a van drove through the accident scene. The officer yelled at the driver to stop, but he sped through at 50km/h, passing within 15' of the officer. The van crashed a short distance away.
By the time the officer caught up to it, all the occupants had fled. Inside the van, the officer found a wallet containing photo identification of Mr Bao, 2019 ONCA 458, and prescription medication in his name. The officer looked at the photo, and noticed a resemblance to the driver he had just seen: Asian guy with black hair. The van's engine caught fire, and so the officer removed property from it, including seven garbage bags of marijuana.
Possession of marijuana was still illegal then. Who possessed the marijuana?
A dogmaster followed a track from the van and found four Asian people - 3 men and one woman - hiding in bushes nearby. The van contained seating for 4 people.
Who possessed the marijuana? The trial judge thought Mr Bao did. The appeal court rejected that conclusion and acquitted him.
The judges remarked with particular interest on:
- Looking at the photo identification may have affected the officer's memory of the driver. He may have thought that the driver looked like Mr Bao because shortly after the driving, he concentrated on an image of Mr Bao. A photo lineup containing only one picture.
- The officer's opportunity to observe was fleeting. Courts generally distrust identification based on a "fleeting glimpse".
- The van contained seating for four people. The police dog found four Asian people hiding nearby. Not one was Mr Bao.
Doubtless, the investigating officer remains sure that he saw Mr Bao.
He may well be right. But the difference between believing and proving is the quality of the evidence. Fleeting glimpses aren't strong evidence. The wallet and medication strongly linked Mr Bao to the van at some time. But the appeal judges felt it left doubt that he drove it at the relevant time.
How could this prosecution have been made stronger? One idea that occurred to me was the value of photographing the other four Asians. Photographs might have shown that they looked so different from Mr Bao that the officer could not have been mistaken. Or if one of them closely resembled Mr Bao, his presence near the van would have made him the more probable suspect.
The lesson to learn from this investigation is not "always photograph every person". It's more general. In many police investigations, some evidence may lead you to a comfortable feeling that you now "know" the answer. Like the officer who saw Mr Bao's photo identification believed he knew who drove the car. But the difference between believing and proving is evidence. Have you gathered so much evidence that it will convince a skeptical judge?
Fleeting glimpses are weak evidence. They may cause you to feel that you "know" who committed the crime. But that's just a belief. By themselves, fleeting glimpses don't prove identity.
2019-09-17 24-hour prohibitions in British Columbia - Roadside or
British Columbia peace officers can now serve 24-hour prohibitions at the police station!
In British Columbia, section 215 of the Motor Vehicle Act empowers peace officers "at any time or place on a highway or industrial road" prohibit an impaired driver from driving for 24 hours.
Cst Malcolm gave Mr Evans, 2019 BCCA 317 a prohibition at the police station. Mr Evans complained to the court that the prohibition was illegal. Sure, Cst Malcolm had good reason to believe that Mr Evans was too high to drive a car, but Cst Malcolm didn't obey the legislation.
The first judge agreed with Mr Evans but not the appeal court.
The appeal court found that these prohibitions could be served at other places, so long as there is a "sufficiently strong connection to impaired driving on a highway or industrial road".
It's amazing how courts can decide that legislation means something different from what it says. But they did so for a very practical purpose. It's silly to restrict the service of these prohibitions to people on the highway.
If you make a breath or DRE demand, I suggest that you serve these 24-hour prohibitions at the police station.
Because you also have an obligation to get the testing done "as soon as practicable". Don't delay that testing at the roadside, filling forms. Get the testing done promptly, and fill forms later.
2019-09-17 Cell phone data - Was the Cell Phone working properly?
Sometimes felons communicate about their crimes with friends or family by text messages. Those text messages can convict the felons.
But the rules of evidence differ when you dig those messages out of other people's cell phones.
That's what happened in the case of Mr S.H., 2019 ONCA 669. Police raided a house and found Mr S.H., a younger person C.H., drugs and a cell phone. Under the authority of a warrant, officers searched the cell phone.
It contained lots of messages which tended to show that S.H. was involved in drug dealing. But the messages also suggested that the phone belonged to his son.
Under s. 31.3 of the Canada Evidence Act, it's easier to get the court to accept electronic documents that belong to the defendant than electronic documents that belong to someone else.
For documents that belong to someone other than the defendant, the prosecution must prove that the electronic documents system was operating properly, or that any problems with it did not change the information stored in it.
Lots of you now know how to download electronic data from cell phones. When you do, make sure that you will be able to tell the judge that the cell phone's data appeared to be stored without any damage or change from the original.
In this case, the court looked at the text message history, and saw coherent conversations. The officer who downloaded the data testified that it appeared to be in good working order. That sufficed.
So those of you who know how to download cell phone data, you need to examine the data, and testify whether the phone was working, or whether the data in it appeared to be intact. It's not a high threshold, and you won't need to meet it in every case. But it's a good habit to get into.
Check your Celebrite systems. Do they detect problems with cell phone data integrity?
You can bet that defence will point to a crack in the cell phone screen and say "It's broken. Therefore the data in it is not admissible." When you analyze a cell phone with a smashed screen, investigate whether the electronics inside still work properly.
2019-09-07 DNA & DNA transfer - Arrest and exhibit handling
Experts will say that when you arrest a suspect and seize exhibits, you may transfer DNA from the suspect to the exhibits ... unless you take steps to prevent contamination, like changing gloves often.
After several convenience store robberies and burglaries, police focussed on catching Mr Franklin. They caught him, and his buddy, Mr Aikman, 2019 BCCA 312. Surveillance officers watching Franklin's house saw Mr Aikman load two sports bags into a taxi. Both men (and a woman) rode in the taxi to a mall parking lot, where police arrested Mr Franklin, but merely detained Mr Aikman. They looked in the bags and found loaded firearms and useful evidence.
This was a complicated investigation involving evidence from several scenes, and security video from a variety of sources. I imagine that the officers and prosecutors spent considerable time collecting and cross-referencing it all.
Because the culprits wore masks, identification came from little things, like the clothing that the suspects wore when arrested. In this case, the arresting officers had trouble saying just what clothing Mr Aikman was wearing on arrest. That's a common problem. Taking a few photos of the suspect, even at scene, can sometimes solve problems later.
Examination of the firearms found the littlest things - the DNA of the two suspects. But how did it get there? The excitement of arrest (and it was exciting) may have distracted these officers from careful forensic techniques when they handled exhibits.
The experts testified that the officers could have put Mr Aikman's DNA on the gun. Oops.
Change your gloves often. Try not to let exhibits contaminate each other.
It looks to me like there were many more lessons to be learned from this investigation. Mr Aikman challenged the officers' right to search the bags. It wasn't a search incidental to arrest: unlike his buddy Franklin, Aikman wasn't arrested. It wasn't a safety search - everyone was under control.
Because it ordered a new trial, the court declined to give a full analysis of the police exercise of powers in this case. After reading the case, what do you think?
2019-08-14 Bill C-75 Changes - Strangulation as a Specific kind of Assault
Starting September 19, 2019, s.267(c) of the Criminal Code will specifically address assault by strangulation, suffocation or choking.
This legislation forms part of a broader movement in western nations
to identify and address this problem. For example, here an American
website which advocates for greater attention to the problem.
After prosecuting thousands of domestic violence cases, I think the amendment is a good idea. The science suggests that strangling an adversary is a high-risk activity: a victim can die faster than the assailant expected. I find that the complaint of strangling by an intimate partner tends to reveal a troubled psychology in the aggressor.
Unfortunately, I find strangulation cases are often under-investigated. The first-responder often sees the victim so soon after the strangulation that the injuries do not yet show. In those cases, photographs taken at the scene tend to undermine her complaint, unless supplemented by follow-up photos.
I did have a recent strangulation case in which the first responder stayed with the complainant from scene to hospital. The officer documented how the victim's injuries developed over the hours that she spent with the victim. This proved invaluable at trial: The victim recanted, and alleged that the bruising arose from a hiking accident several days earlier. The officer's observations - and evidence from a fine E.R. doctor - helped turn a hopeless case into a conviction.
The doctor told us that strangulation can cause death in minutes. According to the advocates, it can inflict injuries which cause delayed symptoms - even delayed death. Just because your victim is upright and talking after the strangulation doesn't mean she's healthy.
A word of caution. Don't go overboard.
Social movements to cure injustices are necessary to change culture; but they are prone to excess. For example, in the 1990's, I saw a wave of enthusiasm to investigate historical sexual offences, and bring the offenders to justice. Some people "recovered" their memories of long-forgotten abuse. Research suggested that such memories could be unreliable.
On the question of strangulation, it's probably a good idea to assume that you don't know enough yet. Let the advocates educate you on the science. I found useful material on the Americal Website. Take it seriously, but beware of excess. Investigate thoroughly, but objectively.
2019-08-09 Bill C-75 Changes - Search warrants
One of the last things that the Liberal government did before calling an election was to pass "Bill C-75". It amends the Criminal Code in many ways, including:
Search warrant backing orders;
Police and judicial release of prisoners
Breaches of bail
Summary conviction offences - the limitation period will be 12 months, not 6, and the maximum penalty will rise to 2 years less a day.
Indictable offences punishable by 10 years or less become hybrid offences. (Watch out, s.495(2) just got more important.)
Ordinarily, I recommend that officers read legislation, but C-75 is pretty turgid. I applaud those of you who tackle it. I hope to find or create something more understandable, and I'll let you know what I find.
It has over 400 sections. I'm still figuring it out. Here are some early observations.
Starting on September 19, 2019 you no longer require backing orders for:
- search warrants under s.487,
- general warrants under s.487.01,
- assistance orders under s.487.02,
- DNA orders under s.487.05,
- impression warrants under s.487.092
- tracking warrants under s.492.1
- contraband mineral warrants under s.395
- transmission data recorder warrants under s.492.2
- drug warrant - CDSA s.11
- Wiretap authorizations pursuant to 184.2 & 184.3 (1 party consent), 186 (regular wire) or 188 (emergency authorization).
- Cannabis Act s.87
Curiously, it seems you will still need backing orders for Feeney warrants (s.529.1).
You never could get backing warrants for the following, and you still can't now:
- Blood warrant under s.320.29
- Firearms warrant under s.117.04
- Special purpose offences: obscenity (164), voyeurism, obscenity and child porn (164.1), hate propaganda (320 & 320.1), gambling (199)
2019-08-05 The Ugly Background - Avoiding Hearsay
It's not a police officer's job to know the many exceptions to the legal rules around hearsay. But whenever a lawyer asks an officer to tell a judge about an investigation, a clever police witness will hesitate before telling the court what another person told him or her.
Various people told police that Mr LeBlanc 2018 NBCA 65 transported drugs into Moncton. A drug section investigated. Another unit was already investigating him for proceeds of crime. The drug officers applied for a tracking warrant for a motorhome that they suspected Mr LeBlanc used for moving the drugs.
Data from the tracking device showed that the motorhome made trips to Montreal with very brief stays. Observations of the motorhome suggested that it was indeed transporting drugs.
The police stopped the motorhome and searched it. Inside, they found Mr Leblanc driving, and a passenger, Mr Bujold. Mr Bojuld pleaded guilty but refused to testify at Mr LeBlanc's trial.
Mr Leblanc chose to be tried by a jury.
At that trial, the prosecutor asked the investigating officer to explain how the officer got a tracking warrant.
The officer explained to the jury that:
- he received information from various people that Mr Leblanc was involved in trafficking, and where this was being done,
- Mr Leblanc was under investigation for suspicious financial transactions,
- he asked the judge for the tracking warrant, and the judge granted it.
Depending upon what issue the lawyers are contesting, this evidence could be completely proper and admissible. But not in this case. The only issue before the jury was whether the defendant was guilty of possessing the drugs for the purposes of trafficking. This evidence was essentially hearsay: "police officers and confidential sources say that this guy makes his money trafficking drugs."
Be very wary of talking about the background information you had, especially in front of a jury.
This case appears to have gone wrong when the prosecutor asked the officer to expand on the background.
All too often, police officers volunteer hearsay, usually because they worry that they need to justify their actions.
|Q: How did you come to be involved in this investigation?
A: Dispatch told me that the defendant assaulted Ms Pummelt
|Q: How did you come to be involved in this investigation?
A: Dispatch sent me to 123 Main Street to investigate a domestic violence complaint.
|What the dispatcher knew about the event is double-hearsay. But you can say what you knew - that you were investigating a domestic violence complaint.|
|Q: When you found Mr Fisticuffs, what did you do?
A: Because Ms Pummelt told me that he beat her up, I arrested him.
|Q: When you found Mr Fisticuffs, what did you do?
A: I arrested him.
A: Information I received from Ms Pummelt led me to believe that I had grounds. Would you like me to tell you what I saw, and what she told me?
|The first question asks what you did. Don't explain why
until someone asks you, or you need to justify your actions.
The smart witness checks before launching into all the hearsay information
A good officer can always justify his or her actions. A smart witness doesn't launch into the justification until it's needed.
2019-07-19 Not Dead Yet
To my faithful readers, I apologise. I've been buried in a trial for the last month, and I'm taking a holiday. I'll be writing again soon.
The Inconvenient Right to Counsel
A justice granted a warrant to search a house that contained a grow operation. While police searched it, Ms Do, 2019 ONCA 482 turned up, with a key to the house. An officer arrested her. She asked to speak with a lawyer. The officers kept her at the scene while they finished their search, and then transported her to a police station. She spoke with a lawyer 3 hours later.
This breached her right to retain and instruct counsel without delay.
At the trial, defence asked the judge to exclude all of the evidence.
Although the judges admitted the evidence, they did so only because this was an anomaly rather than a pattern of police behaviour.
Don't make a habit of delaying a prisoner's access to counsel.
2019-06-12 Arbitrary Detention - Finding a Fuzzy Line
In Le, 2019 SCC 34 and Omar, 2019 SCC 32, the trial judges, the appeal judges and the judges of the Supreme Court of Canada reached conflicting views about when police interaction with a citizen triggers a "detention", and what judges should do about the arbitrary detentions in those cases.
One of those judges, Brown J.A., specifically commented on the fuzziness of the line between "interaction" and "detention".
You need a clear line. Let's look for it.
You won't find it in the basic facts; but you need those basic facts for context.
Mr Omar, 2019 SCC 32, was not a big man, but he walked a city street at 1:00am with large man. A police cruiser pulled up. The officers asked the men to approach, and started asking questions. The two officers got out of the cruiser. One officer asked for identification. The other received the identification and started checking on the computer in the cruiser. Mr Omar kept putting his hands in his pockets, even when the one officer asked him not to. Then the officer saw a handgun in Mr Omar's pocket. The officer tackled Mr Omar and arrested him. The gun was loaded, and Mr Omar also possessed a bag of cocaine. The interaction took less than 5 minutes.
Mr Le, 2019 SCC 34, stood in the back yard of a townhouse at 10:40pm, talking with three other guys. A footpath led along the back of the townhouses. A low fence surrounded this back yard. An open gap without a gate permitted people to enter. Three police officers approached the young men and started asking questions. One of the officers hopped the fence. Mr Le, who carried a satchel, angled his body away from the officers, so that the satchel was behind him. An officer asked him what the bag contained. Mr Le fled. An officer chased him. After a significant struggle, police found that he carried a loaded handgun and 13g of cocaine. The interaction took less than a minute.
In both cases, the judges generally agreed that even before tackling Mr Omar or asking Mr Le what the bag contained, the officers' actions triggered "detentions" within the meaning of the Charter. The judges generally agreed on the law:
- Even without touching a person you can "detain" them, if your words and actions would cause a reasonable person to believe that they are not free to leave. This "reasonable person" is not expected to know the law of police powers.
- Mere conversation does not detain but words which coerce or interrogate may.
- The judges try to put themselves in the position of the person, and assess how they would feel if they were that person, in that place, with police approaching them and speaking to them in that situation.
What were the factors which made these interactions "detentions"?
|Location||Public street||Private property|
|Duration||Less than 5 minutes||Less than a minute|
|Officers||1 tall officer on street; 1 officer in car||2 and then 3 officers in a small back yard|
|Defendant's group||1 short black guy, 1 tall black guy||1 small Asian, 4 black guys|
|Questions||Can I see your identification?
“What are you doing here?”
“What are you up to?”
“Where do you live?”
“You guys work?”
“You guys go to school?”
“How did you get to Windsor?”
|How are you guys doing?
What's going on?
Who are you?
Do any of you live here?
Can I see your identification?
|Directions||Repeated directions to Omar to keep his hands out of his pockets||A direction to someone else:
"Put your hands in front of you"
Or a yelled command:
"Keep your hands where I can see them"
|Officer's actions||When they first approached, the officers shone a very bright
"alley light" on Omar and the other man as they walked.
While one officer asked questions, the other ran queries on the computer database.
|Officers trespassed by walking into the enclosed area without
invitation, and without explanation. They could have spoken to
the defendant's group without entering the back yard.
When the first two officers walked in, the third officer walked the perimeter, and then stepped over the fence to join the group.
|Effect on defendant||Defendant felt scared.||Defendant initially felt he could leave if he wanted.|
Le - race relations - avoidable problems
The last line is interesting. The test is not what the defendant actually felt, but what a reasonable person in the defendant's position would have felt. Thus, Mr Le's admission in court that he didn't feel detained when the police first stepped into the yard didn't help the prosecution. Instead, the majority of the judges in the Supreme Court of Canada focussed on the general experience of visible minorities in poor neighborhoods: too much unjustified police intervention in their lives.
I think that the problems in the Le case were avoidable. By stepping into the small fenced patch of land behind a townhouse, the officers were trespassing. By walking in without invitation, they gave the impression that they were in charge and in control. If all they wanted to do was talk, they could have done so from outside the fence.
I suspect that's what offended the majority of the judges in the Supreme Court of Canada. In a rich white neighborhood, you wouldn't barge into someone's back yard uninvited. Treating poor people with coloured skin with less respect perpetuates mistrust of police.
Trespassing put Mr Le in a different tactical situation that Mr Omar. At law, both Mr Omar and Mr Le were free to go. Mr Omar could keep walking down the street, away from the officers. But where could Mr Le go? He was already in a private back yard.
I think the biggest lesson from the judges in Le is a demand that police treat poor people with respect.
Omar - tactical challenges
The conclusion in the Omar case poses tactical problems for police.
To be effective in discovering drugs and guns on the streets, you need to talk with people in the worst neighborhoods, at the worst times of the night.
To be safe when doing that, officers take precautions like:
- shining bright lights into dark places,
- asking people to keep their hands in view,
- positioning themselves with back-up to ensure tactical superiority.
By putting yourself in a position of control, you make reasonable people people feel like you are in control.
In Omar, three judges in the Supreme Court of Canada suggested that during such street checks or other similar conversations, you could give control back by saying words that make it clear to the target that he does not have to answer questions and that he is free to go. Those were the same three judges who gave the majority decision in Le.
Saying such words will likely reduce your effectiveness during each individual interactions on the street. These judges believe that the respect you show will pay dividends in the long-term. If the poor feel that police respect them, then the poor will cooperate with police over the long-term.
2019-05-20 Reasonable Grounds - Relying on Databases
Most people don't like being arrested. Some of them tell you that you have no right to arrest them. To do your job, you must develop a thick skin, and a clear understanding of your powers.
That does not mean you can ignore every objection.
Mr Gerson-Foster, 2019 ONCA 405 got bail. He persuaded his sister to go surety for him. After several months, his sister no longer trusted him to behave lawfully. She asked the court to remove her obligation. That meant Mr Gerson-Foster no longer had bail. The court issued a warrant for his arrest.
Mr Gerson-Foster must be a persuasive guy. He persuaded his mother to go surety for him instead. He voluntarily attended the court house, and the judge changed his bail documents.
But someone forgot to remove the warrant from the CPIC database.
A month later, officers found Mr Gerson-Foster and arrested him because of the warrant. He told the officers that the warrant was cancelled. The officers didn't check any further than CPIC.
His sister was right. Mr Gerson-Foster was misbehaving. The officers found lots of drugs on his person, for which they laid new charges.
At trial for the drug charges, Mr Gerson-Foster challenged the lawfulness of the arrest: the warrant was no good, and because of that the police should never have arrested him, and they shouldn't have searched him. He asked that all the drug evidence be thrown out. He didn't persuade the trial judge, but he did convince the appeal court.
This doesn't mean you must release every prisoner that claims that your arrest is unlawful. Indeed, Paciocco J.A. specifically remarked:
an arresting officer is not required to believe what an accused person says, and I appreciate that an arresting officer may “disregard information which the officer has reason to believe may be unreliable”
But if the prisoner tells you information that could reasonably be true, you ought to look into it.
2019-05-13 Reasonable Grounds - Believing and Knowing
The difference between belief and proof is evidence.
An Ontario detective received a Crime-Stoppers tip that Mr Chioros, 2019 ONCA 388 dealt lots of cocaine. The tipster said that parked in his driveway were a Harley, a Mustang and an Audi.
Two weeks later, the detective went there and saw the Audi. but not the other cars. The officer watched Mr Chioros. Three weeks after the tip, he saw Mr Chioros driving with Mr Daniels. The detective remembered Daniels from high school. At high school, Daniels had a reputation as a drug dealer. Confidential sources also told the detective that Daniels was a drug dealer. The detective saw Chioros and Daniels go to an apartment building. A guy who recently had a problem with a drug dealer showed up there, stayed for a short time, and then left. The next day, when police watched Mr Chioros, he drove in a manner consistent with trying to shake people watching him. Later that day, he went to an apartment building which contained 150 units. An anonymous tipster had previously told police that another drug-dealer stashed his drugs there. Mr Chioros emerged an hour later carrying a bag full of something.
In early November, the officer saw Mr Chioros in the company of yet another known drug dealer.
A few days later, Mr Chioros went to the 150-unit building. An hour later, he emerged carrying another bag. They arrested him and found lots of cocaine and marijuana.
The defence complained that the police lacked reasonable grounds to believe that Mr Chioros possessed drugs. The appeal court agreed, and threw out the evidence.
What went wrong?
- The first tip (Chioros deals drugs) was uncorroborated, and partly wrong (no Harley, no Mustang).
- The information about Daniels was hearsay, and uncorroborated.
- The information about the drug stash in the 150-unit building was uncorroborated. Even if it was true, the the officer lacked any evidence that Mr Chioros went to the one apartment that contained drugs.
If you start with the assumption that the first tip was true, then all the remaining incidents look highly suspicious. But if you start with the assumption that the first tip was false, it's easy to explain away the remaining events as minor coincidences, and not strongly probative.
I observed the judges used the phrase a "known drug dealer".
Avoid using the phrase "X is known to be a ....".
It fails to answer the question "how do you know it?". Try instead, to complete the sentence "I believe X to be a ... because____". If you fill in the blank with "... an anonymous and uncorroborated tipster said so", then you haven't got very strong grounds for that belief.
2019-05-15 B.C. Only - Tele-Information for Provincial Offences
*** 2019.05.18 Edit: I'm sorry. I later corrected this post. It's not as interesting as I thought. I moved too quickly when I first wrote it. - HW ***
Today, section 13.1 of the B.C. Offence Act came into force:
13.1 (1) A peace officer may lay an information by any means of
telecommunication that produces a writing.
(2) A peace officer who uses a means of telecommunication for the purpose of laying an information must, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the peace officer's knowledge and belief, and such a statement is deemed to be a statement made under oath.
See s.7 of the 2018 Miscellaneous Statutes Amendment Act (No. 3) (Bill 36)
2019-05-04 Voluntariness - Interview Tactics
I'll bet it took police officers in Alberta considerable time to prepare their interview of Cory Lavallee, 2018 ABCA 328.
Somebody shot Donnie Brown in the face. Four people could have done it. Cory was one of them.
Investigators had to work carefully. Cory associated with criminal gangs. Interviewing him wouldn't be easy.
The officers recorded Lavallee's mother and his sisters urging him to confess. They hung pictures of his daughter on the walls. Mr A.M., one of the four, sought police protection and cooperated. They arranged for A.M. to talk to Lavallee during the interview. They arranged for Mr Lavallee's girlfriend to attend the interview room, and urge him to tell the police the truth.
Cory confessed: "[Y]eah, I shot Donnie. I'm sorry for shooting Donnie. Right. I am."
Defence urged the trial judge to exclude the evidence. All this pressure could have convinced Cory to confess falsely.
The judges disagreed. The police and their agents - A.M., the girlfriend, the recordings of his family - everyone used moral suasion. They told him to do the right thing. Tell the truth. None suggested that court or the judge or the prosecutor or the police would treat him better if he confessed.
As I reviewed the facts, I saw many ways this could have gone wrong. Indeed, A.M. made a remark which could possibly have meant "take the fall for this, or else gang members will come after you".
I presume that the rest of Mr A.M.'s remarks dispelled this concern. The judge's weren't worried about it.
- make or use statements which suggest that the suspect "must" confess, regardless of the truth.
- prepare for the interview
- appeal to moral reasons for confessing: "it's the right thing to do."
- control what the accused's friends and relatives say to your suspect - they are your agents, and are subject to the same rules as you.
2019-05-04 Voyeurism - Terms of Engagement between Intimate Partners
Mr Trinchi, 2019 ONCA 356 had a long-distance girlfriend. He lived in Toronto; she lived in Thunder Bay.
Rarely did they see each other in person, so they spent lots of time on Skype. Sometimes she posed nude for him in provocative poses. He didn't tell her that he was taking screenshots.
When their relationship broke down, someone sent those screenshots by email to her friends and colleagues.
Distressed and embarrassed, she complained to police.
Charges of voyeurism and transmitting intimate images followed.
He beat the charge of transmitting intimate images. His lawyer elicited evidence at trial that maybe a different (vindictive) girlfriend used his computer and sent the pictures.
But the voyeurism charge stuck.
This decision is interesting for a legal point. Voyeurism occurs when the victim has a reasonable expectation of privacy, and the defendant "surreptitiously" observes or records her.
This victim's expectation of privacy was limited. She knew that Mr Trinchi was watching; indeed, she wanted him to see her nakedness.
But once he started taking screen shots without her knowledge, he committed a crime. She didn't pose for the world, just him. She didn't intend him to take pictures, and he knew it. That's why the voyeurism charge stuck.
This decision is interesting for a practical point: people can do interesting things to each other with cell phones these days.
I wondered whether a more complete investigation could have determined whether he or the vindictive girlfriend actually sent those nasty emails. The story at trial was more interesting than the summary given at the appeal. It's a tale of infidelity, jealousy, and devious cellphone technology. This was probably a difficult investigation and a difficult prosecution. I can't tell from the trial decision if there were investigative steps the officers should have taken; but you might find it useful to know about the existence of "Mobile Spy".